Volume 27, Issue 1, 2017
On ASIO’s Advice
The ‘procedural trap’ and Refugees in Indefinite Detention
This paper assesses the approach to indefinite detention adopted by the Australian government, suggesting that it is a product of incremental reasoning favouring procedure over observing substantive rights. Specific emphasis is given to the category of detainees deemed to be refugees, but assessed as a pressing security threat. The United Nations Human Rights Committee has found such approaches in violation of international law. Disproportionate measures, it is argued, have been taken regarding such a class of refugees, in direct violation of the International Covenant on Civil and Political Rights. The trend towards such detention, however, is an international one, a security trend that defers legal judgment to that of the executive in what can be termed a form of governmentality in action. That trend received considerable impetus from the post-September 11, 2001 detention regime in Guantánamo Bay.