When, exactly, as a society, did we decide that locking people up indefinitely was OK? Like, forever, without reasonable prospect of release? Even those who have served full sentences, or who have not even been convicted of a crime?

It’s shocking to realise how complacent we have become about this practice.

For those who may have missed it: the High Court determined last week, in a case called NZYQ, that it was not legal to hold people in detention indefinitely. We do not yet have the full judgment, but we do know that it overturned a 2004 ruling that non-citizens who don’t have visas could be detained for an unspecified period, as long as the government intended to remove them as soon as “reasonably practicable”.

Credit: Simon Letch

For many, the time of removal never came.

High Court Chief Justice Stephen Gageler declared: “by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future … the plaintiff’s detention was unlawful … [and] the plaintiff’s continued detention is unlawful.”

The individual at the centre of this case is entirely unsympathetic, which makes it a true test of our commitment to the rule of law and universal human rights. He is a man who raped a 10-year-old boy. Though the government had refused him a visa, it had been unable to deport him or return him to Myanmar, as a member of the persecuted Rohingya.

What is at question here is not the horror of this crime. That’s beyond dispute. At question is how much further he can be punished – having served a sentence for his crime – because he is not an Australian citizen. Indefinitely? What do we do with him now? Does our court system not work for the stateless? Does a jail term not have the desired effect on those who the former policeman Peter Dutton has been calling “hardened criminals” if they happen to come from another country?

What is also at question is whether those who were not even convicted of a crime can be kept locked up indefinitely. A judgment without trial?