Mandatory detention in Australia

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Mandatory detention in Australia concerns the Australian federal government policy and system of mandatory detention, pursuant to which all persons entering or remaining in the country without a valid visa are compulsorily detained and may be subject to deportation.

In the early 2000s, the mandatory detention of people seeking political asylum in Australia attracted considerable controversy. Between 1999-2001, over 2000 children, mostly with family members, were held inside immigration detention centers commissioned by the Australian government.^[1] Mandatory detention remains a very controversial aspect of Australian immigration policy.

Immigration detainees 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. The detention facilities are managed by the private company, Global Solutions Limited.^[2]

1 History of mandatory detention
2 National Inquiry into Children in Immigration Detention
3 Criticism
4 Wrongful detention
5 See also
6 References
7 External links

[edit] History of mandatory detention

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

In 1994, the Keating government introduced new legislation broadening the application of mandatory detention and removing the 273 day limit. This extension laid the foundation for indefinite detention.

Many of those detained in Australia's detention centres between 1999-2006 have been asylum seekers from Iraq and Afghanistan who sought protection or asylum under Australia's obligations to the United Nations Convention Relating to the Status of Refugees. Over 80 percent of these were found to be refugees by the Immigration Department, with decisions taking up to 8 months or more. 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 lead detention to become unlawful. Thus the 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.

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

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

In 2006 the federal government made a $400,000 compensation payout to an 11-year-old Iranian boy for the psychological harm he suffered while being detained in Woomera and Villawood detention centres between 2000 and 2002.^[3]

[edit] National Inquiry into Children in Immigration Detention

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. The vast majority of children arrived and were detained with their families, however the inquiry found that between 1 January 1999 and 30 June 2002, 285 unaccompanied children were detained after arriving in Australia seeking asylum without a visa.^[4]

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”.^[5]

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.

[edit] 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 practise 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.^[6]

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 to name a few. Among the intellectual opponents of the system has been Professor Robert Manne, whose Quarterly Essay "Sending Them Home: Refugees and the New Politics of Indifference" (2004) called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.

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

The Coalition Government's tough stance on people smuggling stems from the core belief that Australia has the right to decide who comes to this country and the circumstances in which they come. Deterrence has been achieved through excision, boat returns, offshore processing and mandatory detention.^[7]

[edit] Wrongful detention

In February 2005, it was revealed that a mentally ill German citizen holding Australian permanent residency, Cornelia Rau, had been held in detention as an unauthorised immigrant for ten months, after identifying herself as a backpacker from Munich under the name of Anna Brotmeyer.^[8] 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.^[9] As of May, it was not known how many actually spent time in an immigration detention facility. By late May, over 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry.^[10] 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.^[11]