Mandatory detention in Australia

From Wikipedia, the free encyclopedia

Mandatory detention in Australia refers to the Australian federal government's policy and system of mandatory detention, under which all persons entering or remaining in the country without a valid visa are compulsorily detained[1]. Immigration detainees are incarcerated in one of the Australian immigration detention facilities on the Australian mainland, or on Manus Island or Nauru as part of the Pacific Solution.

Since the 1990s when the Paul Keating ALP government enforced the policy of mandatory detention of refugees seeking political asylum in Australia attracted considerable controversy, and remains a highly controversial aspect of Australian immigration policy. The policy has come under widespread international condemnation, particularly from the United Nations High Commissioner for Refugees [2].

Contents

[edit] History of mandatory detention

This article may require cleanup to meet Wikipedia's quality standards.
Please discuss this issue on the talk page or replace this tag with a more specific message.
This article has been tagged since October 2006.

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

In 1994, new legislation passed by the Keating Government broadened the application of mandatory detention and removed the 273 day limit. This extension laid the foundation for indefinite detention.

Mandatory detention, along with the issue of asylum seekers generally, was an important socio-political issue in Australia from 2000 to 2002. During this time there was also the Children overboard affair, the Tampa incident, and hunger strikes at the Woomera detention centre. It was a significant issue during the 2001 federal election. The 2002 Bali bombing further heightened concerns amongst many in the community about effective border protection.

From 2001, asylum seekers who were determined to be refugees were eligible for and mostly issued with a temporary protection visa.

On 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz V Secretary Of The Department Of Immigration And Multicultural And Indigenous Affairs and held that the conditions of detention did not lead detention to become unlawful. Thus inhumane conditions of detention cannot excuse escape from administrative detention for non-citizens who have arrived in Australia without authorisation. On the same day, the High Court also handed down its decision in Al-Kateb v Godwin which held that unsuccessful asylum seekers who could not be removed to another country, despite their wish to leave Australia, could continue to be held in immigration detention indefinitely.

Australia's longest serving detainee Peter Qasim was detained for over 7 years before being released in 2005.

In June 2005 a small backbench revolt in Howard's own party led by Petro Georgiou and Judith Moylan resulted in some concessions to humanitarian concerns, including the promised release of long term detainees and review of future cases by an ombudsman.

[edit] Arguments in support of mandatory detention

This article may require cleanup to meet Wikipedia's quality standards.
Please discuss this issue on the talk page or replace this tag with a more specific message.
This article has been tagged since July 2006.

1. Strict enforcement of mandatory detention acts as a deterrence for people seeking to illegally enter Australia. .

2. Australian law only provides for asylum seekers to be granted protection visas, and as not everyone who arrives will be an asylum seeker under international law, their eligibility to enter Australia must be verified.

3. Similarly, national security imperatives require that unauthorised arrivals are properly screened before entering Australia.

Prime Minister John Howard and successive immigration ministers maintained that their actions were justified in the interests of protecting Australias borders and ensuring that immigration law was enforced. A 2004 Liberal Party election policy document stated:

The Coalition Government's tough stance on people smuggling stems from the core belief that Australia has the right to decide who comes to this country and the circumstances in which they come. Deterrence has been achieved through excision [from the Australian migration zone], boat returns, offshore processing and mandatory detention. [1]

[edit] Criticism

Although popular with many voters, the policy and practice of mandatory detention has received much criticism, mainly on humanitarian grounds. Opposition has come from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees to name a few. Notable acadamic critics include Professor Robert Manne, whose 2004 article in Quarterly Essay, "Sending Them Home: Refugees and the New Politics of Indifference", called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.

During the period 1999 to 2002, the Commonwealth Human Rights and Equal Opportunity Commission (HREOC) examined mandatory detention in Australia, following reports of abuse and harm to detainees. In 2001, HREOC's Human Rights Commissioner issued a Report on Visits to Immigration Detention Facilities which identified numerous concerns, particularly concerning the detention of children. As a result of these concerns, in November 2001 HREOC announced a national inquiry into the treatment of children held in immigation detention. The purpose of the inquiry was to determine whether Australia's immigration detention laws and its treatment of children in immigration detention complied with the United Nations Convention on the Rights of the Child.

The report of the national inquiry, entitled A Last Resort?, was tabled before Parliament on 13 May 2004. HREOC found that children in Australian immigration detention facilities had suffered numerous and repeated breaches of their human rights. In particular, HREOC found that Australia’s immigration detention policy had failed to protect the mental health of children, failed to provide adequate health care and education, and failed to protect unaccompanied children and those with disabilities. The title of the 900-page report is a reference to Article 37(b) of the United Nations Convention on the Rights of the Child, which states in part: "the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time".

[edit] Detention of children

As a particularly vulnerable group, the detention of children and the circumstances under which this has occurred has been the focus of the most criticism. Concerns have included lack of education, exposure to violence and psychological stress, and prolonged separation from close family members.

In A Report on Visits to Immigration Detention Facilities (see above), the Human Rights Commissioner noted that "unlike juvenile detention centres, immigration detention facilities hold children under ten years of age, including infants". HREOC's subsequent 2004 report, A Last Resort? resulted from two years of investigation, including interviews with detainee children and their families from all immigration detention centres, including those on remote islands off the coast of Australia. HREOC also considered submissions from organisations representing detainees, human rights and legal bodies, members of the public, religious bodies, state government agencies and a range of non-government policy and service-providing organisations.[2] Two of HREOC's major findings were that:

  1. Australia's immigration detention laws as applied to unauthorised arrival children created a detention system which was fundamentally inconsistent with the Convention.
  2. Children in immigration detention for long periods of time were at high risk of serious mental harm. The government's failure to implement repeated recommendations by mental health professionals to remove certain children and their families from detention amounted to cruel, inhumane and degrading treatment of these children (in reference to Article 37(a)).

HREOC also made a number of recommendations to address these findings, including the release of children in detention and their families as soon as possible, and no later than four weeks after the report was tabled in parliament (ie. no later than June 2004); amendment of relevant laws to comply with the Convention; appointment of independent guardians for unaccompanied children; codification of minimum standards of protection for children in immigration detention; and a review of the impact upon children of legislation which excised certain territory from the Australian migration zone, and created the "Pacific Solution".

The government rejected the report's major findings and recommendations. It also rejected the view that Australia’s system of immigration detention was inconsistent with Australia’s obligations under the Convention.[3]

Children in immigration detention have been represented by ChilOut and other NGOS and concerned individuals.

The remainder of this article may require cleanup to meet Wikipedia's quality standards.
Please discuss this issue on the talk page, or replace this tag with a more specific message. This article has been tagged since October 2006.


[edit] International obligations

Australia maintains an obligation to the international community due to being a signatory to the Convention Relating to the Status of Refugees. In October 2001, Human Rights Watch wrote to Australian Prime Minister John Howard to outline its concerns with the effect of the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The new legislation further strengthened the practice of mandatory detention, allowing for indefinite detention of unauthorised arrivals. The letter said:

The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the U.S. government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law. [4]

[edit] Indefinite detention

Significant concerns exist regarding indefinite detention (see Al-Kateb v Godwin), as a vehicle for facilitating abuse and injustice and for being contrary to fundamental rights and freedoms. In the Al-Kateb case, a majority of the High Court of Australia ruled that since Al-Kateb had been denied a visa as a refugee, but also could not be deported as he had no country to return to, the appropriate action was to detain him indefinitely, potentially for the rest of his natural life, even though he had committed no criminal offences and was not considered a threat to the community. This was ruled at the time to be both legal and not unconstitutional, however the decision was eventually overturned on appeal and he was granted a visa.

[edit] Standard of detention facilities

The living standards of mandatory detention facilities has been criticised,[5] particularly with regard to the former Woomera facility, located as it is in a very isolated region of Australia. There are concerns regarding the incidence of mental illness amongst detainees, many of whom have been held for long periods of time without any progress in their cases.

Detainees have sometimes reacted violently to detention, such as at the Woomera Immigration Reception and Processing Centre in South Australia, where protests eventually contributed to the closure of the facility.

[edit] Significant critics

Groups critical of the mandatory detention policy have included members of the legal profession in South Australia and Victoria.

  • Woomera Lawyers' Group

Originally operating under the auspices of Jeremy Moore and Associates. (and later with Boylan & Co). Access to Woomera was secured. Lawyers began to frequent the detention centre and interview detainees.

  • Refugee Advocacy Service of South Australia

In April 2002 a group of lawyers from the Woomera Lawyers' Group set up and established the Refugee Advocacy Service of South Australia Inc. [6]. The founding board members where Gordon Barrett Q.C., (later appointed Barrett J of the District Court of South Australia), Kris Hanna M.P., (ALP M.P. defected to Greens), Kaz Eaton, (Solicitor at Bourne Lawyers), Graham Harbord, (Partner at Johnston Withers), Aleecia Murray, (later crowned young Australian Lawyer of the Year by the Law Council of Australia for her work with RASSA) [7], Nicholas Llewellyn-Jones (Solicitor for the AWU in the landmark decision of AIRC in the (‘the three certified agreements case’) and part of the South Australian legal team in The workplace relations challenge, and Abby Hamdan (instructing solicitor in Al-Kateb v Godwin and later became famous as she was pursued by the Commonwealth government in a case involving privileged communication between her and one of her clients who was an asylum seeker MIMIA v Hamdan [8]). The service provided free representation in the Federal Court of Australia to any detainee who had an arguable case. It represented hundreds of asylum seekers through the pro-bono support of members of the South Australian profession. The Refugee Advocacy Service of South Australia Inc held fundraising and profile raising events throughout Australia. It was awarded a special notice from HREOC.

  • Julian Burnside Q.C.

Julian Burnside Q.C. has been a strong advocate for changing the current system. In 2001 he pursued proceedings against the Federal Government regarding the Tampa.


[edit] References

  1. ^ [s 189 Migration Act 1958]
  2. ^ http://archives.cnn.com/2002/WORLD/europe/02/01/unhcr.australia/index.html?related

[edit] External links

Retrieved from "http://en.wikipedia.org../../../m/a/n/Mandatory_detention_in_Australia_0039.html"