Rule of Law: a new framework to challenge immigration detention policies in Australia

By Alexander Reilly and Justine Stefanelli

By Alexander Reilly and Justine Stefanelli.

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 . Despite this human rights-based criticism, the government has not been swayed to change its policy. There is an alternative framework through which to view Australia’s immigration detention policy: the framework of the rule of law. This framework promises more than just human rights protection. In Europe, the Bingham Centre for the Rule of Law in London recently published a new report analysing immigration detention against rule of law principles.

Immigration Detention in Australia

The Australian system of immigration detention has been assessed against a human rights framework, in particular, the International Covenants on Civil and Political Rights (ICCPR), and on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child. Despite constant criticism that shows detention to fall foul of human rights standards, the government has persisted with its policy of mandatory detention.

In April 2013, for example, the AHRC published a report on ‘Human Rights Standards for Immigration Detention’ outlining the standards required for a range of activities involved in immigration detention. This included facility management, transport and removal, monitoring detention and dealing with complaints. The report also addressed access to a range of facilities and services, including communication, food, clothing, medical care, religious practice, education and recreation.

In August 2013, in response to complaints by 46 detainees who had received adverse security assessments from ASIO and had been held in immigration detention in Australia for over two years, the UN Human Rights Committee, established under the ICCPR, found that the detention of the applicants was in breach several articles of the Covenant.   In particular, the Committee held that mandatory detention, by its very nature, is arbitrary and in breach of article 9(1) of the Covenant. The Committee declared that Australia was under an obligation to provide the detainees with an effective remedy “including release under individually appropriate conditions, rehabilitation and appropriate compensation”. It also declared that Australia should “review its Migration legislation to ensure conformity with the requirements [under the Covenant]”.

The Rule of Law and Immigration Detention

With the human rights framework gaining little traction with Australian governments focused squarely on border protection, a new report of the Bingham Centre for the Rule of Law in London titled Immigration Detention and the Rule of Law: Safeguarding Principles is a timely intervention. The report takes a fresh look at the framework surrounding the decision to detain individuals and the treatment they receive while they are in detention and evaluates the framework according to rule of law principles.

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 largely derived from internal principles of constitutionalism. They are the framework for democracy from which there can be no derogation or opt out. With that in mind, the 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 decision to detain an individual has the effect of depriving that individual of his or her liberty, and should be subjected to rigorous scrutiny according to rule of law principles, such as access to justice, the right to a fair trial, the prohibition of torture and inhuman and degrading treatment and the right to liberty and security. Because regulation of immigration has traditionally been within the purview of the state and, as such, states are traditionally accorded a high level of deference by courts in this area, international and European standards regarding immigrants’ rights are not always taken into account in national immigration policy. Moreover, some regional or international standards may also inadequately protect immigrants due to the political negotiation process. The lack of consistency and clarity is having an obvious detrimental impact on State detention policy and is contrary to the rule of law.

There is, of course, reluctance on the part of states to give up their stronghold on regulating immigration, especially regarding human rights protection, which is a fundamental aspect of the rule of law. As the report shows, the rule of law should be respected in all situations involving the deprivation of liberty, whether or not the individual at issue is a citizen or an immigrant. This means that before being placed in detention, immigrants should have their cases considered on an individual and equitable basis, complete with associated due process rights, such as the right to counsel, the right to be seen by a court, and the right to information regarding their case. The executive should also be bound by obligations to, for example, regularly review the appropriateness of an order for detention, to provide the substantive, individualised reasons for continued detention, to diligently pursue the legitimate aim for the detention, to provide dignified and humane detention conditions, and to take into account the special needs of vulnerable persons and groups.

The study demonstrates that it is possible to maintain state immigration policy objectives while simultaneously respecting the rule of law in situations where immigrants are facing detention.

There are 25 Safeguarding principles (SP 1 – 25). It is an interesting exercise to view the Australian system of mandatory immigration detention through the lens of the rule of law principles. When this is done, the inherent inadequacies of the Australian detention regime are readily apparent.

The first principle is “Liberty” which states that “Everyone, whatever their immigration status, has a basic freedom from detention”.

–       The Australian system of mandatory detention disregards a person’s interest in freedom, with no attempt to justify the deprivation of freedom. The deprivation is simply an administrative convenience, and increasingly a deliberate punishment of people arriving in Australia without authorisation.

The second principle is “Equality” which states, “Everyone, whatever their immigration status, has a basic right to equal treatment under equal law.”

–       Liability for detention under Australian law discriminates between citizens and non-citizens, and among non-citizens discriminates between people with and without authorisation to enter Australia, and among those with no authorisation discriminates between people based on their mode of arrival. In relation to liability for detention, the law and policy provide no adequate reason for distinguishing between people on these grounds, and thus are directly contrary to the principle of equality.

SP 7, “Individualisation”, states that “Detention must be based on due appraisal of the individual circumstances”.

–       In relation to detention in Australia, some consideration of the individual circumstances of detainees is evident in the choice of detention facility in which a person is detained – a secure, high security detention facility, an alternative place of detention, or community detention, and since October 2011, whether a person should be released into the community on a bridging visa. However, in determining which facility a person ends up in, the department applies its own unreviewable criteria. In relation to off-shore detention on Nauru and Manus, there is no appraisal of individual circumstances.

SP 8, “Alternatives”, states that “Detention must be based on due appraisal of the alternatives to detention”.

–       As discussed above, there are no alternatives to detention for persons in Nauru or Manus. For detention in Australia, the Bridging Visa E offers an important alternative to detention. However, there is no opportunity for asylum seekers to apply for a bridging visa. Grant of the visa is a purely discretionary departmental decision, and the Department of Immigration and Border Control provides no reasons for its decision to grant or fail to grant a bridging visa. It is doubtful, then, whether the current process constitutes “due appraisal of the alternatives to detention.”

SP 9, “Non-routine”, states that “Detention cannot be used as a routine measure of immigration control”.

–       By its very nature, mandatory detention fails this requirement, as mandatory detention is the default. In Manus and Nauru it is in fact the only option. In Australia there is the option of release from detention on a bridging visa, but this is the non-routine alternative.

SP 11 requires that detention not be arbitrary, in line with the requirement of Article 9(1) of the ICCPR.

–       Repeated judgments of the Australian detention regime by the ICCPR Human Rights Committee, and decisions of the Australian Human Rights Commission, have held that Australian immigration detention fails this requirement.

SP 13, “Necessity”, states that detention must be a “last resort”.

–       A policy of mandatory makes detention a first resort. Enough said.

SP 16, “Brevity”, requires detention to be as short as possible, and SP17, “Maximum” requires that the duration of detention be within “a prescribed maximum duration”. Under Australian law, detention has no maximum period. It ends when a person is granted a visa or when he/she is removed or deported. On many occasions, persons have been left in detention with no prospect of their detention ending as a result of either of these events. As of 30 September 2013, 106 people had been in immigration detention and 334 people in community detention for more than 2 years.

SP 22, “Administrative Review”, requires regular executive review of the appropriateness and conditions of detention.

–       There is no executive review of the appropriateness and conditions of detention in Australia. Furthermore, in off-shore detention centres there is very limited scope for review by non-government organisations. The UNHCR has visited Nauru and Manus each on two occasions since they were reopened in the second half of 2012, strongly recommending each time that these detention centres be closed, or at the very least, that women and children not be detained there. Amnesty International has reported on detention on Nauru once. In relation to onshore detention, the Australian Human Rights Commissioner and the Commonwealth Ombudsman have played important accountability roles in relation to the appropriateness and conditions of detention. The Commonwealth Solicitor-General has advised the Australian Human Rights Commission that it does not have jurisdiction to conduct an investigation of conditions in detention facilities outside Australia. The jurisdiction of the Commonwealth Ombudsman in this regard is not clear.

Finally SP 23, “Judicial Review”, requires the right of a detainee to have the lawfulness of detention reviewed by a court.

–       There have been a number of applications to the Federal and High Courts challenging the lawfulness of detention. However, in three decisions in 2004-5, the High Court held that Parliament had the power to detain non-citizens simply for the purpose of excluding them from the Australian community. It mattered not that the law allowed for indefinite detention (Al-Kateb v Godwin), or for the detention of children (Re Woolley; Ex parte Applicants M276/2003 by their next friend GS), or for detention in harsh conditions (Behrooz v Secretary for the Department of Immigration and Multicultural and Indigenous Affairs). Since these cases, there has been no scope to judicially review the reasons for detention, the length of detention, or conditions in detention.

Time for a new approach?

The current approach to immigration is unsustainable. The arbitrary use of immigration detention as a routine policy tool has been repeatedly condemned by the international community. Despite this, the government continues to apply its automatic detention policy. Perhaps what will finally persuade the government that its policies are inapt is a reassessment of those policies according to rule of law principles. It is one thing for Australia to reject international human rights obligations in its immigration detention law, policy and practice. It is quite another to implement policies that blatantly disregard the fundamental rule of law principles upon which the Australian Constitution rests. As globalisation and natural disasters increasingly contribute to the movement of persons across national borders, more people’s rights are potentially subject to government intervention. The rule of law is vital to ensure that government policy is fair and balanced, and discretion is not abused. In an area of regulation, such as immigration detention, where the consequences can be so severe, rule of law principles play a vital role in ensuring government action is consistent with the human dignity and physical and mental integrity of all people.


Alexander Reilly in an Associate Professor at the University of Adelaide School of Law. Alex researches and teaches in a range of areas of public law and political theory including citizenship, migration and asylum.

Justine Stefanelli is the Maurice Wohl Associate Senior Research Fellow in European Law at the Bingham Centre for the Rule of Law. Justine researches in a number of European law issues, including asylum and immigration and human rights.