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 asylum seekers who arrive in Australia by boat without authorisation.
Immigration detention is meant to be administrative, not punitive. The purpose of detaining asylum seekers 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 asylum seekers or deterring them from arriving without authorisation.
In many instances, however, asylum seekers 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 asylum seekers in detention. This is particularly the case for asylum seekers 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.
Alternatives to detention
Alternatives to detention for asylum seekers are not only more humane than immigration detention, they have been found to be effective in managing risks to the community and far less costly than detention in closed facilities. Releasing asylum seekers from detention after they have passed initial health, identity and security checks, and allowing them to live in the community while their applications are processed, greatly reduces the human and financial costs of immigration detention while also ensuring that potential risks to the community are managed effectively.
Under the Migration Act, the Minister for Immigration and Border Protection has a non-compellable, non-delegable public interest power (known as “residence determination”) to specify alternative detention arrangements for people in immigration detention. Placement in community detention enables people to move about in the community without needing to be accompanied or restrained by an immigration officer. Community detention is primarily used for unaccompanied minors, families and other vulnerable groups, such as those with significant physical or mental health issues.
Asylum seekers released into community detention still have some restrictions on their movement and are not permitted to work. They must live at an address specified by the the Minister for Immigration. They are also subject to curfews and other supervision and reporting arrangements. However, community detention mitigates many of the negative impacts of detention in a closed facility by allowing people to have a degree of independence and making it easier for them to access services and community support.
In October 2011, the Australian Government announced that it would begin to expand the use of bridging visas for asylum seekers arriving without authorisation. Under the new policy, asylum seekers in detention who had passed initial health, identity and security checks were considered for release on bridging visas which allow them to live in the community while their applications are processed.
Asylum seekers released on bridging visas are not provided with public housing, receive a basic living allowance equivalent to the 89% of Centrelink Special Benefit and must report to the Department of Immigration on a regular basis. They mostly have access to Australia’s universal health care system, Medicare.
Until December 2014, asylum seekers who arrived in Australia by boat after 13 August 2012 and subsequently released from immigration detention facilities on Bridging Visas were not eligible to work. In December 2014, the Government decided to grant work rights to asylum seekers in this group.
But won’t asylum seekers abscond if they are released from detention?
Historically, the vast majority of Australia’s asylum seekers have not been subject to detention at any point. Most asylum seekers arrive in Australia on temporary visas and are permitted to live in the community while their applications are processed.
Asylum seekers who are allowed to live in the community while their asylum claims are processed are unlikely to abscond. People fleeing persecution have a vested interest in cooperating with the immigration authorities and systems, to ensure that they will not be sent back to a situation where their lives or freedom may be in danger. Additionally, treating asylum seekers with dignity, humanity and respect encourages trust and compliance, while individuals who are disgruntled with the system or feel they have been treated unfairly (such as people subject to prolonged indefinite detention) are less likely to cooperate.
Research conducted by UNHCR reveals that, on average, less than 10 per cent of asylum applicants abscond when released from detention to proper supervision and facilities. In Australia, the rate of absconding from community alternative to detention has been even lower than the international average. Of the 244 people placed in community detention under the Community Care Pilot between July 2005 and September 2008, only two (less than one percent) absconded; and only one person out of a total population of 370 absconded from Immigration Residential Housing over the same period.
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), high-security facilities designed for a range of “unlawful non-citizens” including visa overstayers, people who have breached their visa conditions and asylum seekers who arrive without visas.
Immigration Residential Housing (IRH), domestic-style accommodation which is usually used for families and allows people in detention to have a degree of autonomy (e.g. cooking their own meals). Currently there is only one IRH facility located in Perth.
Immigration Transit Accommodation (ITA), hostel-style accommodation for people who are considered to be a low security risk and whose status is likely to be resolved quickly. ITA facilities are located in Adelaide, Brisbane and Melbourne.
Alternative Places of Detention (APODs), lower security facilities designed for people who have been assessed as posing a minimal risk to the Australian community (usually children, families and people in need of medical treatment). Wickham Point detention facility in Darwin is considered an APOD.
The offshore detention facilities in Nauru and Papua New Guinea operate differently to other Australian detention facilities because, being located outside Australia’s jurisdiction, they are not subject to the same laws and policies.