The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the detention of Mr MC and Mr Ghanbari in immigration detention centres was arbitrary within the meaning of article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).
Mr MC was detained in immigration detention centres for over two years and Mr Ghanbari was detained in immigration detention centres for almost two years. Both men have now been placed in community detention.
Under international law, to avoid being arbitrary, detention must be necessary and proportionate to a legitimate aim of the Commonwealth. The President did not find any information to suggest that it was necessary to detain Mr MC and Mr Ghanbari in an immigration detention centre. She noted that given both men have now been placed in community detention, it was unclear why this did not occur at an earlier time. Community detention was available on Christmas Island in 2010.
The Commonwealth submitted that the expanded community detention program was not announced until October 2010 and was not fully operational until January 2011. It stated that community detention was expanded for the purpose of prioritising the transfer of children into the community and that single adult me were not eligible to be placed in the community unless they were assessed as particularly vulnerable.
The President found that whilst it may not have been consistent with the Commonwealth’s policy to place Mr MC and Mr Ghanbari in community detention until they were assessed as particularly vulnerable, this policy does not provide justification for prolonged detention in an immigration detention centre.
The President recommended that the Commonwealth pay financial compensation to Mr MC in the amount of $150,000 and Mr Ghanbari in the amount of $100,000 and provide formal written apologies to both men for the breach of their rights under article 9(1) of the ICCPR.
As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.
Media contact: Sarah Bamford (02) 9284 9758 or 0417 957 525.