The federal government faces a High Court challenge to its power to keep Sri Lankan mother-of-three Ranjini and more than 50 other refugees deemed security risks by ASIO in detention indefinitely.
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The challenge will argue the detention is not authorised under existing laws and is unconstitutional because the courts, not the government, have exclusive power to detain people indefinitely.
While a previous case succeeded when the court ruled a regulation justifying detention was invalid, this case will address the issue in a far broader way, with potentially profound implications for others being held indefinitely without facing court.
The 33-year-old Sri Lankan has been in detention since she received an adverse ASIO assessment in May last year, several months after she was found to have a well-founded fear of persecution if she returned to Sri Lanka.
Ranjini arrived on a boat at Christmas Island in March 2010 with her two young sons after fleeing her home country several years earlier, after her husband was killed in Sri Lanka's civil war.
She met another Tamil, Ganesh, while in community detention in Queensland and they married last year, before ASIO made its assessment. She discovered she was pregnant two days after being taken to the Villawood family detention complex 13 months ago and has been there since.
''She's never been accused of breaking any law, and she's never had a chance to defend herself against the secret security assessment in court. She has never been charged, tried or convicted,'' lawyer David Manne said on Friday.
''The detention of Ranjini has resulted in her three children living in detention so that they can be with their mum. It has caused Ranjini, her boys and her husband profound distress and harm.''
Mr Manne said he has witnessed the ''severe suffering'' of Ranjini and the boys since their detention began. Ganesh is able to visit during visiting hours, but is not allowed inside her accommodation. The boys, who have been granted protection visas, have trouble sleeping and are old enough to understand they are in detention.
Last month, the retired judge Margaret Stone upheld ASIO's security assessment of Ranjini, but a failure so far to provide an unclassified summary of reasons for her decision is compounding Ranjini's anguish, Mr Manne said.
After last year's High Court decision struck down a regulation justifying indefinite detention, Ms Stone was asked to review the ASIO assessments of those deemed threats by ASIO. So far, two have had their assessments lifted and three have had the assessments reaffirmed.
Those in the process are given only an unclassified summary of the ASIO case against them.
The new court case will revisit the High Court's 2004 decision that upheld by a 4-3 majority the detention of a stateless Palestinian, Ahmed al-Kateb.
It will also argue that those with adverse ASIO assessments are in a different situation to Mr al-Kateb because they are refugees who are owed protection by Australia, while Mr al-Kateb, as a stateless person, was not. For the first time, it will also test whether indefinite detention determined by the executive, as opposed to the courts, is constitutional.
No date has been set for a directions hearing.
