If people seeking asylum make it to Australia without permission (a visa) or the right kind of permission (a valid visa), then by law they will be detained unless the Minister decides otherwise. They are also unable to apply for protection unless the Minister personally decides otherwise.
This policy of mandatory detention dates back to the beginning of people seeking asylum by boat in Australia, as discussed earlier. The law requires a person to be detained as a default position. Legally, this means that the only thing a court can review is whether the person has a valid visa, in effect removing any form of independent review. There is also no clear process for administrative review of detention.
Further, unlike the first law introducing mandatory detention, there is no maximum time limit. This policy has repeatedly been determined to be in breach of our international legal obligations.
One positive aspect is that in the last few years, most people seeking asylum have been released from detention. This is done in one of two ways. The first way is for the Minister to make a ‘residence determination’, where the person is released into specified housing subject to a curfew (also known as ‘community detention’). These people are still technically detained, and cannot work or study, but they are given housing, basic support and some services funded by government.
The second, now more common, way is for people to be given a ‘bridging visa’. For people seeking asylum by boat, this is typically a Bridging Visa E (or BVE), which gives them very few rights (as discussed below).
However, there are still hundreds of people seeking asylum in detention. Those people are now living much more like they are in jail. Security has increased markedly, with many more restrictions on who and what can be brought into the facility. It is harder for them to get out, with fewer excursions and even when they are leaving for counselling, they are often physically restrained. It is harder for them even to communicate with those outside, as the government has restricted access to mobile phones.
This is also related to the fact that the government has dramatically increased the number of other people in immigration detention. A new law passed in December 2014 automatically cancelled a person’s right to live in Australia in a much broader range of circumstances. Many of these people have served time in prison, and the largest group affected are New Zealand citizens. This dramatic change in the population in detention centres has promoted a trend of treating immigration detention more and more like prison. People seeking asylum have been caught up in this, even though they have not committed any offence.
Detention is also becoming longer. The average time spent in detention is now around 500 days, with some people having been there for as long as nine years. There is no maximum time limit on detention, and no independent review of whether they need to be in detention. People do not know why they are in detention while others are not, and people in detention are often transferred across State borders without notice or the ability to talk to people.