Assessing Australia’s Immigration Detention against Rule of Law Principles

Adelaide Law School’s Associate Professor Alexander Reilly with Justine Stefanelli of the Bingham Centre for the Rule of Law recently wrote a piece for Rights Now on immigration detention in Australia. Alex and Justine argue that rights talk is losing traction in relation to the treatment of people in immigration detention, and suggest that the rule of law offers a useful alternative framework through which to assess Australia’s immigration detention policy. This article builds on a new report produced by the Bingham Centre for the Rule of Law in London analysing immigration detention against rule of law principles. With numbers in immigration detention at unprecedented highs and conditions in off shore detention centres worse than they have ever been, it is deeply concerning that stories of flagrant breaches of people’s international human rights are falling on deaf ears.

As of 30 September 2013, there were a staggering 9,644 people in immigration detention in Australia, the vast majority of whom arrived in Australia without a visa by plane or by boat. Of those 9,644 people being detained, 6,403 were in high security prison-like facilities.  In addition, since August 2012, when the government reinstituted a policy of off-shore detention and processing in Nauru and Manus Island, hundreds of asylum seekers have been transferred to temporary facilities in these locations.

The Australian law, policy and practice of mandatory immigration detention, first established in 1992, has been the subject of regular criticism from the UNHCR, the Australian Human Rights Commission (AHRC), and non-government organisations with a concern for human rights such as Amnesty International and Oxfam . Most recently, a UNHCR monitoring report released on 26 November 2013 was scathing of conditions of detention on Nauru. Despite this human rights-based criticism, the government has not been swayed to change its policy.

A rule of law framework is different from a human rights approach. At its core is the notion that all people must have the ability to assert their constitutional and other rights according to fair and equitable procedures. The assertion of human rights is just one part of that. Unlike a human rights framework, which is largely dependent upon external influences such as international treaties, rule of law principles are derived from internal principles of constitutionalism.

The rule of law framework is more difficult for governments to dismiss. In an environment in which the government is prepared to minimise and avoid its international human rights obligations in relation to asylum seekers, the rule of law brings the issue back to the basic human requirements of liberty, security and dignity that are contained in the rule of law. With that in mind, the Bingham report outlines a set of “safeguarding principles” in relation to immigration detention. The principles promote the rule of law in immigration detention. They can be used by a variety of actors, including governments, courts and tribunals, immigration officials, NGOs and advocacy organisations, and individuals facing detention.

The Australian government asserts the sovereign right to protect its borders, and uses the urgency of border protection as a reason to modify or avoid altogether its international human rights obligations. To avoid rule of law principles in the same way is to put the very constitution of the nation at risk.

Alexander Reilly is an Associate Professor at the Adelaide Law School.



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