Advocacy Brief: Australian Detention Policy in Manus and Nauru

This advocacy brief examines Australia's policy regarding the detention of asylum seekers in Manus and Nauru islands. The report begins by establishing the right to liberty as a fundamental human right and then critiques the Australian government's practice of offshore detention, arguing that it often lacks the necessary legal justification. The brief reviews relevant international laws, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Status of Refugees, to assess the legality and ethical implications of Australia's detention practices. The report highlights concerns about the lack of legal support, medical services, and communication for detainees. It concludes that Australia's detention policies in Manus and Nauru violate international human rights standards, calling for a re-evaluation of these practices to ensure the protection of asylum seekers' fundamental freedoms.

Advocacy brief; Australian policy regarding the detention in Manus and Nauru islands
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Introduction
The right to liberty is a common right that exist in the instruments which are promoting human
rights and therefore protecting every person from arbitrary arrest and detention. In essence, for
one to be denied liberty, it will require a strong justification for such an action to be taken.
Contrary to this in practice it’s a routine in Europe when it comes to immigration detention1.
The detention concerns immigration law detention enforcement related to refusals of admission
or deportation and therefore reflecting vagaries of migration control and migration status.
In regards to Manus and Nauru islands they form part of the detention centre used by Papua New
Guinea and Australia before the detainees are allowed in either country2. The island was first
used as Australia’s offshore immigration centre’s in the year 2001 then after, the prime minister
launched the Pacific solution and were later reopened in 2012 as one of the way to bar asylum
seekers using boats to be resettled in Australia. Following this, one migration agent Liz
Thompson had this to say: “Manus Island is an experiment in the ultimate logic of deterrence
designed to frustrate the hell out of people and terrify them so that they go home.” This is so
because the offshore detention is made to be brutal and therefore despair the asylum seekers to
decide to go back to whatever homes they are fleeing. In addition, dumping them in such remote
areas denies them the required legal support, medical services and communication with the
Australian public3.
Irregular Migration Policy
1 Cochrane, B., 2018. Harms at the Crossroads of Carework and Irregular Migration. Journal of
Refugee Studies.
2 Gilbert, G. (2017). The Human Rights of Migrants and Refugees in European Law. International Journal
of Refugee Law, 29(1), 193-195.
3 McAuliffe, M., 2018. The nexus between forced and irregular migration: Insights from
demography. In Demography of Refugee and Forced Migration (pp. 217-232). Springer, Cham.

Different laws have been laid down to the issue of movement confinement, for example the
universal human rights law though the security is flimsier contrasted with different types of
detainment since states are given more prominent relocation powers different from correctional
ones. Likewise cases testing migration detainment have inspired pressure when conveyed under
the watchful eye of court as with respect to striking a harmony between the privilege to freedom
and movement confinement4. Laws, for example, the European tradition on human rights give
definite arrangements on refuge searchers detainment likewise the Dublin III Regulation gives
such arrangements and in this manner center ought to be attracted to admissibility of
confinement and not detainment conditions. Likewise the worldwide Covenant on Civil and
Political Rights arrangement are feeble to add to valuable migration confinement rules5.
In this regard, various laws have addressed the issue of immigration detention for instance the
international human rights law thou the protection is weaker compared to other forms of
detention since states are given greater migration powers unlike penal ones. Also cases
challenging immigration detention have elicited tension when brought before court as it regards
to striking a balance between the right to liberty and immigration detention6. Laws such as the
European convention on human rights provide detailed provisions on asylum seekers detention
also the Dublin III Regulation provides such provisions and therefore focus should be drawn to
permissibility of detention and not detention conditions. Also the international Covenant on Civil
and Political Rights provision are weak to contribute to constructive immigration detention rules.
On the other hand, the UN human rights committee (HRC) has developed a better jurisprudence
regarding detention where it requires the detention to be lawful and non-arbitrary as it brings up
ingredients that consist inappropriate injustice, lack of predictability and reasonable necessity in
circumstances for certain purposes. This on comparison with article 9 of the ICCPR is that, it
fails to expressly limit legal purpose of detention unlike article 5 of the ECHR which clarifies
that detention must be in relation to a specific purpose and that for immigration detention illegal
4 Triandafyllidou, A, 2019. Governing Irregular and Return Migration in the 2020s: European
Challenges and Asian Pacific Perspectives.
5 Cuttitta, P. (2014). 'Borderizing'the Island Setting and Narratives of the Lampedusa'Border Play'. ACME:
An International E-Journal for Critical Geographies, 13(2).
6 Triandafyllidou, A., 2018. Handbook of migration and globalisation. Edward Elgar Publishing.

entry does not justify the detention7. It goes further to state that other factors such as one
absconding and failing to corporate might justify detention for a certain period and that its aim
should be necessary and proportionate to ones circumstances. Therefore, relying on this
provision the detention practices in the two islands by Australia for instance failing to provide
persons justification is condemned. This is so since Australia in its experience, generally
assumes that the asylum seekers will abscond and therefore need to be detained unlike basing
such on justifications8.
Further, the Convention on Status of Refugees 1951 under 26 regarding freedom of movement
applies to those legally in the territory thou one of the view in regards to the debate as to whether
the provision extends to asylum seekers holds that it should be applied to asylum seekers whose
application have been lodged and therefore all should enjoy the right to freedom of movement
upon receipt of their application thou their movement might be restricted as to those conditions
of aliens. In contrast a number of European governments still contrast on the provision being
applied to asylum seekers in an effort to limit their rights9. Thou the premise of the CSR are that
asylum seekers are presumptive refugees. In regards to Article 31 the Convention prohibits states
against imposing penalties on refugees fleeing from other territories because of a threat of their
freedom if they present themselves to authorities with no delay. Such person’s freedom should
only be limited where necessary10. On this, some hold the view that only criminal sanctions are
7 DeBono, D., 2018. In defiance of the receptison logic: The case for including NGOs as human
rights monitors in the EU’s policies of first reception of irregular migrants. Peace and Conflict:
Journal of Peace Psychology, 24(3), p.291.
8 Clark, S., 2018. Seeking Asylum: Factors Driving Irregular Migration from Indonesia to
Australia during the Fifth Wave 2008–2013. Refugee Survey Quarterly, 38(1), pp.83-113.
9 Campesi, Giuseppe. 2011. The Arab Spring and the Crisis of the European Border
Regime. Manufacturing Emergency in the Lampedusa crisis. EUI Working
Paper RSCAS 59,
http://cadmus.eui.eu/bitstream/handle/1814/19375/RSCAS_2011_59.pdf?seq
uence=1 (retrieved 28 September 2012).
10 Bosworth, M. (2019). Immigration detention, punishment and the transformation of
justice. Social & Legal Studies, 28(1), 81-99.

excluded as punitive while others are of the view that some detention should be not be
considered as punitive. Following this, very few States have taken the step to incorporate the
provision and also the approach used in the case of Saadi v UK imply that is an inadequate
foothold in regional systems.
On the other hand, the UNHCR Revised Guidelines on Detention of Asylum Seekers 2012
provides a general principal that asylum seekers should not be detained wholly for purposes of
seeking asylum and that detention is permissible in exceptional circumstances where it’s
reasonable, proportional and of necessity so as to achieve certain limited objectives11. In this
regard, detention is permissible when its aim include protecting a public order, national security
or public health. In addition, refugees are to be exempted from immigration detention if the
focus is in regards to permission of entering and staying for a short period of time.
Further, in contrasting the ICCPR against the ECHR the is the issue of definite list of specific
grounds for detention to be allowed which include; if detention is for purposes of preventing
unauthorized entry and of those individuals where an action in relation to deportation or
extradition is being undertaken12.
in relation to case law, some detention have been condemned for instance in the case of Lokpo
& Toure v Hungary, the detention of asylum seekers was regarded as unlawful since the relevant
authority failed to provide a reasonable reason to continue detaining the individuals13.
The other rule connected in the court framework is pleasantly understanding of suits since this is
the best decision. This is the establishment of Islamic law where both social and juridical
discernment is a vital piece of intercession and intervention which are the last hotel of a legal
11 Triandafyllidou, A., 2019. Exploring the links between enhancing regular pathways and
discouraging irregular migration: a discussion paper to inform future policy deliberations.
12 De Haas, H., 2016. Growing restrictiveness or changing selection? The nature and evolution of
migration policies. International Migration Review.
13 Johnson, H.L., 2018. Boats, Borders and Asylum: the Global Politics of Irregular Migration in
Maritime Space-ESRC. Impact, 2018(4), pp.8-10.

arrangement14. Be that as it may, there are some family and business issues where there are
personal and private inquiries and a senior is called to mediate. An imam is the ace of family or a
house with equivalent expert and distinction and understands these issues genially. There are
arrangements on the constitution that perceive the right to speak freely, opportunity of
gatherings, opportunity of productions and press. Anyone is qualified for work and join
associations lawfully given they don't encroach the standards. From these statutes and
arrangements, a state ought to be non-unfair from national, semantic and ethnic points of view15.
Conclusion
In conclusion therefore, as much as the legal framework surrounding immigration detention may
not be that strong the right to liberty is one of the fundamental freedoms provided in almost all
human rights instruments and therefore if any State detains an asylum without providing
reasonable and necessary reasons such a state ought to be hold in contravention with the
universal prescribed laws. Therefore, the act of detention promoted by Australia in the two
islands are highly condemned as they deny the asylum persons the right to enjoy their
fundamental freedom of movement.
References
Bosworth, M. (2019). Immigration detention, punishment and the transformation of
justice. Social & Legal Studies, 28(1), 81-99.
Carr, A., 2016. The Engagement Pendulum: Australia’s Alternating Approach to Irregular
Migration. Journal of Australian Studies, 40(3), pp.319-336.
Cuttitta, P. (2014). 'Borderizing'the Island Setting and Narratives of the Lampedusa'Border Play'. ACME:
An International E-Journal for Critical Geographies, 13(2).
Clark, S., 2018. Seeking Asylum: Factors Driving Irregular Migration from Indonesia to
Australia during the Fifth Wave 2008–2013. Refugee Survey Quarterly, 38(1), pp.83-113.
14 Carr, A., 2016. The Engagement Pendulum: Australia’s Alternating Approach to Irregular
Migration. Journal of Australian Studies, 40(3), pp.319-336.
15 Council of Europe. 2008. Europe’s ‘boat people’: mixed migration flows by sea
into southern Europe. Parliamentary Assembly Doc. 11688. Strasbourg:
Council of Europe,

Cochrane, B., 2018. Harms at the Crossroads of Carework and Irregular Migration. Journal of
Refugee Studies.
Council of Europe. 2008. Europe’s ‘boat people’: mixed migration flows by sea
into southern Europe. Parliamentary Assembly Doc. 11688. Strasbourg:
Council of Europe,
http://assembly.coe.int/Documents/WorkingDocs/Doc08/EDOC11688.pdf
(retrieved 28 September 2012).
Campesi, Giuseppe. 2011. The Arab Spring and the Crisis of the European Border
Regime. Manufacturing Emergency in the Lampedusa crisis. EUI Working
Paper RSCAS 59,
http://cadmus.eui.eu/bitstream/handle/1814/19375/RSCAS_2011_59.pdf?seq
uence=1 (retrieved 28 September 2012).
De Haas, H., 2016. Growing restrictiveness or changing selection? The nature and evolution of
migration policies. International Migration Review.
DeBono, D., 2018. In defiance of the receptison logic: The case for including NGOs as human
rights monitors in the EU’s policies of first reception of irregular migrants. Peace and Conflict:
Journal of Peace Psychology, 24(3), p.291.
Gilbert, G. (2017). The Human Rights of Migrants and Refugees in European Law. International Journal
of Refugee Law, 29(1), 193-195.
Johnson, H.L., 2018. Boats, Borders and Asylum: the Global Politics of Irregular Migration in
Maritime Space-ESRC. Impact, 2018(4), pp.8-10.
McAuliffe, M., 2018. The nexus between forced and irregular migration: Insights from
demography. In Demography of Refugee and Forced Migration (pp. 217-232). Springer, Cham.
Triandafyllidou, A, 2019. Governing Irregular and Return Migration in the 2020s: European
Challenges and Asian Pacific Perspectives.
Triandafyllidou, A., 2018. Handbook of migration and globalisation. Edward Elgar Publishing.
Triandafyllidou, A., 2019. Exploring the links between enhancing regular pathways and
discouraging irregular migration: a discussion paper to inform future policy deliberations.