TRANSCRIPT:
In 2020, asylum seeker Farhad Bandesh was released from immigration detention, seven and a half years after fleeing Iran.
He made a passionate plea then for the government to end mandatory detention.
"They have the right to be here. They deserve to be with you people. They are humans, like you."
Mandatory detention applies to anyone who arrives in Australia without a valid visa.
Rachel Saravanamuthu from Melbourne's Asylum Seeker Resource Centre says they must be held until they're granted a visa or removed from the country.
"There are a number of detention centres located around Australia... There are also people held in what's known as community detention where they are residing in the community however still under detention-like conditions. They don't necessarily have freedom of movement to live where they would like in Australia... There are also people that continue to be held offshore in Papua New Guinea and Nauru."
She says the number of people affected by mandatory detention rules is significant.
"The latest figures that I have are that 1,056 people are being held in closed detention, and just under 300 people are being held in community detention in Australia."
Australia introduced mandatory detention legislation in 1992, days before a court case brought by Cambodian refugees who had arrived in Western Australia by boat in 1989 as they fled the aftermath of the Cambodian–Vietnamese War.
The idea that immigration detention could be indefinite was entrenched by a High Court decision in 2004.
According to official figures released by the Department of Home Affairs, the average stint is 708 days - but Josephine Langbien from the Human Rights Law Centre says in practice, it's often much longer than that.
"There are, as we speak, over 100 people who have been locked up for longer than five years. There are people in detention who have been there for over a decade... There are many people in immigration detention in Australia who are stateless or are refugees, for example, and so they simply can't be taken to another country. They have nowhere else to go. And so they have spent years upon years in detention, and the government has provided no solution and no pathway to freedom for those people."
The Human Rights Law Centre and a range of refugee advocacy groups say the length of time being spent in immigration detention is compounded by what they've described as inhumane conditions, with abuse and a lack of access to medical treatment rife.
Rachel Saravanamuthu says that has a terrible impact on those within the system.
"As you can imagine, that has profound impacts on people's mental health, particularly where they're separated from families without knowing when they'll be reunited again."
So far neither major party has seemed willing to change the status quo.
Mandatory detention and the wider issue of border control has become a linchpin in domestic politics, perhaps most famously characterised by John Howard's hardline speech on boat arrivals before the 2001 election.
"It is also about having an uncompromising view about the fundamental right of this country to protect its borders... We have a proud record of welcoming people from 140 different nations. But we will decide who comes to this country and the circumstances in which they come."
The Department of Home Affairs says immigration detention in Australia is "administrative not punitive" and helps to manage the country's "temporary entry and permanent migration programs".
It also says that the "length and conditions of immigration detention are subject to regular internal and external review".
Still, advocates have continued to push for reform, both of border control policies and of the practice of mandatory detention.
Independent MP Kylea Tink is among them.
"The very hard truth for any Australian to hear or accept is there are literally tens and thousands of women, children and men whose lives have been fundamentally destroyed because of the interaction they've had with our asylum seeker policies... We have children who were born in detention centres, who know nothing other than detention, and they've been held there because our government mandated that that would be so."
Now there's a major legal pushback on the horizon.
This month, the High Court will hear a challenge brought by a person who uses the pseudonym N-Z-Y-Q, with the Human Rights Law Centre and the Kaldor Centre for International Refugee Law also joining the case.
The Law Centre's Josephine Langbien will be there.
"The Human Rights Law Centre and the Kaldor Centre for International Refugee Law have jointly been granted leave to appear at the hearing as amici curiae, which means friend of the court. So we are not representing the plaintiff but we are supporting his arguments and seeking to extend those arguments... This case is asking the High Court to revisit that seminal decision from 2004 when the High Court previously decided that indefinite detention was lawful. This case is revisiting that and arguing that it is actually unlawful and unconstitutional for the government to continue to lock someone up in these circumstances."
Josephine Langbien says the case could have profound implications.
"For the plaintiff at the centre of this case it could mean his liberty. After five years in immigration detention he could have the chance to return to the community and get on with his life... The decision could have far-reaching consequences beyond just this individual plaintiff. The decision could force the Australian government to reconsider whether it's lawful or even necessary to keep people detained and potentially force the government to find other solutions."
The hearing begins in the High Court on the 7th of November.
