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Regulation 5.35: Coerced treatment of detained asylum seekers on hunger strike. Legal, ethical and human rights implications

Kenny, M.A.ORCID: 0000-0002-5352-7549 and Fiske, L. (2013) Regulation 5.35: Coerced treatment of detained asylum seekers on hunger strike. Legal, ethical and human rights implications. In: Juss, S.S., (ed.) The Ashgate Research Companion to Migration Law, Theory and Policy. Routledge, London, UK, pp. 423-442.

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In September 1992 three Cambodian asylum seekers launched a hunger strike refusing all food and taking only small quantities of water. They were detained in Villawood Immigration Detention Centre (IDC) in Sydney, Australia. All three were hospitalized for dehydration and after two weeks on the hunger strike were ‘thought to be in grave danger of death’.2 The then Australian Minister for Immigration sought orders in the Supreme Court of New South Wales to permit the administration of lifesaving medical treatment to two of the women without their consent. The court issued an interim order permitting the government ‘to feed or to administer nourishment to the defendants against their will in order to prevent their death or serious bodily damage and for that purpose to use such force as is reasonably necessary.’3 Prior to the full hearing of the case the Australian government passed a law giving the Secretary of the Department of Immigration power to authorize medical treatment to be given to a person in immigration detention without their consent. This law is contained in regulation 5.35 of the Migration Regulations 1994 (Cth). The regulation authorizes the use of ‘reasonable force’ to administer medical treatment including the reasonable use of restraint and sedatives. This power has been used in respect of detained asylum seekers on hunger strike, most notably for rehydration and naso-gastric feeding.

Item Type: Book Chapter
Murdoch Affiliation(s): School of Law
Publisher: Routledge
Copyright: © 2013 Satvinder S. Juss and the contributors
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