After ruling on November 8 that indefinite immigration detention is unlawful, the High Court today delivered its reasons for the decision that upturned 20 years of precedent. Its ruling has required the release of some 140 people from immigration detention so far, and set off a political scramble to legislate in response to the outcome.
The judgment, the first made by the court under new Chief Justice Stephen Gageler, was unanimous. It largely turned on questions of constitutional law and the limits of executive power.
The court made it clear that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future. Previously, there was no limit to the length of time people could be detained in immigration detention in Australian law. In fact, people could legally be detained for the rest of their lives without ever being found guilty of a crime.
