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Immigration detention in Australia. Is indefinite detention inconsistent with obligations to the International Covenant on Civil and Political Rights?

Essay 2016 9 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Question 1:Discuss the arguments for and against the proposition that indefinite detention in Villawood Immigration Detention Centre is inconsistent with Australia’s obligations under article 7 of the International Covenant on Civil and Political Rights.

1. Introduction

Immigration detention in Australia is a contentious and complex issue that cannot simply be analysed on the basis of moralities or politics. To determine whether Australia’s immigration policy as manifested in the Migration Act 1958 (Cth) (‘ Migration Act’) would constitute a breach of article 7 of the International Covenant on Civil and Political Rights (‘ ICCPR ’) both the indefinite duration of detention, and, the conditions encountered at Villawood Immigration Detention Centre (‘VIDC’) must be reasoned.[1] Article 7 of the ICCPR, a non-derogable right in accordance with article 4(2)[2] provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…’.[3] VIDC is an onshore processing centre based 27km from Sydney’s CBD[4] and has come under scrutiny for its treatment of asylum seekers, especially for mental-health related issues and the long-term detention of approximately fifty children.[5] The discussion that follows addresses both the issues of physical conditions in VIDC and justifications for indefinite detention.

2. Background:

2.1 Australia’s Immigration Policy

In 1992 mandatory immigration detention was introduced as an exceptional, temporary and time-limited measure for a discrete cohort of unauthorised non-citizens (mainly IndoChinese asylum seekers) via the Migration Amendment Act 1992 (Cth).[6] Since then, mandatory detention has become a staple of Australia’s immigration policy to ensure people who arrive without lawful authority do not enter the Australian community until they have satisfactorily completed several checks. Non-citizens are taken into detention under s 189,[7] kept in detention under s 196[8] and removed under s 198[9] of the Migration Act. Indefinite detention arises when an asylum seeker has been found to be of Refugee Status under article 1F of the Convention Relating to the Status of Refugees (‘ Refugee Convention ’)[10] but has failed to be granted a protection visa due to adverse security or character assessments issued by the Australian Security and Intelligence Organisation (ASIO). Under the Refugee Convention art 33(2) Australia has non-refoulement obligations and often third countries refuse refugee entry. Thus, these refugees remain in, as Ben Saul describes, a ‘legal black hole’[11] where they are left in limbo pending a decision to their visa status.

2.2 Villawood Immigration Detention Centre

VIDC is often the subject of media releases that seek to condemn the conditions that refugees are subject to in detention awaiting approval of their visas. VIDC detainees are known to have self-harmed, voluntarily starved themselves and ingested detergent and chemicals to avoid being held in indefinite detention.[12] In 2010 alone, VIDC was the scene of three suicides in four months.[13] Schloenhardt described VIDC as analogous to ‘concentration camps’ because of its inhuman treatment of detainees, their prolonged detention and a limitation of their rights.[14] However, on 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs that the harsh conditions of detention did not render the detention unlawful and inconsistent with Australia’s obligations under art 7 of the ICCPR.[15] Although this case in particular was in regards to treatment experienced in Woomera Immigration Reception and Processing Centre in South Australia, similarities to onshore detention in Villawood are conferred.

3. Duration

Indefinite detention as an indirect result of Australia’s immigration policy[16] has come under investigation by several human rights groups including but not limited to the Australian Human Rights Commission,[17] a Senate Joint Selection Committee on Australia’s Immigration Detention Network[18] and a United Nation High Commissioner for Refugees Commission expert round table.[19] To determine whether indefinite detention would be considered a breach of Australia’s obligations under art 7 of the ICCPR it is necessary to take into account the nature of indefinite detention, the state of mind of those administering the treatment and also the justification for the treatment.[20] According to the United Nations Human Rights Committee (UNHRC), the aim of art 7 is ‘to protect both the dignity and the physical and mental integrity of the individual’.[21] To fall within the scope of art 7 indefinite detention must be classified as ill treatment that has attained a minimum level of severity which depends on factors such as the sex, age, and state of health of the victim.[22] Furthermore, in order to establish a breach of art 7, there must be an intention to cause adverse consequences for the detained.[23] The third element of justification can be argued by the government that particular treatment ought not to be classified as cruel, inhuman or degrading if it constitutes a proportionate means a pursing a legitimate end.[24] This framework provided for by Savitri Taylor[25] in her evaluation of Howard’s Temporary Visa Protection measures will be applied to determine whether indefinite detention is inconsistent with Australia’s obligations under art 7 of the ICCPR.

3.1 Duration inconsistent with article 7

There has been a plethora of research that has confirmed the adverse consequences of indefinite detention, especially on the state of mental health of detainees. Sultan and Sullivan have examined, drawing from personal experience, the heightened risk of mental health problems for detainees experiencing long periods of detention at VIDC.[26] They found that poor mental health increased the length of detention and conversely found evidence to suggest that a longer period of detention caused or exacerbated mental health in more than 54% of cases.[27] In VIDC alone, mental health is the most prevalent problem experienced by 60% of all those detained.[28] Thus, indefinite detention as both a cause and a contributing factor to a decreased mental state would satisfy the ‘nature’ requirement and fall under the scope of an art 7 ICCPR breach.

[...]


[1] Peter Billings, ‘Whither Indefinite Immigration Detention in Australia? Rethinking Legal Constraints on the Detention of Non-Citizens’ (2015) 38 University of New South Wales Law Journal 1386, 1394.

[2] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 4(2).

[3] Ibid art 7.

[4] Eve Vincent, ‘Life in Limbo (Villawood Immigration Detention Centre)’ (2011) 204 Overland 17, 17.

[5] Aamer Sultan & Kevin O’Sullivan, ‘Psychological Disturbances in Asylum Seekers Held in Long Term Detention: A Participant-Observer Account’ (2001) 175 Medical Journal of Australia 593, 597.

[6] Commonwealth, Parliamentary Debates, Legislative Assembly, 5 May 1992, 2370 (Gerard Hand, Minister for Immigration, Local Government and Ethnic Affairs).

[7] Migration Act 1958 (Cth) s 189.

[8] Ibid s 196.

[9] Ibid s 198.

[10] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1F.

[11] Ben Saul, ‘Dark Justice: Australia’s Indefinite Detention of Refugees on Security Grounds under International Human Rights Law’ (2012) 13 Melbourne Journal of International Law 685, 686.

[12] Eve Vincent, ‘Life in Limbo (Villawood Immigration Detention Centre)’ (2011) 204 Overland 17, 17.

[13] Ibid.

[14] Andreas Schloenhardt, ‘Deterrence, detention and denial: asylum seekers in Australia’ (2002) 22(1) The University of Queensland Law Journal 54, 55.

[15] Linda Tucker, ‘High Court Decisions on Stateless Persons’ (2004) 47 Journal of the NSW Bar Association 17.

[16] (Gleeson, CJ) Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53.

[17] Commonwealth, Australian Human Rights Commission , Submission to Independent Review of the Intelligence Community, April 2011.

[18] Senate Joint Select Committee on Australia’s Immigration Detention Network, Parliament of Australia , Final Report (2012).

[19] United Nations High Commissioner for Refugees, Expert Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless Persons in Australia (Chair’s Summary, 3 May 2012).

[20] Sarah Joseph et. al., The International Covenant on Civil and Political Rights (Oxford University Press, 2004) [9.18].

[21] United Nations Human Rights Committee, General Comment No 20: Concerning Prohibition of Torture and Cruel Treatment or Punishment, 44th sess, UN Doc, (10 March 1992).

[22] Human Rights Committee, Views: Communication No 265/1987, 35th sess, UN Doc CCPR/C/35/265/1987 (2 May 1989) (‘ Vuolanne v Finland Communication ‘).

[23] Human Rights Committee. Views: Communication No 887/1999, 77th sess, UN Doc CCPR/C/77/D/887/1999 (26 November 1998) (‘ Mariya Staselovich v Belarus ‘).

[24] Sarah Joseph et. al., The International Covenant on Civil and Political Rights (Oxford University Press, 2004) [9.26].

[25] Savitri Taylor, ‘The Human Rights Implications of the Psychosocial Harm Caused by Australia’s Temporary Protection Regime’ (2005) 11 Australian Journal of Human Rights 233, 244.

[26] Aamer Sultan & Kevin O’Sullivan, ‘Psychological Disturbances in Asylum Seekers Held in Long Term Detention: A Participant-Observer Account’ (2001) 175 Medical Journal of Australia 593.

[27] Ibid 561.

[28] Ibid.

Details

Pages
9
Year
2016
ISBN (eBook)
9783668372030
ISBN (Book)
9783668372047
File size
501 KB
Language
English
Catalog Number
v349901
Institution / College
Macquarie University
Grade
A
Tags
immigration australia international covenant civil political rights

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Title: Immigration detention in Australia. Is indefinite detention inconsistent with obligations to the International Covenant on Civil and Political Rights?