Sarah Stephen

The seven judges of the High Court’s full bench ruled unanimously on April 29 that the Family Court did not have the authority to release children from immigration detention or make orders about their welfare.

Constitutional lawyer George Williams told ABC Radio’s PM on April 29 that the central issue of whether it is legal for children to be detained remains undecided. “The High Court was very careful to say this was not a case about whether this is legal or not. It was a case instead about whether the court had jurisdiction to hear it... the issue centred upon whether the Family Court is able to make orders against third parties, not people who are parents, but third parties like the minister for immigration, and the court said it can’t.”

The children have been under the care of Catholic welfare agency Centacare in Adelaide since the Family Court ordered their release from detention on August 25 last year. Their mother and baby brother have been detained at a nearby motel unit for the past nine months, while their father remains in the Baxter detention centre.

Following the High Court’s decision, the children’s lawyer, Jeremy Moore, applied for an injunction to keep them in community care. However, government lawyers had already placed a detention order on the children, turning their current residence into a temporary detention facility.

“Why are we even fighting this issue in the courts?” asked Dianne Hiles, spokesperson for ChilOut, in an April 29 media release. “No child should be kept in detention, that’s not a legal issue, that’s plain common sense and decency.

“ChilOut calls on all decent-minded Australians to protest against the indefinite imprisonment of innocent children in the name of `border protection’.”

From Green Left Weekly, May 5, 2004.
Visit the Green Left Weekly home page.

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