by Isabelle Reinecke. Published in Crikey.com. 

There's a reason our constitution leaves it to judges, not politicians, to put people in jail for crimes — they aren’t driven by external pressures such as media commentary, populism or political gamesmanship.

Since the High Court ruled that Australia’s indefinite detention regime is unconstitutional, the news has been awash with stories about two recently released detainees who failed to adhere to new rules about life outside of detention, including 24-hour requirements to wear ankle-bracelet trackers.

While there is speculation that these people were never told about the new rules, we haven’t heard much about the sound reasons why it might be difficult for people to adhere to them even if they are told. At Grata Fund, a public interest organisation that helps people and communities access the courts, we see up close the dilemmas many face.

To understand why such restraints may not work and even breach human rights, we merely need to look at the detainees’ lives and why they sought protection in Australia. In my career as a lawyer and advocate, I have supported detainees whose social justice cases — some of the worst in the country — outline extremely distressing and difficult journeys.

One resonant example is Yasir*, who sought protection in Australia in 2013 and has been in detention for 10 years. Like so many, Yasir was handcuffed and tortured in his country of exile, which left him with severe post-traumatic stress disorder (PTSD) and other health problems. This means that when he is restrained with handcuffs he experiences seizures due to a normal PTSD response to the abuse he endured — the abuse that led him to seek asylum in Australia. Like all Home Affairs detainees, Yasir was routinely and compulsorily handcuffed for transportation or medical appointments, against the urging of his doctors. He ultimately stopped receiving vital medical treatment so that he could avoid being unnecessarily restrained.

Yasir bravely stood up against this punitive practice for himself and others trapped in detention, with the assistance of the Public Interest Advocacy Centre and funding from Grata. He took on Border Force in court to demand the end of the traumatic and inhumane use of handcuffs and restraints against asylum seekers and refugees in detention. After a three-year legal battle, he recently settled the case and he is no longer handcuffed.

Legal requirements need to be based on principles and the reality of people’s lived experience and capacity, not driven by heated political moments that disregard the effects of policies on living, breathing people. The harmful use of restraints on people in immigration detention has long been condemned by medical professionals and human rights experts. Thankfully Yasir’s case has emboldened doctors to tell immigration detention operators to release detainees from restraints when seeking medical treatment.

Like Yasir, many of those who have been recently released and who pose no threat to the community can experience harrowing PTSD when forced to wear restraints such as ankle bracelets. They are forced to choose between reliving their horrific experiences 24 hours a day by complying with the new directives, or protecting their mental health and well-being by breaching the orders. 

Another story is Sam’s*, who brought a case challenging the now infamous and overturned High Court ruling Al-Kateb v Godwin that had allowed politicians to indefinitely detain people in Australia, with the assistance of pro-bono law firm Human Rights for All.

Sam does not know where he was born, suspecting he was taken to Western Sahara as a newborn. As an infant, he was trafficked by child sexual abuse networks throughout numerous countries. Eventually he fell in with criminal gangs in Europe. Wanting to escape this life and to get as far away as he could imagine, he made his way through refugee camps to arrive by boat in Australia. 

The then-immigration minister agreed Sam was a genuine refugee, but the government policy regarding refugees who arrived in Australia by boat meant he was never to be settled into the community. By the time of his case, he had languished in detention for nine years. Deeply traumatised, he was unable to provide a consistent timeline of his life.

Despite extensive investigations, the immigration minister failed to establish Sam’s country of origin or to find another country willing to accept him, so he couldn’t be deported. It meant that, so long as the minister wanted, Sam would be held in detention for the rest of his life. Almost 10 years after Sam brought his case, the relevant minister changed with the election of the Albanese government and he was finally released in 2023. He had been in detention for almost 20 years.

It is people like Sam who are being released after the High Court’s finding that it is not within the power of the executive — government politicians — to detain people indefinitely. Wherever the new policy lands, it must be grounded in constitutional principle. The judiciary alone — not politicians — is responsible in our democracy for doling out punishment and incarceration.

There’s a reason that our constitution leaves it to judges, not politicians, to put people in jail for crimes. Judges are concerned with facts and legal principles; they aren’t driven by external pressures such as media commentary, populism or political gamesmanship.

Much of the debate about the release and the restraints seems to confuse our criminal justice system and our constitutional legal system. Detainees who have previously served criminal sentences are a red herring for community safety. None of us is completely safe when our governments wield unconstitutional power and politicians can send people to prison for the rest of their lives. 

New policy also needs to be humane. The current climate of fearmongering and hyperbole on this issue ignores the reality of the lives of most of the people released from detention, and what more we’re asking them to endure.

Most of the more than 140 released detainees pose no threat to the community. We should be offering them a fair, fighting chance to rebuild their lives.

*Yasir’s and Sam’s names have been changed to protect their privacy.