Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 is a decision of the High Court of Australia regarding the detention of asylum seekers in Australia. A 6-1 majority of the Court (Justice Michael Kirby dissenting) held that even if the conditions of immigration detention are harsh, such conditions do not render the detention unlawful.
Contents
Background
Maharani Behrooz, an Iranian national, was being held in the Woomera Detention Centre pending determination of his application for refugee status. In November 2001, Behrooz was one of six men that escaped the detention centre. Following his capture, he was charged with escaping detention along with two of the other men. At the criminal trial, the three defendants defended the charge on the basis that conditions at the centre were so harsh that they were punitive, thus making the detention unlawful and the escape lawful.
Original Application
To support the claim that the detention was harsh and therefore unlawful, the defendants sought to summons a large amount of documentary material that would evidence the conditions at the centre. In January 2002, the Port Augusta Magistrates Court issued summonses to produce evidence to the two companies responsible for running the detention centre and to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). DIMIA and the companies applied to the Magistrates Court for the summonses to be set aside. The Commonwealth Attorney-General intervened in the application and argued that producing all of the material sought was "oppresive", and that the summons was an abuse of process as the documents sought could not help establish a defence to the charge of escape. The magistrate rejected the Attorney-General's argument and refused to set aside the summonses, but narrowed their scope to the period in which at least one of the defendants was detained at the centre.