Nature of Arbitrary Detention

Arbitrary detention is an ambiguous issue as it is only mentioned, not clearly defined in international instruments such as the Universal Declaration of Human Rights. Arbitrary detention is detaining someone without good reason or denying them access to their human rights while being detained. Those who are arbitrarily detained are being deprived of their personal security and liberty. By agreeing to international treaties such as the UDHR, the Australian Government gains obligations to protect individuals’ liberty. Some of these include, telling them why they are being detained and they have to be tried within a reasonable time of being detained. Another obligation of the government is to allow the person who has been detained to challenge the lawfulness of their arrest. These rights are taken from people who have been arbitrarily detained. A person being indefinitely or arbitrarily detained is incompatible with article 9 of the UDHR.

A prominent example of arbitrary detention currently in Australia is the mandatory detention policy of asylum seekers. Asylum seekers are often detained indefinitely while it is being determined whether they are genuine asylum seekers. They often develop mental illnesses which have in the past led to self-harm and suicide. They are denied fundamental rights like being able to question the validity of their arrest in court. Australian courts do not have the power to release asylum seekers from detention. Immigrants have also known to be arbitrarily detained. An example is Cornelia Rau who was detained for ten months between 2004 and 2005 in Brisbane Women’s Correctional Centre and Baxter Detention centre in South Australia. This led to a further deterioration of her mental health. This case cast a shadow of doubt on the effectiveness of Australia’s immigration system.

The issue of arbitrary detention highlights many of the flaws in Australia’s immigration system. It is also an example of the difficulties that lie in balancing the needs of society and the rights of individuals. 

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