Overlooked Harms: Indefinite Detention and the Australian High Court Decision

Guest post by Samantha O’Donnell and Lorena Rivas. Samantha O’Donnell is a PhD candidate in criminology at the University of Melbourne, researching precarity, family violence and immigration law in Australia. She is concurrently a research assistant at RMIT, and also has experience teaching Criminal Law & Procedure at the University of Melbourne Law School. Dr Lorena Rivas is a research fellow in the Griffith Criminology Institute at Griffith University, and also a co-convenor of the ANZSOC Crimmigration and Border Control thematic group. This post is part of a series by members of the Australian and New Zealand Society of Criminology's thematic group on Crimmigration and Border Control, covering the latest High Court of Australia's decision that indefinite immigration detention is unlawful. You can see other projects being undertaken by group members on the ANZSOC_Borders webpage which is now included on the Border Criminologies website. 

In early November the Australian High Court ruled the indefinite detention of individuals who had no prospect of deportation to be unlawful. This ruling led to the release of around 140 people from Australian immigration detention into the community, but also garnered significant attention from the Australian community and both sides of government. This decision resulted in legislation being quickly passed to allow for these individuals to be subject to further arbitrary and punitive measures in the form of ankle bracelets and curfews. The government has also introduced legislation to preventively re-detain those people who have already been released. The legality of both measures has already been called into question. Whilst the release of these individuals is a step in the right direction, and a further 200 people may have similar claims for release, their sustained release is highly uncertain. Additionally, there is still a large cohort who will remain in detention regardless of how this decision is interpreted.

Overlooked Harms

We suggest that understanding this decision in isolation from the broader migration system results in other harms being overlooked. We first consider the harms pertaining to people who will be left behind in detention regardless of this decision. We then consider the harms enacted through the migration system more broadly. These overlooked harms extend to all people impacted by the violence of the migration system, however, we will draw on the particular example of gendered violence to evidence our claims.  

As of August 2023, there were 1338 people held in Australian immigration detention, 559 of whom had been detained for 2 years or longer. However the cases of these 559 people are not exceptional, as the average length of detention in Australia is over 2 years at 708 days. This figure has increased more than eightfold over the past decade from an average detention length of 81 days in June 2013. There is an overwhelming emphasis placed on security and ensuring that these individuals do not abscond into the wider community, even if it means detaining people for years on end. However, this focus on security comes at a cost. That is, the needs and indeed lives of those who are detained are ignored and consequently no action is taken to address the violence of the conditions within which they are held.

The harms of immigration detention are well documented, with research noting the impact of immigration detention on the physical and mental wellbeing of people held in these facilities. Most of the cohort in detention are men, and consequently most of the focus in this research has been on them. However, women have distinctive experiences of detention and tend to have poorer physical and mental health than men. This distinction also extends to their experiences of gendered violence, with women experiencing high rates of abuse and assault, especially intimate partner violence. Immigration detention is a pressure-cooker environment that is shaped by stress, control (or lack of), and structurally-created vulnerability, in turn creating a fertile ground for interpersonal violence, including gendered violence. Women are ultimately isolated, cut off from support and unable to report due to fear of consequences, and the continuing use of immigration detention results in the ongoing victimisation of women, who are trapped and powerless to change their circumstances.

The harms of Australia's migration system also extend beyond immigration detention. Taking the same example of gendered violence, the author Samantha O’Donnell’s current research explores the intersecting ways in which immigration law and policy in Australia more broadly dismisses, newly-creates and reinforces harm for migrant and refugee women who are victim-survivors of family violence. This work builds on existing research by scholars, including Ana Borges Jelinic, Marie Segrave and Stefani Vasil, who explore the structural impact of precarity on how family violence is experienced by migrant women. We, the authors of this blog post, in our own research projects have also separately found that immigration detention, visa cancellations and deportations have secondary and harmful impacts on women who are victim-survivors of family violence, even when they themselves are not detained.

Punitive Consequences

In light of the gendered impacts of the migration system, it is interesting to consider how the High Court decision has been framed by politicians as antithetical to safety. For example, some of the offences that are referred to are those that have specific impacts on women and children, including sexual and family violence. The use of women and children to bolster punitive migration policies is not new, see for example Adele Murdolo and Jordana Silverstein. However, these framings suggest that these forms of harm only happen elsewhere, and work to hide the violence that is occurring within the Australian context. This year alone there have already been 49 women killed in Australia by violence. We suggest that careful attention must be paid to how these sorts of policies will actually impact women and children. As the author Lorena Rivas outlines, immigration detention has particularly harmful impacts for detained women and so intersects with the ‘structural violence’ they experience.

The impact of these framings is profound, not only do they work to further obscure the overlooked harms that we have described, but they also bolster support for a punitive and reactionary governmental approach. This impact is clearly shown by the already mentioned emergency legislation introduced in response to the High Court decision with bipartisan support, and the legislation around preventive detention and re-detaining those released. This legislation is framed in support of ‘community safety’ but excludes migrants from this framing, and so works to reify an imagined national community. In so doing, the legislation obscures the findings and reports that not everyone in detention has been convicted of a criminal offence, including among the cohort impacted by this decision, and many that have been convicted appear to have already served their sentences.

A Border Criminology Framing

The High Court decision is an important one, and ongoing analysis of the legal implications now the   judgment has been released is critical. Yet the decision also draws into light questions raised by border criminologists around how understandings of punishment are reconceptualised within a migration context, see for example Mary Bosworth and Katja Franko. We suggest that there must be consideration of the wider harms that are enacted more broadly through the Australian migration system. Immigration detention will remain open, many of the broader harms of the immigration system will remain, and so too will the gendered consequences of these policies. In considering the implications of this decision there must also be ongoing and continued attention on any use of immigration detention, regardless of the length-of-time, and so we echo calls for its abolition. By engaging a border criminology framing, we begin to understand the harms that will continue to play out within the migration system, even following this High Court decision.