As people power engulfs – witness the scenes outside the Lady Cilento Hospital, Brisbane, where hundreds of people have surrounded the building to protect a baby whom the Government seeks to rendition to its offshore gulag – it is timely to remind ourselves that Australia’s offshore processing programme contravenes a number of international laws – notably that relating to Arbitrary Detention, a practice that the Australian Government via the UN recognises as illegal. Details of what constitutes arbitrary detention and why the Australian Government is guilty of this offence (and how urgent legal action can be taken now) is given below. This could be Australia’s ‘Bastille’ moment – a bloodless coup by citizens against an amoral oligarchy…
UPDATE: Australian Immigration minister, Peter Dutton MP, has confirmed that baby ‘Asha’ and mother, now in community detention, will be returned to Nauru detention once medical clearance given. Presumably such clearance will be denied by clinicians, given last weekend’s statement by AMA President that prolonged detention of children is a form of state-sanction abuse. To be on the safe side, the AMA could seek an injunction to prevent further detention of children – which would be a start.
“No one shall be subjected to arbitrary arrest, detention or exile” (Universal Declaration of Human Rights, article 9)
In November 2013, in Geneva, the United Nations released a statement saying that asylum-seekers transferred from Australia to the processing centres on Nauru and Manus Island in Papua New Guinea are living in arbitrary detention and in conditions that do not meet international standards. The statement added that the mandatory detention applied to refugees by the Australian Government was “not compatible with international law”. The UNHCR called on all three states not to transfer children. The statement went on to say: “UNHCR is particularly concerned by the impact of policies that will prevent recognized refugees from finding safe, dignified and sustainable solutions in the medium to long term. The prospect for refugees in PNG finding permanent protection there presents formidable challenges, and it is clear that Nauru will offer only very limited opportunities for refugees, even in the shorter term”.
Here is what constitutes arbitrary detention, according to OHCR…
A more recent report by Amnesty International confirmed that the Australian Government practice of detaining refugees and asylum-seekers on Nauru equated to arbitrary detention. It states that “Asylum-seekers were arbitrarily detained in harsh conditions in accordance with an agreement with the Australian government.
In September 2014, incoming UN High Commissioner for Human Rights Zeid Ra’ad Al-Hussein stated that Australia’s policies are “leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries.”
According to the methods of work of the Working Group on Arbitrary Detention, deprivation of liberty is arbitrary if a case falls into one of the following three categories:
A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).
D) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); and
E) When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).
Clearly, the detention of asylum-seekers and refugees by successive Australian Governments falls within category ‘D’ and probablt ‘category ‘E’.
The Working Group has developed an “urgent action” procedure for cases in which there are sufficiently reliable allegations that a person or persons are detained arbitrarily and that the alleged violations may be time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims in the event of the continuation of the detention. In exceptional cases, the urgent action procedure may also be resorted to in other circumstances, when the Working Group deems that the situation warrants such an appeal. In such cases, an urgent appeal is sent to Government of the State concerned through diplomatic channels, requesting that the Government should take appropriate measures to ensure that the detained person’s right not to be deprived arbitrarily of his or her liberty and to fair proceedings before an independent and impartial tribunal as well as the right to life and to physical and mental integrity are respected. In addressing such communications, the Working Group emphasizes that any such urgent appeals based on humanitarian grounds would in no way prejudge the Working Group’s final assessment of whether the deprivation of liberty is arbitrary or not, except in cases where the Working Group has already determined the arbitrary character of such deprivation of liberty.
Aussies (lawyers, citizens): it’s time to lodge an urgent request to the Working Group on Arbitary Detention. And if this has already been submitted, a further submission can be lodged either on behalf of an individual – e.g. ‘Baby Asha’ – or on behalf of a class of individuals – i.e. all those refugees detained offshore. Indeed, now that the Australian Government has rejected the offer by New Zealand to take in the refugees, then this provides further weight to the argument that Australia is guilty of Arbitrary Detention.
Here is the submission form. Alternatively, the UN Working Group members can be contacted direct:
Working Group on Arbitrary Detention
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
8-14, avenue de la Paix
1211 Geneva 10, Switzerland
facsimile: +41 22 9179006
Phone them; email them. Now
Here is a list for the current members of the Working Group: Mr. Seong-Phil Hong Republic of Korea, since 2014 (Chair-Rapporteur); Mr. José Guevara (Mexico), since 2014 (First Vice-Chair); Mr. Sètondji Adjovi (Benin), since 2014 (Second Vice-Chair); Ms. Leigh Toomey (Australia), since 2015; Mr. Vladimir Tochilovsky (Ukraine), since 2010.