Supreme Court of NSW declares detention of Indonesian children unlawful

Our Principal Solicitor, Deo Indevar, was an instructing solicitor in a successful case in the Supreme Court of NSW, brought on behalf of 2 Indonesian children who were arrested and remanded in adult custody at MRRC for 4 months.

The Court in deciding for the Plaintiffs made new law in accepting that the children were entitled to their ‘residual liberty’.

Here’s a summary of the decision

A copy of  SU & BS v Commonwealth & Anor can be found here.

The concept of ‘residual liberty’ was previously considered in the UK House of Lords, where it was stated that a person being held in one particular form of lawful detention shall not be held in a different form of detention unless that second detention is lawfully justified.

The Court in that case considered the hypothetical situation where a person is lawfully held in prison and their cellmate further imprisons them within the confines of their cell. It was stated that this second confinement would constitute a ‘prison within a prison’ and as such would be unlawful.

We argued by analogy that s189 of the Migration Act does not allow the government to hold immigration detainees wherever they please and that holding immigration detainees in a prison changes the nature of their detention from immigration detention to criminal detention, which infringes their ‘residual liberty’. This argument was accepted.

In an era where so many human rights abuses go unquestioned, it is reassuring to see the Courts uphold our most fundamental right,  the right to liberty.