Immigration detention in Australia: the constitutional incompatibility of the Migration Act’s definition and its practical implications

This article examines the constitutional validity of s 5(1) of the Migration Act 1958 (Cth), which includes prisons and remand centres as facilities for immigration detention. It argues that this statutory definition is arguably unconstitutional because it conflates the non-punitive purpose of immigration detention with the inherently punitive nature of imprisonment. The article further explores the High Court’s jurisprudence on the matter, the principles of punitive and non-punitive detention, and the implications for the rule of law and individual rights.