Immigration detention
Statutory definition
Section 5(1) of the Migration Act 1958 (Cth) defines immigration detention as:
(a) being in the company of, and restrained by, an officer or a person who is an officer for the purposes of s 189; or
(b) being held by, or on behalf of, an officer in a place (including a place outside Australia) that is used for the detention of persons under the Act.
Explanation
Immigration detention is the mechanism by which the Commonwealth holds non-citizens who are subject to the mandatory detention provisions of the Migration Act. It is distinct from criminal detention — it is an administrative measure, not a punishment.
There are several forms of immigration detention in practice:
- Immigration detention centres (IDCs) — secure facilities operated by a private contractor on behalf of the Department of Home Affairs (currently Serco)
- Residential housing projects — less secure community-based accommodation, used for families and vulnerable persons
- Community detention — the Minister may allow a person in immigration detention to reside in the community under a residence determination (s 197AB); the person remains "in detention" in law but is not held in a facility
- Hotel and alternative detention — used in exceptional circumstances
The mandatory detention obligation under s 189 requires an officer who knows or reasonably suspects a person is an unlawful non-citizen in the migration zone to detain that person. There is no discretion — detention is compulsory until the person is either granted a visa or removed.
How this term is used
Section 196 provides that a person held in immigration detention must be kept in detention until: (a) they are removed from Australia; (b) they are deported; or (c) a visa is granted to them. This provision was the basis of the indefinite detention held lawful in Al-Kateb v Godwin (2004) 219 CLR 562.
Immigration detention has been the subject of extensive litigation in the High Court, particularly in relation to Chapter III of the Constitution. In NZYQ v Minister for Immigration (2023) 97 ALJR 1007, the High Court held that indefinite detention where removal is not reasonably practicable in the foreseeable future is constitutionally invalid, overruling Al-Kateb. This decision required the release of a number of long-term detainees.
The duration of immigration detention is not prescribed by statute — a person may be held until they are granted a visa or until removal is effected, subject to the constitutional constraints established in NZYQ.