Contentious politics, human rights and Australian immigration detention

Abstract

Australian immigration detention has been a contentious political issue for over two decades.While Australia is signatory to all major human rights instruments, immigration detentions' status as administrative detention, the bipartisan political support it receives and the open hostility the government has expressed for human rights have ensured few avenues for political reform and progress toward the realisation of these rights. While this has challenged more traditional legal and institutional means of pursuing change, human rights can be (and have been) defended in other ways. In this article I will show how human rights shape and are shaped by contentious political action, offering a powerful means to pursue change where traditional political and legal structures have failed. I will first discuss grassroots action that has occurred in response to these policies, outlining action that has been relatively impactful. I will then consider how human rights could be understood as contentious. I argue that such an approach is particularly well positioned to explain how human rights have been used to challenge these policies and discuss the importance in of ongoing research and action in this area. Human Rights and Australian Immigration DetentionAustralian immigration detention was introduced over 25 years ago. While any non-citizen without a valid Australian visa can be detained for an indefinite amount of time, the most punitive elements of this policy have targeted refugees and asylum seekers who have travelled to Australia by boat. Onshore detention centres have been maintained since 1992, while offshore detention centres on Manus Island (Papua New Guinea) and Nauru were introduced in 2001, closed and then re-opened in 2012 (Phillips and Spinks 2013). The impact of detention on detainees has been well documented, with violence, sexual and physical abuse, self-harm and suicide all widely reported (Australian Parliamentary Select Committee 2015; The Guardian Australia 2016). Despite this however, the Australian government persists with this approach, explicitly as a deterrent to further boat arrivals (Rudd 2013; Dutton 2015;Morrison 2014a Morrison , 2014bAbbott 2013). In other words, the Australian government detains men, women and children seeking Australia's protection in environments where violence, sexual and physical abuse, self-harm and suicide is completely foreseeable as a means of deterring further people travelling to Australia. The suffering produced by these policies is deliberate and completely avoidable. This has led a number of authors to draw comparisons between these

Class Actions and Human Rights Litigation in Australia: Realising the Potential

“…14 Also illustrative in that regard is the more recent decision of Mortimer J in DBE17 v Commonwealth [2018]. 15 In this matter, the applicant claimed that the detention of members of the group in immigration detention was unconstitutional and therefore invalid, and that as a result they were owed damages for unlawful detention. However, Mortimer J found that the Federal Court had no jurisdiction to determine the proceedings by virtue of s 474AA of the Migration Act 1958 (Cth), dismissing the proceedings.…”

“…This case could be seen to be a human rights case due to it being referrable to Article 14 of the ICCPR. Article 14 requires fairness of procedure for 'suits at law', which can include administrative decision making 15. DBE17 v Commonwealth [2018] FCA 1307 16.…”