Download this Paper Open PDF in Browser

Dark Justice: Australia's Indefinite Detention of Refugees on Security Grounds under International Human Rights Law

47 Pages Posted: 21 Jan 2013 Last revised: 29 Sep 2014

Ben Saul

The University of Sydney Law School

Date Written: January 21, 2013

Abstract

This article examines Australia’s security assessment and related detention of refugees in the light of international human rights law. The current domestic legal process typically denies refugees any or adequate notice of the allegations and evidence against them, precludes merits review by an independent administrative tribunal and fails to provide genuine and effective judicial review of security assessments or detention (including a sufficient degree of procedural fairness and disclosure of essential evidence). The result is often indefinite detention of recognised refugees who cannot be removed from Australia and thus remain in a legal black hole where security decisions are immune from scrutiny. The current regime results in systematic violations of Australia’s obligations under arts 9(1), 9(2) and 9(4) of the International Covenant on Civil and Political Rights. These violations are not remedied by the High Court of Australia’s fairly narrow, technical decision in the 2012 case, Plaintiff M47/2012 v Director-General of Security, or by the creation of the non-binding Independent Reviewer of ASIO assessments.

Keywords: International Covenant on Civil and Political Rights (ICCPR), Australian Security Intelligence Organisation (ASIO), arbitrary detention, indefinite detention, national security, classified information, secret evidence, procedural fairness, public interest immunity, right to a fair hearing, refugees

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Dark Justice: Australia's Indefinite Detention of Refugees on Security Grounds under International Human Rights Law (January 21, 2013). Melbourne Journal of International Law, Vol. 13, No. 2, pp. 685-731, 2012; Sydney Law School Research Paper No. 13/02. Available at SSRN: https://ssrn.com/abstract=2204823

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://www.law.usyd.edu.au/about/staff/BenSaul/index.shtml

Paper statistics

Downloads
403
Rank
59,922
Abstract Views
1,736