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Indefinite detention of refugees is unlawful under international law, but Australia has quietly made it legal

·6-min read
<span>Photograph: Michael Dodge/AAP</span>
Photograph: Michael Dodge/AAP

In 2012, a person placed in immigration detention in Australia was held, on average, for less than 100 days.

In 2021, that figure is 627 days – 20 months – the highest it has ever been.

In 2012, fewer than 3% of people held in immigration detention had been there longer than two years.

In January this year, that figure was 30%.

Related: New law allows Australian government to indefinitely detain refugees

One hundred and six people – 6.9% of the total detention population – have been held in immigration detention for more than five years.

Long-term, often indefinite, mandatory detention has become Australia’s first resort, rather than its last.

Indefinite detention is considered arbitrary – and therefore unlawful – under international human rights law.

Decades of medical research across the world – including studies commissioned by the Australian government – have consistently warned the wearing uncertainty of indefinite detention is deeply damaging for those so held.

But this week the Australian parliament, with almost no debate, codified the indefinite detention of refugees and asylum seekers, including without charge or trial, into domestic law.

Parliament was told about a “small cohort” – some put the figure at 21 – of “serious criminals” who can be neither deported nor released into the Australian community.

But the reality of indefinite detention in Australia is far larger, and far more nuanced. There are dozens of refugees and asylum seekers held in limitless detention within Australia’s sprawling detention network.

There are refugees detained indefinitely despite the government knowing that historical, unproven allegations made against them are fraudulent, obtained under torture, or that have been disproven in court.

There are asylum seekers, such as Said Imasi, detained for more than a decade because they are stateless – not accused of any crime, but who have never known a free day in Australia.

Others indefinitely detained in Australia were children in detention when they were convicted of damaging property. As a result, they might never be at liberty again.

Some of those indefinitely detained are held because of a criminal conviction, but far from all.

Some have a failed ministerial “character test” with no conviction at all; others have received an adverse security assessment from Asio – the details of which they are not allowed to know, or to challenge. Non-citizens can be detained even because of an “association” – in the eyes of a government minister – with a group alleged to be engaged in wrongdoing.

Troubling for Australia’s democracy is the practice of governments legislating their way around court decisions

The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 was introduced on the last sitting day of the last session in March.

On Thursday, in the hours before the budget reply speech, the government cut short debate on the floor of the Senate and brought the bill to a vote. There were critics on the floor of the parliament, notably Greens senator Nick McKim and independent MP Andrew Wilkie. But with bipartisan support, there was little room for dissenting voices. With Labor’s support, the bill passed quietly into law.

The government argued the bill strengthens Australia’s safeguards on non-refoulement - the cornerstone principle of refugee law that forbids a country from returning a refugee to a place where they faced persecution – with immigration minister Alex Hawke claiming it would send a “strong message that we are committed to upholding human rights”.

It’s a specious argument.

Non-refoulement is the fundamental bedrock of international refugee law (most prominently codified in the refugees convention to which Australia has been a party for nearly seven decades).

Australia was already bound to adhere to its non-refoulement obligations, under international and domestic law. It could not legally send people back to harm (though this has happened consistently under successive governments).

The bill also continues the trend of vesting broad non-compellable, unchallengeable powers in the ministers under the home affairs portfolio.

The new law gives ministers the power to rescind a person’s refugee status, essentially declaring they can be sent back to the country they fled.

The parliament’s own joint parliamentary committee on human rights raised serious concerns about the law, arguing it presented a “real risk that detention may become indefinite” and “may also have implications for Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment”.

More than 30 legal academics and refugee law practitioners have signed a joint statement to government, arguing the new law “increases the risk that refugees and others in need of protection will be detained indefinitely, without adequate judicial review. This is contrary to international law and inconsistent with the practices of other democratic countries”.

Related: I saw first-hand the terrible toll detention is taking on the Biloela family | Kristina Keneally

When introduced by a Labor government in Australia in 1992, mandatory detention was intended only as an exception, a response to the arrival by boat of Indochinese refugees seeking sanctuary from conflict in south-east Asia. Detention was strictly limited to 273 days – nine months. The time constraint was dropped in 1994, and the use of mandatory detention, now unrestrained, has burgeoned ever since.

Troubling, too, for Australia’s democracy is the process that drove this week’s new law: the continued practice of executive governments in Australia legislating their way around court decisions; particularly in the area of migration law.

Where a government is told by a court what they are doing is illegal, rather than modify their behaviour, they simply write a new law giving themselves permission to keep doing whatever they want.

As independent MP Andrew Wilkie told parliament: “It is poor practice that whenever the federal court rules against the government, the government just keeps changing the law until it finds a workaround for the federal court.”

In this instance, the law was tabled in direct response to a federal court case, AJL20, decided against the government in September last year, when the court ruled that immigration detention must be “for a purpose”, essentially either considering a visa grant or removal from the country.

AJL20 was a child refugee from Syria whose visa was cancelled on character grounds because of criminal convictions as a teenager, so he was detained by the government. He could not be returned to Syria because he faced persecution there, so he faced a potentially limitless detention.

The court ruled his detention was unlawful and ordered him released. He is currently free.

The government has appealed the decision to the high court, but regardless, the new law seeks to expressly allow the government to detain refugees such as AJL20 for as long as it likes, potentially for the rest of his life.

AJL20 is 29 years old.