Chapter 5 - Mandatory detention policy
This chapter discusses the background to Australia's
mandatory detention policy and whether it can continue to be justified as a
proportionate and rational measure necessary to ensure the integrity of Australia's
immigration program. The implementation of mandatory detention and options for
reform are discussed more fully in Chapter 6.
History of the policy of mandatory detention
policy of mandatory immigration detention was introduced with bi-partisan
support in 1992. Under sections 189, 196 and 198 of the Migration Act, all non-citizens
unlawfully in Australia
must be detained, and kept in
immigration detention until granted a visa or removed from Australia. An unlawful non-citizen is any person
who does not hold a valid visa.
In theory, the policy of mandatory immigration
detention applies to everyone who arrives without a valid visa, including
asylum seekers claiming protection; lawful entrants who have overstayed their
visa; and people who have had their visa cancelled on various grounds and are
liable to deportation. However, many witnesses argued that mandatory detention
is aimed primarily at deterring unauthorised boat arrivals.
Prior to 1992, the Migration Act made a distinction
between unauthorised border arrivals and illegal entrants and deportees.
Unauthorised boat arrivals were deemed to have not entered Australia,
they were detained in open areas of migration centres but not permitted to
leave the centre and had to report daily to the Australian Protective Service. By contrast, 'illegal
entrants' included those who entered Australia
by deception or fraud, or had entered lawfully and subsequently overstayed
their visa or breached visa conditions. This group were liable to be deported
but could only be detained for 48 hours and then for periods of seven days with
the permission of a magistrate.
In 1992, the Migration
Amendment Act 1992 introduced the policy of mandatory detention of 'designated'
persons, which applied to people who arrived by boat between 19 November 1989 to 1 September 1994, without authority to
enter or remain in Australia. The discretion to detain illegal
entrants and deportees continued. The policy was expressed to be an 'interim
measure' for a 'specific
class of persons' to 'address
only the pressing requirements of the current situation'. It was generated by concern about
the possibility of a large number of unauthorised boat arrivals and the need to
maintain tighter control over the migration program.
It was community concern about the length of detention
endured by unauthorised boat arrivals that acted as a catalyst for the Joint
Standing Committee on Migration inquiry into asylum, border control and
detention (JSCM inquiry) in 1994. During
that inquiry many witnesses opposed mandatory detention on the grounds that it
was intended to deter asylum seekers fleeing persecution arriving by sea and
was likely to institutionalise lengthy periods of detention. The then Department of Immigration and Ethnic
Affairs (DIEA) argued that the upgrading of security arrangements in Australian
migration centres was necessary to prevent escape and ensure that people
without a lawful basis to remain in Australia
were available to be removed. The
JSCM gave bi-partisan support for the principle of mandatory immigration
detention but recommended that there should be capacity to consider release where
the period exceeded six months.
Reform Act 1992
During the JSCM inquiry, major changes to the migration
system were introduced by the Migration
Reform Act 1992. The various classifications
of border arrivals, illegal entrants and deportees were replaced with a simple
distinction between lawful and unlawful non-citizens. Using the Migration Amendment Act 1992 model, the amendments introduced by
this Act required mandatory detention of all boat people, illegal entrants and
deportees. Consequently, mandatory
detention, initially envisaged as a temporary and exceptional measure for a
specific group of boat people, was extended to become the norm. Judicial
supervision of the power of arrest and detention was removed. Although on its
face the law applies uniformly to everyone without lawful authority to enter or
remain in Australia,
it has been argued that the primary target remained 'boat
Successive governments have maintained Australia's
mandatory detention policy to ensure that:
unauthorised arrivals do not enter the
Australian community until their identity and status have been properly
assessed and they have been granted a visa;
unauthorised arrivals are available during
processing of any visa applications and, if applications are unsuccessful, that
they are available for removal from Australia; and
unauthorised arrivals are immediately available
for health checks, which are a requirement for the grant of a visa.
rationale for mandatory detention
The number of unauthorised arrivals has fluctuated over
time, but increased significantly toward the end of the 1990s. In September
2001, following the 'Tampa Crisis', the policy of excision and offshore
processing was introduced to combat the involvement of organised people
smuggling networks in the transit of asylum seekers to Australia
by boat. Under the 'Pacific
Solution' unauthorised boat arrivals arriving
on excised places are diverted to processing centres on Nauru,
and Papua New Guinea (PNG) (declared third safe country). Over the last four
years the number of unauthorised arrivals has declined significantly since its
peak in 2001. See Table 5.1 below.
In September 2004, the Government recommitted itself to
'tough and well-resourced'
border protection arrangements including 'retaining the policies of excision,
offshore processing and mandatory detention that act as a powerful deterrent to
Table 5.1 shows the number of unauthorised arrivals in
the last eight years.
Table 5.1: Number of vessels and number of
No. of vessels
No. of unauthorised arrivals
1 July 2005 – 20 January 2006
Source: DIMIA, Managing the
Border, 2004-05 edition, p. 29; and figures provided to the committee by DIMIA
The Palmer and Comrie inquiries
During 2005 the discovery of the mistaken detention of a
permanent resident Ms Cornelia
Rau, who has lived in Australia
since she was 18 months old, focused attention on the Commonwealth Government's
policy of mandatory immigration detention.
The Inquiry into the Circumstances of the
Immigration Detention of Cornelia Rau was established in February 2005 (the
The subsequent discovery of the unlawful detention and deportation of
Australian citizen Vivian Alvarez
Solon in 2001 resulted in an extension of
the Palmer inquiry and a referral to the
Report criticised the handling of
immigration detention cases, which it said suffers from serious problems
stemming from deep seated cultural and attitudinal problems within DIMIA. The report of the Inquiry into the Circumstances of the Vivian Alvarez Matter, report No. 3 of 2005 (the Comrie Report), reached broadly similar conclusions.
The Palmer and Comrie
reports provided the impetus for a re-examination of the mandatory detention
policy. While the focus of these inquiries was the illegal detention of a
permanent resident and an Australian citizen, it revealed serious and
persistent problems in the treatment of vulnerable persons. In particular, public
concern was voiced about the mental health effects of indeterminate detention
of asylum seekers and the indefinite detention of people who cannot be removed.
changes to mandatory detention policy
On March 2005, in response to calls for the release of
long term detainees, the Minister for Immigration, Multicultural and Indigenous
Affairs, announced 'new measures to manage the
cases of long term immigration detainees' who
are not found to be refugees and where 'the
Minister believes it is not reasonably practicable to achieve removal in the
short term and where the detainee undertakes to co-operate fully with removal
from Australia once that becomes practicable.'
These measures created a new class of bridging visa,
known as the Removal Pending Bridging Visa, which are said to allow for greater
flexibility in managing the cases of long term detainees who are awaiting
removal but cannot be removed for various reasons. Regulations creating the new
visa were introduced on 11 May 2005.
The new bridging visa is not available to detainees
with current visa applications, or who are challenging a decision, either
through review or courts. And a detainee cannot apply for a Removal Pending
Bridging Visa unless they are first invited to do so by the Minister. Detainees
receiving the Removal Pending Bridging Visa are released into the community and
have access to the same limited social support benefits as Temporary Protection
Visa holders, i.e. work rights, access to Medicare benefits and various welfare
payments. The new bridging visa does not allow family reunion and does not
provide re-entry rights if the holder leaves Australia.
A Removal Pending Bridging Visa can be ceased when removal can be arranged and
the holder is required to report regularly to DIMIA. Access to the visa is not
Further calls for a review of the mandatory detention
policy and an easing of conditions in detention followed the Palmer Inquiry. On
17 June 2005 the Prime
Minister announced changes that were said to preserve the broad framework and
principle of mandatory detention but 'with a
softer edge'. The Migration Amendment (Detention Arrangements) Bill 2005 was
introduced by the Minister for Citizenship and Multicultural Affairs, the Hon, Mr
Peter McGauran MP.
In summary, the amendments provide for:
Parliament’s affirmation as a matter of
principle that a minor shall only be detained as a measure of last resort;
an additional non-compellable power for the
minister to specify alternative arrangements for a person's
detention and conditions to apply to that person. This is intended to allow
families with children to be placed in community detention arrangements with
conditions being set to meet their individual circumstances;
extending the ministers non-compellable
discretionary powers to allow release from immigration detention, through the
grant of a visa where the Minister believes this is appropriate, including a
removal pending bridging visa; and
require DIMIA to report to the Commonwealth Ombudsman
when a person has been detained for 2 years, and every 6 months thereafter that
the person is in detention. The Ombudsman's
assessment and recommendation are to be tabled in Parliament.
During the second reading speech, Mr
The broad framework of the government's
approach is unaltered. It is essential that we continue to have an orderly and
well managed migration and visa system. The government remains committed to its
existing policy of mandatory detention, its strong position on border
protection, including excision, the maintenance of offshore processing and in
the unlikely event of it being needed in the future – the policy of turning
boats around. These changes also represent the responsiveness of this
government in taking opportunities to see that out existing detention policy is
administered with greater flexibility.
In addition, all primary protection visa applications
must be decided by DIMIA within three months of receipt of the application and
review by the RRT must also occur within three months. Periodic reports of
cases where these time limits have not been met must be made to the Minister,
who will table the reports in the Parliament.
responses to recent reforms
HREOC acknowledged the amendments are a positive move
in addressing some of its concerns but believed that the measures do not go far
enough. They said:
...in contrast to the
recommendations made in Those who’ve come
across the seas and A last resort?,
the amendments do not create enforceable rights and depend entirely upon an
exercise of Ministerial discretion. The Commission considers that, as a
consequence, Australia is not meeting its obligations to provide
‘effective remedies’ for violations of human rights. The Commission considers
that those obligations are best met by providing that the ongoing
appropriateness of detention be periodically reviewed by a Court empowered to
order release on the grounds discussed ...in A
HREOC went on to say that the amendments do nothing to
alter the power of the Commonwealth to subject a person, who cannot be removed
to 'indefinite detention'
under the Migration Act. And that like the Residential Housing Projects and the
home-based detention arrangements, 'the use of
the power to specify 'alternative arrangements'
still involves a form of detention, the conditions of which will be specified
by the Minister.' In other words, 'alternative
arrangements' is an alternative form of detention not an alternative to
HREOC also pointed to the possible inconsistency
between the statutory obligation to only detain children as a measure of last
resort in the recently inserted subsection 4 AA (1) of the Migration Act which
is qualified by subsection 4 AA(2), which states that:
For the purposes of subsection (1), the reference to a minor
being detained does not include a reference to a minor residing at a place in
accordance with a residence determination.
That approach is inconsistent with the broad meaning of
detention accepted in international law.
detention of two years or more by Commonwealth Ombudsman
Under the new section 486L of the Migration Act, as
amended, where a person has been in detention for two years or more, DIMIA is
required to report that case to the Commonwealth Ombudsman and provide a report
on that person every six months. The Ombudsman will review the facts and
provide an assessment and recommendation to the Minister, who must table the
assessment in Parliament.
The committee welcomes the statutory requirement for
regular independent monitoring and the tabling of the Ombudsman's
report in Parliament. This new mechanism will increase transparency and
accountability in relation to people in long term immigration detention and
should promote a greater internal discipline in DIMIA's
case management. The Ombudsman has significant powers to obtain information and
enter departmental premises.
However, a number of concerns were raised that should
be taken into account when assessing whether review of this nature is
sufficient as an ongoing safeguard against arbitrary or inhumane detention. For
example, Amnesty International argued that the duty to report does not commence
until a person has been held for a period of 2 years, which:
...is excessively long considering that the initial detention of a
person is not subject to review or investigations, and the mounting evidence
that detainees who are in prolonged or indefinite detention have a high risk of
It was also noted that the recommendations of the
Ombudsman are advisory only. Subsection 486O (4) provides that:
The Minister is not bound by any recommendations the
Commonwealth Ombudsman makes.
This is consistent with the advisory role of the
Ombudsman but highlights what some witnesses regard as the limits of
administrative rather than judicial supervision of individual cases.
In a recent information bulletin the Ombudsman reported
17 reports and statements for tabling had been
provided to the Minister;
93 current and former detainees have been
interviewed by Ombudsman staff:
assessments of 40 people who have been in detention
for two years or more at 29 June 2005, and who remain in detention, are being
prioritised for completion.
The Ombudsman has reported that the Minister has tabled
the first 2 reports with her response.
In response to the first person, he voluntarily returned to his home
country due to family problems and in respect of the second person, the
Ombudsman suggested a permanent visa but before the Ombudsman report was
provided to the Minister, a temporary protection visa was granted.
The Ombudsman also reported that many people who are
subject to an assessment have been granted various visas and released from
detention before their assessment are completed. This is encouraging. However,
the Committee is concerned about the implications for the workload of the
Ombudsman's office as assessments involve a
substantial amount of work – researching the detainee's
circumstances; seeking further information, explanations and obtaining files
from DIMIA; consulting detainee's
representatives and discussing potential recommendations.
The Ombudsman also reported that a significant number
of draft assessments provided to the Ombudsman required substantial re-working
because of changes to the detainee's
circumstances, which in turn changes the priority for completing assessments.
The effective implementation of new section 486L relies
on DIMIA providing prompt up to date information to enable assessments to be
conducted efficiently. Timely and accurate information on changes or likely
changes to a detainee's circumstance is
critical to the effective discharge of the Ombudsman new role.
Moreover, although the role of the Ombudsman under section
486L is narrowly circumscribed, the potential caseload is substantial and
likely to grow significantly over the next two years based on current figures
(see above). The Ombudsman reported that:
As at 29 June 2005,
when this function commenced, there were 149 people who had been in detention
for more than two years on whom reports were
to be prepared by DIMIA for the Ombudsman no later than 29 December 2005. During the first six months
as many as 50 other people in detention will become subject to this reporting
The committee notes a potential further 67 assessments
for people, detained between 12 to 18 months at the time of the inquiry, will
become subject to the reporting obligation in the first half of 2006. The
requirement for 6 monthly reports to the Ombudsman on each person who remains
in detention beyond the 2 year period will also add to the assessment workload.
Criticisms of the policy
In looking back over the thirteen years since mandatory
detention was introduced, it is evident that it has been and remains, one of Australia's
most controversial policies. Strong and sustained debate over the policy has
led, as outlined above, to ongoing evolution of its application. Over this
time, three key criticisms consistently emerge:
The effectiveness of the mandatory detention
The legality of the mandatory detention
The indeterminate nature of mandatory detention.
of mandatory detention
As described above, the central rationale for mandatory
detention has been the preservation of Australia's
border control measures and the creation of a deterrent against unauthorised
arrivals. The use of temporary detention of arrives during the determination of
health and security checks has generally been only a secondary consideration.
However, the extent to which the decrease in
unauthorised boat arrivals can be attributed to mandatory detention is open to
debate. For example, Professor Maley
disputes the claim that mandatory detention is a deterrent. He states:
...there is simply not a shred of credible evidence that Australia's
polices have actually deterred... The key marker of this is to be found in DIMIA's
own data on boat arrivals. The current system of mandatory detention was
introduced in 1992 by the ALP (with the complicity of the Coalition). In
1991-1992, three boats arrived, with 78 people. In the following year, the
number of people who arrived by boat more than doubled, and by 1994-95, the
number had reached 1071... The message should be obvious: it is overwhelmingly
the situation in refugees' country of origin
(push factors), and the situation en route to Australia
(transit factors) that determine the flow of refuges to Australia.
These factors account for the cessation of refugee flows since late 2001.
It is notable that Australia's
experience is consistent with the downward global and regional trends in asylum
requests. Recent UNHCR analysis
indicates a significant fall in asylum applications in Europe
and other non-European industrialised countries since its peak in 2001. In 2004,
in 50 industrialised countries, the number of asylum requests fell by 22 per
cent and since 2001 have dropped by 40 per cent. The largest fall in asylum requests
since 2001 was reported by non-European industrialised countries – Canada
and the USA
received 48 per cent fewer requests in 2004 than 2002, while asylum levels in Australia
and New Zealand
fell by 74 per cent. The report also notes that:
The number of asylum seekers from Afghanistan
continued to drop sharply in 2004. Afghan asylum applications have fallen by 83
per cent since 2001, while Iraqi asylum requests have dropped by 80 per cent
This evidence suggests that factors other than
mandatory detention are likely to have been the biggest influence on boat arrivals
over the past five years.
Some witnesses also argued that the largest number of
onshore asylum applications are lodged by people who arrive on short term visas
and subsequently seek asylum. It was therefore suggested that the rationale for
detention – to prevent escape and disappearance into the community and
availability for removal – is difficult to sustain in the face of this
Information provided by DIMIA confirms that the largest
proportion of asylum claims are initiated by people who arrive with a visa. The
number of initial applications for protection from people held in immigration
detention centres was less than half of the total onshore claims in 1999-2001, when
the number of asylum requests was at its peak. Protection requests from
immigration detainees have declined as a proportion of total onshore claims as
the number of unauthorised arrivals has continued to decline. By contrast the
proportion of visitor visa holders applying for protection visas after they
arrive in Australia
has remained relatively stable.
Table 5.2: Protection Visa Applications 1999-00 to 2004-05 as at 30 June
Program Year of Lodgement
Source: Outcomes Reporting Section Report ID 376 ICSE Extract 30 June 2005
Obtaining information about the number of long term
detainees is not always straight forward.
During the inquiry DIMIA provided the following breakdown of the number of
detainees and periods of detention current at that time:
people less than three months (43 per cent)
people three to six months (13 per cent)
people six to 12 months (16 per cent)
people 12 to 18 months (9 per cent)
people 18 months to 2 years (7 per cent)
people more than 2 years (12 per cent).
The Commonwealth Ombudsman reported that DIMIA has
advised that at least three people had been held for more than three years,
including two people for longer than five years. The committee was unable to test the
accuracy of that figure.
A recent Ministerial press statement indicates that the
profile of detainees in Australian immigration detention centres has changed
significantly over the past five years. As at 21 December 2005, the number of people in detention is
the lowest since 1999 (except illegal foreign fishers). The decline in the
arrival of unauthorised arrivals is the major contributing factor to the
overall reduction in detention figures.
December 2005, the Minister reported that of 535 people in
immigration detention, only 16 were unauthorised boat arrivals and a further 76
detainees are living in the community under residence determinations (community
detention), including 40 children.
Less than 30 per cent of detainees are actually seeking asylum.
At this time only 26 people had primary protection visa applications before the
department. Most asylum seekers arrive in Australia
with a valid visa and live in the community while they pursue their claims.
The Committee is encouraged by the overall reduction in
the number of people in immigration detention centres but remains concerned about the
prolonged detention of detainees, especially in relation to people:
claiming asylum and awaiting the outcome of
reviews and appeals;
those who have been unsuccessful in their claim
for refugee status and await an exercise of ministerial discretion to grant a
visa on humanitarian grounds; and
those who await deportation but cannot be
removed for various reasons.
nature of mandatory detention
The often lengthy and indeterminate nature of
immigration detention, especially of unauthorised boat arrivals, emerged as a central
theme of the inquiry. Some witnesses argued that prolonged loss of liberty
could rarely be justified on the basis of, for example, the risk of flight.
It was also said that the immigration detention had
taken on an increasingly punitive character, exacerbating the adverse effects
of detention. Some of the legislative changes that reflect a hardening of the
detention policy include:
the removal of the statutory right of HREOC and
the Commonwealth Ombudsman to initiate confidential contact with people held in
clarification that officers of the Department
are under no duty to give visa applications to unauthorised boat arrivals
unless a request is made by the detainee;
increases in the penalty for escaping from
immigration detention introduction of and new offences manufacturing or
possessing weapons have been introduced;
introduction of a regime for strip searching immigration
detainees and security monitoring provisions governing visitors to detention
preventing court orders for release.
Many witnesses equated immigration detention to
imprisonment, but lacking the minimum standards applicable to criminal detainees. The emphasis on security, the use of
high fences, uniformed guards, handcuffs and behaviour management techniques were
regarded as more appropriate to correctional facilities than administrative
detention, especially of asylum seekers. The committee notes that the Palmer
Report described Baxter as
a 'correctional style facility':
It is surrounded by a strong, high steel picket fence inside
which is a perimeter fence topped with electrified wires. It looks like a
prison. In many ways, the activities that occur in Baxter are
similar to those in any Australian correctional institution; the untrained
observer could not tell the difference. Baxter is effective in
its purpose of containment.
DIMIA has made efforts to improve immigration detention
– the closure of Woomera in April 2003 is one example. In response to ongoing public
concern about the effects of the detention on children, other changes to
detention policy have been implemented.
The Woomera Residential Housing Project was established in August 2001 to
enable eligible women and children to live in family style accommodation at
Woomera, while remaining in immigration detention. In 2003 the Woomera RHP
closed and residents were accommodated at the new Port Augusta RHP. A new RHP
in Port Hedland also opened on 18
Nevertheless, the adverse mental health effects of
indeterminate and lengthy detention remains a serious and persistent issue of
public concern and raises important questions about Australia's
legal and moral obligations toward non-nationals. The Palmer
Report confirmed that for detainees in Baxter:
... the worst punishment was seen to be the open-ended nature of
their detention and the fact of detention itself. Everything was done for them
and they felt useless. As one detainee put is, 'It is like dying from the
During the inquiry Mr
Burnside QC said:
The mistreatment that is associated with indefinite mandatory
detention is not really difficult to identify. For people who have not
committed an offence, to be locked up indefinitely for months or years, and in
particular without knowing how long the detention will continue, is a torment
the consequences of which have been thoroughly documented by the medical
profession. That is the largest problem – the fact that they do not know when,
if ever, they are going to be released.
...the fact that the act allows lifetime detention of an innocent
human being is pretty disturbing and, I would say, represents world’s worst
practice, and the fact that it can only be brought to an end by the
uncompellable, unreviewable discretion of an individual is also disturbing.
It is in this context that many witnesses challenged
the ethics of mandatory detention. The concerns of many witnesses were
reflected by Ms McKerney,
a founding member of Rural Australians for Refugees:
The Australian government says that this [migration detention]
is used as a deterrent to stop other asylum seekers coming here and that this
policy has succeeded in greatly reducing numbers. But it is morally wrong to use
the destruction of innocent people's lives as
a deterrent to others. There are ways to protect Australian borders other than
locking asylum seekers up for long periods.
QC also questioned the morality of using detention as a deterrent. He commented:
My concern in the
matter, from first to last, is a moral concern, which is simply this: in my
view – and I think it is not a
difficult view to hold – it is morally reprehensible to mistreat innocent
people as an instrument of government policy in order to deter other people
from behaving in particular ways. The system of mandatory detention, as
it is designed and as it has been implemented, does precisely that. It involves
the mistreatment of innocent people in order to deter other people from behaving
in particular ways. Innocent people are simply being used and mistreated as
instruments of policy.
The detrimental effects of the isolation imposed by the
use of remote locations, especially on young people was said to compound the
problem. For example, the Woomera
Lawyers Group argued that:
the location of our
detention centres in remote outback areas is part of a policy of deterrence ... I
cannot see any reason for people to be detained so far away from centres where
there are facilities available to deal with some of the issues that arise.'
Like many witnesses, Mr
advocated that mandatory detention should be re-examined:
impact on detainees, the prison staff and the civil society of Australia – and
effectiveness' should be looked at, in
comparison to less draconian methods.
Throughout the inquiry critics of the policy maintained
that prolonged detention for an indeterminate period is inhumane and the lack
of legal safeguards is antithetical to the rule of law in a democratic society.
legality of mandatory detention
Some witnesses argued that many of the problems
associated with immigration detention are embedded in the law itself and that
the prolonged and indeterminate detention is inconsistent with international
law and practice.
It is accepted as a fundamental legal principle of
Australian law and international law, that as an incidence of national
sovereignty, the State may determine which non-citizens can gain entry to Australia,
the conditions under which those non-citizens are admitted or permitted to
remain, and the conditions under which they may be deported or removed. That said, there is no legal
impediment to the exercise of national sovereignty consistent with
international obligations or minimum standards necessary to preserve human
dignity. The movement of people across national borders fleeing persecution,
civil war or for economic reasons is a global phenomena. Australia
shares, with other nation states, binding obligations under international customary
and treaty law in relation to refugees and the treatment of non-citizens
At the domestic level Chu Kheng Lim v The Minister for Immigration, Local Government and
Ethnic Affairs (the Lim case), is leading authority for the principle that
sovereignty confers on the Executive the authority to detain a non-citizen for
the purposes of expulsion or deportation, to receive, investigate and determine
an application for an entry permit, and, after that determination, to admit or
deport that non-citizen. Provided
the detention is 'reasonably necessary'
to achieve this purpose the detention is within power. Since the decision in
the Lim case it has been accepted that the constitutional basis or source of
power for the Act, is the naturalisation and aliens'
head of power (s.51 (xxvii)).
However, Associate Professor Kneebone
argued that the 'citizen – alien dichotomy' has
led to a belief that different standards can be applied to someone who cannot
establish that they are a citizen. Consequently, the Migration Act is framed
entirely in terms of the control of aliens and reflects an ingrained sense of a
lack of State responsibility for the treatment of 'non-citizens'.
In 2004 the High Court declared that failed asylum
seekers who cannot be returned to their country of origin or another country
and who pose no danger to the community, can be kept in immigration detention
indefinitely. In Al Kateb v Godwin and Minister for Immigration and Multicultural and Indigenous Affairs v Al
Khafaji, the majority of the High Court said that provided the Immigration
Minister retained the intention to eventually deport such people, the detention
would be valid even if it was potentially indefinite.
The 2004 decisions were criticised by some witnesses, especially
in light of evidence of the detrimental effects of long term detention on
health and wellbeing. For example,
Mr J Peter
said that the 2004 decisions have 'highlighted
the need for legislation that will make it unlawful to detain asylum seeks
indefinitely and to hold children in mandatory detention'. HREOC also argued that a law which
authorises indefinite detention should not remain on the statute books.
Nations guidelines on detention of asylum seekers
has assumed responsibility to extend protection to asylum seekers and refugees
through its accession on 22 January
1954 to the 1951 Convention
relating to the Status of Refugees and the 1967 UN Protocol Relating to the Status of Refugees (the Refugee
Convention). The committee notes that the Executive Committee of the UNHCR
provides guidance on accepted international practice, and although not binding
under international law, reflects an international consensus of acceptable
practice that has an important normative effect. UNHCR ExCom Conclusion 44
states that the circumstances in which it may be necessary to detain such
To verify identify;
To determine elements of a claim;
To deal with cases where such persons have
destroyed vital documents;
To protect national security or public order.
Similarly, the UNHCR
Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers (February 1999) (UNHCR Guidelines) state that 'As
a general principle asylum-seekers should not be detained'
(guideline 2) unless there are 'exceptional
grounds for detention' (guideline 3) as
Several submissions argued Australia's
immigration detention policy and practice is also inconsistent with the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (the CAT), International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on the Rights of the Child (CRC). The UN High Commissioner for Refugees said
policy of mandatory detention of all asylum seekers arriving undocumented is
not consistent with applicable international standards. While UNHCR recognises
that mandatory detention was introduced as a mechanism seeking to address Australia's
particular concerns related to illegal entry, using detention in this way
requires the exercise of great caution to ensure that it does not serve to
undermine the fundamental principles upon which the regime of international
protection is based. Legitimate State security concerns must be addressed in a
way that balances them with the rights of individuals, consistent with human
rights instruments, including the Refugee Convention. In the particular case of
refugees, their human suffering in fleeing persecution should not be
exacerbated by their treatment upon arrival in the country of asylum.
In 1993 a case concerning the prolonged detention of a
Cambodian national was lodged under the first Optional Protocol to the ICCPR
for consideration by the UN Human Rights Committee – a body of independent
experts nominated by State parties to monitor the implementation of the ICCPR.
In A v Australia it was argued, among other things, that
A's detention between 25 November 1989 and 20 June 1993 (three years and 204 days), although lawful under the Migration Act 1958 was arbitrary and in
violation of article 9.1 of the ICCPR. The UN HRC found that, while mandatory
detention is not per se a breach of
international law, the continued detention of A could not be justified in the
circumstances of his case and found that Australia
had breached its treaty obligation:
It is established international legal principle that 'arbitrariness'
must not be equated with 'against the law'
but be interpreted more broadly to include such elements as inappropriateness,
injustice and lack of predictability: Furthermore, remand in custody could be
consider arbitrary if it is not necessary in all the circumstance of the case,
for example, to prevent flight or interference with evidence; the element of
proportionality becomes relevant in this context. The State party however,
seeks to justify the author's detention by the
fact that the entered Australia
unlawfully and by the perceived incentive for the applicant to abscond if left
The HRC observed that every decision to keep a person
in detention should be open to periodic review so that the grounds justifying detention
can be assessed:
In any event, detention should not continue beyond the period
for which the State can provide appropriate justification. For example, the
fact of illegal entry may indicate a need for investigation and there may be
other factors particular to the individuals, such as the likelihood of
absconding and lack of cooperation, which may justify detention for a period.
Without such factors detention may be considered arbitrary, even if entry was
The HRC also formed the view the provisions of the Migration
Act, which prevents a court from releasing a person from detention, violates
the right to a real and effective review of the lawfulness of detention by an
independent court. The primary issue in dispute is the scope of judicial review.
The inability of Australian courts to look beyond narrow legal questions and
provide supervision of the merit of detention decisions was found to be
inconsistent with the right of effective review enshrined in article 9.4 of the
ICCPR. The HRC has reached the same conclusion in subsequent cases involving Australia.
Australian law and practice with universal minimum standards
The disparity between international and domestic law
led some witnesses to advocate the introduction of a constitutional or
statutory bill of rights. An
inquiry into the merits of a bill of rights is outside the scope of the present
inquiry. However, the committee notes that unlike comparable jurisdictions such
as the UK and Canada,
Australian judges do not have a coherent set of minimum standards against which
to assess the compatibility of Australian law or the conduct of public
Associate Professor Kneebone
As numerous reports and decisions of international committees
have now pointed out the effect of section 189 and 196 read together is to
create a mandatory, non-reviewable system of detention which arguably breaches
the right to freedom from arbitrary detention (ICCPR Article 9). This
consequence of the reading of sections 189 and 196 together is also confirmed
by decisions in which it has been held that the harsh conditions of detention (Behrooz v Secretary, Department of
Immigration (2004) 79 CLD 176), or the fact that the children are detained
in contravention of international human rights standards (Re Woolley) does not
affect the (domestic) legality of the detention regime.
In her submission she said: the 'deep
seated culture and attitudes' are embedded in
the Migration Act itself and '...reflected in
many of its provisions and hence in its administration and operation'. This view was widely shared.
Associate Professor Kneebone
also contrasted the Migration Act with the Canadian Immigration and Refugee Protection Act 2002 (IRPA), which is
drafted as 'framework legislation'
with fixed principles in each part of the Act. She says that:
It articulates key principles for the immigration and refugee
protection programmes, including fundamental rights and freedoms. For example,
it clarifies that persons can be arrested and detained for three principal
reasons: identify, flight risk or danger to the public. It also set out the
human rights framework for refugee protection and incorporates it into the
The committee agrees with the general consensus that existing
Migration Act provisions lack adequate safeguards to prevent detention for a
period longer than justified by the facts of individual cases or that
conditions of detention meet acceptable standards.
Alternatives to mandatory detention
There was a general consensus among organisations and
individuals that mandatory detention may be necessary when an asylum seeker
first arrives in Australia
for the purpose of carrying out identity, health, character and security checks
but that the time spent in detention should be strictly limited. However, it was suggested that if
mandatory detention is to continue then procedures need to be put in place to
have detention decisions independently reviewed. The Commonwealth Ombudsman
observed that there is a need for legislative clarification and amendment in
relation to detention provisions, and that the attempts to limit the impact of
judicial and tribunal review had led to a tightening of provisions.
The South Brisbane Immigration & Community Legal
Service Inc. suggested that continuing immigration detention should be subject
to 'regular judicial or other independent
scrutiny, initially within a month and then on a quarterly basis.' The Catholic Migrant Centre
Migration detention of unauthorised arrivals who seek asylum be
limited to a specific period of days (we suggest 45), after which a detainee
should have the right to have their ongoing detention reviewed by a judicial body.
The onus of proof should be on DIMIA to demonstrate that the ongoing detention
of an asylum seeker is necessary in all the circumstances with due weight being
given to the fact that the right to liberty is one of the most fundamental of
all human rights.
There should be a presumption against detention of
asylum-seekers who arrive without authorisation. Detention of an asylum-seeker
should only be resorted to if it is necessary to verify their identity and/or
to determine the basis for the claim for refugee status or asylum and/or to
protect national security and public order and/or where the asylum-seeker has
deliberately sought to mislead the authorities.
The Migration Act must be amended to specify a statutory maximum
duration for detention that is reasonable. Once this period has expired the
individual concerned should be released.
FECCA said that full protection must be afforded to:
...the most vulnerable in reception centres, namely women and
children. We argue that family units and unaccompanied women and children
should be allowed into receptive communities as soon as the required identity,
health and security checks have been completed. All unaccompanied minors should
be delivered into appropriate community care within 48 hours.
HREOC referred the committee to recommendations made in
its most recent reports relating to detention of asylum seekers. These recommendations include:
detention for immigration purposes should not
exceed 28 days in the absence of exceptional circumstances;
in relation to the detention of children for
immigration purposes, there should be a presumption against detention;
a court or tribunal should assess whether there
is a need to detain children for immigration purposes within 72 hours of initial
the continuing detention of children for
immigration purposes should be subject of prompt and periodic review by a
The committee agrees with the general consensus that it
is now appropriate to reconsider Australia's
policy of mandatory detention for the duration of status determination process.
The factors which influenced the adoption of mandatory
detention in 1992 are to a large extent now longer present. There is also
persuasive argument that the deterrent effect is not as efficacious as once
thought and that, while the original policy envisaged the possibility of long
term determination, the Parliament did not intend to pass a law for the
indefinite detention of non-nationals.
While recent changes create scope to ameliorate the
harshness of the policy, it is the committee's view that amendment of section
189 is necessary to better reflect Australia's
changed attitude, especially toward asylum seekers and those who for various
reasons cannot be safely returned to their country of origin. It is the role of
the law to provide procedural safeguard against over zealous use of executive
power and reflect the community's values of humanitarian concern and fairness;
as well as to ensure effective implementation and protection of the Australian
The committee considers the evidence in relation to the
practice of immigration detention in chapter 6. Options for reform are
considered in more detail in that chapter and recommendations appear at the end
of that chapter.
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