Gillian Triggs is the former Dean of the University of Sydney Law School and current president of the Australian Human Rights Commission.
Triggs has created outrage by recommending that John Basikbasik, a refugee from Indonesia who was convicted of manslaughter, be released from immigration detention into community detention or another “less restrictive” type of detention.
She also recommends that the government pay him $350,000 for his detention without charge since completing his prison sentence in 2007.
Ms Briggs makes this recommendation based on the International Covenant of Civil and Political Rights (ICCPR)
Article 9 of the ICCPR states that no person should be subjected to arbitrary arrest or detention.
Basikbasik’s indefinite detention without charge forms the basis of Triggs’ calls for him to be released.
Triggs has been vocal in her condemnation of the Federal Government’s alleged human rights abuses since at least 2006.
The government has now responded, with Tony Abbott describing Triggs’ recommendation as “bizarre”, and current immigration minister Peter Dutton calling it “offensive” to suggest that such a person should be released and paid compensation.
John Basikbasik assaulted his pregnant de facto partner, tragically causing her death and that of her unborn baby.
He has a history of violent crimes and bail breaches, but cannot be sent back to Indonesia because he is a refugee.
Basikbasik completed his seven year prison sentence for the said manslaughter in 2007; in other words, he has ‘served his time’. But, unlike other inmates, he was not released back into the community.
Rather, the Department of Immigration made the decision that he was unfit to rejoin society and placed him in ongoing immigration detention.
His request for a bridging visa in 2013 was denied by former immigration minister, Scott Morrison.
In fact, every immigration minister– both Liberal and Labor – has reached the same decision.
Domestic violence support worker Diane Mangan supports the decision to keep Basikbasik behind bars, stating that someone who could bash a pregnant woman to death is too dangerous to release.
But some have suggested that the situation is unfair and discriminatory, as many violent offenders are released into the community after serving their prison sentences.
Does the detention of Basikbasik constitute ‘arbitrary detention’?
Australia has no uniform Bill of Rights (although the state of Victoria does have one) and our Constitution guarantees very few rights.
Instead, rights in Australia depend mainly on legislation that is instituted by governments – and they can be changed by successive governments.
Australian law has no general right to be free from arbitrary, or random, detention.
Instead, various safeguards are contained laws such as the Criminal Code Act 1995, the Australian Security Intelligence Organisation Act 1979 and the Migration Act 1958.
In NSW, police cannot arbitrarily arrest you – they must have a ‘reasonable suspicion’ that you have committed an offence.
And they normally can only hold you without charge for four hours, unless they apply for a further four hour extension or the arrest is terrorism related.
What about illegal immigrants?
Under section 178(1) of the Migration Act, any non-citizen without a valid visa must be kept in detention until they are either:
Removed from Australia; or
Granted a visa
There is no set time-limit for making the decision to remove or grant a visa, and the average immigrant is in detention for just under one year.
However, according to International law, arbitrary detention is illegal and this is part of the reason that most other countries process immigrants whilst they are in the community, rather than in detention.
Some have argued that Australia’s system of detaining immigrants in detention centres before they are processed breaches Article 9 of the ICCPR, and is therefore illegal under international law.
What happens if Australian law is inconsistent with International law?
In Australia, the Constitution is the highest law we have – but what about international law?
According to our Constitution, Australian domestic law will override any international law or treaty, or convention, even if Australia has signed and ratified the treaty.
To make International Law binding in Australia, it must first be incorporated into Australian law by specific legislation.
An article in the Guardian, in defence of Triggs’ decision, stated that the ICCPR was included in the Schedule to the Australian Human Rights Commission Act.
However, in Kioa v West, the High Court found that merely being included in a schedule of an Act is not enough to make it part of Australian law.
Even a provision allowing a Minister of Immigration to consider international law when making a decision does not mean that it becomes Australian law, or can be allowed to override Australian law.
This does not mean that international law has no place in Australian law – it just means that it cannot override Australian law.
In fact, where possible, Australian law is to be interpreted in a way that is consistent with international law.
But in essence, while the ICCPR can be highly influential, it could never be used to overrule any piece of Australian legislation.
And even if Australia breaches international law, this is not illegal within our borders.
While it may not make sense that Australia should is not held accountable to international law, it would be hard to reconcile permanently binding treaties with Australia’s Constitutional rules of unfettered government.
Treaties in Australia are signed by the Executive who is not required to liaise with any other body prior to entering into a treaty.
The executive is just one part of the elected government, comprising the Cabinet and Ministers. This is completely different to the procedure for making domestic law, which requires assent in both houses of parliament, not merely a small sub-set of the government.
If all treaties automatically became a part of Australian law, even those which are long-lasting and offer no exit clauses, they would do so without requiring the the assent of the entire elected government.
It would also be impossible for future elected governments to repeal them.
So depending on whether you are looking at arbitrary detention from an Australian or an International perspective, you can come to completely different conclusions as to the legality of Mr Basikbasik’s ongoing detention.