New Internationalist

Detained forever, without knowing why

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© Matt Golding

The United Nations has condemned Australia’s treatment of asylum-seekers over and over again. Without a bill of rights, there are inadequate restraints on Australian governments, and without the intermediate stratum of a regional court of human rights in the Asia-Pacific, there is no place to go but straight to the top.

Perhaps this is why Australia has the world’s 4th-highest rate of adverse decisions from the UN treaty-monitoring bodies on individual human rights complaints. And more than half of these have concerned arbitrary detention.

Mandatory detention of certain asylum-seekers was introduced by the Labor government in 1992 and persists today, with a string of unredeeming variations introduced by both major political parties along the way. But the practice remains a form of arbitrary detention, as well as a cruel, inhuman and degrading treatment, and denies victims access to the courts – all clear violations of international human rights law (as demonstrated by the landmark UN case of A v Australia in 1997, and many similar cases since).

The ways in which Australia seeks to off-load its responsibilities under the Refugee Convention onto countries far less capable of protecting refugees’ human rights, or tries to find the most miserly interpretation of its obligations, are too numerous to describe here, but they are likely familiar to an international audience.

Amid this landscape of avoidable misery are more than 40 people whom Australia has recognized as refugees but who nonetheless remain in indefinite detention due to secret ‘security assessments’ by Australia’s domestic spy agency, ASIO.  

Fleeing Sri Lanka, Kuwait and Burma, they were accepted as refugees after arriving in Australia in 2009 and 2010. They cannot return home due to the dangers they face there, but Australia will not release them from detention due to doubts cast over them by ASIO. Not until 2013 were they each given a ‘summary of reasons’ for their continuing detention, but they are still denied adequate means of challenging the accusations.

‘Only by exposing ASIO’s allegations to open examination can their truth be tested,’ says their lawyer, Ben Saul. ‘Allegations may be false, informants may bear grudges, conduct may have innocent explanations, and intelligence may be misinterpreted.’

Assisted by Prof. Saul and other volunteers, 46 of them complained to the UN Human Rights Committee in Geneva about their treatment by Australia, claiming that after four to five years in detention, they had suffered ‘serious, irreversible psychological harm’.

The UN committee agreed to expedite the hearing because five of the detainees were suicidal.

In August 2013, the UN  found over 150 violations of international human rights law against these people and said Australia should release them, offer them rehabilitation and pay them compensation. But a year later, most remain in detention, and none has been compensated or rehabilitated.

We all have a right to a remedy when our human rights are violated. The right to remedy demands action to halt violations (achieved in this instance by release from detention). But violations must also be rectified by restoring what is lost, where possible (such as detainees’ mental health), and reparations for what cannot be restored (compensation).

These three measures recommended by the UN act in concert and all must be implemented to remedy these gross violations effectively. One of the detained refugees is a young man who, in his homeland, was bludgeoned in the head with rifle butts by soldiers until he was comatose. He was left mentally disabled. Since indefinite detention causes and exacerbates mental illness, this man – or any detainee – cannot be rehabilitated without also being released. Indeed, a hospital to which he was referred has refused to attempt rehabilitation if he is simply to be returned to detention.

Crucially, the right to remedy demands action to prevent the violation recurring. The UN decision requires Australia to ‘review its Migration legislation to ensure its conformity’ with the International Covenant on Civil and Political Rights. The Covenant, an international treaty which Australia and 167 other countries are legally bound to uphold, requires that detention be based on evidence, reviewable by the courts, used only as a last resort, and limited to reasonably short periods when absolutely necessary.

‘Indefinite detention of refugees is the very worst manifestation of Australia’s immigration detention regime,’ says Professor Saul. ‘Australia should be protected from serious foreign security threats, but the current system goes further than is necessary to protect security, while denying basic procedural fairness. National security cannot be allowed to trample everything else. Other liberal democracies do it differently and are no less safe. Effective alternative measures include prosecution, surveillance, reporting to police and community residency orders.’

Australia has remedied only 18 per cent of the complaints upheld against it by the UN treaty committees over the past 20 years. The UN cannot enforce its own decisions. Without public outcry, its findings remain curios debated in law schools, while plaintiffs get nothing.

Remedy Australia is a human rights NGO which supports people who have won complaints adjudicated by the UN treaty committees, but who have not received the recommended remedy. We are currently trying to get the ‘ASIO’ detainees out of detention, and to give them rehabilitation and compensation. And reform the laws which allow these gross violations to occur. Please support our efforts with this quick online letter to Australia’s Immigration Minister.

Dr Olivia Ball is a Director of Remedy Australia, a national human rights NGO. She is an occasional contributor to New Internationalist and and author of New Internationalist’s acclaimed No-Nonsense Guide to Human Rights, available in English and Spanish.

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