Mandatory detention in Australia

Mandatory detention in Australia refers to a feature of Australian immigration policy whereby the Australian Government has legislated for the mandatory detention of all persons entering the country without a valid visa, while security and health checks are undertaken and the legitimacy of their remaining in Australia is established. Persons arriving without visas are detained in Australian immigration detention facilities but may opt to depart Australia for their country of origin at any time.

The controversial policy was originated by the Keating Government in 1992, and has been subject to variation under the subsequent Howard, Rudd, Gillard and Abbott Governments.

History of mandatory detention

Mandatory detention of asylum seekers in Australia was established by the Keating Government in 1992. Controls on unauthorised arrivals were tightened under the subsequent Howard Government, including under the Pacific Solution policy, contributing to a sharp decline in boat arrivals and, consequently, to numbers of people being detained. The Pacific Solution was dismantled by the Rudd Government and partially restored under the Gillard Government in response to increased boat arrivals and reported deaths at sea.

Mandatory detention was introduced to "support the integrity of Australia's immigration program" and "management of Australian borders" and to distinguish between those who have submitted themselves to offshore entry processes prior to arrival and those who have not. Under the policy, asylum seekers are mandatorily detained while they "undergo an assessment process, including security and health checking, to establish if they have a legitimate reason for staying in Australia".[1]

Keating Government

Mandatory detention laws were introduced in Australia by the Keating Labor government, with bipartisan support, in 1992. The legislation was proposed as a result of an influx of Vietnamese, Chinese, and Cambodian refugees over the previous few years. The legislation specifically disallowed judicial review, but did impose a 273-day limit on detention. Minister for Immigration Gerry Hand told Parliament in his Second Reading Speech:[1]

The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community ... this legislation is only intended to be an interim measure.

— Gerry Hand, Keating Government Minister for Immigration

In 1994, the Keating government introduced new legislation called the Migration Reform Act 1992, broadening the application of mandatory detention to all who did not hold a valid visa, and removing the 273-day limit. The Act was designed to establish "a new visa system making a simple distinction between a 'lawful' and 'unlawful' non-citizen" and said that "a migration officer had an obligation to detain any person suspected of being unlawful."

Non-citizens in Australia without a valid visa were to be considered unlawful and would have to be held in detention, though those who met certain criteria and were not considered flight or security risks could secure lawful status by means of a bridging visa – but bridging visas would not be made available to those who arrived in Australia without visas in the first place (such as boat people). The government said that this was justifiable because visa overstayers had already submitted themselves to proper entry processing offshore and were therefore in a different category to those who had not and that boat arrivals had demonstrated a high likelihood of absconsion where detention was not in place. This was to remain the basis for Australia's system of mandatory detention throughout the subsequent Howard, and Rudd-Gillard Governments.[1]

Howard Government

The John Howard led Liberal-National Party Coalition defeated the Keating Labor Government in 1996. The new Government made significant adjustments to the policy from 2001, including the excision of outlying islands from Australia's immigration zone and the introduction of the Pacific Solution, a regional program whereby people arriving without visas were processed at offshore detention centres and a system of temporary protection visas established to deter self-selection of Australia as a destination for unauthorised arrivals. Howard's policies were often controversial, were criticised by some human rights groups and were the subject of protest both within and without detention centres. Through the final years of the Howard Government, Australia's detention facilities were near empty, few boat voyages were being attempted and the practice of detention of children had been ended.[2]

Following the Tampa affair in 2001, the Howard government developed a policy known as the Pacific Solution, which was implemented by then Australian Immigration Minister Philip Ruddock. Under this policy, many islands were excised from Australia's migration zone, and asylum seeker were removed to third countries to determine their refugee status, namely at detention camps on small island nations in the Pacific Ocean. A system of "temporary protection visas" for unauthorised arrivals was also established and a policy of turning back boats where possible was instigated.[3]

Also in 2001, the Border Protection Bill was introduced into the Parliament of Australia, which provided the government with the power to remove any ship in the territorial waters of Australia, use reasonable force to do so, provide that any person who was on the ship be forcibly returned to the ship, and guaranteed that no asylum applications may be made by people on board the ship. The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 reinforced the practice of mandatory detention, providing for the indefinite detention of asylum seekers.

Australia's immigration policies towards asylum seekers were a significant issue in the 2001 federal election. Prime Minister Howard said in a campaign policy speech:

[W]e are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada, we have a proud record of welcoming people from 140 different nations.

But we will decide who comes to this country and the circumstances in which they come... We will be compassionate, we will save lives, we will care for people but we will decide and nobody else who comes to this country.

— Prime Minister John Howard, 28 October 2001

Immigration detainees were held in one of the Australian immigration detention facilities on the Australian mainland, or on Manus Island or Nauru as part of the Pacific Solution. The detention facilities were managed by the private company, Global Solutions Limited.[4]

Many of those detained in Australia's detention centres between 1999–2006 have been asylum seekers from Iraq and Afghanistan who sought protection or asylum under Australia's obligations to the United Nations Convention Relating to the Status of Refugees. More than 80 percent of these were found to be refugees by the Immigration Department, with some decisions taking more than 8 months. Few asylum seekers were able to be repatriated.

On 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and held that the harsh conditions of detention did not render the detention unlawful. On the same day, the High Court also handed down its decision in Al-Kateb v Godwin which held that unsuccessful asylum seekers who could not be removed to another country, despite their wish to leave Australia, could continue to be held in immigration detention indefinitely.

Mandatory detention of asylum seekers was popular with sections of the Australian electorate. Some commentators argue that it helped John Howard win the 2001 federal election. While the Australian Labor Party supported the policy as Opposition, in June 2005 a small backbench revolt in Howard's own party led by Petro Georgiou and Judi Moylan resulted in some concessions to humanitarian concerns, including the promised release of long-term detainees and review of future cases by an ombudsman. The Palmer Inquiry was introduced in 2005 after the wrongful detention of mentally ill Cornelia Rau, a German citizen holding Australian permanent residency who had been unlawfully detained for 11 months. The inquiry also found 33 people to have been unlawfully detained with another 200 cases being referred.

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

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

National Inquiry into Children in Immigration Detention

Dr Sev Ozdowski OAM Human Rights Commissioner of the Human Rights and Equal Opportunity Commission (HREOC) held an inquiry into mandatory detention of children who arrived without a valid visa over the period 1999–2002 (with updates where possible – the report was completed in April 2004) . The vast majority of children arrived and were put into mandatory detention facilities with their families for indefinite periods of time with no real opportunity to argue their case before independent tribunal or court. The inquiry found that between 1 July 1999 and 30 June 2003, 2184 children were detained after arriving in Australia seeking asylum without a visa. Approximately 14% of those children came to Australia alone (unaccompanied children). Most of them came from Iraq, Iran and Afghanistan. Almost 98 percent of the Iraqi children were recognised as refugees;

The inquiry found that children detained for long periods of time were at a high risk of suffering mental illness. Mental health professionals had repeatedly recommended that children and their parents be removed from immigration detention. The inquiry found that the Australian government's refusal to implement these recommendations amounted to "..cruel, inhumane and degrading treatment of those children in detention".[6]

The inquiry also found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.

The key recommendations of the Inquiry were that children with their parents be released immediately into the community and that detention laws should be amended to comply with the Convention on the Rights of the Child. The Howard government released the children and introduced limited changes to Migration Act 1958 as a result of the report.

Criticism

In October 2001, Human Rights Watch sent a letter to Australian Prime Minister John Howard regarding new legislation, The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The new act further strengthened the practice of mandatory detention, allowing for indefinite detention of unauthorised arrivals. The letter said:

The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the US government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law.[7]

The system of mandatory detention has been the subject of controversy. Opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees. Among the intellectual opponents of the system has been Professor Robert Manne, whose Quarterly Essay "Sending Them Home: Refugees and the New Politics of Indifference" (2004) called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.

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

The Coalition Government's tough stance on people smuggling stems from the core belief that Australia has the right to decide who comes to this country and the circumstances in which they come. Deterrence has been achieved through excision, boat returns, offshore processing and mandatory detention.[8]

Australia's High Court ruled in Al-Kateb v Godwin that indefinite detention of an immigrant is legal, if they cannot be returned to another country (if they are stateless).

Wrongful detention

In February 2005, it was revealed that a mentally ill German citizen holding Australian permanent residency, Cornelia Rau, had been held in detention as an unauthorised immigrant for 11 months, after identifying herself as a backpacker from Munich under the name of Anna Brotmeyer.[9] In May, it was revealed that a total of 33 cases of people being wrongfully detained under the Migration Act were known, including one case of a woman forcibly deported and subsequently missing.[10] As of May, it was not known how many actually spent time in an immigration detention facility. By late May, more than 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry.[11] In October 2005, the Commonwealth Ombudsman revealed that more than half of those cases were held for a week or less and 23 people were held for more than a year and two of them were detained for more than five years.[12]

Rudd Government

For the final few years of the Howard Government, Indonesian boats carrying asylum seekers to Australia had virtually ceased and Australia's offshore detention centres were near empty. The newly elected Rudd Government, under Immigration Minister Chris Evans, announced a series of measures aimed at achieving what it described as a more "compassionate policy".[13] The Pacific Solution had involved offshore processing, a system of "temporary protection visas" for unauthorised arrivals, and a policy of turning back boats where possible. The Rudd Government dismantled all three components, dubbing them "ineffectual and wasteful".[3] Throughout 2009–2010, a flow of boat arrivals re-emerged.

In July 2008, the Australian government announced it was ending its policy of automatic detention for asylum seekers who arrive in the country without visas.[14] While it remained committed to the policy of mandatory detention as an "essential component of strong border control", the Rudd Government announced that detention would now be restricted to unlawful non-citizens who pose a threat to the community, those who refuse to comply with visa conditions, or those who need to be detained for the period of conducting health, identity and security checks.[15] By 29 June 2011, the Australian Government had delivered on its commitment to move the majority of children in immigration detention into community–based arrangements.[16]

The Government announced that aspects of the original detention system in Australia would remain, but asylum seekers will be released more quickly. They would only be detained for lengthier time periods if they are deemed to pose a risk to the wider community or have repeatedly breached their visa conditions.[17][18] "Boat people" in excised areas will still be subject to mandatory detention and processed offshore, but the Government will move to hasten the process. Boat people will also be able to access legal advice and apply for an independent review of adverse decisions. Each detainee's circumstances and justification for ongoing detention will be scrutinised by the Immigration Ombudsman every six months. Some of the changes may require amendments to the Migration Act 1958. The Migration Amendment (Immigration Detention Reform) Bill 2009 makes these amendments, but is yet to be passed.[19] This would require a Senate majority of 39 votes. Australian Greens and independent Nick Xenophon appear to be in general agreement with the changes. The remaining vote would have to come from Family First Party's Steve Fielding or a Liberal-National coalition Senator.[20]

The Migration Amendment (Abolishing Detention Debt) Act 2009 was passed by the Australian House of Representatives with several Liberal MPs threatening to 'cross the floor' and vote with Labor, and then passed into law on 8 September when the Senate passed the bill with the support of Senator Nick Xenophon, the Australian Greens, Liberal Senator Judith Troeth and at the last minute Steve Fielding.[21] This act abolishes the Howard-era policy whereby the government attempted to reclaim the costs of immigration detention from the detainee upon release.

Immigration Department figures in October 2009 showed no improvement in the speed of processing claims since the change of government.[22] As a proportion of the immigration intake, Australia accepted fewer refugees in 2009 than it did at any time under the Howard government.[23]

In October 2009, the MV Oceanic Viking was involved in an emergency operation rescuing 78 Sri Lankan asylum seekers in international waters within the Indonesian sea rescue zone. Those rescued were due to be landed in Indonesia, for transfer to an Australia-funded immigration detention centre on the Indonesian island of Bintan.[24] However, the asylum seekers refused to disembark until 18 November, following assurances of fast-tracked processing of their cases for resettlement.[25]

As of 29 March 2010, 100 asylum seeker boats had been intercepted within Australian waters during the life of the Rudd government.[26]

Suspension of processing for asylum claims by Afghans and Sri Lankans

On 9 April 2010, former Minister for Immigration Senator Chris Evans announced that, with immediate effect, no new applications for people from Afghanistan would be processed for six months ; and for Sri Lankans, three months. Senator Evans was quoted as saying that this change would result in a higher rate of refusal of claims based on circumstances in these countries[27]

Following a complaint lodged in 2011 regarding the resulting indefinite detention, in 2013 the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane or degrading treatment.[28]

Gillard Government

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

The Gillard Government undertook a series of adjustments to Australia's system of mandatory detention amid a growing stream of unauthorised boat arrivals. Julia Gillard and immigration minister Chris Bowen mooted various regional options for asylum seeker processing – notably East Timor and Malaysia – before reverting to Nauru and Manus Island in late 2012.[2]

On 18 October 2010, Julia Gillard announced that changes would be made to Australia's mandatory detention policy, and that more children and families would be moved out of immigration detention centres into community-based accommodation, such as centres run by churches and charities.[29]

To accommodate the reduction in detainees, the federal government announced that they would open two new detention facilities – a centre in Northam, 80 kilometres north-east of Perth, and an alternative place of detention in Inverbrackie, 37 kilometres north of Adelaide. Northam will house up to 1,500 single men and Inverbrackie will house up to 400 family members.

In a press conference, Prime Minister Gillard told media "when we came to government we issued detention values about not having children in high security, behind razor wire, and obviously we have worked to deliver on those detention values." She went on to say, "obviously we want to see kids in school. I understand that in some particular cases the minister will work through this case by case, there may be some reasons why this may not always be possible, but in the ordinary course of things I want to see kids getting a good education."

According to the Immigration Department, as of February 2011, there are currently 5,061 men, 571 women and 1,027 children under 18 living in detention.[30] The Sydney Morning Herald reports that 382 of those under 18 arrived without their parents.

Chris Bowen, Minister for Immigration in the Gillard Government oversaw a restoration of offshore processing of asylum seekers following the closure of the system by the Rudd Government.

Department of Immigration and Citizenship statistics reflect that there were 4,783 people in immigration detention facilities and alternative places of detention, including 3,951 in immigration detention on the mainland and 832 in immigration detention on Christmas Island as at 31 January 2012. The number of people in immigration detention who arrived unlawfully by air or boat as at 31 January 2012 was 6,031, representing about 94 per cent of the total immigration detention population. There were also 344 people (about five per cent of the total immigration population) who arrived in Australia lawfully and were subsequently taken into immigration detention for either overstaying their visa conditions, resulting in visa cancellation.

Restoration of offshore processing

Following an extended period of increasing boat arrivals and deaths at sea, in May 2011 Gillard announced that Australia and Malaysia were "finalising" an arrangement to exchange asylum seekers for processed refugees (the plan was dubbed the "Malaysia Solution"). On 31 August the High Court ruled that the agreement to transfer refugees from Australia to Malaysia was invalid, and ordered that it not proceed on the basis that it contravened human rights protections established under existing laws.[31][32] The Government was unable to secure the support of the Greens or Opposition in the Senate for modifications to enable the Malaysia Solution to proceed and instead reverted to expanding onshore processing arrangements. Continued deaths at sea and ongoing boat arrivals kept the issue at the fore of policy debate during the term of the Gillard Government, leading to a major Parliamentary debate on the issue in June 2012, as news reports reached Canberra of another fatal sinking off Christmas Island.[33] The government sought changes to the Migration Act, to allow asylum seekers to be processed in Malaysia. The Greens opposed the Bill outright and called for greater opening up of Australia's borders. The Opposition opposed the Bill on human rights grounds and called for restoration of the Howard Government's policies. The government allowed the possibility of returning processing to Nauru, on the condition that Malaysia was also permitted.[3]

Unable to secure passage of the Bill through Parliament following the emotional debate, the government convened a panel chaired by Angus Houston to consider options. The Houston Report found that "onshore processing encourages people to jump into boats" and called for the re-opening of offshore processing at Nauru and Manus Island.[2] Gillard endorsed the plan in August 2012.[34][35]

Second Rudd Government

Papua New Guinea Solution

Protesters outside ALP caucus meeting in July 2013

On 19 July 2013 in a joint press conference with PNG Prime Minister Peter O'Neill and Australian Prime Minister Kevin Rudd detailed the Regional Resettlement Arrangement (RRA) between Australia and Papua New Guinea: [36]

"From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees. Asylum seekers taken to Christmas Island will be sent to Manus and elsewhere in Papua New Guinea for assessment of their refugee status. If they are found to be genuine refugees they will be resettled in Papua New Guinea... If they are found not to be genuine refugees they may be repatriated to their country of origin or be sent to a safe third country other than Australia. These arrangements are contained within the Regional Resettlement Arrangement signed by myself and the Prime Minister of Papua New Guinea just now."

See also


References

  1. ↑ 1.0 1.1 1.2 (20 March 2013) Janet Phillips & Harriet Spinks. Immigration detention in Australia. Department of Immigration and Citizenship. Commonwealth of Australia. Retrieved 26 July 2013.
  2. ↑ 2.0 2.1 2.2 (14 August 2012) Gerard Henderson. Boats will keep coming until someone waves the red flag. The Sydney Institute. Retrieved 26 August 2013.
  3. ↑ 3.0 3.1 3.2 Peter Hartcher & Phillip Coorey (30 June 2012). "So many hopes dashed". The Sydney Morning Herald. Retrieved 26 July 2013.
  4. ↑ "GSL (Australia)". Detention Services Contract. Archived from the original on 29 August 2007. Retrieved 23 October 2007.
  5. ↑ "Immigration pay boy $400,000". The Sydney Morning Herald. 3 March 2006. Retrieved 3 March 2006.
  6. ↑ "A last resort? National Inquiry into Children in Immigration Detention". Human Rights & Equal Opportunity Commission. 13 May 2004. Retrieved 9 September 2007.
  7. ↑ "Australia: Letter to Prime Minister Howard on Recent Amendments to the Migration Act". Human Rights News. Human Rights Watch. 31 October 2001.
  8. ↑ "Stronger Border Protection". Election Policies – Text Version. Liberal Party of Australia. 27 September 2004. Archived from the original on 18 September 2006.
  9. ↑ "Secrecy blamed for Rau's ordeal". ABC News. 7 February 2005. Retrieved 3 May 2005.
  10. ↑ "Govt says 33 have been wrongly detained". The Age (Melbourne). 2 May 2005. Retrieved 3 May 2005.
  11. ↑ "Wrongful detention: 200 cases go to inquiry". The Sydney Morning Herald. 25 May 2005. Retrieved 8 June 2005.
  12. ↑ Robertson, Dana (26 October 2005). "More Australian citizens illegally held in detention: Commonwealth Ombudsman" (Transcript). Lateline. Australian Broadcasting Corporation.
  13. ↑ (30 July 2008) Sweeping changes to mandatory detention announced. ABC News. Australian Broadcasting Corporation.
  14. ↑ Tim Johnston (30 July 2008). "Australia Announces Changes on Asylum Seekers". The New York Times.
  15. ↑ (29 July 2008) Tony Burke. New Directions in Detention, Restoring Integrity to Australia's Immigration System.
  16. ↑ Fact Sheet 83a – Community Detention. Department of Immigration and Citizenship. Retrieved 26 July 2013.
  17. ↑ (30 July 2008). Sweeping changes to mandatory detention announced. ABC News. Australian Broadcasting Corporation. Retrieved 26 July 2013.
  18. ↑ (29 July 2008). Australia abandons asylum policy. BBC News.
  19. ↑ Migration Amendment (Immigration Detention Reform) Bill 2009. Commonwealth of Australia. Retrieved 23 January 2012.
  20. ↑ (30 July 2008) Nicola Berkovic. Clash looms over asylum-seeker detention policy. The Australian. News Limited. Retrieved 2 August 2013.
  21. ↑ "Liberal senator crosses the floor for asylum seekers" Australian Associated Press, 8 September 2009
  22. ↑ Murdoch, Lindsay; Davis, Mark; Coorey, Phillip (23 October 2009). "Labor all at sea on asylum promises". The Sydney Morning Herald. Retrieved 24 June 2010.
  23. ↑ Megalogenis, George (24 October 2009). "Labor in hold on refugee numbers". The Weekend Australian. p. 4. Retrieved 30 October 2009.
  24. ↑ "Towing boats back is humane – Rudd". The Daily Telegraph. Australia. 22 October 2009. Retrieved 24 June 2010.
  25. ↑ Fitzpatrick, Stephen (17 November 2009). "Oceanic Viking asylum-seekers to land tomorrow – reports". The Australian. Retrieved 24 June 2010.
  26. ↑ Kelly, Joe (29 March 2010). "Rudd Government marks 100th asylum seeker boat". The Australian.
  27. ↑ The Australian. 10 April 2010.
  28. ↑ Michael Gordon, UN finds Australia guilty in 150 cases, The Sydney Morning Herald, August 2013.
  29. ↑ Families freed from detention. Christian Taylor. Australian Times.
  30. ↑ Statistics – Facilities. Department of Immigration and Citizenship. Retrieved 23 January 2012.
  31. ↑ "High Court scuttles Malaysia swap deal". ABC News. 31 August 2011. Retrieved 31 August 2011.
  32. ↑ Michael Gordon (1 September 2011). "The Malaysia solution is shipwrecked". The Australian (Melbourne). Retrieved 9 September 2011.
  33. ↑ (27 June 2012). As it happened: Another sinking brings asylum debate to a head. ABC News. Australian Broadcasting Corporation. Retrieved 26 July 2013.
  34. ↑ (13 August 2012) Ben Packham. Labor to act quickly to reopen Nauru, PNG asylum-seeker processing centres. The Australian. News Limited. Retrieved 26 July 2013.
  35. ↑ McKenzie, J. and Hasmath, R. (2013) "Deterring the ‘Boat People’: Explaining the Australian Government's People Swap Response to Asylum Seekers", Australian Journal of Political Science 48(4): 417–430.
  36. ↑ Regional Resettlement Arrangement Between Australia And Papua New Guinea. Retrieved 26 July 2013.

External links