The legal issue of indefinite detention has been the subject of debate recently. This mash – up seeks to bring together a collection of information about indefinite detention in Australia.
The decision to detain an individual has the effect of depriving that individual of his or her liberty, and should be subjected to rigorous scrutiny according to rule of law principles, such as access to justice, the right to a fair trial, the prohibition of torture and inhuman and degrading treatment and the right to liberty and security.
Justine Stefanelli from the Bingham Centre of the Rule of Law and Alexander O’Reilly from the University of Adelaide recently published a article on the issue of arbitrary detention and the rule of law:
The decision by the High Court of Australia in Plaintiff S4-2014 v Minister for Immigration and Border Protection  HCA 34 (11 September 2014) has set limits on the government’s powers under the Migration Act 1958 in relation to immigration detention.
Patrick Emerton writes about this case in a blog for the Castan Centre for Human Rights Law entitled ‘The High Court reminds us that immigration detention is not simply at the government’s pleasure‘. Joyce Chia of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW writes here about the constitutional elements of the case.
Detention without Trial
With the support of the Rule of Law Institute, the Australian Centre for Independent Journalism at the University of Technology Sydney, produced a program for ABC Radio’s National Background Briefing entitled ‘The Disturbing Case of Patient A‘. Discussed are the rights of forensic patients to challenge their imprisonment, and to be identified in the media – the fact that the identity of these patients cannot be published is to protect them, but also limits scrutiny of their detention.
In Western Australia attention has focused on the indefinite detention of Indigenous people with mental health issues under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA).
‘Jason’s’ case has been raised by Western Australian disability advocates as an example of this issue. Jason, a 25 year old Indigenous man, has been detained for 11 years in prison without a trial after causing a motor vehicle accident when he was 14 years old.
The detention without trial in Western Australia of intellectually impaired Indigenous woman Rosie Fulton for driving offences led to 120,000 people signing a petition arguing for her release back to her home in the Northern Territory. Jason and Ms Fulton’s case raise significant issues with regard to the incarceration of people with intellectual disabilities, ABC News has pursued this issue and has stated that ‘dozens of intellectually disabled Aboriginal people are being kept in prison because of a lack of proper healthcare facilities‘. An academic at the University of Melbourne, Bernadette McSherry, also discusses the legal landscape in her article ‘Unfit to plead’: hy does the law jail those with intellectual disabilities indefinitely?. A similar case to those above came to light in 2011, and was covered by the ABC’s Law Report.
Continued and Preventive Detention
Preventive and indefinite detention of sex offenders in Queensland has been discussed in a number of recent cases.
The Hon Kevin Lindgren AM QC provides an overview of the case law about preventive detention and discusses the Fardon and Kable cases and the central issue of the separation of powers in government, as well as the institutional integrity required of courts required by the Australian Constitution.
Barrister Peter Bridgman discusses the constitutionality of the Queensland laws in this article and prominent Queensland barrister Tony Morris has advised the Queensland Government to change the laws to deal with sex offenders to be the similar to those used to detain those with a serious mental illness.
A recent High Court decision in Pollentine v Bleijie  HCA 30 has found that s 18 of the Criminal Law Amendment Act 1945 (Qld) which allows for the detention of sex offenders after the expiration of their sentence was valid and did not affect the institutional integrity of the court because the judge retains their discretion in sentencing. Martin Clark in a blog for Melbourne Law School highlights the key legal issues in the judgement.