On 25 May 2012, the HRLC made a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the detention of Indonesian minors in Australia. The HRLC submission examines the human rights implications of the pre-charge detention of individuals suspected of people smuggling. It focuses, in particular, on circumstances where the detention is authorised by the operation of a Criminal Justice Stay Certificate.
The HRLC has identified the following concerns in relation to pre-charge detention of suspected people smugglers, including children:
- under the Migration Act 1958 (Cth), the Commonwealth has open-ended powers to detain persons suspected of people smuggling offences and, consequently, individuals may be arbitrarily detained for prolonged and indefinite periods of time;
- the Australian Federal Police have given evidence before the Senate Estimates Committee that the average time spent in detention prior to charge for alleged crew of people smuggling ventures is 161 days;
- judicial review in these circumstances is restricted and suspects are not guaranteed legal assistance or representation for the purposes of challenging the lawfulness of their detention; and
- the detention of children, including in adult immigration facilities, gives rise to particularly grave concerns.
The HLRC considers that, in these circumstances, detention may violate Australia’s international legal obligations under the International Covenant on Civil Political Rights and, in the case of minors, the UN Convention on the Rights of the Child.