Mr Rudd is wrong on arbitrary detention

Sarah Joseph

In an interview with The Australia Network’s Jim Middleton on Newsline, Foreign Minister Kevin Rudd responded to an assertion by the UN High Commissioner for Human Rights, Navi Pillay:  she had stated on ABC’s 7:30 that mandatory immigration detention in Australia is arbitrary and in breach of Article 9(1) of the International Covenant on Civil and Political Rights (‘ICCPR’).  Rudd responded that: “arbitrary detention [read “mandatory detention”] per se is not of itself a violation of article nine of the convention – it’s how people are actually treated”.  No Mr Rudd.

The UN Human Rights Committee, the body which monitors and supervises implementation of the ICCPR, has found that Australia’s system of mandatory detention breaches Article 9(1) on numerous occasions (see, eg, A v Australia).  Mandatory detention is arbitrary because all “unauthorised arrivals” are detained, regardless of any individual consideration of the need to detain each person.  So it is true that there are circumstances where it is not arbitrary to detain an asylum-seeker, even for a long time. It is not arbitrary to detain someone who carries a dangerous and contagious disease, or who poses a threat to national security, so it is fair for the government to conduct checks on such issues.  It is also reasonable to detain a person where there is good reason to believe that that particular person will abscond.  However, the detention of each person, as well as each person’s continued detention, must be justified.  Australia’s blanket rules, under which all unauthorised arrivals are detained until deported or granted a visa without any individual assessment of the need to detain, are arbitrary.

Mr Rudd added:  “So the key thing is we’re taking kids out of mandatory detention”.  This initiative is welcome, particularly when it actually happens.  Mandatory detention of children is a breach of Article 9(1), along with Article 24 (rights of protection for children) of the ICCPR (see, eg, Bakhtiyari v Australia) and the Convention on the Rights of the Child.  But Rudd implies that mandatory detention for adults is OK.  It is not:  it is also a breach of human rights.  It is a breach of Article 9(1), as well as Article 9(4), the right to seek a court order for one’s release.

Mr Rudd is correct that the issue of treatment within immigration detention is relevant to human rights.  The relevant rights are Article 7 (freedom from torture, inhuman and degrading treatment) and 10(1) (right to humane treatment for people in detention), rather than Article 9, which covers the fact of detention itself rather than the conditions in detention.  For example, the Human Rights Committee found a breach of Article 7 entailed in the continued detention of a mentally ill man in immigration detention for a long period after his illness was evident in C v Australia, a case decided in 2002.  Rudd implies that conditions in Australian detention centres these days do not breach human rights.  In that respect, I would refer him to the report released today by the Australian Human Rights Commission on the serious mental health issues for detainees in Villawood.

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