Mandatory detention

Australia's Migration Act 1958 requires all unlawful non-citizens to be detained, regardless of circumstances, until they are granted a visa. As such, an asylum seeker who arrives or is present in Australian territory without a visa must be detained. This policy of mandatory detention was introduced in 1992 and has been maintained by successive governments.

The policy of indefinite mandatory detention for asylum seekers who arrive in Australia without a visa has been an issue of concern for RCOA and others since its inception. The current policy is resulting in lengthy periods of detention for thousands of people - including children - who do not need to be detained, causing considerable harm to already vulnerable people and resulting in hundreds of millions of dollars of unnecessary expenditure each year.

Impacts of mandatory detention on asylum seekers

The Department of Immigration and Citizenship stresses that immigration detention is intended be administrative, not punitive. It is not designed to punish unlawful non-citizens, but to allow their status to be assessed. However, regardless of this intention, mandatory detention has serious negative impacts on asylum seekers.

The International Convenant on Civil and Political Rights, to which Australia is a signatory, enshrines rights to liberty and freedom from arbitrary detention - both of which are violated by the mandatory detention policy. Additionally, through its impact on the physical and mental wellbeing of asylum seekers, mandatory detention also results in breaches of other human rights, such as the right to health.

The negative impacts of mandatory detention on the health and wellbeing of asylum seekers have been well documented. Detention, particularly when indefinite or prolonged, has been shown to have a detrimental impact on the mental health of persons who have suffered torture and trauma. This impact is magnified by the limited access to legal counsel, interpreting services, communication facilities, physical and mental health services and social, cultural and religious support networks available to asylum seekers in detention. This is particularly the case for asylum seekers detained offshore or in remote facilities, whose isolated location makes the delivery of appropriate services very difficult.

New Directions in Detention

In July 2008, the Minister for Immigration and Citizenship announced a series of policy changes for the conduct of Australia’s immigration detention centres. These changes, known collectively as the New Directions in Detention policy, were aimed at ending indefinite and non-reviewable detention and at limiting immigration detention to a measure of last resort. They direct decision-makers to justify why a person should be detained rather than released to live independently in the community. Under the policy, only those people who pose a demonstrable risk to the community should be detained. However, the mandatory detention policy itself remains in place. The Minister's speech on New Directions in Detention can be viewed at www.minister.immi.gov.au/media/speeches/2008/ce080729.htm.

RCOA welcomed the new policy as an important step towards reducing the human cost of mandatory detention. However, the policy has yet to be fully implemented. Due to the maintenance of the mandatory detention policy, the detention of asylum seekers who arrive without authorisation still remains a measure of first, rather than last, resort, and persons who pose no threat to the community continue to be detained. Immigration detention also remains indefinite, as time limits on immigration detention have not been encoded in law.

Alternatives to detention

Since the introduction of mandatory, non-reviewable detention of unauthorised asylum seekers, the policies and practices of immigration detention have drawn widespread criticism domestically and from the international community. Many have stressed that mandatory detention is not only detrimental to asylum seekers, but also simply unnecessary.

Australia is one of few nations in the world which imposes mandatory detention on asylum seekers. In many other nations, only those individuals deemed to be a high security risk are detained. There is no evidence in Australia to suggest that asylum seekers arriving without authorisation are more likely to present a security risk to Australia. In fact, the fact that the majority of asylum seekers who have reached Australia by boat are found to be genuine refugees. Between July 30 2009 and June 30 2010, 2 914 applications for refugee status by irregular maritime arrivals were completed. Of these, 2 126 - over 70% - were found to be refugees.

Additionally, there is no research to suggest that individuals are likely to abscond when being processed in the community. This is because they have a vested interest in cooperating in order to gain full protection rights. Treating people with dignity and presuming innocence rather than guilt helps to reinforce their trust in the system. For example, of the 244 asylum seekers who were released into the community during the Community Care Pilot, only two (less than 1%) have absconded.

In response to increasing criticism of the mandatory detention policy and mounting evidence that detention of all unauthroised arrivals is simply unneccesary, a number of alternative detention arrangements have been trialled or implemented in Australia.

Community-based detention arrangements

For a number of years, Immigration Residential Housing was established close to major immigration detention centres where women and children could live while remaining in detention. As of August 2007, the Villawood, Sydney and Perth Immigration Residential Housing complexes remain open.

Migration Amendment (Detention Arrangements) Act 2005

The passing of his Act in July 2005, which was driven by a small number of concerned Government backbench Members of Parliament, firmly established the principle that children should only be detained as a matter of last resort. In a significant policy shift, the introduction of this Bill led to the release of all children and their families into community detention arrangements. Unfortunately, there are still a significant number of children currently held in detention or detention-like facilities in Australia. As at October 2010, over 700 children were residing in detention, awaiting a decision of their protection applications.

In October 2010, the Australian Government announced that it would be progressively releasing children and their families from immigration detention facilities. While welcoming the move, RCOA remains concerned that protection of children during the refugee determination process, both in detention and in the community, have not been sufficiently prioritised.

Children within the immigration detention system face long processing times without adequate access to schooling and other services. The majority of recommendations made in the Australian Human Rights Commission's 2004 report into children in immigration detention (see www.hreoc.gov.au/human_rights/children_detention_report/report/index.htm)  have not yet been implemented and there remains a disturbing lack of child-specific immigration policies across a range of issues. Of particular concern is the responsibility of the Minister and the Department towards the increasing number of unaccompanied minors, particularly (as the former Immigration Minister acknowledged) the conflict between the Minister’s role as guardian to unaccompanied minor and the Ministerial powers to determine status and detain.

Policies towards children that require an urgent overhaul include the need to:

• ensure that children are not held in any secure immigration facility except on judicial order;
• enact child-specific time limits on time held in any immigration facility;
• ensure that child protection agencies and experts form an advisory panel to oversee all aspects of DIAC work relating to children;
• enact new federal child protection laws that are enforceable in an immigration detention regime; and
• appoint a Federal Children’s Rights Commissioner.

Residence Determinations

Initially designed for families with children following the July 2005 amendments to the Migration Act 1958, residence determination also extends to other vulnerable people in immigration detention. The amendments provide the Immigration Minister with a non-compellable, non-delegable public interest power to specify alternative detention arrangements. Placement in community detention enables people to move about in the community without needing to be accompanied or restrained by an immigration officer, or designated person.  Those asylum seekers released into community detention on a residence determination have some restrictions on their movement.

Community Assistance and Support (CAS) Program

Between 2006 and 2009, the Department of Immigration and Citizenship ran a successful three-year Community Care Pilot, which ran from June 2006 to June 2009. This initiative allowed families and other detainees with complex needs to be released into the community with support. Non-government organisations were funded to source housing for the families and allow payment of their bills and other living expenses and to ensure that people had access to the relevant services and social support networks.

The Community Care Pilot proved to be a highly successful program. Following its completion in 2009, the pilot was replaced by the Community Assistance Support (CAS) program.

This program allows families and other detainees with complex needs to be released into the community with support. Non-government organisations are funded by the Department of Immigration and Citizenship to source housing for the families and allow payment of their bills and other living expenses and to ensure that people have access to the relevant services and social support networks. The use of community based-detention through residence determinations and the introduction of the CAS Program has meant that some asylum seekers are given the necessary support and assistance that they need to live with dignity in the community while their protection case is assessed.

However, while the development of the CAS Program is a positive step, only a small minority of asylum seekers are eligible for community-based alternatives to immigration detention. The success of alternative arrangements has thrown into sharper relief the the needs of other asylum seekers who are left with little or no support.

There is a need for further protections for the basic needs for asylum seekers residing in the community to ensure that they have the opportunity to live in dignity and safety, pending a fair, transparent and timely decision on their protection applications. Many are living in conditions of abject poverty and suffer a series of health and welfare crises including family breakdown, isolation, depression and cumulative debt. Enhancing the community care options for asylum seekers onshore is required, including through the expansion of the Community Assistance and Support Program, and through the provision of housing and employment support services.

Immigration detention facilities in Australia

There are several different types of immigration detention facilities in Australia, all of which are used for asylum seekers:

• Immigration Detention Centres (IDCs), designed for a range of unlawful non-citizens including asylum seekers who arrive without authorisation. There are currently seven IDCs operating in Australia, including six mainland facilities in Curtin, Darwin, Perth, Maribyrnong, Villawood and Weipa and one offshore facility on Christmas Island.
• Immigration Residential Housing (IRH), which aim to provide a flexible detention arrangement to enable people in immigration detention to live in family-style accommodation. IRH facilities are located in Perth, Port Augusta and Sydney.
• Immigration Transit Accommodation (ITA), designed for people who are a low security risk. ITA facilities are located in Brisbane and Melbourne.
  
• Alternative Places of Detention (APODs), designed for people who have been assessed as posing a minimal risk to the Australian community. APODs are located in Darwin, Inverbrackie and Leonora.