3 | Key observations and concerns 3.6 Alternatives to Closed Detention In order to avoid detention being “arbitrary” It remains the Commission’s view that ‘[a] short period of closed detention aimed at managing risks to the Australian community may be justifiable under international law, provided that the risks cannot be managed in a less restrictive way, and that detention is necessary, reasonable and proportionate in the individual’s circumstances’.91 It is preferable for people to be released from closed detention into alternative communitybased arrangements, and for closed immigration detention to be limited to circumstances where it is strictly necessary to manage unacceptable risks to the community. proportionate on the basis of the individual’s As with previous inspection visits, the Commission again encountered cases during this inspection in which closed immigration detention did not appear to be justified. The Commission renews its previous recommendations concerning alternatives to closed detention,92 including that the Minister and Department should routinely consider all people in closed detention for release into alternative community-based arrangements. The Commission has previously noted that while regular case reviews are conducted by the Department to consider whether a person’s continuing detention is justified, ‘these reviews focus on whether there is any need for an individual to be released from detention, rather than whether it is necessary to continue to detain the individual for reasons specific to them such as a risk of absconding or a threat to national security’.93 This approach is contrary to what is required under Australia’s international human rights obligations, which we have previously summarised as follows: 46 under international human rights law, detention must be justified as reasonable, necessary, and particular circumstances. Furthermore, there is an obligation on the Commonwealth to demonstrate that there was not a less invasive way than detention to achieve the ends of the immigration policy, for example through the imposition of reporting obligations, sureties or other conditions, in order to avoid the conclusion that detention was “arbitrary”.94 The Commission further discusses below the particular example of individuals from the Medevac cohort being progressively released from hotel APODs into alternative community-based arrangements across 2021 and 2022. While the Commission welcomes these individuals being released from closed detention, the manner in which these releases were conducted gives rise to some specific concerns and raises the question of why they were not released at a much earlier point in time. RECOMMENDATION 19: The Department should regularly conduct periodic reviews of the necessity of detention for people in immigration detention centres, including hotel APODs. The reviews should focus on whether closed detention is necessary in the specific case and, if closed detention is not necessary, the identification of community-based alternatives or the grant of a visa should be promptly considered.