Immigration detention in Australia
Immigration detention in Australia is the policy and practice of the Australian Government of detaining in Australian immigration detention facilities non-citizens not holding a valid visa, suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and removal in immigration detention until a decision is made by the immigration authorities to grant a visa and release them into the community, or to repatriate them to their country of departure. Persons in immigration detention may at any time opt to voluntarily leave Australia for their country of origin, or they may be deported or given a bridging or temporary visa.
In 1992, Australia adopted a mandatory detention policy obliging the Australian Government to detain all persons entering or being in the country without a valid visa, while their claim to remain in Australia is processed and security and health checks undertaken. Also at the same the law was changed to permit indefinite detention, from the previous limit of 273 days. Mandatory detention continues to be part of a campaign by successive Australian governments to stop people without a valid visa (typically asylum seekers) entering the country by boat. The policy was instituted by the Keating Government in 1992, and has been varied by the subsequent Howard, Rudd, Gillard and Abbott Governments. The policy is regarded as controversial and has been criticised by a number of organisations. Nonetheless, the High Court of Australia has confirmed, by majority, the constitutionality of indefinite mandatory detention of aliens.
Mandatory detention rules also apply to persons whose visa has been cancelled by the Minister, for example on character grounds, allowing such persons to be detained in immigration detention and deported, some after living in Australia for a long period.
- 1 History of mandatory detention
- 1.1 Keating Government
- 1.2 Howard Government
- 1.3 First Rudd Government
- 1.4 Gillard Government
- 1.5 Second Rudd Government
- 1.6 Abbott Government
- 1.7 Turnbull Government
- 2 Deaths in custody and suicides
- 3 Cases of wrongful immigration detention
- 4 See also
- 5 References
- 6 External links
History of mandatory detention
Mandatory detention of asylum seekers (technically, "unlawful arrivals") in Australia was established by the Keating Government by the Migration Reform Act 1992 which came into operation on 1 September 1994. It was originally intended as an interim measure. Controls on unauthorised arrivals were tightened under the subsequent Howard Government, including under the Pacific Solution policy, contributing to a sharp decline in boat arrivals and, consequently, to numbers of people being detained. The Pacific Solution was dismantled by the Rudd Government and partially restored under the Gillard Government in response to increased boat arrivals and reported deaths at sea.
Mandatory detention was introduced to "support the integrity of Australia's immigration program" and "management of Australian borders" and to distinguish between those who have submitted themselves to offshore entry processes prior to arrival and those who have not. Under the policy, asylum seekers are mandatorily detained while they "undergo an assessment process, including security and health checking, to establish if they have a legitimate reason for staying in Australia".
Before 1992, the Migration Legislation Amendment Act 1989 had created a regime of administrative detention of unlawful boat arrivals. Although officers were obligated to arrest and detain anyone suspected of being an ‘illegal entrant’, detention was discretionary. Between November 1989 and January 1994, there was a "second wave" of unauthorised boat arrivals comprising eighteen boats carrying 735 people (predominantly Cambodian nationals).
By June 1992 there were 478 people in immigration detention of whom 421 were boat arrivals (including 306 Cambodians), compared to five in immigration detention in January 1985. The Keating Government's interim measures in 1992 were contained in the Migration Amendment Act 1992, which set up a regime of mandatory detention, with bipartisan support. Immigration Minister Gerry Hand told Parliament in his Second Reading Speech:
The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community ... this legislation is only intended to be an interim measure.— Gerry Hand, Keating Government Minister for Immigration
The Migration Amendment Act 1992 did impose a 273-day limit on detention, but specifically disallowed judicial review. The final scheme was contained in the Migration Reform Act 1992, which came into operation on 1 September 1994, which broadened the application of mandatory detention to all who did not hold a valid visa, and removed the 273-day detention limit. The Act also introduced detention charges (detention debts) whereby an unlawful non-citizen was liable for the costs of his or her immigration detention.
Non-citizens in Australia without a valid visa were to be considered unlawful and would have to be held in detention, though those who met certain criteria and were not considered flight or security risks could secure lawful status by means of a bridging visa – but bridging visas would not be made available to those who arrived in Australia without visas in the first place (such as boat arrivals). The government argued that this distinction was justifiable because visa overstayers had already submitted themselves to proper entry processing offshore and were therefore in a different category to those who had not and that boat arrivals had demonstrated a high likelihood of absconding where detention was not in place.
The Liberal-National Party Coalition led by John Howard defeated the Keating Government in the 1996 federal election. In 1999 the Howard Government created the temporary protection visa category for asylum seekers whose claims for refugee status had been accepted. These visas were granted only to unauthorised arrivals and were criticised because they left the refugee in limbo indefinitely. These people did not have rights to work, to family reunion, a right to return to Australia if they left, and their status was to be reviewed every three years.
Australia's immigration policies towards asylum seekers were a significant issue in the 2001 federal election. Howard said in a campaign policy speech:
[W]e are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada, we have a proud record of welcoming people from 140 different nations. But we will decide who comes to this country and the circumstances in which they come... We will be compassionate, we will save lives, we will care for people but we will decide and nobody else who comes to this country.— Prime Minister John Howard, 28 October 2001
The Tampa affair arose during the election campaign. Following the election, the Howard Government made significant changes to Australia's immigration policy. It put in place a policy known as the Pacific Solution, which was implemented by then Australian Immigration Minister Philip Ruddock. Under this policy, many islands were excised from the Australian migration zone, and asylum seekers were removed to third countries to determine their refugee status, namely at detention camps on small island nations in the Pacific Ocean. Also, a policy of turning back boats where possible was instigated. Howard's policies were often controversial, were criticised by some human rights groups and were the subject of protest both within and without detention centres. Through the final years of the Howard Government, Australia's detention facilities were near empty, few boat voyages were being attempted and the practice of detention of children had been ended.
Also in 2001, the Border Protection Bill provided the government with the power to remove any ship in the territorial waters of Australia, use reasonable force to do so, provide that any person who was on the ship be forcibly returned to the ship, and guaranteed that no asylum applications may be made by people on board the ship. The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 reinforced the practice of mandatory detention, providing for the indefinite detention of asylum seekers.
Mandatory detention of asylum seekers was popular with sections of the Australian electorate. Some commentators argue that it helped Howard win the 2001 federal election. While the Australian Labor Party supported the policy as Opposition, in June 2005 a small backbench revolt in Howard's party led by Petro Georgiou and Judi Moylan resulted in some concessions to humanitarian concerns, including the promised release of long-term detainees and review of future cases by an ombudsman.
Many of those detained in Australia's detention centres between 1999–2006 have been asylum seekers from Iraq and Afghanistan who sought protection or asylum under Australia's obligations to the United Nations Convention Relating to the Status of Refugees. More than 80 percent of these were found to be refugees by the Immigration Department, with some decisions taking more than 8 months. Few asylum seekers were able to be repatriated.
On 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and held that the harsh conditions of detention did not render the detention unlawful. On the same day, the High Court also handed down its decision in Al-Kateb v Godwin which held that unsuccessful asylum seekers who could not be removed to another country, despite their wish to leave Australia, could continue to be held in immigration detention indefinitely.
National Inquiry into Children in Immigration Detention
Dr Sev Ozdowski OAM Human Rights Commissioner of the Human Rights and Equal Opportunity Commission (HREOC) held an inquiry into mandatory detention of children who arrived without a valid visa over the period 1999–2002 (with updates where possible – the report was completed in April 2004) . The vast majority of children arrived and were put into mandatory detention facilities with their families for indefinite periods of time with no real opportunity to argue their case before independent tribunal or court. The inquiry found that between 1 July 1999 and 30 June 2003, 2184 children were detained after arriving in Australia seeking asylum without a visa. Approximately 14% of those children came to Australia alone (unaccompanied children). Most of them came from Iraq, Iran and Afghanistan. Almost 98 percent of the Iraqi children were recognised as refugees;
The inquiry found that children detained for long periods of time were at a high risk of suffering mental illness. Mental health professionals had repeatedly recommended that children and their parents be removed from immigration detention. The inquiry found that the Australian government's refusal to implement these recommendations amounted to "..cruel, inhumane and degrading treatment of those children in detention".
The inquiry also found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.
The key recommendations of the Inquiry were that children with their parents be released immediately into the community and that detention laws should be amended to comply with the Convention on the Rights of the Child. The Howard government released the children and introduced limited changes to Migration Act 1958 as a result of the report.
In October 2001, Human Rights Watch sent a letter to Australian Prime Minister John Howard regarding new legislation, The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The new act further strengthened the practice of mandatory detention, allowing for indefinite detention of unauthorised arrivals. The letter said:
- The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the US government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law.
The system of mandatory detention has been the subject of controversy. Opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees. Among the intellectual opponents of the system has been Professor Robert Manne, whose Quarterly Essay "Sending Them Home: Refugees and the New Politics of Indifference" (2004) called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.
Throughout the controversy, Prime Minister John Howard and successive immigration ministers maintained that their actions were justified in the interests of protecting Australia's borders and ensuring that immigration law was enforced. A 2004 Liberal Party election policy document stated:
- The Coalition Government's tough stance on people smuggling stems from the core belief that Australia has the right to decide who comes to this country and the circumstances in which they come. Deterrence has been achieved through excision, boat returns, offshore processing and mandatory detention.
First Rudd Government
For the final few years of the Howard Government, Indonesian boats carrying asylum seekers to Australia had virtually ceased and Australia's offshore detention centres were near empty. The newly elected Rudd Government, under Immigration Minister Chris Evans, announced a series of measures aimed at achieving what it described as a more "compassionate policy". The Pacific Solution had involved offshore processing, a system of "temporary protection visas" for unauthorised arrivals, and a policy of turning back boats where possible. The Rudd Government dismantled all three components, dubbing them "ineffectual and wasteful". Throughout 2009–2010, a flow of boat arrivals re-emerged.
In July 2008, the Australian government announced it was ending its policy of automatic detention for asylum seekers who arrive in the country without visas. While it remained committed to the policy of mandatory detention as an "essential component of strong border control", the Rudd Government announced that detention would now be restricted to unlawful non-citizens who pose a threat to the community, those who refuse to comply with visa conditions, or those who need to be detained for the period of conducting health, identity and security checks. By 29 June 2011, the Australian Government had delivered on its commitment to move the majority of children in immigration detention into community–based arrangements.
The Government announced that aspects of the original detention system in Australia would remain, but asylum seekers will be released more quickly. They would only be detained for lengthier time periods if they are deemed to pose a risk to the wider community or have repeatedly breached their visa conditions. "Boat people" in excised areas will still be subject to mandatory detention and processed offshore, but the Government will move to hasten the process. Boat people will also be able to access legal advice and apply for an independent review of adverse decisions. Each detainee's circumstances and justification for ongoing detention will be scrutinised by the Immigration Ombudsman every six months. Some of the changes may require amendments to the Migration Act 1958. The Migration Amendment (Immigration Detention Reform) Bill 2009 makes these amendments, but is yet to be passed. This would require a Senate majority of 39 votes. Australian Greens and independent Nick Xenophon appear to be in general agreement with the changes. The remaining vote would have to come from Family First Party's Steve Fielding or a Liberal-National coalition Senator.
The Migration Amendment (Abolishing Detention Debt) Act 2009 was passed by the Australian House of Representatives with several Liberal MPs threatening to 'cross the floor' and vote with Labor, and then passed into law on 8 September when the Senate passed the bill with the support of Senator Nick Xenophon, the Australian Greens, Liberal Senator Judith Troeth and at the last minute Steve Fielding. This act abolishes the Howard-era policy whereby the government attempted to reclaim the costs of immigration detention from the detainee upon release.
Immigration Department figures in October 2009 showed no improvement in the speed of processing claims since the change of government. As a proportion of the immigration intake, Australia accepted fewer refugees in 2009 than it did at any time under the Howard government.
In October 2009, the MV Oceanic Viking was involved in an emergency operation rescuing 78 Sri Lankan asylum seekers in international waters within the Indonesian sea rescue zone. Those rescued were due to be landed in Indonesia, for transfer to an Australia-funded immigration detention centre on the Indonesian island of Bintan. However, the asylum seekers refused to disembark until 18 November, following assurances of fast-tracked processing of their cases for resettlement.
As of 29 March 2010, 100 asylum seeker boats had been intercepted within Australian waters during the life of the Rudd government.
Suspension of processing for asylum claims by Afghans and Sri Lankans
On 9 April 2010, former Minister for Immigration Senator Chris Evans announced that, with immediate effect, no new applications for people from Afghanistan would be processed for six months ; and for Sri Lankans, three months. Senator Evans was quoted as saying that this change would result in a higher rate of refusal of claims based on circumstances in these countries
Following a complaint lodged in 2011 regarding the resulting indefinite detention, in 2013 the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane or degrading treatment.
The Gillard Government undertook a series of adjustments to Australia's system of mandatory detention amid a growing stream of unauthorised boat arrivals. Julia Gillard and immigration minister Chris Bowen mooted various regional options for asylum seeker processing – notably East Timor and Malaysia – before reverting to Nauru and Manus Island in late 2012.
On 18 October 2010, Julia Gillard announced that changes would be made to Australia's mandatory detention policy, and that more children and families would be moved out of immigration detention centres into community-based accommodation, such as centres run by churches and charities.
To accommodate the reduction in detainees, the federal government announced that they would open two new detention facilities – a centre in Northam, 80 kilometres north-east of Perth, and an alternative place of detention in Inverbrackie, 37 kilometres north of Adelaide. Northam will house up to 1,500 single men and Inverbrackie will house up to 400 family members.
In a press conference, Prime Minister Gillard told media "when we came to government we issued detention values about not having children in high security, behind razor wire, and obviously we have worked to deliver on those detention values." She went on to say, "obviously we want to see kids in school. I understand that in some particular cases the minister will work through this case by case, there may be some reasons why this may not always be possible, but in the ordinary course of things I want to see kids getting a good education."
According to the Immigration Department, as of February 2011, there are currently 5,061 men, 571 women and 1,027 children under 18 living in detention. The Sydney Morning Herald reports that 382 of those under 18 arrived without their parents.
Department of Immigration and Citizenship statistics reflect that there were 4,783 people in immigration detention facilities and alternative places of detention, including 3,951 in immigration detention on the mainland and 832 in immigration detention on Christmas Island as at 31 January 2012. The number of people in immigration detention who arrived unlawfully by air or boat as at 31 January 2012 was 6,031, representing about 94 per cent of the total immigration detention population. There were also 344 people (about five per cent of the total immigration population) who arrived in Australia lawfully and were subsequently taken into immigration detention for either overstaying their visa conditions, resulting in visa cancellation.
Restoration of offshore processing
Following an extended period of increasing boat arrivals and deaths at sea, in May 2011 Gillard announced that Australia and Malaysia were "finalising" an arrangement to exchange asylum seekers for processed refugees (the plan was dubbed the "Malaysia Solution"). On 31 August the High Court ruled that the agreement to transfer refugees from Australia to Malaysia was invalid, and ordered that it not proceed on the basis that it contravened human rights protections established under existing laws. The Government was unable to secure the support of the Greens or Opposition in the Senate for modifications to enable the Malaysia Solution to proceed and instead reverted to expanding onshore processing arrangements. Continued deaths at sea and ongoing boat arrivals kept the issue at the fore of policy debate during the term of the Gillard Government, leading to a major Parliamentary debate on the issue in June 2012, as news reports reached Canberra of another fatal sinking off Christmas Island. The government sought changes to the Migration Act, to allow asylum seekers to be processed in Malaysia. The Greens opposed the Bill outright and called for greater opening up of Australia's borders. The Opposition opposed the Bill on human rights grounds and called for restoration of the Howard Government's policies. The government allowed the possibility of returning processing to Nauru, on the condition that Malaysia was also permitted.
Unable to secure passage of the Bill through Parliament following the emotional debate, the government convened a panel chaired by Angus Houston to consider options. The Houston Report found that "onshore processing encourages people to jump into boats" and called for the re-opening of offshore processing at Nauru and Manus Island. Gillard endorsed the plan in August 2012.
Second Rudd Government
On 19 July 2013 in a joint press conference with PNG Prime Minister Peter O'Neill and Australian Prime Minister Kevin Rudd detailed the Regional Resettlement Arrangement (RRA) between Australia and Papua New Guinea: 
"From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees. Asylum seekers taken to Christmas Island will be sent to Manus and elsewhere in Papua New Guinea for assessment of their refugee status. If they are found to be genuine refugees they will be resettled in Papua New Guinea... If they are found not to be genuine refugees they may be repatriated to their country of origin or be sent to a safe third country other than Australia. These arrangements are contained within the Regional Resettlement Arrangement signed by myself and the Prime Minister of Papua New Guinea just now."
During the 2013 federal election the Coalition parties led by Tony Abbott strongly campaigned on a "stop the boats" slogan. Following the election the newly elected Abbott Government toughened policies to stop asylum seekers arriving by boat and launched Operation Sovereign Borders. A feature of the new government's policy was the total secrecy of the operations and treatment of persons intercepted at sea and those in immigration detention in general. The immigration minister stated that no immigrant who arrives in Australia by boat will be granted a visa, regardless of the legitimacy or otherwise of their claim. The Abbott Government's policy was largely successful considering that no IMAs have arrived in Australia since July 2014.
In addition, the Abbott Government has been more prepared to cancel visas on character grounds for people who have been lawfully present in Australia for some time, bringing them within the scope of the mandatory detention rules. Also, the Abbott Government has passed legislation to strip Australian citizenship of dual nationals in some circumstances, rendering such persons non-citizens and subject to immigration detention for not holding a valid visa, and deportation.
Human Rights Commission report - The Forgotten Children
The Human Rights Commission published a report, The Forgotten Children, into children in Australian detention, both onshore and on Christmas Island, for the period January 2013 to September 2014 — covering the period of Labor and Coalition governments. The report was limited because the HRC was barred from visiting and inquiring as to the condition of children in offshore detention on Manus Island and Nauru. The report was damning of the treatment of children in immigration detention, at least in Australian territories.
The condition of detainees in Nauru was reported in the Moss Review. The final report was produced 6 February 2015, and released on 20 March 2015.
The time asylum seekers spend in Australian detention centres as stated by the Department of Immigration and Border Protection show that in December 2015 people in onshore immigration detention had been there for an average 445 days. The average detention period has increased since May 2014. There were 1792 people in onshore detention, including 91 children, and most were from Iran, New Zealand, Sri Lanka, China, Vietnam and Afghanistan. On 26 April 2016, the Supreme Court of Papua New Guinea ruled that detention of asylum seekers on Manus Island was breaching their constitutional right to freedom and thus illegal, and ordered the Australian-run detention centre to close. However, Immigration Minister Peter Dutton iterated that the 850 asylum seekers were the responsibility of Papua New Guinea and would not come to Australia.
Deaths in custody and suicides
As of 29 April 2016, there have been 40 deaths under immigration detention custody. 19 people are known or are suspected to have committed suicide in or as a result of immigration detention.
Cases of wrongful immigration detention
In February 2005, it was revealed that a mentally ill German citizen holding Australian permanent residency, Cornelia Rau, had been held in immigration detention as an unauthorised immigrant for 11 months, after identifying herself as a backpacker from Munich under the name of Anna Brotmeyer.
In May, it was revealed that a total of 33 cases of people being wrongfully detained under the Migration Act 1958 were known. This included the case of a woman, Australian citizen Vivian Alvarez Solon, who was forcibly deported to the Philippines and who subsequently went missing. As of May, it was not known how many actually spent time in an immigration detention facility. By late May, Immigration Minister Amanda Vanstone announced that more than 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry. In October 2005, the Commonwealth Ombudsman revealed that more than half of those cases were held for a week or less and 23 people were held for more than a year and two of them were detained for more than five years. Australia's longest-serving detainee in immigration detention was Peter Qasim who was detained for more than 7 years before being released in 2005 on a bridging visa.
In 2006, the federal government made a $400,000 compensation payout to an 11-year-old Iranian boy, Shayan Badraie, for the psychological harm he suffered while being detained in Woomera and Villawood detention centres between 2000 and 2002.
- Immigration detention
- List of Australian immigration detention facilities
- Australian migration zone
- Operation Sovereign Borders
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