Mental illness and indefinite detention at the minister's pleasure

Crowley-Cyr, Lynda (2005) Mental illness and indefinite detention at the minister's pleasure. University of Western Sydney Law Review, 9. pp. 53-85.

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This article is an analysis of immigration detention in Australia as the worst form of detention without trial. It is based on a border-control, anli-terrorist policy fortified by unconfined, unstructured and unchecked discretion by the executive and its officers. Such unfettered discretion has led to extraordinary injustices against detainees. This is so, despite judicial authority that states the assumption of the power of control over detained persons (while immigration eligibility is assessed) creates in the government a non-delegable duty to act to safeguard detainee welfare and rights. The plight of two women, Cornelia Rau and Vivian Alvarez1, one wrongfully detained, the other wrongfully deported under the Migration Act (Oh) 1958 has captured for the public, much of what is wrong with Australia's immigration processing system. Their experiences expose a system based on opaque unfettered discretion. Such discretion is buttressed by a culture of indifference to international human rights obligations, the abrogation of the Rule of Law, and the denial of natural justice. The article is divided into four parts. It begins with an overview of the architecture of the detention regime by way of background and to provide context to the discussion. Part two, the centrepiece of this article, is a chronology of discretionary decisions exercised during the detention of Ms Rau and Ms Alvarez. The chronology aims to illustrate the extent and impact of the innumerable discretionary acts and omissions committed by public officials and then, by privately contracted servants of the Commonweaith. It exposes the human consequences of the exercise of discretionary power without boundaries. It is by assembling the myriad of frequent failures by the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) and State mental health and missing persons systems that a sense of the magnitude of the dysfunctionality and hazards of unfettered discretion develops. Part three provides an analysis of the discourses of the various reports about the DIMIA's conduct in terms of the detention of Ms Rau and deportation of Ms Alvarez. Part four analyses the lack of accountability in these cases. It concludes with a review of the fortress! security state's responses to the recommendations made by the various reports on these detention scandals.

Item ID: 4535
Item Type: Article (Research - C1)
ISSN: 1446-9294
Keywords: health law
Date Deposited: 20 Sep 2009 23:47
FoR Codes: 18 LAW AND LEGAL STUDIES > 1899 Other Law and Legal Studies @ 100%
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