Australia’s detention policies are some of the harshest in the world. Detention is mandatory for those without a valid visa. It is also indefinite, and there is no independent review.
Australia’s detention policies require anyone who is not an Australian citizen and does not have a valid visa to be detained. Their detention continues until they are granted a visa or leave the country.
This policy of ‘mandatory detention’ was introduced in 1992, in response to people from Cambodia coming by boat. The High Court found this legislation to be mostly constitutional. This policy has continued since.
Mandatory detention applies to many groups, including people who overstay their visas or breach their visa conditions. However, it has particularly affected people seeking asylum coming by boat.
Breaching international law
The purpose of immigration detention should not be to punish people. Rather, its purpose should be to allow the government to conduct health, identity and security checks. Under international law, a person should not be detained simply to determine his or her refugee claim.
However, Australian law requires that a person should be detained until they are granted a visa or leave the country. Unlike other countries, detention does not depend on any individual circumstances, such as any health or security risks.
Australia’s detention policies have been found many times to be in breach of its obligations under international law.
Avoiding Australian law
This strange policy has a purpose. Under Australian law, if a person without a valid visa ‘must’ be detained, a court can only review the lawfulness of detention by asking whether the person holds a valid visa. This effectively means that courts cannot independently review whether detention is justified.
This purpose was made clear in the first legislation, which included a section excluding courts from reviewing any detention decision. While the High Court found that this section was unconstitutional, the law has been effective in excluding the courts from reviewing detention decisions.
Detention is arbitrary
Although detention is mandatory, the law gives the Minister power to grant a person a visa. This gives them lawful status and means they can be released into the community.
This power is wide. It allows the Minister to grant a visa if the Minister thinks it is ‘in the public interest’ to do so. The Minister does not have to consider whether to release someone, and the Minister has to exercise this power personally (meaning that the Minister cannot delegate his authority to someone else).
The Minister’s power to grant a visa is not subject to the same rules as elsewhere in the Migration Act for granting a visa. The Minister does have to table information before Parliament explaining why this power has been exercised. The effect of this is to give the Minister virtually complete discretion in deciding whether to release a person from detention.