The Detention of Boat People
Social Policy Group
27 February 2001
Detention policy and legislation up to 1992
Pre-1989 detention regime for boat
Detention policy and legislation
Duration of detention
International instruments relevant to
Current criticism: the changed context
Lessons from overseas: some other
- All 'unlawful non-citizens' in Australia must be detained and,
unless they are granted permission to remain in the country
(through the grant of a visa), they must be removed as soon as
practicable. This mandatory detention policy was set into
legislation with bipartisan support in 1992, and endorsed through a
major parliamentary inquiry in 1994. Mandatory detention applies to
visa 'overstayers' as well as unauthorised arrivals. However people
who arrive legally and overstay their visas and who apply for
refugee or other visas can be given bridging visas. Unlike boat
people, they are not held in detention for the duration of their
refugee claims assessment.
- In 1998-99, 926 boat people were detained, in 1999-2000, 4174.
With the dramatic escalation in the number of 'illegal' boat
arrivals over the last 18 months, more people than ever before are
being held in detention, and with riots, break-outs, a suicide and
allegations of child abuse, attention has focused on the detention
centres and their management. The legitimacy, and point, of
detaining large numbers of people, 90 per cent of whom are being
found (under the terms of the 1951 Refugee Convention) to be
'legitimate refugees', is being questioned. The Australian
and The Age appear to be running campaigns against the
policy, with calls to adopt 'more humane' overseas models of
dealing with asylum seekers.
- Measures were adopted in the mid-1990s to speed up the
processing of refugee claims for boat people. However time is
inevitably taken to establish identities, and to appeal
unfavourable decisions through the Courts. At the end of December
2000, of 2023 people in detention 31 per cent had been held for
less than one month, 20 per cent between one and three months, 13
per cent between three and six months, 18 per cent six to 12 months
and 18 per cent for a year or more.
- The fundamental rationale for detention in Australia,
especially of unauthorised boat arrivals, has been that it is
necessary in order to maintain the 'integrity' of our borders and
of the migration program (and public faith in governments' capacity
to control it). Critics argue that the policy discriminates against
boat people (and other unauthorised arrivals), and that the
harshness of detention compounds the distress suffered by already
traumatised people, making their eventual integration into the
community more difficult.
- Australia's mandatory detention policy for all unauthorised
entrants and people without valid visas may be unique. Other
features of our migration culture which set us apart from other
countries include a lack of land borders, relatively low levels of
illegal/asylum seeker inflows, a highly managed and historically
significant immigration program, and a universal visa system.
- Sweden's 'reception centre' system in particular has been
suggested as a model for Australia. Although Sweden receives more
than twice as many asylum seekers, per capita, as Australia, fewer
are detained. Illegally arrived asylum seekers are mainly detained
at the early stages, to establish identity, and end stages, to
ensure compliance, of the refugee determination process. It is
against Swedish law to detain children for longer than a few days,
and women and children are housed in open accommodation near their
male relatives. Reforms in 1997, which involved the transfer of
management responsibility from the Swedish police and private
security contractors to the Swedish Migration Board, have
reportedly resulted in more open, more dignified and less stressful
environments in the centres.
- Another feature of Sweden's immigration situation that differs
from Australia is that asylum seekers comprise the bulk of
immigration to Sweden. As refugees perform poorly in the Swedish
labour market, Sweden's 'immigrants' have unemployment rates 2.5
times those of the native born. A majority of public opinion in
Sweden as in other European countries is against accepting asylum
seekers, 'integration' problems are greater than in Australia, and
nearly 70 per cent of Sweden's population is against 'further
- Australia's mandatory detention regime arguably reflects a
highly developed migration system and culture as much as national
isolationist or xenophobic tendencies. It also reflects the fact
that as we have had relatively few illegal arrivals, detention has
been a logistically feasible option. Claims by anti-detention
campaigners of cruel and brutal conditions and treatment in
Australia's detention centres are exaggerated. However the number
of boat people in detention in Australia has risen rapidly, and the
notion, and images, of thousands of people held in outback camps
behind barbed wire are disturbing.
- A number of commentators have pointed out that the only
practical way of stopping illegal asylum seeker inflows into
Western countries is to change the 1951 Refugee Convention, which
legitimises such movements. UK Home Secretary Jack Straw has
proposed such changes. In the meantime, Australian governments,
like other Western governments, struggle to balance conflicting
needs and demands: to meet our Convention obligations; to
discourage illegal boat arrivals and people smuggling; to not
'punish the victim', and to not harm the nation's image as an
inclusive and compassionate and civilised society.
- Australia's Opposition is questioning the appropriateness of
outsourcing the management of detention centres, and the
Immigration Minister Mr Ruddock is examining the possibility of
releasing women and children boat people into the community, along
the lines of Sweden. While the implementation of the policy may be
softened through such measures, it is unlikely that the major
political parties will change their basic positions on the
detention of boat people before the next election. Ms Pauline
Hanson has remarked that the perceived failure of government to
deal with illegal boat arrivals was a major feature in One Nation's
unexpectedly large vote in the recent WA election.
Australia's mandatory detention policy was set
into legislation with bipartisan support in 1992 and came into
force in 1994. With the dramatic escalation in the number of
'illegal' boat arrivals over the last couple of years, more people
than ever before are being held in detention. In 1998-1999 3574
people were held in detention, 926 of whom were boat people; in
1999-2000 8205 people were held in detention, 4174 of whom were
Unlike earlier waves of boat people, recent
arrivals have come from well outside our region, and through
organised people smuggling operations. A high proportion have
originated from 'hot spot' Middle Eastern countries (Iraq,
Afghanistan) to which they cannot be returned. The outcome of
detention for most is that they are being released into the
community on three-year 'temporary protection' visas, with the
subsequent prospect of permanent residence.
Riots, break-outs, a suicide and allegations of
child abuse have focused media and public attention on the
detention centres and their management. The legitimacy-and point-of
detaining large numbers of people who are being determined (under
the terms of the 1951 Refugee Convention) to be 'legitimate
refugees', is being questioned. The Australian and The
Age appear to be running concerted campaigns against the
Government's detention policy. And there have been calls to replace
Australia's detention regime with a 'more humane' overseas model,
e.g. as in Sweden or the UK.
This Current Issues Brief:
- summarises the historical development of detention in
- identifies key policy decisions and legislation
- describes the rationale for and criticisms (pros and cons) of
- lists international instruments and United Nations High
Commissioner for Refugees (UNHCR) guidelines relevant to the
detention of asylum seekers
- describes detention policies and practices in the major
immigration countries (Canada, the US), and in the European
countries that have been suggested as models for Australia (Sweden,
the UK), and
- describes key differences in the immigration situation and
cultures of these countries which might need to be considered when
comparing detention practices.
Detention policy and legislation up to
Australia's vast coastline has always held open
the prospect of irregular people movement and doubtless some of
this occurred over the years. It is only when the more concerted
move of specific groups in significant numbers began in the 1970s
that the term 'boat people' was coined.
Detention policy and practices in Australia have
evolved along with reactions to successive waves of boat people
over the last 25 years.
detention regime for boat people
The initial wave of boat people comprised 56
boats from Vietnam containing a total of about 2100 people. The
first arrived in Northern Australia in April 1976 and the last in
August 1981. There were few concerns within the Government or the
Department of Immigration about the 'bona fides' of these boat
people (they were fleeing a regime that Australia had fought
against), and they were 'processed' for permanent residence
immediately on arrival. These mainly Vietnamese boat people were
held in 'loose detention' in an open part of Westbridge (now
Villawood) Migrant Centre in Sydney, together with migrants who had
been granted visas under the humanitarian and refugee programs.
They were not allowed to leave the Centre during processing and had
to report for rollcall daily.
By the time of the last arrivals in the early
1980s doubts were increasing as to the 'bona-fides' of the boat
people. Passengers on the last Vietnamese boat, which arrived on 5
August 1981, were detained in the former East Arm Quarantine
Station in Darwin. From the late 1980s, Australia became a key
player in the Comprehensive Plan of Action (CPA), an international
agreement established in June 1989 to solve the problem of the
outflow of refugees (and 'economic refugees') from Indo-China. The
CPA involved the holding of boat people in camps in the region
(Hong Kong, Thailand, Indonesia, Malaysia, the Philippines) pending
assessment by the United Nations High Commissioner for Refugees
(UNHCR) for repatriation or resettlement in a third country. By the
end of the CPA in 1995, Australia had accepted 16 800 camp
people through the 'offshore' humanitarian program.
The next wave of boat people, mainly from
Cambodia, began to arrive in Australia from 28 November 1989.
Passengers on the first of these boats (Pender Bay) were held for a
period of three weeks at a holding centre near Broome normally used
for illegal fishermen awaiting trial. They were subsequently moved
to the Westbridge (now Villawood) Migrant Centre in Sydney. As in
the case of the earlier Vietnamese boat people, they were detained
in an unfenced area, but were not permitted to leave the Centre and
had to report daily to the Australian Protective Service. A number
of these boat people illegally left the Centre. According to the
Immigration Department, about 60 boat people escaped in the period
1991 to 1993.(1)
The progressive upgrading of security arrangements in migration
reception centres, and the development of specific purpose
detention facilities in recent years, has been the history of the
development of detention centres in Australia.(2)
There are currently six detention facilities:(3)
- Villawood Immigration Detention Centre (IDC) in Sydney,
established in 1976, capacity 270 people
- Maribyrnong IDC in Melbourne, established 1996, capacity
- Perth IDC, established 1991, capacity 40
- The Immigration Reception and Processing Centre (IRPC) in Port
Hedland, WA, established 1991, capacity over 800
- Leased accommodation (IRPC) at the Curtin RAAF Air Base near
Derby, WA, capacity 1000, and
- Woomera IRPC, SA, commissioned November 1999, capacity (by
March 2001) 2000.
Woomera is the largest, and because of its isolated and harsh
environment, the most notorious. Work to convert the former defence
and space program facility will by March 2001 have cost about $24
million.(4) Villawood is to undergo a major
redevelopment. There are plans for new centres, to be built in
Darwin (capacity 500), and Brisbane (capacity yet to be
Detention policy and
Prior to 1992 there was a range of legislative
provisions which enabled detention. These provisions often focused
on the mode of entry rather than the status of the person involved.
- under section 38 of the Migration Act 1958, a
prescribed authority could order the detention of a 'prohibited
immigrant' (defined in section 6 as someone who 'not being the
holder of an entry permit that is in force enters Australia') for a
period of up to seven days. This period could be extended.
- Sub-section 12 (2) of the Immigration (Unauthorised
Arrivals) Act 1980 provided that 'passengers' unauthorised to
be in Australia be brought before a prescribed authority within 48
hours of arrest, or 'as soon as practicable after that period'.
Sub-section 12 (3) permitted detention of the passenger until:
conveyance from Australia; granting of an Entry Permit; or
Ministerial direction determined otherwise.
Before the Cambodian boat (Beagle) arrived on 31
March 1990, the Migration Amendment Act 1989 was passed.
This Act introduced significant changes to the system of processing
boat people. In essence it provided a legal entitlement to a visa
or entry permit, where the applicant met the legislative
requirements for such a grant. The intention was to provide fairer
and more certain criteria for the grant of visas. The intention was
also, by providing a statutory merits review procedure, to remove
the necessity for unsuccessful refugee visa applicants to appeal to
The key policy decision that has shaped
Australia's detention regime was to make detention mandatory for
all 'unlawful non-citizens' (i.e. any non-citizen who does not hold
a valid visa authorising stay in Australia). All unlawful
non-citizens in Australia must be detained and, unless they are
granted permission to remain in the country (through the grant of a
visa), they must be removed as soon as practicable.
This policy was set into legislation through the
Migration Reform Act 1992. This legislation provided a
statutory code of procedures for most primary decisions. It
clarified the status of people who arrive in Australia as either
lawful or unlawful non-citizens, and, as indicated, it mandated
detention for unauthorised non-citizens. The Act came into effect
from 1 September 1994. At the same time, regulations were enacted
which allowed the release of certain detainees on compassionate
grounds, e.g. health, or where the needs of children could be
better met outside the centre. In practice, few have been released;
the needs of children are not often thought to be better met by
separating them from their parents.
Mandatory detention applies to visa overstayers
as well as unauthorised arrivals. However overstayers who apply for
refugee or other visas are given 'lawful' status through the
granting of bridging visas. They are not held in detention while
their claims are assessed. The rationale for the different
treatment of 'overstayers' has been that they have been through the
usual 'offshore' identity and health and character checks.
Since the mid-1990s, following the
recommendations of the Joint Standing Committee on Migration (JSCM)
in 1994, priority in claims processing has been given to asylum
seekers in detention, and steps taken to speed up the
process.(5) However as the period of detention lasts as
long as it takes to process refugee claims, there are limits to how
far the process can be speeded up. It takes time to verify the
identities and nationalities and stories of boat people who arrive
without identification or travel documents. Detainees held for
extended periods (one or even two years) are those who have
appealed unfavourable refugee determination decisions for judicial
review through the Courts.
In 1998-99 three-quarters of detainees were held
for less than one month. In that year about one-third of
unauthorised arrivals (many from China) failed to make claims
'which would prima facie engage Australia's protection
obligations', and were turned around quickly, most within 28 days.
The average processing time for the initial, Departmental decision
on boat people's refugee claims in 1998-99 was 50 days. Most of
those unsuccessful at the primary stage appeal to the Refugee
Review Tribunal (RRT). The average time taken by the RRT to
finalise a refugee claim in 1998-99 was 66 days.(6)
With the rapid increase of boat arrivals, and
the change in source countries, the rate of processing in 1999-2000
was slowed, despite the hiring of more staff. At the end of
December 2000, of the 2023 people in detention:
- 31 per cent had been held for less than one month
- 20 per cent one to three months
- 13 per cent three to six months
- 18 per cent six to 12 months, and
- 18 per cent for a year or more.(7)
The only significant change in the detention
regime since the 1992 legislation came into effect has been the
outsourcing of the management of detention centres. In November
1997 the Immigration Department contracted the day-to-day
operational management of the detention facilities to Australian
Correctional Services Pty. Ltd (ACM), a subsidiary of Wackenhut
Corrections Corporation, headquartered in the USA.
Outsourcing of the management of detention
centres has been controversial, with accusations of brutal
treatment by ACM employees following riots at Woomera in June and
August last year.(8) This controversy has heightened
following suggestions by the Immigration Minister that greater
powers of search and restraint would be sought in order to control
violence in the centres, and to deport detainees who assaulted
guards or police officers.(9) The Labor Party has called
for a judicial inquiry into conditions in the detention centres,
questioning the appropriateness of privatising their day-to-day
instruments relevant to immigration detention
The principal international agreements relevant
to Australia's immigration detention arrangements are:
- the UN Convention Relating to the Status of Refugees 1951,
which was acceded to by Australia on 22 January 1954, and the UN
Protocol Relating to the Status of Refugees 1967, acceded to 13
- the International Covenant on Civil and Political Rights
(ICCPR) 1966, ratified by Australia 13 August 1980
- the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 (Convention Against
Torture), ratified by Australia 8 August 1989, and
- the Convention on the Rights of the Child 1989, ratified by
Australia 17 December 1990.
The most relevant of these is the 1951 UN
Refugee Convention and its 1967 Protocol. Article 26 of the
Convention states that refugees lawfully in a territory should have
the right to choose their place of residence and move freely.
Article 31 states that States shall not impose penalties on
refugees on account of their illegal entry. Also relevant is
Article 9 of the ICCPR, which states that:
Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by
Formal 'Conclusions' of the Executive Committee
of the United Nations High Committee for Refugees (EXCOM), which
provides guidance to States on the implementation of their
Convention obligations, are that detention should be avoided.
However it is acceptable:
- in order to determine the identity of the asylum seeker, and
where identity or travel documents have been destroyed
- while the validity of refugee status claims are being examined,
- in order to protect national security and
Rights advocates and critics of detention policy
have claimed that Australia's mandatory detention policy is in
contravention of our international treaty obligations. (See
statement below by former Human Rights Commissioner Chris Sidoti).
Successive Australian governments have maintained that it is a
fundamental legal principle, in domestic and international law,
that in terms of national security, the State determines which
non-citizens are permitted to remain and the conditions under which
they may be removed.(12)
The fundamental rationale for detention in
Australia, especially of unauthorised boat arrivals, has been that
it is necessary in order to maintain the 'integrity' of the
offshore migration (including refugee) program:
If you build a system which requires individuals
to present to the Australian Government in advance of
arrival-through one form or another-to seek approval for entry and
if the system says that not following that requirement will be
ignored on arrival, that undermines our universal visa
Australia's mandatory detention regime has been
criticised as setting us apart from the rest of the world. However
there are a number of other migration related features which also
set Australia apart from the rest of the world.
- Australia maintains a large migration program, which is managed
offshore, of skilled as well as family migrants, and maintains also
a large offshore humanitarian entry program. Unlike in Europe and
the US, immigration to Australia is not dominated by illegal and/or
asylum seeker movements.
- Australia operates a universal visa system. It maintains and
manages entry as well as exit (arrivals and departures) data like
no other country. And Australia has avoided the worst of social
problems such as slave labour associated with large-scale asylum
- Australia has no land borders.
The importance that was attached by the previous
Labor Government to the role of detention in immigration control is
evident in statements by the then Immigration Minister the Hon.
Gerry Hand in debates surrounding the introduction of the
Migration Reform Act 1992. The importance that has been
attributed by governments to immigration control in maintaining
public support for Australia's immigration program is also shown in
The Government is determined that a clear
message be sent that migration to Australia may not be achieved by
simply arriving in this country and expecting to be allowed into
the community ... Australia cannot afford to allow unauthorised
boat arrivals to simply move into the community.(14)
The essential rationale by successive
governments for detention has been, in other words, that detention
is a part of a system of immigration planning and levers and
controls that work, that are well-managed, and that have
'integrity' (i.e. that will be enforced).
Having people in detention has also been
justified in that it ensures:
- the availability of people, so that any claims for refugee
status are able to be processed promptly
- that people do not enter the Australian community until their
identities are established, and they have undergone health and
security checks, and
- that if claimants are unsuccessful, they are available for
It has also been argued that releasing people
into the community and onto welfare would encourage thousands more
people who would not qualify for visas to head to Australia.
(Further background as to the rationale and perceived need for
detention at the time the mandatory detention policy was being
introduced can be obtained from the 1994 report of the JSCM
Asylum, Border Control and Detention, and submissions to
the inquiry. Further background can also be obtained from
parliamentary debates, especially during the period 1992-94, when
the Migration Reform Act 1992 was being debated).
Critics of mandatory detention, including human
rights organisations such as Amnesty International, and church
groups, have argued that the policy is discriminatory in its
application. People who enter as tourists or visitors and overstay
their visas and lodge refugee claims are issued bridging visas,
enabling them to remain at liberty while their claims are assessed,
whereas boat people are detained throughout the process. They argue
that the harshness of detention compounds the distress suffered by
already traumatised and desperate people, making their eventual
integration into the community more difficult.
Coalitions of refugee support and church and
community groups have formed to lobby against the detention of
asylum seekers.(15) They argue that the harshness of
Australia's treatment of boat people is destroying our reputation
overseas as a welcoming, tolerant and 'civilised'
country.(16) As indicated, some claim that detention
contravenes Australia's international treaty obligations, including
those relating to the rights of children. According to former Human
Rights Commissioner Chris Sidoti:
The (Australian Human Rights) Commission has
repeatedly advised the government that its policy of mandatory
detention violates voluntarily accepted international obligations.
It is disproportionate and inhumane. When it is prolonged it is a
gross abuse of human rights.(17)
Some have even described Australia's detention
policy as a reversion to our earlier White Australia policy
mentality, as indicative of the nation's deep-seated racism and
'fear of the other', and as appealing to prejudice and fostering
xenophobia in the broader community.(18)
Practical criticisms of mandatory detention
- it is more costly in the short-term than alternative schemes
such as releasing people into the community under bond or reporting
requirements. A day in detention costs an average of $105 per
- it is more costly in human as well as financial terms in the
longer term, as settlement and integration into the labour market
and society following possibly lengthy periods spent in detention
will be more problematic, and
- the secrecy attached to the management of detention centres can
foster cultures of harsh and inhumane treatment of asylum
Current criticism: the changed
The JSCM decided in 1994 that the risk and
likelihood of boat people absconding outweighed the humanitarian
concerns, as well as the practical concerns, of critics of the
policy.(19) There would still appear to be a good deal
of anger in the community at the mode of entry of boat people:
protecting the integrity of our borders and of our immigration
program remain political imperatives. The situation presented by
the current wave of boat people is however different from earlier
waves, which comprised people from source countries in or close to
our region. Many of these were refused refugee status and quickly
returned to their countries of origin.
Most of the current wave of boat people are
arriving courtesy of elaborate people smuggling operations. They
are not able to be returned to the 'hot-spot' Middle Eastern
countries they have come from (Iraq, Afghanistan, Iran). They are
being found to have a 'well-founded fear of persecution' on the
basis of the credibility of their stories. In any event, Australia
does not have agreements with the countries they have originated
from, or have been living in, or have transited, to take them back.
(An Iraqi boat person may have been living in Iran, and come via
Indonesia.) They are being given three-year temporary protection
This changed situation has been perceived as
weakening the rationale for mandatory detention. Detention may
facilitate the removal from Australia of the 10 per cent of the
current wave of boat people who are not being found to qualify for
temporary protection visas. However, detaining people in harsh
conditions, 90 per cent of whom are going to be allowed to stay, is
being portrayed, including in recent months by significant by
sections of the media, as pointlessly punitive. It is also being
portrayed as based on the cynical objective of dissuading further
arrivals.(20) Immigration authorities have denied that
the objectives of detention include 'punishing' illegal boat
arrivals. However information material prepared for distribution in
source and transit countries, designed to discourage people from
resorting to people smugglers, would appear to be maximising the
potential deterrent effect of Australia's mandatory detention
regime. Recent information kits have included a forbidding picture
of Woomera detention centre, and the warning that illegal entrants
are held in detention far from Sydney.(21)
Not surprisingly, the countries with detention
policies and practices most similar to Australia's are the other
major countries of immigration, the US and Canada.
Tough legislation, designed to weed out and
discourage 'economic refugees', including mandatory detention in a
range of circumstances, was introduced in the mid-1990s in the US
following rapid increases in asylum seeker numbers in the early
1990s, largely from Latin American, Asian and African countries. At
the end of 1995 the backlog of asylum claims in the US stood at
464 000. In 1999, 41 377 applications were lodged, down
from 84 839 in 1997.(22) The number of people in
Immigration and Naturalisation Service (INS) detention in 1995 was
6000. There are currently about 20 000 people in INS
detention, about a third of whom are asylum seekers.
Under the Illegal Immigration Reform and
Individual Responsibility Act 1996, asylum seekers who arrive
at airports or other ports of entry are automatically detained
while INS officers determine whether they have a 'credible fear' of
persecution. Those who fail the test are returned to their home
countries. Those who 'pass' are detained in INS detention. Also
detained are people who lodge 'defensive' asylum claims, i.e. to
prevent removal when they are found to be illegally in the
country.(23) About 40 per cent of asylum seeker
detainees are paroled, i.e. they are allowed to stay with family or
friends while their claims are assessed. (Seventy five per cent of
those paroled in 1999 were reported as attending their claim
hearings. Put another way, 25 per cent disappeared into the
The INS operates 9 detention centres itself, and
6 more are run privately. In addition, the INS rents 'thousands' of
beds in 'hundreds' of jails nationwide. (It has been estimated that
more than half of INS detainees are in private state prisons and
county jails).(25) The system has been widely criticised
as having 'severe institutional problems', and human rights groups
(including Amnesty International and Human Rights Watch) have
criticised conditions. 'Many reports' of abuse by officers against
detainees have been filed.(26)
Of the immigration countries, Canada has been
most generous to asylum seekers and has maintained the least tough
detention regime. However following public consternation at the
arrival of boat people (mainly from China) over the last few years,
it has toughened its detention policy.
Citizenship and Immigration Canada's official
enforcement fact sheet on 'Arrests and Detention' states that:
As part of its enforcement of the
Immigration Act, CIC can arrest and detain anyone who has,
or may have, violated the Act when there are grounds to believe
that person will not appear for other immigration proceedings or
poses a danger to the public. People arrested may be put under
detention in a jail or an immigration detention centre. Their
detention will be reviewed by a senior immigration officer or an
immigration adjudicator who may release them under certain terms
In 1997-98 a total of 7080 persons was detained.
The average length of detention in jails or correctional facilities
was 18 days, and in immigration holding centres 8 days. Conditions
for release include 'promises' to appear at hearings, and
Most boat arrivals (from China) are now held in
detention. (It was common for asylum applicants not to show up for
their claims determination process. The assumption is that they
owed money for their passage and moved quickly on to the US). About
600 boat people arrived during the summer of 1999, and about 500
were held in detention while their claims for refugee status were
The Swedish Aliens Act allows detention of
asylum seekers on three grounds: for identification, if there is a
risk the asylum seeker may disappear into the community, and if it
is likely that their application for refugee status will be
rejected. As in Australian asylum seekers who arrive with no or
fake documents are detained. They are however released quickly into
the community once their identities are established. The average
time spent in detention varies between two weeks and two months.
However there is no maximum period, and rejected asylum seekers
whose deportations cannot be implemented due to conditions in their
home countries can face lengthy detention.
Despite having more than twice as many asylum
seekers per capita as Australia, fewer people are detained. Besides
at the beginning, during identification, detention is mainly used
at the end of the refugee determination process to ensure
departure, where this is deemed necessary. In 2000, there were an
estimated 17 000 asylum seekers in Sweden; the combined capacity of
Sweden's four detention centres is 120. The major 'closed reception
centre' is Carlslund, near Stockholm. Of the four 'reception
centres' two are near Stockholm, one near Gothenburg and one near
Accommodation is provided for needy asylum
seekers in 'reception' or 'investigation' or 'transit' centres in
the form of self-contained flats or boarding-house type housing.
Staying in government-provided centres while claims for refugee
status are assessed is not compulsory; asylum seekers are
encouraged to move into the community, especially if they have
relatives or friends in Sweden. In 2000 approximately 10 000
out of the 17 000 asylum seeker population resided outside the
centres. Asylum seekers who wait over four months for a decision
may be granted permission to work. According to the UNHCR, however,
few find it.
Since undergoing major reforms in recent years,
Sweden's detention system is being put forward as a model to be
emulated by other countries. Before 1997, hunger strikes, suicide
attempts and disturbances including a serious hostage situation (in
which a guard was held at knifepoint) had been extensively covered
in the Swedish media, and detention policy had become a
controversial public issue. The subsequent changes, the main
features of which are described below, have been credited with
creating a less stressful and more dignified environment for the
processing of illegal arrivals and refugee claims, without
sacrificing the Government's 'enforcement' objectives.
- On 1 October 1997 the Swedish Government transferred primary
responsibility for detention from the Swedish National Police, and
the private security contractors who managed the day-to-day
operations of the centres, to the Swedish Migration Board (SMB).
The role of the SMB was to create 'a more civil, culturally
sensitive and open detention policy'.(30) According to
the UNHCR, not only has the treatment of asylum seekers improved,
but access to the asylum process has also improved because the
personnel running the centres also conduct refugee status
- Each detainee is assigned a caseworker trained in conflict and
violence prevention and counselling. The primary role of the
caseworker is to inform detainees of their 'rights', including to
legal assistance. Caseworkers assist with the preparation of asylum
claims, liaise with officials regarding the progress of detainees'
cases, and provide 'motivational counselling' to assist 'voluntary
departure', or less stressful deportations, in the event of
rejection of a claim.
Another significant feature of Sweden's
detention system-one that is being examined by Australia's
Immigration Minister Mr Ruddock-is the non-detention of children.
Under Swedish law children may not be detained for longer than a
maximum of three days. Women and children are housed at open
'reception centres', near their male relatives.
The UK has recently become the top European
destination for asylum seekers, with an estimated 97 900
applications (76 040 head of household claims) in 2000. The
accommodation of asylum seekers, and the removal of failed asylum
seekers, are problems that are widely described as of crisis
proportions. The annual bill for supporting asylum seekers has
reached BRP 835 million (AUD 2.3 billion).(31) The
regional dispersal policy is described in the UK media as
'collapsing', with people preferring to stay-possibly in poverty-in
London rather than accept free accommodation
elsewhere.(32) Up to 70 per cent of failed asylum
seekers are acknowledged by authorities as simply disappearing into
Border applicants may be detained pending
determination of their claims. However an asylum seeker may be
temporarily admitted into the country if the Home Office's
Immigration Service determines 'that they have access to suitable
accommodation, and that they will stay in a known location'. An
asylum seeker detained for longer than six days can apply for bail
if no decision on their request has been make. They can also apply
for bail pending the hearing of an appeal against a negative first
Government policy is to focus detention at the
end of the determination process, in order to facilitate removal of
rejected asylum seekers. In March 2000 the Government opened a new
detention centre at Oakington in Cambridgeshire where 'manifestly
unfounded' claimants are detained for one week in an accelerated
The UK currently has places for about 900
detainees in purpose-built detention centres, and three more are on
the books. Plans for the placement of asylum seekers in jails (as
in the US) are proving controversial.
The Conservative Party has had a policy of
compulsory detention for all asylum seekers, but the numbers and
costs involved may prove prohibitive.(33)
from overseas: some other comparisons
In comparing detention practices in the
countries that have been put forward as models for Australia, the
considerable differences in migration, and perhaps social welfare,
situations and cultures in these countries need to be kept in
- Immigration authorities in the US have openly acknowledged that
illegal migration is 'out of control'.
- In a reverse of the situation that has pertained in Australia,
Canada accepts three times as many asylum seekers ('refugees landed
in Canada') as offshore refugees (people identified by the UNHCR as
in need of resettlement in a third country).
- The majority of migration since 1989 into European countries
has comprised asylum seekers and/or illegal entrants, and
subsequent family reunion.
- The size of asylum seeker inflows are large-16 400
applications for refugee status in Sweden (population 8.9 million)
in 2000, and 97 900 in the UK (population 60 million),
compared with Australia, 13 000 in 1999-2000 (population 19
- Reforms in Sweden's detention centres may have brought about a
safer and more humane environment. However they have not meant the
end of disturbances and break-out and suicide attempts by (as in
Australia) people refused leave to remain and awaiting
- Many European countries, including Sweden, have identity card
systems which make asylum seekers much easier to track in the
community. Without such identification or residency papers, gaining
access to services or lawful employment is not possible, and
apprehension is easier.
- Many 'voluntary departures' from Sweden comprise people who
simply cross the border into another European country. It is also
likely that many of those granted temporary stay visas (including
Iraqis and Afghanis) move on to another European country, e.g.
Germany or the UK.
- While European countries house most of their illegally arrived
asylum seekers in 'open' rather than 'closed' 'reception centres',
or in hostels, destitute asylum seekers have little choice as to
where they go. In some of these centres and hostels, in areas where
the pressure of numbers is greatest, serious overcrowding and
violent disturbances are common. From the descriptions of
observers, conditions in them have at times been
appalling.(35) They would appear to be more deserving of
the 'hellholes' description than Australia's detention
- Asylum seekers, while perhaps initially more warmly received in
Sweden, perform poorly in the Swedish labour market (as do refugee
intakes in Australia). As asylum seekers comprise the bulk of
immigration to Sweden, Sweden's 'immigrants' have unemployment
rates 2.5 times those of the native born.(37)
- A majority of public opinion in the UK and Sweden is against
accepting asylum seekers, a greater majority (nearly 70 per cent in
Sweden) is against 'further immigration', and 'integration'
problems and incidents of racial violence are more common than in
Australia. (A report by the UK Association of Chief Police Officers
has claimed that racial abuse towards refugees and asylum seekers
has become 'common currency').(38)
- UK Home Secretary Jack Straw recently acknowledged that 'Labour
has lost control of the asylum system and allowed it to be taken
over by criminal gangs'.(39) The asylum seeker issue in
the UK is near the top of voter concerns. The Deputy Director of
Britain's Immigration Service has claimed that mandatory detention
is the only effective way to keep track of illegal
immigrants.(40) And sixty per cent of those surveyed in
a recent UK opinion poll supported mandatory detention for asylum
Australia's Immigration Minister returned from
overseas visits in January, including to Stockholm and London,
apparently unconvinced of the advisability of changing Australia's
mandatory detention policy:
Many other countries are increasingly moving
towards detention of unlawful arrivals and those countries without
mandatory detention often experience great difficulty in locating
failed asylum seekers when it is time for their
Australia's mandatory detention regime arguably
reflects a highly developed migration system and culture as much as
national isolationist or xenophobic tendencies. And the fact that
as we have had relatively few illegal arrivals, detention has been
a logistically feasible option. While there is obviously room for
improvement, Australia's detention practices, despite some highly
publicised problems, stand up well in terms of international
comparisons and standards.(43) However the number of
boat people in detention in Australia has risen rapidly. Claims by
anti-detention campaigners of cruel and brutal conditions and
treatment appear to be exaggerated.(44) However the
notion, and images, of thousands of people held in outback camps
behind barbed wire are disturbing.
An increasing number of commentators are
pointing out that the only practical way of stopping illegal asylum
seeker inflows into Western countries is to change the arguably
outdated 1951 Refugee Convention, which legitimises such
movements.(45) UK Home Secretary Jack Straw has proposed
the assessment of asylum seekers in their own regions, and the
subsequent organisation of repatriation, or resettlement in third
countries,(46) along the lines of the 1989-95
international Comprehensive Plan of Action for Indo-Chinese
refugees (described above).(47) With 137 signatories,
changing the UN Refugee Convention could be a lengthy process. In
the meantime, Australian governments, like other Western
governments, struggle to balance conflicting needs and demands: to
meet our Convention obligations; to discourage illegal boat
arrivals and people smuggling; to not 'punish the victim'; and to
not harm the nation's image as an inclusive and compassionate and
As indicated, the Immigration Minister is
examining the possibility of releasing women and children boat
people into the community, along the lines of Sweden. The
Opposition is questioning the appropriateness of outsourcing the
management of the centres. However, while the implementation of the
policy may be softened, it is unlikely that either of the major
political parties will raise the possibility of scrapping mandatory
detention for the bulk of illegal boat arrivals, at least before
the next election. Protecting the borders would appear to remain a
political imperative. Ms Pauline Hanson, in an interview with ABC
Radio Sunday 11 February, remarked that the perceived failure of
government to deal with illegal boat arrivals was a major feature
in One Nation's unexpectedly large vote in the recent WA
- Joint Standing Committee on Migration (JSCM), Asylum,
Border Control and Detention, tabled February 1994, p. 30.
- See the 1994 JSCM report, ibid., for more detailed historical
- See Department of Immigration and Multicultural Affairs (DIMA)
Fact Sheet 82, Immigration Detention, http://www.immi.gov.au/facts/82detain.htm.
- Terry Plane, 'Desert gulag ups capacity', The
Australian, 25 January 2001.
- JSCM, 1994, op. cit.
- JSCM inquiry report Not the Hilton, tabled 4 September
2000, p. 7.
- Figures provided by the Department of Immigration and
Multicultural Affairs, February 2001.
- See for example Luke McIlveen, 'Baton beatings claimed',
The Australian, 26 January 2001.
- Andrew Clennell and David Reardon, 'Injections, expulsion for
rioting refugees', The Sydney Morning Herald, 23 January
- Hon. Duncan Kerr, MP, Shadow Minister for Justice, Media
Statement, Human Pressure Cooker Boils Over Again, 31
- See UNHCR site at http://www.unhcr.ch/welcome.htm.
- Hon, Philip Ruddock, MP, MPS 129/2000.
- Evidence provided by the Department of Immigration. JSCM, 1994,
op. cit., p. 109.
- House of Representatives, Debates, 5 May 1992, p.
- For example the Justice for Asylum Seekers Alliance, based in
- 'A statement from the Justice for Asylum Seekers Alliance',
Migration Action, September/October 2000.
- Chris Sidoti, 'Asylum seekers: human rights obligations',
Migration Action, ibid.
- Andy Hamilton, 'Alternatives: isolation or compassion',
Migration Action, ibid.
- JSCM, 1994, op. cit.
- See articles and editorials in The Australian and
The Age in December 2000 and January 2001.
- DIMA information kits, 2000 and 2001.
- The US Committee for Refugees Internet site is at http://www.refugees/org/.
- USA detention policy and legislation is described in CQ
Researcher, Global Refugee Crisis, vol. 9, no. 25, 9 July
- Elizabeth Llorente, 'Immigration detention: a rapidly growing
business', The Recorder Online, 11 April 1999.
- Julie Sullivan, 'Prisons: Conditions severe even for jails',
Oregon Live, 10 December 2000.
- Elizabeth Llorente, 'INS acts to curtail abuse of detainees',
The Bergen (N.J.) Record, 28 January 2001.
- Citizenship and Immigration Canada, Enforcement Fact
- US Committee for Refugees, ibid. For an investigative report
into the detention of Canada's boat people, see Chris Wood,
'Seeking Freedom', Maclean's, 22 November 1999.
- Information in this section, unless otherwise indicated, is
from UNHCR statistics and country survey on Sweden, at http://www.unhcr.ch/world/euro/sweden.htm,
and an unpublished report by Grant Mitchell, former employee of the
Swedish Migration Board, The Swedish Model of Detention,
28 November 2000. (Available from the Parliamentary Library.)
- According to former employee and researcher Grant Mitchell,
- Steve Doughty, 'Asylum bill soars out of control to GBP 835
million', The Daily Mail (UK), 12 February 2001.
- Martin Bright and Kamal Ahmed, 'Refugees pour back to London:
Asylum dispersal system collapses as record numbers seek refuge in
UK', The Observer (UK), 31 December 2000.
- Information in this section is from the UNHCR country survey at
and the Centre for Immigration Studies electronic news service,
- Grant Mitchell, op. cit.
- See description of the Red Cross reception centre at Sangatte,
Calais, by Oliver Burkeman, 'No man's land', The Guardian
(UK), 13 December 2000. See also description of refugee hostel
at Celle, Germany, by Roger Boyes, 'New Berlin wall to segregate
refugees', The Weekend Australian, 12 August 2000.
- The Hon. Malcolm Fraser described Woomera detention centre as a
'hellhole that should be shut down', after receiving the 2000 Human
Rights medal at a ceremony in Sydney 10 December 2000.
Reported, inter alia, in Bernard Lane, 'Shut down Woomera hellhole:
Fraser', The Australian, 11 December 2000.
- Thomas Bauer et al., 'Immigration Policy, Assimilation of
Immigrants and Natives' Sentiments towards Immigrants: Evidence
from 12 OECD Countries', Discussion Paper No. 187,
Institute for the Study of Labor (IZA), Bonn, August 2000.
- Described in Vanessa Allen, 'Police chiefs warn of immigrant
race-hate time bomb', Press Association (UK), 22
- In a speech in London 6 February, quoted in Michael Clarke,
'We're powerless to halt the migrants', The Daily Mail
(UK), 7 February 2001.
- AAP, Fed: 'UK official backs immigration
detention policy', 15 January 2001.
- Described in Andrew Woodcock 'Nearly half want total bar on
asylum seekers: poll', Press Association (UK), 7 January
- Hon. Philip Ruddock, MP, MPS 011/2001, 4 February 2001.
- See inspection reports and conclusions, JSCM , 2000, op. cit.
- JSCM inspections of the detention centres in late 2000 found
that the facilities were 'adequate', that their administration was
'appropriate and professional', that the cultural sensitivities of
detainees were 'accommodated', and that Australia was taking
seriously its responsibilities to those in care. JSCM, 2000, ibid,
pp. 84 and 89.
- See A. Millbank, 'The problem with the 1951 Refugee
Paper no. 5 2000-01, Department of the Parliamentary
Library, 5 September 2000.
- Mike Peacock, 'Straw calls for shake-up of UN asylum
convention', Reuters, 6 February 2001.
- Alan Travis and Ian Black, 'EU looks at Straw's idea to curb
migrants', The Guardian (UK), 7 February 2001.
- Quoted in 'Anti-immigration party on rise again',
Agence-France Presse, 10 February 2001, and in 'Firebrand
Hanson says boatpeople bring disease', Reuters, 12
February 2001. See also Paul Kelly, 'Hanson's deadlier than
before', The Australian, 14 February 2001.