Australia has been
found guilty of almost 150 violations of international law over the indefinite
detention of 46 refugees in one of the most damning assessments of human rights
in this country by a United Nations committee.
The federal
government has been ordered to release the refugees, who have been in detention
for more than four years, “under individually appropriate conditions” and to
provide them with rehabilitation and compensation.
Consistent with
Australia’s treaty obligations, the government has been given 180 days to
assure the committee that it has acted on the recommendations and taken steps
to prevent “similar violations in future”.
The UN’s Human
Rights Committee concluded that the continued detention of the refugees, most
of them Sri Lankan Tamils, is “cumulatively inflicting serious psychological
harm” and in breach of the International Covenant on Civil and Political
Rights.
The committee’s
investigation followed a complaint lodged on behalf of the refugees in August
2011 by Professor Ben Saul, of the Sydney Centre for International Law, who
said the finding proved the “grave lawlessness” of Australian refugee policies.
“It is a major
embarrassment for Australia, which is a member of the Security Council and
often criticises human rights in other countries. Australia should do the right
thing by respecting its international obligations and treating the refugees
decently,” Professor Saul told Fairfax Media.
The committee
found that, whatever justification there may have been for an initial
detention, the government had not demonstrated on an individual basis that the
continuous indefinite detention of the refugees was justified.
“The State party
(government) 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 (refugees) are said to
represent,” it said.
It also found that
those held were “not informed of the specific risk attributed to each of them”.
While the
committee has consistently found fault with Australia’s system of mandatory
immigration detention, Professor Saul said this finding went much further. “It
is the largest complaint ever upheld against Australia,” he said.
The UN body
traditionally allowed governments wide discretion where issues of national
security were concerned, but found 46 cases of illegal detention, 46 cases of
no effective judicial remedies for illegal detention and 46 cases of inhuman or
degrading treatment in detention.
It is believed
that at least four of the 46 have since been granted visas after their cases
were reviewed. The UN committee is considering a similar complaint from another
five refugees with adverse ASIO assessments.
“For the committee
to come out and make such stark findings is a pretty firm indication of just
how seriously the committee regards these breaches,” Professor Saul said.
While the
Coalition has signalled that it will continue to take a hard line against
refugees deemed threats to security, Attorney-General Mark Dreyfus has conceded
the need to explore alternatives to indefinite detention of those deemed
security threats.
“I don’t think it’s
enough to say you can do it, so we will, which has been the approach of
successive governments,” Mr Dreyfus recently told Fairfax Media. “I think we’ve
got to think through what we are doing to other human beings and think through
what principles we are bringing to bear, at all times keeping the security of
Australia paramount.”
Although the
government appointed a former judge to review the cases of those in detention
after a High Court challenge to their detention succeeded last year, it has not
acted on various calls for alternatives to detention to be introduced for those
considered security risks.
These include a
recommendation last October from one of the nation’s most senior authorities on
security, Dr Vivienne Thom, for ASIO and immigration officials to work on “risk
mitigation strategies and conditions” that would enable asylum seekers to be
released from indefinite detention.
A spokesman for
the Tamil Refugee Council, Trevor Grant, said the UN committee had vindicated
the strong belief of many advocates and lawyers that indefinite detention was
intolerable in a just society.
“The message to
the Australian Government is unambiguous here. If its signature on a treaty
means anything, it must immediately release these people,” he said.
The UN committee
chair, Sir Nigel Rodley, said the “arbitrary” nature of the detention informed
the findings - not national security grounds.
“To be able to
invoke national security without giving any grounds for this and without giving
people any possibility to challenge the determination would permit states to
ignore all their international obligations to protect human rights,” he said.
“They must find a
way of reconciling these imperatives.”
He said the report
was decided in July and finalised in recent weeks according to usual practice
and the timing of the release was not political.
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