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As a High Court challenge looms, are there alternatives to Australia’s indefinite detention policy?

Another High Court challenge to the Gillard government’s indefinite detention of ‘legal black hole’ refugees has experts calling for alternatives. AAP/Jeremy Piper

The Gillard government is facing another High Court challenge to its indefinite detention of the 55 refugees to have received adverse security assessments from ASIO.

These continuing legal troubles, along with the human cost, show the need to rethink the assumption that detention is the only way to address this perceived security risk.

The problem

These individuals are often referred to as the “legal black hole” refugees. They have had their asylum claims assessed and are certified as genuine refugees, but have then been deemed security risks by ASIO. Deportation is untenable due to the risk of torture and death, so currently they remain detained for potentially the rest of their lives.

This is no exaggeration, as one adversely-assessed refugee has committed suicide and several more have attempted to. The human cost of our current approach was again exposed when a nine year old boy held in immigration detention was recently revealed to be so traumatised that he had been shoving sticks in his ears. The boy is in detention because his mother, Ranjini, is one of these suspected security risks.

The political debate so far has revolved around the effectiveness of the recently established review mechanism for ASIO’s assessments.

However, the greater issue is that even if the adverse security assessments are well-founded, indefinite detention is both unjust and unnecessary.

An adverse assessment from ASIO is not comparable to a criminal conviction. Rather, it is an intelligence-based predictive judgement that someone might pose a security risk. ASIO assessments are an important part of the screening process for visa applications, but it does not follow that an adverse finding necessitates detention.

Alternative approaches

There are many other ways of addressing the various security risks the individuals may pose, most of which could be introduced without changing current laws.

Labor MP Daryl Melham has suggested that in some cases electronic tagging could be used as a possible alternative. AAP/Lukas Coch

They could be released into the community on conditional visas so that they could be returned to their home countries, if the human rights situation sufficiently improves. Once released, several options are available, depending on the threat posed.

It may be that a level of surveillance would suffice for some of these individuals. For others, though, certain restrictions on liberty short of detention may be necessary.

Addressing support for violence overseas

The available information suggests that most of the adverse assessments are based on alleged support for the defeated Tamil Tigers in Sri Lanka.

Support for the Tamil Tigers is a legitimate security concern. Australia has an international obligation to prevent its territory being used as a base for violence against other countries, but addressing this does not require detention.

If individuals continued to provide support for the Tamil Tigers (or its subsequent incarnations) while in Australia, security agencies already have the legal power to take action. This was demonstrated when three Melbourne men were convicted in 2009 for providing the Tamil Tigers with money and electronic components.

Another possibility, if necessary, is to proscribe the Tamil Tigers as a terrorist organisation. This would not prevent former Tamil Tigers being allowed into the community, but would provide a clear legal basis to take action if they remained involved with the organisation while in Australia.

Addressing internal risks

If some of the individuals are assessed to pose a risk of terrorist violence within Australia (though current reporting does not suggest this) other options are available. One possibility is to use control orders, which can impose all sorts of restrictions on who someone can contact, where they can travel, and ensure parole-like requirements to report.

In fact, Australia’s control order legislation was modelled on the UK’s, which was specifically introduced to deal with this sort of situation. In 2004, the UK House of Lords ruled that suspected terrorists who could not be deported due to risks of torture could also not be detained indefinitely.

As the UK faced obstacles in prosecuting these suspects (its terrorism legislation was narrower in scope than Australia’s at the time), they introduced control orders in March 2005. A 2012 independent review of the UK’s control orders found that they were effective at addressing the terrorist threat from the individuals they were used against, and that - if anything - they had been overly restrictive.

The UK was dealing with people against who there was compelling evidence of their terrorist involvement (often with al-Qaeda) and of direct danger to UK citizens. There is no indication that Australia’s refugees with suspected Tamil Tiger links pose an equivalent threat.

If control orders are not possible for some individuals (for example, if the intelligence is too sensitive) there are other means to apply any necessary restrictions. University of Sydney’s Professor of International Law Ben Saul has noted that:

…the Minister for Immigration can also order “community detention” on certain conditions, which could conceivably include restrictions on residency or communications, reporting obligations and so on — much like a de facto control order.

Labor MP Daryl Melham has suggested that in some cases, electronic tagging could be used.

Towards a solution

The key principle is that the options chosen should be tailored to the specific security risk each individual is assessed to pose. Independent oversight, as well as periodic review, could also help ensure that any restrictions on liberty are only maintained as long as necessary.

There is no ideal solution, but a policy that addresses legitimate security concerns without maintaining the current inhumane approach is certainly achievable, and has been called for by a range of experts, the Joint Select Committee on Australia’s Immigration Detention Network and the Commonwealth Ombudsman.

There are plenty of ways to protect national security without resorting to indefinite detention.

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