The Right to Health and Immigration Detention: What are Australia’s International Obligations? – Alana Bonenfant

In an increasingly connected world, COVID-19 has people around the world isolating and staying home. But what if that home is an immigration detention centre? In March 2020, a guard at an Australian immigration detention facility tested positive for COVID-19. A group of detainees from across immigration detention centres have written to the Prime Minister, Scott Morrison, pleading to be released into the community on health grounds and a case has been brought in the High Court requesting compassionate release for immigration detainees under the circumstances. Reportedly, more than 300 detainees have been released in the UK for reasons relating to the pandemic. So, what are Australia’s obligations? 

The World Health Organisation (WHO) has listed steps which individuals can undertake to help slow the spread of COVID-19, including physical distancing measures such as only leaving the house for essential errands and maintaining 1.5 metres of space between all persons. Are these measures possible in immigration detention? If not, does this constitute a breach of the right to health?

Is there a right to health? Where does it come from?

It is significant to note that every member state of the United Nations has ratified at least one document recognising the right to health, as noted in the United Nations High Commissioner for Human Rights Fact Sheet [at p 1]. As a starting point, the United Nations Charter preamble opens with the affirmation of ‘fundamental human rights, in the dignity and worth of the human person’.  This was subsequently adopted in the Universal Declaration of Human Rights (UDHR) in 1948. This means states have a legal obligation to protect human rights of all persons within its jurisdiction. Australia is also party to the three key treaties which make up the International Bill of Human Rights:  the UDHRthe International Covenant on Civil and Political Rights(ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights contained in the ICCPR are commonly treated as rights which should be free from state interference. By contrast, the rights contained in ICESCR are perceived to pose positive obligations. 

More specifically, Article 12 of ICESCR identifies an individual’s right to health. The right is defined in article 12(1) and article 12(2) lists non-exhaustive examples of ways in which a state can comply with its obligations. These examples were further elaborated in the Committee on Economic, Cultural and Social Rights’ (CESCR) General Comment No 14, and include: access to safe drinking water, adequate sanitation, nutrition and housing, to be provided to all persons within the principle of non-discrimination.

The right to health is echoed in numerous other international legal instruments including: the Convention on the Rights of the Child (Article 24), the Convention on the Elimination of all forms of Racial Discrimination (Article 5(e)(iv)), the Convention on the Elimination of All forms of Discrimination against Women (Article 11(f) and 12), and the Convention on the Rights of Persons with Disabilities (Article 25). Further, in the specific context of refuges and asylum seekers, the preamble of the Convention Relating to the Status of Refugees (Refugee Convention) states that the convention drafted with consideration of the rights contained in the UDHR and the aspirations of the UN Charter.

What does the right to health include for Refugees? 

The Refugee Convention came into force in 1954. Australia is party to this Convention. Article 23 obliges state parties, including Australia, ‘to accord refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their own nationals’. Paul Weis affirms that public relief should be interpreted broadly and includes, amongst other things, hospital treatment [at p 125].

However, the right to health is not necessarily the ‘right to be healthy’. The United Nations Committee on Economic, Social and Cultural Rights has identified that there are underlying socio-economic determinants to establishing the notion of health: General Comment 14 at [8]. This means, in essence, that a government should provide the foundational services which can allow a person the ability to live a healthy life, but it does not place the onus on the state to ensure or coerce each individual person to access those services. 

Notwithstanding, that, there is a legal obligation for health services to be delivered equally and without discrimination.  In the specific context of COVID-19 in the Australian immigration detention scheme, this means the government should be taking steps to provide health care services of the same quality that would be available to Australian citizens. Additionally, as a general rule, the government should always take active steps to ensure the water, housing, sanitation, food, and access to female sexual and reproductive health services.

Does the right to health apply to people in detention?

Felipe Gonzàlez Morales, United Nations Special Rapporteur on the Human Rights of Migrants, noted in his 2018 report at [86], that where a person is held in immigration detention, that person is still entitled to the protection of their human rights, regardless of their status and without discrimination. The UNHCHR has outlined that any distinction which may contribute to an inequitable treatment before the law must have a justifiable excuse, such as relating to age or mental capacity [at p 7].  Further, the differentiation in treatment must be justifiable in itself. It follows that Australia is required, as a state party to ICESCR, to ‘take steps’ to achieve the realisation of the right to health for persons within its control and jurisdiction. 

What about offshore detention centres that aren’t technically in Australia?

In Plaintiff M68 v Minister for Immigration and Border Protection, a majority of the High Court of Australia decided, as a matter of law, that Australia is not responsible for the individuals detained in off-shore detention centres in Nauru. This was despite, for example, there being a contract between the Australian Government and the security service implementing the detention facility, and the Australian government having a physical presence at the site. However, in spite of this decision, international law doesrecognise collective and ancillary responsibility for internationally wrongful acts. Further, the  International Court of Justice has held that the obligation to protect human rights can also apply when a country engages in conduct outside its borders. It may be that an international court or tribunal may decide differently to the High Court.

But given the pandemic, can’t rights be limited? 

Human rights are inherent to the dignity of a human. This means rights are not normally limited by circumstances, although there are exceptions to this. In many ways, however, the principles of justice are most tested in difficult circumstances and in ways that define who we are. 

The COVID-19 pandemic has shone a spotlight on the need for a requisite standard of health and healthcare available for individuals, regardless of their status as detainees or otherwise. It is true that all of us have had to forgo liberties in the interest of public health.  However, those infringements are not the same as keeping people in detention centres in circumstances where physical distancing is not possible. 

In any event, the WHO recognised centres where undocumented migrants are detained are conducive to the spread of disease 17 years ago [at p 17]. The COVID-19 outbreak on the Rikers Island Jail Facility in New York City is a manifestation of that statement. At the time of writing, there was an average of 162 cases per 10,000 people in New York City. Out of the total inmate population of 3974 currently incarcerated on the island, there are 362 confirmed cases and 2 deaths amongst the inmate population. Of the normal facilities on the island, the West Facility normally houses inmates with contagious diseases, of which there are 140 housing units. Assuming those units house a single inmate each, the number of confirmed cases across the detention facilities on the island has already surpassed the areas dedicated to treating, and containing, contagious disease. This is a single example of the reality of COVID-19 in detention centres around the world.

What does all this mean?

In summary, the Australian government (and other detaining governments) have an international legal obligation to provide for the determinants of health. This may mean releasing immigration detainees into community detention. Countries such as Brazil, Iran and Kenya have released prisoners who were either at the end of their sentences, who were incarcerated for minor or non-violent crimes and those who may be at heightened risk of contracting the virus. However, we also must remember that persons found by Australian law to be genuine refugees have committed no crime. And even if they had, let us always remind ourselves, “How a society treats its most vulnerable is always the measure of its humanity.”

Alana Bonenfant is an LL.M (Research) student at Bond University. Originally from Calgary, Canada, Ms Bonenfant holds a Bachelor of Laws (Honours) and a Bachelor of Arts (International Relations) from Bond University. The author thanks her LL.M supervisor, Dr Danielle Ireland-Piper, for her support and guidance on this piece. Any errors are her own.