The inexorable expansion of executive detention in Australia: the case for law reform

Over the past two decades, the incidence of executive detention under Australia’s mandatory immigration detention regime has escalated dramatically. Detainees – who have not committed any crime nor been sentenced to periods of imprisonment by a court of law – do not have a generally accessible right to challenge their detention on the basis that they are lawfully in Australia. Furthermore, detainees do not have a right to challenge the findings of an adverse security assessment before a court or tribunal. This lack of external review of detention is at serious odds with the review mechanisms available to people detained under other types of executive detention. This thesis proposes statutory change to enable merits review of executive immigration detention by the Commonwealth Administrative Appeals Tribunal’s Migration and Refugee Division. Efficient and accessible merits review would ensure that these significant determinations are reviewed in a rigorous and accountable way to avoid another wrongful detention of the type experienced by Cornelia Rau.