The working group on arbitrary detention is a key part of the UN’s Human Rights Council, on which Australia now sits after a years-long public and diplomatic campaign for the position. The working group is an independent body of human rights experts that assesses cases of alleged arbitrary detention and reports to the council.
This body has condemned as arbitrary and illegal Australia’s indefinite incarceration of refugees and asylum seekers, issuing critical statements on five separate cases in a year. But those unlawfully held remain in indefinite detention, where they have been held for up to nine years without charge. Since June of 2017 the arbitrary detention working group has published five opinions critical of Australia’s open-ended detention of asylum seekers and refugees. It has consistently argued Australia’s indefinite detention of some refugees and asylum seekers is unlawful.
In each of the five published opinions, the working group has recommended Australia immediately release the men held and pay them “compensation and other reparations” for their unlawful detention. None of the men have been released. The youngest is 29 years old, the oldest 45. They each face detention without charge – in theory, potentially until the end of their lives. The longest in detention is an Afghan asylum seeker, who has been held in Australian detention centres continuously since 2009. Stateless Western Sahara man Said Imasi has been held without allegation, charge, or trial for more than eight years since he arrived in Australia by plane as a teenager in 2010. A 16-year-old and who remains in immigration detention after five years – he is now an adult – and facing a potentially limitless incarceration.
The arbitrary detention working group has consistently condemned Australia’s reliance on indefinite detention. In several cases, the open-ended detention has also been criticised by Australia’s own commonwealth ombudsman. In the case of Said Imasi, the ombudsman has said it has been recommending for six years he be released into the Australian community but “there appears to be no clear resolution in sight”.
The Australian government has defends its detention regime as “administrative in nature and not for punitive purposes” and had succeeded in stopping the flow of asylum seeker boats to Australia. The indefinite detention of non-citizens is lawful under Australian law. A 2004 high court judgment – Al Kateb v Godwin – found it was lawful to indefinitely detain a non-citizen who could not be removed from Australia. The director principal of Human Rights For All, lawyer Alison Battisson said the UN had made a clear statement that Australia’s practice of indefinitely detaining refugees and asylum seekers was unlawful and must cease.
“Australia’s policies are against international law and are inhumane,” she said. “In a modern society this practice is unacceptable. Despite numerous opinions and reports from the UN and other human rights bodies, Australia has consistently failed to address arbitrary detention. As a signatory to the refugees convention we are obliged to accommodate these people. Where they have criminal records, they have served their time. If they were Australian citizens, they would be returned to the community. Instead, they often face longer periods of open-end administrative detention than their actual prison terms. This serves no one’s interests.” The Australian government is also obliged, as a UN member state, to update the working group on progress of the cases. “The Australian government’s lack of response is shameful. It is also insulting to the UN."