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Australian Law Reform Commission - Reform Journal |
Reform Issue 75 Spring 1999
This article appeared on pages 36 – 40 of the original journal.
Immigration detention: a question of human rights
Australia’s Migration Act requires the Department of Immigration and Multicultural Affairs to detain anyone found in Australia or in the ‘migration zone’ without valid documentation.
‘Unauthorised arrivals’ by boat or air are held, pending determination of their claims to stay (if any are made) and removal arrangements, principally in one of four immigration detention centres. In 1998-99, 926 boat arrivals were detained compared with 157 in 1997-98 and 356 in 1996-97.
Human Rights Commissioner Chris Sidoti says Australia’s policy of mandatory detention of most unauthorised arrivals breaches international human rights standards.
In 1996, after receiving 58 complaints against the Department of Immigration and Multicultural Affairs (DIMA), the Human Rights and Equal Opportunity Commission (HREOC) instigated an inquiry into Australia’s policy of mandatory detention of unauthorised arrivals. HREOC also considered the treatment of detainees and the conditions in detention centres. The Commission was concerned that sections of the Migration Act 1958 (Cth) may be in breach of Australia’s human rights obligations.
One of HREOC’s functions is to examine Australian legislation to determine whether it violates human rights and, if so, to report to the federal parliament with recommendations for reform. The preliminary report of the examination of the Migration Act, Preliminary Report on the Detention Boat People, was tabled in November 1997. The findings and recommendations were incorporated into the final report of the inquiry, Those who’ve come across the seas: detention of unauthorised arrivals, tabled in May 1998.
The final report concluded, among other things, that conditions of detention are inadequate and in violation of human rights when people, especially children and other vulnerable people, are detained for prolonged periods.
Detention centres
Most unauthorised arrivals are detained at the Port Hedland Immigration Reception and Processing Centre in remote Western Australia. It is the largest of the immigration detention centres with a capacity of about 700. At the end of June this year, 635 people were held there.
Boat arrivals are held in segregation, or ‘separation detention’, at Port Hedland while their reasons for coming to Australia are assessed and health and quarantine checks are completed. Those in separation detention cannot contact any detainee in the rest of the centre or anyone in the Australian community. Separation detention can last as long as six months.
Villawood in Sydney was a migrant hostel and the current population is predominantly visitor visa over-stayers. It is, in fact, two separate detention centres - Stage One (now called Acacia) and Stage Two (Banksia). Stage One resembles a large police lockup or watch house and has a high security rating. With an intended capacity of 70, Stage One now regularly accommodates in excess of 90 male detainees. Stage Two, though with substantial perimeter fencing and regular vehicle patrols, superficially resembles a series of apartment blocks with large grassed areas. Stage Two has capacity for about 200 people including men, women and children.
The centre at Perth airport has a capacity of about 40 people and that at Maribyrnong in Melbourne can accommodate up to about 80, including families and single women.
Unauthorised arrivals cannot challenge their detention in the courts, and only very narrow categories are eligible to apply for release on a bridging visa pending determination of their status.
Detention and international law
The Convention Relating to the Status of Refugees (Refugee Convention) does not prevent the use of detention for asylum seekers during the process of assessment. However, it only permits detention that is ‘necessary’ and the rights of the person under the International Covenant on Civil and Political Rights (ICCPR) must be fully respected at all times.
Article 9.1 of the ICCPR guarantees the right of everyone to liberty. There are, of course, occasions on which a state deprives a person of his or her liberty. The ICCPR does not prohibit this. However, any deprivation of liberty must be on grounds and in accordance with procedures established by law. That is, the detention must be lawful. In addition, the detention must not be arbitrary. This rule recognises that countries sometimes enact laws or implement them in ways that are arbitrary. Article 9.1 provides, in part, that “no one shall be subjected to arbitrary arrest or detention”.
This right, according to the United Nations Human Rights Committee (UNHRC) in its 1982 General Comment No 8 on Article 9, extends to “all deprivations of liberty, whether in criminal cases, or in other cases such as ... immigration control”.
The Convention on the Rights of the Child (CROC) similarly protects children from arbitrary deprivation of liberty. Article 37(b) provides, in part, that “no child shall be deprived of his or her liberty unlawfully or arbitrarily”. In addition, the detention of a child is to be used only as a measure of last resort and, when it is used, only for the shortest appropriate period of time (Article 37(b)). In assessing what would be an appropriate period, the decision maker must take into account the best interests of the child (Article 3.1).
Arbitrariness
The term ‘arbitrary’ includes not only actions that are unlawful per se but also those which are unjust or unreasonable, even if lawful. In 1990, in the case of Alphen v The Netherlands1 the Human Rights Committee stated:
“The drafting history of Article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence, or the recurrence of crime.”
The question of whether a particular restriction on liberty is necessary and reasonable, or arbitrary for the purposes of the ICCPR, is not a matter of purely subjective judgment. The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights.2
In a recent decision on a communication complaining of the prolonged detention of an asylum seeker by Australia, the Human Rights Committee considered whether prolonged mandatory detention pending determination of refugee status was ‘arbitrary’ within the meaning of article 9.1. Australia sought to justify the prolonged detention on the basis that the complainant entered Australia unlawfully and may have absconded if not detained. However, the Committee concluded:
“... detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the State Party has not advanced any grounds particular to the author’s case, which would justify his continued detention ... The Committee therefore concludes that the author’s detention ... was arbitrary within the meaning of Article 9, paragraph 1.”3
The average duration of detention is dropping in Australia. However, this does not resolve the human rights problem. The Human Rights Committee’s comments raise questions about the validity of all but a very brief period of detention in most cases. And even though the average duration is dropping, some people are still detained for lengthy periods. One family, including two young children, has been detained at Port Hedland for more than four years. There is no justification whatsoever for this.
International law requires Australia to ensure ‘aliens’ enjoy human rights, including freedom from arbitrary detention. Whether detention is ordered by the parliament, the executive or the courts, it will be arbitrary unless reasonable, necessary and proportionate.
Necessity & Proportionality
In considering what would be a proportionate response to unauthorised arrivals, Australia must take into account its specific international obligations to them. The Refugee Convention prevents States Parties unnecessarily restricting the movement of asylum seekers (Article 31.2). Some asylum seekers will have no choice but to flee their countries before applying through the proper channels, appearing in a country of asylum as illegal entrants. The Convention prohibits states from penalising people in this situation, provided they present themselves directly to the authorities and show good cause why their entry was illegal (Article 31.1).
Detention of unauthorised arrivals may amount to a penalty contrary to the Convention. It may also be difficult to justify as necessary, as required by the Convention. If so, the detention will be arbitrary contrary to ICCPR Article 9.1 and CROC Article 37(b).
Executive Committee
The Executive Committee of the High Commissioner [for Refugees] Programme issues authoritative interpretative statements (Conclusions) on the meaning of the Refugee Convention and Protocol. Executive Committee Conclusion No 44, Detention of Refugees and Asylum Seekers (1986) (ExComm Conclusion 44) elaborates the circumstances that may make it necessary to detain asylum seekers. Where the detention of asylum seekers is deemed to be necessary it should only be used:
• to verify identity;
• to determine the elements on which the claim for refugee status or asylum is based;
• to deal with cases where asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents to mislead the authorities of the State in which they intend to claim asylum; or
• to protect national security and public order.
In elaborating ExComm Conclusion 44, the UNHCR stated that the detention of asylum seekers should not be automatic or unduly prolonged. For example, in determining the elements on which a claim to refugee status is based, individuals should only be detained if necessary to undergo a preliminary interview. The detention of a person for the entire duration of a prolonged asylum procedure is not justified.
In relation to asylum seekers using fraudulent documents or travelling with no documents at all, the Conclusion recognises that detention is permissible only where there is an intention to mislead the authorities. Asylum seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.
The Executive Committee also:
“ ... recognised the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum seekers from unjustified or unduly prolonged detention [and] ... stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum seekers and that of other aliens.”
Australia’s policy of detention of asylum seekers is automatic and mandatory and applies to almost all unauthorised arrivals until their claim for protection is determined finally. It goes well beyond what ExComm Conclusion 44 deems ‘necessary’ for the purposes of compliance with the Refugee Convention, CROC and the ICCPR.
UNHCR Guidelines
The UNHCR has produced a set of Guidelines on Detention of Asylum Seekers (the Guidelines) to assist governments in developing and implementing detention policies and practices. These Guidelines apply to all asylum seekers who are in detention or in detention-like situations. They apply to all persons who are confined within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory. The Guidelines, therefore, are relevant to the operation of Australia’s immigration detention centres.
The Guidelines, like ExComm Conclusion 44, state that the right to liberty is a fundamental right, recognised in all the major human rights instruments, both at global and regional levels, and that therefore “the detention of asylum-seekers is in the view of UNHCR inherently undesirable”. The Guidelines state that detention is especially undesirable for vulnerable people “such as single women, children, unaccompanied minors and those with special medical or psychological needs”. They conclude that:
“Freedom from arbitrary detention is a fundamental human right, and the use of detention is in many instances, contrary to the norms and principles of international law.”
The Guidelines make it clear that asylum seekers should be detained only as a last resort on exceptional grounds. If exceptional grounds exist, then detention must be clearly prescribed by a national law that conforms to general norms and principles of international human rights law.
The Guidelines affirm that the only permissible grounds for detention are the four grounds provided in ExComm Conclusion 44. Detention of asylum seekers for any other purpose, “for example, as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law”.
The Guidelines state that detention must be reasonable and proportionate to meet the standard set out by ICCPR Article 9.1.
“In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved. If judged necessary it should only be imposed in a non-discriminatory manner for a minimal period.”
Even so detention should be exceptional, a last resort after all possible alternatives to detention have been exhausted.
“Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case.”
The Government’s Response
In June this year the Minister for Immigration and Multicultural Affairs tabled the government’s response to HREOC’s May 1998 report. The government said it “supports the recognition of the right to liberty” and “agrees that no-one should be subjected to arbitrary detention”. The government advised the parliament that:
“The Chief General Counsel of the Australian Government Solicitor has advised that detention of asylum seekers is not in principle an infringement of Australia’s human rights obligations...”
The government does not accept that the aims of detention set out in ExComm Conclusion 44 and in the HREOC report (recommendation 3.2) are the only legitimate factors justifying detention.
As is well known, Australia’s practice has bipartisan support. It is, unfortunately, now being noticed by other nations, including New Zealand and the United Kingdom, as a potentially desirable model.
Canada, on the other hand, offers an alternative to universal detention. Immigrants and refugees are only detained when they are in violation of the Immigration Act by failing to appear for a hearing or committing a crime. Immigration detention averages eight days. A detailed alternative to detention was proposed by the Commission in its May 1998 report (chapter 16) involving the creation of a hierarchy of community release categories.
The government’s response cited the views of the Joint Standing Committee on Migration: the Committee had “questioned the ability of care and welfare groups to provide adequately for detainees” and was “concerned that the chance of people breaching conditions of release and absconding was significant”. In conclusion: “The government has no plans to alter its policy of mandatory detention”.
Endnotes
1. Communication No 305/1988
2. In A v Australia, Communication No 560/1993, the Committee stated that “remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context”. Views of the Human Rights Committee, 30 April 1997: UN Doc CCPR/C/59/D/560/1993.
3. Ibid.
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