There is an obligation on the Commonwealth to demonstrate that there was not a less invasive way than closed detention to achieve the ends of the immigration policy, for example the imposition of reporting obligations, sureties or other conditions, in order to avoid the conclusion that detention was ‘arbitrary’. [...] As a result of the inquiry, I find that the following act of the Commonwealth is inconsistent with, or contrary to, article 9(1) of the ICCPR: • The Department’s delay in referring Mr KJ’s case to the Minister for consideration of his discretionary intervention powers under s 195A and/or s 197AB of the Migration Act until 8 February 2021. [...] The functions of the Commission identified in s 11(1)(f) of the AHRC Act are only engaged where the act complained of is not one required by law to be taken, that is, where the relevant act or practice is within the discretion of the Commonwealth.3 4.3 What is a human right? 26. [...] I consider the following act of the Commonwealth as relevant to this inquiry: 11 • The Department’s delay in referring Mr KJ’s case to the Minister for consideration of his discretionary intervention powers under s 195A and/or s197AB of the Migration Act until 8 February 2021. [...] The Department responded to the question on notice that ‘transitory persons are detained under section 189 of the Act on arrival to Australia and can only be placed in the community through the exercise of the Minister’s powers under sections 195A or 197AB of the Act.’ Senate Standing Committee on Legal and Constitutional Affairs Budget Estimates, Parliament of Australia, Question on notice no.
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