There has been considerable public interest in some recent findings of the Australian Human Rights Commission that the Australian Government is in breach of our human rights obligations. While, as President of the Commission, I seldom comment on individual cases, the justifiable community concerns raised about one of these cases, the Basikbasik case, warrant a response.
The factual and legal reasons for my recommendations to the Minister for Immigration in the Basikbasik case are publicly available and my report has been tabled in Parliament. Before considering this case, however, it might be helpful to understand the role that the Commission is required to play under our governing statute.
The Commission is the necessary first, but not the last step, in Australia's legal regime to protect fundamental freedoms.
A key function of the Commission is to consider the 21,000 inquiries we receive each year. About 2,500 of these inquiries become formal complaints alleging discrimination or a breach of human rights obligations under the treaties to which Australia is a party. The Commission's statutory obligation is to investigate each of them and attempt to reach a conciliated outcome accepted by all parties.
In around 70 per cent of complaints, conciliation is successful. Indeed, long-term systemic changes can be achieved confidentially and at no cost to either the complainant or the person complained against. If a complaint is not settled through conciliation, the complainant may, in some cases, bring the matter to the Federal Court for judicial determination.
Some complaints are from people who are held in immigration detention and claim that their detention is contrary to the right under the International Covenant on Civil and Political Rights not to be detained arbitrarily. Wherever such complaints are not successfully conciliated, the Commission is required to conduct an inquiry and report to the Attorney-General if the Commission finds that there has been a breach of human rights. The Government then has complete discretion to decide whether to accept or reject the Commission's recommendations or, alternatively, it may ask the courts to review the decision.
Human rights apply to everyone. They apply equally to people convicted of crimes and to those with no criminal record, they apply to people with mental disabilities, and they apply to people whose opinions or character we may dislike.
The fact that a person has committed a crime in the past, and been imprisoned for that crime, does not of itself justify the continued detention of that person at the discretion of the Minister for Immigration after their term of imprisonment has been served.
The Basikbasik case related to a man who first arrived in Australia from Indonesia in 1985 and was granted a protection visa in 1996. In May 2000 he was charged with the manslaughter of his de facto wife. He was convicted and sentenced to seven years' imprisonment.
On being released from prison in 2007 after serving his term, he was detained again, this time in the Villawood Immigration Detention Centre, as his visa had been cancelled by the Minister on character grounds. Mr Basikbasik has been detained at Villawood for the past seven and a half years at the discretion of the Minister, without charge or trial in relation to any criminal offence.
The Department of Immigration has recognised that Australia could not return Mr Basikbasik to Indonesia because there was a real risk that he would be persecuted there.
On three occasions, the relevant Minister declined to place Mr Basikbasik in community detention or in some other less restrictive form of supervision.
Mr Basikbasik is now 59 years old. The Commission's task was to consider whether his continued detention for more than seven years after he was released from prison was arbitrary, as he alleged. The relevant legal principle is simply stated. The detention for a further seven and a half years, after his sentence had been served must be both necessary and proportionate to achieve a legitimate aim.
Clearly, one legitimate aim is community safety, a priority that the Commission considered seriously. In particular, the Commission took into account the views of the Administrative Appeals Tribunal that it was "comfortably satisfied" that Mr Basikbasik posed a real or significant risk of harm to the Australian community.
However, part of the reason for the Tribunal's finding was its concern that, contrary to the recommendations of a psychologist, there was no proper management plan in place for Mr Basikbasik's rehabilitation, nor did he appear to have any support in the community.
There was no evidence provided to the Commission that, when considering community detention for Mr Basikbasik, the Minister considered whether any risk to the community could be mitigated by a management plan for rehabilitation. Nor was there evidence that the Minister considered imposing conditions such as a requirement to reside at a particular place, with curfews, travel restrictions or regular reporting.
On these grounds, the Commission found that it was not necessary to continue to detain Mr Basikbasik in an immigration detention centre for seven and a half years. On the basis of the material before the Commission, his detention was arbitrary, contrary to human rights law. As is usual, the Commission recommended that compensation be paid, consistently with recent Federal Court judgments dealing with wrongful imprisonment.
It is understandable that some Australians find it hard to accept the recommendations of the Commission in cases where individuals seem undeserving. This is especially so where a person whose freedoms have been denied has, in turn, egregiously breached the rights of others.
But those who commit a criminal offence, and serve the sentence provided by law, do not forfeit all their human rights for the future. Indeed, it is a vital element of our modern criminal justice system that those who commit offences should have the opportunity to reintegrate into the community once their sentences have been served.
Certainly, the Government must act to protect the community against violent and aggressive behaviour. But the executive power to detain indefinitely should be tempered by regular judicial oversight and fair consideration of less restrictive means of supervision, consistent with community safety.
Professor Gillian Triggs is President of the Australian Human Rights Commission.
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