Issue #1558 1 August 2012
Human Rights Commission says dump mandatory detention
The Australian Human Rights Commission has issued a report which unequivocally calls for Australia to end the current policy of mandatory detention for asylum seekers who arrive by boat. It has recommended that applications for asylum should be considered on a case-by-case basis, regardless of the means of arrival, and that applicants who do not pose an unacceptable risk to the public should be placed in community detention or given bridging visas at the earliest opportunity.
The Commission recently conducted an extensive series of interviews with applicants in four detention centres and with others in community placement. It concluded “Australia’s system of mandatory indefinite detention leads to breaches of our international human rights obligations.”
Despite those criticisms, the Commission President, Catherine Branson, praised the Gillard government for having recently increased the number of asylum seekers in community placement. She stated:
“We found that, as well as being better aligned with Australia’s international human rights obligations, community arrangements offer a far more humane and effective approach to the treatment of asylum seekers, refugees and stateless persons than closed detention.
“Maximum benefits will be derived where asylum seekers are placed in the community at the earliest opportunity following arrival, with appropriate support and opportunities for self-reliance and meaningful activities.”
The Commission interviewed a number of detainees who had received adverse security assessments, who were of interest to the Australian Federal Police, and/or had been involved in detention centre disturbances last year. Many are likely to remain in detention indefinitely under the current arrangements.
The report observed “alarming levels of despair amongst people experiencing prolonged detention with little prospect of a community placement.”
A very different path
The Commission’s recommendations represent a major departure from the policies of this government and the previous Howard regime, and from those of the current federal opposition led by Tony Abbott.
The Commission recommended that detainees who have received an adverse security assessment should be considered for release, or for placement in a less restrictive form of detention.
They should also be provided with information as to the basis of that assessment, as well as access to a merits review by the Administrative Appeals Tribunal, and should be entitled to make submissions on that assessment, if necessary through an advocate.
The report effectively acknowledged that immigration detention is in many respects equivalent to imprisonment for a criminal offence. It recommended that a decision to detain someone should be subject to judicial review and that where a court finds the detention is unlawful, it should have the power to order the release of the detainee concerned.
The Commission noted “The lawfulness of the detention is not limited to domestic legality – it includes whether the detention is compatible with the requirements of ... the (UN) International Covenant on Civil and Political Rights, which affirms the right to liberty and prohibits arbitrary detention.”
With regard to assessment for community placement the report stated that all asylum seekers should have access to vocational training, English language classes, essential medical care and counselling. It also recommended that children should have full access to education, that detainees should have the right to seek work, and that those who do not find work should be granted sufficient income support to meet their basic needs.
The Commission’s recommendations have major implications for the future of stateless people, many of whom have not formally been able to prove their statelessness, and/or have remained in detention for years. The Commission recommended that the government develop a formal mechanism for determining statelessness, in order to grant substantive visas to stateless people, including those who have been found not to be refugees.
Finally, the Commission also provided recommendations for the treatment of detainees who are at risk of suicide or self-harm, including a recommendation that they should be separated from others whose behaviour is threatening or aggressive.
A breath of fresh air
The Human Rights Commission’s report is welcome and timely. The government and opposition are still mired in the sordid argument about the “best” overseas destination to which asylum seekers who arrive here by boat should be sent. The government may now face compensation claims from boat crew members who were arrested as people smugglers, including boys who were imprisoned in adult male jails.
Moreover, it has now been revealed that some Sri Lankan Tamil asylum seekers whose claims had been rejected by the government, and who were forcibly deported back to Sri Lanka, were arrested immediately after their arrival and subjected to torture.
The government had been exchanging intelligence information with Sri Lankan authorities, but appears to have hastily altered this policy. The Sri Lankan government, which seems to automatically treat all Tamils as former members of the Tamil Tigers, has now complained that they have not received information about the passengers on a trawler that recently arrived at Christmas Island from Sri Lanka.
The Commission’s report comes in the wake of a call by human rights advocate Julian Burnside for the government to prevent asylum seekers boarding the boats, by processing their applications for asylum within the transit countries (i.e. Indonesia and Malaysia), and by offering them vouchers for a plane trip to Australia, which could be claimed once their asylum applications had been accepted.
Believe it or not, mining magnate Clive Palmer has made another worthwhile suggestion, i.e. that applicants should simply be flown to Australia immediately, where their applications would be processed. That suggestion would be particularly useful in the event that the governments of Malaysia or Indonesia were unwilling or unable to cooperate in the implementation of Burnside’s scheme. Palmer may have his own reasons for making the proposal, but it’s a good one nevertheless.
These suggestions, together with the initiatives recommended in the Human Rights Commission report, present the government with a golden opportunity to seize the moral high ground by abandoning off-shore processing and mandatory detention. It’s not yet clear whether they’ll do so, but with the HCR report there’s a lot more hope.
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