Human Rights

UN finds Australia violates international law by detaining refugees

The UN Human Rights Committee in Geneva , on Thusrday (22), found that Australia has committed 143 serious violations of international law by indefinitely detaining 46 refugees for four years, on the basis of their ‘adverse security assessments’ issued by ASIO. The JDS has reliably learnt that most of them are Tamil asylum seekers who fled Sri Lanka's bloody civil war. Australia breached its obligations under a binding treaty accepted by Australia, the International Covenant on Civil and Political Rights (ICCPR). Specifically the UN found:

• 46 cases of illegal detention, because Australia did not individually justify their detention, inform them of the specific reasons why they threatened security, did not use less invasive means of addressing any security risks, and did not afford them adequate legal safeguards;

• 46 instances where the refugees had no effective judicial remedies for illegal detention, because the Australian High Court has previously said that indefinite detention cannot be challenged;

• 46 cases of inhuman or degrading treatment in detention, because the arbitrary nature of the refugees’ detention, its protracted or indefinite nature, the lack of information or procedural rights provided to the refugees, and the difficult conditions of detention, are cumulatively inflicting serious psychological harm on them.

The UN Committee has directed Australia to provide the refugees with an effective remedy, including release from detention on appropriate conditions, rehabilitation and compensation. It also asked Australia to prevent future violations to review its migration laws. The UN has also asked Australia to report to it within 180 days on the steps it has taken to remedy these violations of international treaty law.

This is the largest complaint ever made against Australia to the UN Human Rights Committee. The freedoms from arbitrary detention or inhuman or degrading treatment are among the most important of all human rights, after the right to life. These are exceptionally grave violations of international law by Australia.

The refugees were represented pro bono by Professor Ben Saul, Professor of International Law at The University of Sydney and barrister, on instructions from the refugees and their lawyers (including Stephen Blanks, Julian Gormly and Jo Murphy).

Professor Saul said: “These decisions demonstrate the grave lawlessness of Australian policies on refugees. This is a major embarrassment for Australia, which is a member of the Security Council and often criticises human rights in other countries. Australia should now do the right thing by respecting its international obligations and treating people decently. Australia does not indefinitely detain dangerous Australians without charge, and it should not lock up foreigners either. Australia must release them.”

The cases were lodged in August 2011 and February 2012 by 46 detained refugees who received adverse security assessments from ASIO.

The UN Human Rights Committee has power under the Optional Protocol to the ICCPR to consider individual complaints lodged by people in Australia against action by the Australian government. Australia consented to the complaints procedure and participated in the proceedings in these cases.

The UN Human Rights Committee is a quasi-judicial body of independent experts. Its decisions are not strictly legally binding, but are regarded as authoritative legal interpretations of Australia’s binding obligations under the ICCPR. Australia is required by international law to implement its ICCPR obligations.

Key extracts from the Committee’s decision:

1. Illegal detention of 46 refugees – violation of Article 9(1) of the ICCPR

9.4 The Committee observes that the authors have been kept in immigration detention since 2009-2010, first under mandatory detention upon arrival and then as a result of adverse security assessments. The basis of detention of the Ocean Viking authors may have changed after the October 2012 decision of the High Court ruled that the ASIO regime was inapplicable, but the other authors remain in indefinite detention on security grounds. Whatever justification there may have been for an initial detention, for instance for purposes of ascertaining identity and other issues, the State party has not, in the Committee’s opinion, demonstrated on an individual basis that their continuous indefinite detention is justified. The State party has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party’s need to respond to the security risk that the adult authors are said to represent. Furthermore, the authors have been kept in detention in circumstances where they are not informed of the specific risk attributed to each of them and of the efforts undertaken by the Australian authorities to find solutions which would allow them to obtain their liberty. They are also deprived of legal safeguards allowing them to challenge their indefinite detention. For all these reasons, the Committee concludes that the detention of both groups of authors is arbitrary and contrary to article 9, paragraph 1, of the Covenant. This conclusion extends to the three minor children, as their situation, irrespective of their legal status as lawful non-citizens, cannot be disassociated from that of their parents.

2. No effective judicial safeguards on detention for 46 refugees – violation of Article 9(4)

9.6 Regarding the offshore entry authors’ claim that their detention cannot be challenged under Australian law and that no court has jurisdiction to assess the substantive necessity of their detention, the Committee notes the State party’s argument that the authors can seek judicial review before the High Court of the legality of their detention and the adverse security assessment before the High Court. In view of the High Court’s 2004 precedent in Al-Kateb v. Godwin declaring the lawfulness of indefinite immigration detention and the absence of relevant precedents in the State party’s response showing the effectiveness of an application before the High Court in similar situations, the Committee is not convinced that it is open to the Court to review the justification of the authors’ detention in substantive terms. Furthermore, the Committee notes that in the High Court’s decision in the M47 case, the Court upheld the continuing mandatory detention of the refugee, demonstrating that a successful legal challenge need not lead to release from arbitrary detention. The Committee recalls its jurisprudence that judicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.15 Accordingly, the Committee considers that the facts in the present case involve a violation of article 9, paragraph 4.

9.7 Regarding the Ocean Viking authors, the High Court’s decision of 5 October 2012 in the M47 case made it clear that judicial review before the High Court did provide a means for challenging the legality of detention on the basis of ASIO security assessments regardless of the individual facts. Nonetheless, the High Court’s decision demonstrates that successful claimants would be remitted to the mandatory detention regime pending the resolution of their applications for a protection visa. The Committee therefore concludes that, during the relevant period, the Ocean Viking authors have also been subject to violations of article 9, paragraph 4.

Inhuman or degrading treatment for 46 refugees – violation of Article 7 of the ICCPR

9.8 The Committee takes note of the authors’ claims under articles 7 and 10, paragraph 1 and the information submitted by the State party in this regard, including on the health care and mental support services provided to persons in immigration detention. The Committee considers, however, that these services do not take away the force of the uncontested allegations regarding the negative impact that prolonged indefinite detention on grounds that the person cannot even be apprised of, can have on the mental health of detainees. These allegations are confirmed by medical reports concerning some of the authors. The Committee considers that the combination of the arbitrary character of the authors’ detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant.

Remedies ordered

11. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including release under individually appropriate conditions, rehabilitation and appropriate compensation. The State party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the State party should review its Migration legislation to ensure its conformity with the requirements of articles 7 and 9, paragraphs 1, 2, and 4 of the Covenant.

12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the present Views, and to have them widely disseminated in the State party.

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