Mandatory detention in Australia
Encyclopedia : M : MA : MAN : Mandatory detention in Australia
Mandatory detention in Australia concerns the Australian federal government policy and system of mandatory detention, pursuant to which all persons entering or remaining in the country without a valid visa including children are compulsorily detained and may be subject to deportation.
In the early 2000s, the mandatory detention of refugees seeking political asylum in Australia attracted considerable controversy, and remains a very controversial aspect of Australian immigration policy.
Immigration detainees are incarcerated in one of the Australian immigration detention facilities on the Australian mainland, or on Manus Island or Nauru as part of the Pacific Solution. The detention facilities are managed by the private company, Global Solutions Limited.
- 1 History of mandatory detention
- 2 Effect of mandatory detention on detainees
- 3 Arguments in support of mandatory detention
- 4 Criticism
- 4.1 \"No crime\"
- 4.2 International obligations
- 4.3 Indefinite detention
- 4.4 Standard of detention facilities
- 4.5 Detention of children
- 5 Significant critics
- 6 Instances of wrongful detention
- 7 References
- 8 External links
History of mandatory detention
Mandatory detention laws were introduced in Australia with bi-partisan support in 1992. The legislation was proposed as a result of an influx of unauthorised arrivals by Vietnamese, Chinese, and Cambodian refugees over the previous few years. The legislation specifically disallowed judicial review, but did impose a 273 day limit on detention.
In 1994, new legislation passed by the Keating Government broadened the application of mandatory detention and removed the 273 day limit. This extension laid the foundation for indefinite detention.
Mandatory detention, along with the issue of asylum seekers generally, was an important socio-political issue in Australia from 2000 to 2002 (and remains a significant concern for many Australians to this day). During this time there was also the Children overboard affair, the Tampa incident, and hunger strikes at the Woomera detention centre. It was a significant issue during the 2001 federal election. The 2002 Bali bombing further heightened concerns amongst many in the community about effective border protection. The apparent growth in anti-muslim sentiment amongst some Australians may also have resulted in bias against asylum seekers, many of whom were muslim.
From September 2001, asylum seekers who were determined to be refugees were eligible for and mostly issued with a temporary protection visa.
On 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz V Secretary Of The Department Of Immigration And Multicultural And Indigenous Affairs and held that the harsh conditions of detention did not lead detention to become unlawful. Thus inhumane conditions of detention cannot excuse escape from administrative detention for non-citizens who have arrived in Australia without authorisation. On the same day, the High Court also handed down its decision in Al Kateb v Godwin which held that unsuccessful asylum seekers who could not be removed to another country, despite their wish to leave Australia, could continue to be held in immigration detention indefinitely.
Australia's longest serving detainee Peter Qasim was detained for over 7 years before being released in 2005. A number of Australians considered this offensive as he had in effect been in what they perceived to be a prison without charge or trial for seven years. Others however pointed to the fact that administrative detention was for the interests of the Australian community and the personal circumstances which had delayed it for Mr Qasim did not detract from the importance of border protection.
It is important to recognise that even with the amount of criticism, the policy has received wide support from the Australian community (although some say that has decreased). It has been the official policy in Australia for 14 years. It was the formal policy under the Keating Government and the Howard Government. It is still the official policy of both major political parties. However members of the political parties remain opposed to mandatory detention. In June 2005 a small backbench revolt in Howard's own party led by Petro Georgiou and Judith Moylan resulted in some concessions to humanitarian concerns, including the promised release of long term detainees and review of future cases by an ombudsman.
Effect of mandatory detention on detainees
The Human Rights and Equal Opportunity Commission (HREOC) held an inquiry into mandatory detention of children who arrived without a visa over the period 1999-2002. The inquiry found that children detained for long periods of time were at a high risk of suffering mental illness. Mental health professionals had repeatedly recommended that children and their parents be removed from immigration detention. The inquiry found that the Australian governments refusal to implement these recommendations amounted to “..cruel, inhumane and degrading treatment of those children in detention”. [link]
The inquiry also found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.
Such effects became especially prominent at the Woomera Immigration Reception and Processing Centre, where sometimes violent protests against human rights abuses eventually contributed to the closure of the facility.
Arguments in support of mandatory detention
1. Harsh treatment of asylum seekers will reduce the amount of people smuggling which comes to Australia or which happens internationally; mandatory detention therefore forms part of a system of deterrence.
2. Australian law only provides for asylum seekers to be granted protection visas, and as not everyone who arrives will be an asylum seeker under international law, their eligibility to enter Australia must be verified.
3. Similarly, national security imperatives require that unauthorised arrivals are properly screened before entering Australia.
Prime Minister John Howard and successive immigration ministers maintained that their actions were justified in the interests of protecting Australias borders and ensuring that immigration law was enforced. A 2004 Liberal Party election policy document stated:
- The Coalition Government's tough stance on people smuggling stems from the core belief that Australia has the right to decide who comes to this country and the circumstances in which they come. Deterrence has been achieved through excision [from the Australian migration zone], boat returns, offshore processing and mandatory detention. [link]
Criticism
The system of mandatory detention, while popular with a majority of voters, has been the subject of passionate controversy. Opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees to name a few. Among the intellectual opponents of the system has been Professor Robert Manne, whose Quarterly Essay "Sending Them Home: Refugees and the New Politics of Indifference" (2004) called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.
\"No crime\"
Many people argue that detention (at least any more than is necessary to do a security clearance) is not a legitimate power of the executive but should be reserved for courts in sentencing crime. These people argue that allowing the government to 'detain' is in effect giving the government the power to imprison.This power, they argue, should not be used by government at all. Ignoring the issue of refugee's, this criticism is concerned about maintaining civil liberties in the Australian democracy. In connection to refugees, the criticism is combined with the acceptance that legitimate asylum seekers are in fact likely to be victims of draconian regimes and argues that it is innapropriate to impose a system with questionable legitimacy over such people.
International obligations
Australia maintains an obligation to the international community due to being a signatory to the Convention Relating to the Status of Refugees.Many (including a number of lawyers) believe that Australia's obligations are being breched.
In October 2001, Human Rights Watch sent a letter to Australian Prime Minister John Howard regarding new legislation, The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The new act further strengthened the practise of mandatory detention, allowing for indefinite detention of unauthorised arrivals. The letter said:
- The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the U.S. government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law. [link]
Indefinite detention
Significant concerns exist regarding indefinite detention (see Al-Kateb v Godwin), as a vehicle for facilitating abuse and injustice and for being contrary to fundamental rights and freedoms.Standard of detention facilities
In addition to criticisms of the entire system, some have criticised the standard of mandatory detention centres, particularly with regard to the Woomera facility, located as it is in a very isolated region of Australia. There are concerns regarding the incidence of mental illness amongst detainees, many of whom have been held for long periods of time without any progress in their cases and may have had little if any contact with other detained family members.Detention of children
The concerns of exposing children to this system have been quite serious. Children are no longer detained in the same way as they were in 2000.Significant critics
There have been a number of groups who have been highly critical of the mandatory detention policy, most notably members of the legal profession in South Australia and Victoria.
- Woomera Lawyers' Group
- Refugee Advocacy Service of South Australia
- Julian Burnside Q.C.
Instances of wrongful detention
In February 2005, it was revealed that a mentally ill Australian permanent resident, Cornelia Rau, had been held in detention as an unauthorised immigrant for ten months. In May, it was revealed that there were 33 known instances of wrongful detention, including one case of a women forcibly deported and subsequently missing, but it was not known precisely how many people had been wrongfully detained. By late in the month over 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry. In October 2005, the Commonwealth Ombudsman revealed that more than half of those cases were held for a week or less and 23 people were held for more than a year and two of them were detained for more than five years [link].References
External links
- [HREOC Report – A Last Resort? - Australia's Immigration Detention Policy and Practice]
- [Port Hedland Immigration Reception & Processing Centre (now closed)]
- [Baxter Detention Centre (a site set up by Australian refugee advocates)]
- [the Refugee Freedom Bus Tour of Immigration Detention Centres]
- [Mission and Justice] Refugee and Migrant News and Commentary
From Wikipedia, the Free Encyclopedia. Original article here. Support Wikipedia by contributing or donating.
All text is available under the terms of the GNU Free Documentation License See Wikipedia Copyrights for details.