Amy Nethery presents ‘Immigration Detention, Punishment, the Constitution, and a Bill of Rights’
Immigration detention is a form of administrative detention. The constitution allows the executive to detain non-citizens for administrative purposes, but it places one limit on this detention: it must not be punitive. Yet many former detainees argue that their experience of detention was in fact punitive. A number of cases have been brought before the High Court, challenging the constitutionality of immigration detention on these grounds. To date, these challenges have been unsuccessful. That immigration detention is not punitive has become a legal fiction at the foundation of bipartisan detention policies. This talk will examine the legal fiction that immigration detention is not punitive, and the many detainees’ claims to the contrary. Why should we care about the subjective experiences of detainees? Should we dismiss their experiences, as the High Court has done, or can we use them to further our understanding of immigration detention? And what does all this have to do with a Bill of Rights?
Amy Nethery is an Alfred Deakin Postdoctoral Fellow in the Centre for Citizenship and Globalisation. As well as her work on immigration detention, she conducts research into Australian asylum and migration policies, asylum seeker pathways in the Asia-Pacific region, and histories and theories of incarceration. In essence, Amy is interested in what restricting migration and asylum means for Australia as a liberal democracy.
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