On April 15, the full bench of the Federal Court found that the government has limited powers to detain asylum seekers, and cannot detain them indefinitely as they await deportation.

The court found that, in order to conform with Australia's obligations under the International Covenant on Civil and Political Rights, mandatory detention cannot be considered lawful if “there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention”.

Chief Justice Michael Black and judges Mark Weinberg and Ross Sundberg unanimously upheld the al Masri decision of fellow Federal Court judge Ron Merkel.

Arriving in Australia in 2001, Palestinian Akram al Masri was refused refugee status and failed in his appeal against the decision. He immediately applied to be returned to the Gaza Strip, but the Israeli government refused to allow him to return. The neighbouring countries of Syria, Egypt and Jordan also refused to grant him a visa, resulting in his continued detention at Woomera in South Australia.

Three months later, Merkel ordered al Masri be released until his deportation could be arranged. Merkel found that the courts can review the detention of asylum seekers who have requested to be returned, but who the government is unable to return (either to their country of origin or a third country).

Al Masri has since returned to the Gaza Strip, but the government appealed Merkel’s decision in order to avoid a precedent that could affect its detention of hundreds of other asylum seekers.

The April 15 Herald Sun quoted al Masri’s lawyer, Jim Douglas, as saying: “This is a decision that could have constitutional implications ... I know of at least 100 detainees who would be affected by it and who knows how many others there are.”

Jeremy Moore from the Woomera Lawyers Group welcomed the decision, telling ABC News on April 15 that the government “can't just lock up people and throw away the key”.

Because of the decision, Federal Court Justice Arthur Emmett ordered the release of six detainees on April 17. The solicitor representing the asylum seekers, Alexis Goodstone, told the April 17 Australian: “The detainees, most of whom have been in detention for over four years, will be spending their first night out of detention with friends, relatives and community supporters.”

Two Iraqis released from Baxter detention centre weren't so lucky. Apparently they had simply been dumped on the streets of Port Augusta by immigration department staff on April 17. In an April 18 media release, Jack Smit from Project SafeCom said it was “by chance they were found by a refugee advocate and a reporter of one of Australia's main newspapers”. The advocates successfully lobbied families in Port Augusta to offer shelter to the asylum seekers on April 18.

From Green Left Weekly, April 23, 2003.
Visit the Green Left Weekly home page.

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