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Refugee Council of Australia
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Australia’s detention policies

Mandatory detention

Australia’s detention policies, specifically the Migration Act 1958, requires all “unlawful non-citizens” (that is, people who are not Australian citizens and do not have a valid visa) to be detained, regardless of circumstances, until they are granted a visa or leave the country. This policy was introduced in 1992 and has been maintained by successive governments.

Mandatory detention applies to many groups, including people who overstay their visas or breach their visa conditions. However, the policy disporportionately affects people seeking asylum who arrive in Australia by boat without authorisation.

Immigration detention is meant to be administrative, not punitive. The purpose of detaining people seeking asylum who arrive without authorisation is to allow for health, identity and security checks to be carried out so as to mitigate any potential risks to the community. It is not a way of punishing people seeking asylum or deterring them from arriving without authorisation.

In many instances, however, people seeking asylum arriving without authorisation are detained for prolonged amount of time- regardless of whether they posed any health or security risks to the community. This has caused considerable harm to already vulnerable people and resulting in hundreds of millions of dollars of unnecessary expenditure each year.

Indefinite and prolonged

There is no time limit on immigration detention in Australia. This means that, under Australian law, a person can be detained indefinitely – theoretically for the course of their natural life – unless the Australian Government decides to grant them a visa, or they agree to leave the country.

Even in cases where a person has been found to pose no risk to the community, or where continued detention is causing a person serious harm, the Australian Government is under no legal obligation to release them from detention. This has resulted in many people remaining in detention for very prolonged periods, for several years in some cases.

The lack of a time limit on immigration detention also means that people in detention do not know whether or when they will be released. Depending on what the Australian Government decides, a person could be detained for a few weeks, or several years. This lack of certainty about their future causes serious stress and anxiety amongst people who are detained, which tends to worsen as detention becomes more prolonged.

How Australia’s detention policies impact mental health

There is a well-established link between prolonged indefinite detention and serious mental health issues. Uncertainty about their future, lack of independence and loss of control over their lives, the monotony of life in detention, concern about family members still living in dangerous situations overseas, the impacts of past torture and trauma and witnessing the negative impacts of detention on other people in detention, all contribute to the deterioration of mental health and wellbeing.

People in detention may experience a range of mental health issues, including depression, anxiety, cognitive problems, difficulties regulating their emotions, consistently behaving in a way that is not characteristic or normal, sleep-wake cycle reversal (suffering insomnia and an inability to sleep at night) and engaging in negative coping strategies such as self harm. In serious cases, prolonged indefinite detention can lead to suicide.

The negative impacts of prolonged indefinite detention are 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 people seeking asylum in detention. This is particularly the case for people seeking asylum detained offshore or in remote facilities, where the isolated location makes the delivery of appropriate services very difficult.

Detention of children

The passing of the Migration Amendment (Detention Arrangements) Act 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 the Act led to the release of all children and their families into community detention arrangements. Unfortunately, there are still a number of children currently held in detention facilities in Australia. While children are no longer held in high-security Immigration Detention Centres, they are still held in a range of closed detention facilities, often for prolonged periods. A significant number of children are also held in offshore processing centre in Nauru.

Since October 2010, the Australian Government has been progressively releasing children and their families from immigration detention facilities. While welcoming the move, RCOA remains concerned that protection of children during the refugee status 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, 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 for Immigration and Border Protection and the Department towards any unaccompanied minors in detention. There is a serious conflict of interest between the Minister’s role as guardian to unaccompanied minors, which requires him or her to act in the best interests of the child, and the Minister’s powers to determine refugee status and detain unauthorised arrivals, including minors.

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