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Remedy Australia Update March 2015

Govt rejects UN call for release of 'ASIO' refugees

and disputes UN definition of arbitrary detention

The Abbott Government has submitted a tardy and disappointing response to the FKAG et al and MMM et al cases decided by the UN Human Rights Committee in 2013, rejecting the Committee's call for the release, rehabilitation and compensation of the 46 complainants.

Since Remedy Australia's campaign for their right to an effective remedy was joined by thousands of Australians last year, 12 adults and the 4 child authors have been released. However, more than 30 remain detained, mostly in Melbourne. Remedy Australia is not aware of any of them having been compensated.

Responding to the UN, the Australian Government says "it does not consider that detention per se causes harm to individuals" and rejects the UN's finding that the FKAG and MMM authors are suffering cruel, inhuman or degrading treatment.

At the centre of these 2 joint communications are 46 recognised refugees who received adverse security assessments by ASIO. Detained for over 5 years, with no end in sight, none has been charged with anything, much less tried or sentenced. Accusations against them remain secret, denying them any opportunity to defend themselves. Harvard law professor Gerald Neuman, who served on the Human Rights Committee when it decided the FKAG and MMM cases, says, Australia’s response to the Committee's final views is shocking: "You have to give people notice of the reasons why they are being held.”

To reject the Committee's views in FKAG and MMM and, moreover, its interpretation of the meaning of arbitrary arrest and detention is akin to giving a "2-fingered salute to the world", says the authors' lawyer and advisor to Remedy Australia, Prof. Ben Saul. "It is wholly unacceptable".

"In sum, Australia’s response is that it agrees with itself that it was right all along. It has wasted the Committee’s precious time and acted in bad faith, given that it seemingly had no intention of moderating its behaviour," says Prof Saul. "It has become a recalcitrant and pariah par excellence."

  • Tell the Abbott Governmentthat its response to the FKAG & MMM cases is not good enough. We need to be sure the new Immigration Minister gets the message and knows we care how Australia treats refugees.

Sir Nigel Rodley

chair of the UN Human Rights Committee, which determined that Australia's indefinite detention of dozens of refugees with secret, adverse security assessments is arbitrary detention and cruel and inhuman treatment.

The Committee has provided important guidance as to what constitutes arbitrary detention in its General Comment No. 35.

What is arbitrary detention?

The International Covenant on Civil and Political Rights prohibits arbitrary detention. The UN Special Rapporteur on reparations has defined arbitrary detention as a gross violation of human rights, in the same category as torture and genocide. But what is it?

The UN Human Rights Committee has developed the concept of arbitrary detention in its jurisprudence over recent decades, including a significant number of Australian examples of arbitrary detention, beginning with A v Australia in 1997. Late last year, the Committee issued an authoritative statement on the subject, known as General Comment No. 35.

It's a complex concept, but may be captured in the notion that detention is arbitrary when it is unjust and/or disproportionate. Making this kind of detention part of Australian law does not mean it is no longer arbitrary or a serious human rights violation.

“Detention for the control of immigration is not per se arbitrary, but the detention must be reasonable, necessary and proportionate and reassessed as it extends in time," says the UN Human Rights Committee. "Asylum seekers may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual."

Australia's detention of asylum seekers and refugees is arbitrary if:

  • it is mandatory for a broad category of people, such as people arriving by boat

  • less invasive means of managing irregular migration have not been considered

  • people are detained without regard for its effect on their physical and mental health

  • its justification is not reassessed periodically by a court or equivalent

  • it is indefinite, due to a person being a refugee, stateless or who otherwise cannot be deported

  • children are detained, except as a last resort.

There is no question that Australia's current practice of mandatory, indefinite detention of asylum seekers arriving by boat is arbitrary detention.

Further, in continuing to detain 30+ recognised refugees for security reasons, the Australian Government must:

  • demonstrate that alternate ways of addressing security concerns are inadequate

  • disclose to each detainee "at least the essence of the evidence" against them

  • not detain along with them any family members not under suspicion.

The UN Human Rights Committee has determined that the detention of the FKAG & MMM authors is arbitrary and they should be released. As current and continuing gross violations of human rights, this is among the most urgent of Australia's unremedied violations determined in individual communications.

* Please sign this letter to the new Immigration Minister, Peter Dutton, urging him to release, rehabilitate and compensate all the 'ASIO' detainees.

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