Indefinite detention


There were strong words last month when Britain’s highest court ruled that the nation’s anti-terrorism laws undermined basic human rights.

Such laws, Lord Hoffmann said, were ‘the stuff of nightmares associated with France before and after the revolution (and) Soviet Russia in the Stalinist era.’

The 8-1 law lords ruling held that the indefinite detention of non-nationals without charge was illegal under Britain’s international obligations. ‘The real threat to the life of this nation,’ said Lord Hoffmann ‘comes not from terrorism, but laws such as these.’

These views are not widely shared. The US administration is looking at plans to establish prisons in Saudi Arabia, Yemen and Afghanistan from which terrorism suspects might never be released, while the Australian High Court recently ruled failed asylum seekers could be held indefinitely.

On the surface the British and Australian cases are quite different. The lords’ ruling hinged on perceived discrimination and whether the threat the detainees posed justified their loss of liberty.

The High Court ruling, according to Sydney human rights lawyer Simon Rice came down to an unremarkable lawyer’s interpretation of what ‘reasonably practicable’ means. As long as the government intended to deport, the Court ruled the detention legal.

Both cases, however, raise interesting questions about the appropriate use of executive power, while also showing how indefinite detention affects detainees.

In 1998 the UK incorporated the European convention on human rights into domestic law. ‘The Human Rights Act creates a mechanism for the courts to bring to parliament’s attention situations where there is a breach, or potential breach of human rights in primary legislation,’ says Ben Ward from Human Rights Watch London.

Following September 11, the UK derogated its rights under the convention protecting against the deprivation of liberty. ‘The UK was the only country signatory to the convention that did this,’ says Ben Ward. ‘In the global context, it was very unusual.’

Rights relating to discrimination were not suspended; this is where the new laws came unstuck. ‘For reasons best known to themselves they defined it in terms of foreign nationals,’ says Philip Leach, senior law lecturer at London Metropolitan University. ‘The law lords made the point that there was no rational, nor clear basis for that distinction.’

Since the UK must uphold the rights of both nationals and non-nationals within its territory, the Home Office tried to frame the issue as an immigration matter, says Ben Ward. ‘Rather than portraying it as a form of internment, they called it immigration detention,’ he says.

In Australia, ‘unlawful non-citizens’ must be detained until they are removed or granted a visa. No distinction is made between types of people detained in the Migration Act, so the recent ruling on indefinite detention apparently includes children.

Sydney lawyer, Alexis Goodstone, has represented men awaiting removal after periods in detention lasting up to three years. ‘Our argument was that it was unclear whether Parliament envisaged detention might extend indefinitely,’ she says. Without such clear language, she argued that her clients’ detention should conform with international law.

When mandatory detention was introduced in the early 90s, no mention was made of ‘stateless’ detainees, or those who could not, for whatever reason, be deported. Moreover, nothing in the Act compels the independent review of the ongoing necessity of detention in unusual cases. This is a matter of ministerial discretion.

After the High Court judgement, Immigration Minister Amanda Vanstone reviewed twenty four cases. Nine bridging visas were granted allowing release into the community with no work, or social security rights. Two cases were unclear, thirteen others kept in detention.

One of Alexis Goodstone’s clients – a ‘stateless’ man detained for more than six years – was not released. ‘He has spent all of his twenties in detention, while others are getting an education, getting a job,’ Goodstone says. The High Court decision ‘crushed’ him. ‘He’s basically in shut down mode and talking about wanting to die.’

In October, Britain’s Royal College of Psychiatrists released a report showing that the men held under the anti-terrorism laws suffered from severe depression and anxiety.

‘Deterioration in mood state is clearly linked to a sense of helplessness and hopelessness which is an integral part of indefinite detention,’ it said.

The Society cited the case of ‘G’ whose psychosis eased after he was released on house arrest. In contrast, when Mahmoud abu Rideh was redetained – after a stint at Broadmoor psychiatric hospital – his mental state collapsed.

Philip Leach, who has argued cases alleging Russian human rights violations in Chechnya at the European Court, says that if the detainees go to Strasbourg, the court might find the UK has breached matters other than discrimination.

‘There is evidence that a number of these people have serious mental health problems,’ he says. This could be evidence that the UK breached articles forbidding torture and degrading treatment and did not guarantee due process.

No such recourse exists for detainees in Australia. The Commonwealth says their detention can be challenged in the courts, or assessed by the UN Committee on Human Rights.

But since Australia – unlike India, South Africa, New Zealand, Canada and other like countries – has not legislated international human rights law, this has little effect.

‘The UN might publish an opinion saying, Australia is breaching this person’s human rights, but that’s it,’ says Simon Rice. ‘It’s an opinion on the other side of the world. It translates into nothing of any enforceable substance over here.’

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