Liberties Council Maintains Ending Indefinite Detention Is a Moral and Legal Obligation

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Indefinite Detention

The Novak Djokovic fiasco exposed the Australian government’s practice of detaining “noncitizens” indefinitely to the globe.

The sports star was placed in a hotel used as an immigration prison, where 25 of the 32 men inside are processed refugees, who’ve been locked up for close to nine years.

Yet, these men who fled persecution in their homelands are far from the Morrison government’s only indefinite detainees.

Human rights lawyer Alison Battisson successfully challenged the practice in the Federal Court in September 2020. However, the High Court went on to overturn this ruling last June. And just for good measure, the Morrison government clarified indefinite detention is lawful the month prior.

To bring a stop to this barbaric practice, Independent MP Andrew Wilkie introduced the Ending Indefinite and Arbitrary Immigration Detention Bill 2021 into parliament last February. Currently under review, it establishes a legal framework that provides alternatives to immigration detention.

“The bill ensures that those in alternatives to immigration detention have full access to housing and financial support and have the right to work and to access education, health care and other government services, as required under international law,” Wilkie explained on introducing the bill.

Indeed, bringing an end to the prolonged imprisonment of those seeking asylum is the want of many Australians. And as the NSW Council for Civil Liberties (NSWCCL) puts it, the laws Wilkie is proposing are “morally and legally necessary”.

“Cruel to the point of evil”

“The bill would align Australia with its obligations under international law, and it would reduce the huge costs of current detention programs,” said NSWCCL Asylum Seeker Action Group co-convenor Dr Martin Bibby. “The costs in Nauru are huge.”

“It would allow more refugees to enter into the community,” he continued. “It would adhere to the rule of law, and in particular, it would ensure that people have proper procedures for presenting their cases before the courts, instead of being limited as they are now.”

These people include processed refugees, asylum seekers, stateless people and residents slated for deportation after failing the draconian character test in section 501 of the Migration Act 1958 (Cth). Bibby advises the circumstances of all these people would be improved on the passing of these laws.

In terms of the financial burden, Wilkie pointed out in his speech that to hold a refugee in onshore immigration detention for a year costs taxpayers $346,000, whereas if they lived in the community the cost is $10,221. And when it comes to offshore, the price is $4.3 million per person annually.

“The bill would also do away with some of the nonsense that is still around about the role of indefinite detention being a deterrent against human trafficking,” Bibby told Sydney Criminal Lawyers.


Reducing the harm

Currently under the deliberation of the Joint Committee on Migration, the Ending Indefinite Detention Bill initially grounds its provisions in constitutional law, as well as upholds the international law principles of maintaining family unity and the rights of the child.

Wilkie’s legislation outlines a number of reasons why a noncitizen could be held in immigration detention – with a range of enhanced rights – for a limited time of no more than three months. The Federal Circuit Court could extend this to six months, but never beyond a total of twelve.

Other than this, noncitizens should be living in the community, unless they’re serving a prison sentence. And special provisions with the legislation limit child detention.

The NSWCCL lists six compelling reasons to pass the laws in its submission on the bill, which include it according to international law, reducing the harm of refugees, lowering taxpayer costs, restoring the rule of law, foiling the myth of deterrence, whilst it enhances cultural diversity.

Prolonged torture

People are detained on average 48 days in the US and 24 in Canada, while 90 percent of those in the UK’s immigration system are held for less than six months,” Bibby made clear. “They are not detained at all in New Zealand.”

The civil liberties advocate further outlined that as of last September the average rate of detention for Australian immigration detainees was 689 days, which is almost two years.

“That’s about the highest it’s ever been, and, when you exclude other visa cases from the numbers, asylum seekers and refugees have been detained even longer,” Bibby added.

The doctor was referring to the latest Home Affairs figures, which further outline that 1,459 people were in onshore immigration detention in September last year, with 117 having been in there for over five years.

While the government was still detaining 228 people in offshore detention on either Nauru or in Papua New Guinea as of last December.

During the Djokovic episode, US news program Democracy Now spoke to refugee Mehdi Ali who was being held in the same hotel as the tennis player. The 24-year-old Iranian man advised that despite having been determined a refugee, the government has had him locked up since he was 15.

Ali also debunked the myth that no one arriving by boat is ever settled, as he outlined that around 90 percent of asylum seekers who came here by boat after the 19th of July 2013 have since been resettled in this country or overseas.

Although Ali and the other men remaining in detention with him have no idea why they’ve been singled out for ongoing and indefinite detention.

Entitled to citizenship

In response to a question about those who’ve been in detention for years now, Bibby said, “Those refugees should simply be accepted into Australian society and have a path to permanent citizenship, which is their entitlement.”

“I don’t think it’s a privilege to become an Australian citizen,” he underscored. “It is an entitlement.”

In terms of noncitizens whose cases may be still under determination yet living within the community, the Wilkie bill outlines a number of restrictions that could be placed on them, including living in a certain area, reporting to authorities, or having a guarantor responsible for them.

“Those who are still seeking asylum should be released into the community, with restrictions, and then their application should be processed properly, fairly and swiftly,” Dr Bibby concluded.

“And those who have been accepted as refugees should be given a path to citizenship, because that is what they’re entitled to.”

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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