Mandatory detention in Australia

Protesters on the roof of the Villawood Immigration Detention Centre in Sydney, 2011

Mandatory detention in Australia concerns the Australian federal government's policy and system of mandatory immigration detention active from 1992 to date, pursuant to which all persons entering the country without a valid visa are compulsorily detained and sometimes subject to deportation.

In the early 2000s, the mandatory detention of people seeking political asylum in Australia attracted considerable controversy. Between 1999 and 2003, over 2000 children, mostly with family members, were held inside immigration detention centers commissioned by the Australian government.^[1] Mandatory detention remains a very controversial aspect of Australian immigration policy.

Immigration detainees were incarcerated in one of the Australian immigration detention facilities on the Australian mainland, or on Manus Island or Nauru as part of the Pacific Solution. The detention facilities were managed by the private company, Global Solutions Limited.^[2]

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.^[3] 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.^[4] At present this policy has only been implemented in the form of departmental policy directions.

History of mandatory detention

Mandatory detention laws were introduced in Australia by the Keating Labor government, with bipartisan support, in 1992. The legislation was proposed as a result of an influx of Vietnamese, Chinese, and Cambodian refugees over the previous few years. The legislation specifically disallowed judicial review, but did impose a 273 day limit on detention.

In 1994, the Keating government introduced new legislation called the Migration Reform Act 1992, broadening the application of mandatory detention to all who did not hold a valid visa, and removing the 273 day limit. This extension laid the foundation for indefinite detention.

Following the Tampa affair in 2001, the Howard government developed 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 Australia’s migration zone, and asylum seeker were removed to third countries in order to determine their refugee status, namely at detention camps on small island nations in the Pacific Ocean.

Also in 2001, the Border Protection Bill was introduced into the Parliament of Australia, which 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.

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. Over 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 Of The 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.

Mandatory detention of asylum seekers was popular with sections of the Australian electorate. Some commentators argue that it helped John 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 own party led by Petro Georgiou and Judith Moylan resulted in some concessions to humanitarian concerns, including the promised release of long-term detainees and review of future cases by an ombudsman. The Palmer Inquiry was introduced in 2005 after the wrongful detention of mentally ill Cornelia Rau, a German citizen holding Australian permanent residency who had been detained for 11 months. The inquiry also found 33 people to have been wrongful detained with another 200 cases being referred.

Australia's longest-serving detainee Peter Qasim was detained for over 7 years before being released in 2005. From September 2001, the vast majority of asylum seekers who were eventually found to be refugees were issued with a temporary protection visa which forms a parallel plank of the government's refugee policy.

In 2006 the federal government made a $400,000 compensation payout to an 11-year-old Iranian boy for the psychological harm he suffered while being detained in Woomera and Villawood detention centres between 2000 and 2002.^[5]

The Pacific Solution was terminated in February 2008 with Nauru and Manus Island centres being closed.

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”.^[6]

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.

Criticism

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 U.S. 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.^[7]

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 Australias 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.^[8]

Wrongful detention

In February 2005, it was revealed that a mentally ill German citizen holding Australian permanent residency, Cornelia Rau, had been held in detention as an unauthorised immigrant for ten months, after identifying herself as a backpacker from Munich under the name of Anna Brotmeyer.^[9] In May, it was revealed that a total of 33 cases of people being wrongfully detained under the Migration Act were known, including one case of a woman forcibly deported and subsequently missing.^[10] As of May, it was not known how many actually spent time in an immigration detention facility. By late May, over 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry.^[11] 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.^[12]

Changes under the Rudd Government

The Rudd federal Labor government announced in July 2008 that it was ending its policy of automatic detention for asylum seekers who arrive in the country without visas.^[13]

Aspects of the original detention system in Australia will remain, but asylum seekers will be released more quickly. They will 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.^[14][15] "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.^[16] 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 Coalition Senator.^[17]

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.^[18] This act abolishes the Howard-era policy whereby the government attempted to reclaim the costs of immigration detention from the detainee upon release.

As of 29 March 2010, 100 asylum seeker boats had been intercepted within Australian waters during the life of the Rudd government.^[19]

Changes under the Gillard Government

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.^[20]

To accommodate the reduction in detainees, the federal government announced that they would open two new detention centres – one in Northam, 80 kilometres north-east of Perth, and another at 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.^[21] The Sydney Morning Herald reports that 382 of those under 18 arrived without their parents.

Suspension of processing for asylum claims by Afghans and Sri Lankans

On 9 April 2010, Senator Chris Evans, Immigration Minister, 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 ^[22]

See also

• Immigration detention
• List of Australian immigration detention facilities
• Pacific Solution

References

1. ^ "System left children trapped". The Age. 15 May 2004. http://www.theage.com.au/articles/2004/05/14/1084289883321.html. Retrieved 16 October 2007. 
2. ^ "GSL (Australia)". Detention Services Contract. Archived from the original on 29 August 2007. http://web.archive.org/web/20070829181951/http://www.gslpl.com.au/contract_types/contract_types.asp?content=ds. Retrieved 23 October 2007. 
3. ^ Tim Johnston (30 July 2008). "Australia Announces Changes on Asylum Seekers". New York Times. http://www.nytimes.com/2008/07/30/world/asia/30australia.html?_r=1&oref=slogin. 
4. ^ [1] New Directions in Detention, Restoring Integrity to Australia's Immigration System
5. ^ "The Sydney Morning Herald". Immigration pay boy $400,000. 3 March 2006. http://www.smh.com.au/news/national/immigration-pay-boy-400000/2006/03/03/1141191820943.html. Retrieved 3 March 2006. 
6. ^ "A last resort? National Inquiry into Children in Immigration Detention". Human Rights & Equal Opportunity Commission. 13 May 2004. http://www.humanrights.gov.au/human_rights/children_detention_report/report/exec.htm. Retrieved 9 September 2007. 
7. ^ "Australia: Letter to Prime Minister Howard on Recent Amendments to the Migration Act". Human Rights News. Human Rights Watch. 31 October 2001. http://www.hrw.org/press/2001/10/australia1031-ltr.htm. 
8. ^ "Stronger Border Protection". Election Policies - Text Version. Liberal Party of Australia. 27 September 2004. Archived from the original on 18 September 2006. http://web.archive.org/web/20060918194316/http://www.liberal.org.au/default.cfm?action=plaintext_policy&id=2732. 
9. ^ "ABC News Online". Secrecy blamed for Rau's ordeal. 7 February 2005. http://www.abc.net.au/news/newsitems/200502/s1296993.htm. Retrieved 3 May 2005. 
10. ^ "The Age". Govt says 33 have been wrongly detained. 2 May 2005. http://www.theage.com.au/news/National/Govt-says-33-have-been-wrongly-detained/2005/05/02/1114886315719.html. Retrieved 3 May 2005. 
11. ^ "The Sydney Morning Herald". Wrongful detention: 200 cases go to inquiry. 25 May 2005. http://www.smh.com.au/news/National/Wrongful-detention-200-cases-go-to-inquiry/2005/05/25/1116950727865.html. Retrieved 8 June 2005. 
12. ^ Robertson, Dana (26 October 2005). "More Australian citizens illegally held in detention: Commonwealth Ombudsman" (Transcript). Lateline. Australian Broadcasting Corporation. http://www.abc.net.au/lateline/content/2005/s1491530.htm. 
13. ^ Australia Announces Changes on Asylum Seekers: New York Times 20/3/2011
14. ^ Sweeping changes to mandatory detention announced: ABC News 29/7/2008
15. ^ Australia abandons asylum policy: BBC News 29/7/2008
16. ^ [2]
17. ^ Clash looms over asylum-seeker detention policy: The Australian 30/7/2008
18. ^ "Liberal senator crosses the floor for asylum seekers" Australian Associated Press, 8 September 2009
19. ^ http://www.theaustralian.com.au/politics/rudd-government-marks-100th-asylum-seeker-boat/story-e6frgczf-1225847045425
20. ^ Families freed from detention, Christian Taylor, Australian Times. http://www.australiantimes.co.uk/news/Families-freed-from-detention
21. ^ [3]
22. ^ The Australian 10 April 2010

External links

• HREOC Report – A Last Resort? - Australia's Immigration Detention Policy and Practice