Last updated: February 2022

Immigration Detention in Australia: Turning Arbitrary Detention into a Global Brand

February 2022 

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• Key Finding
• Introduction  

Key Findings

• Australia is one of the few countries in the world with a blanket policy of mandatory, indefinite detention of all people who do not have a visa, including children and asylum seekers. 
• Human rights agencies have repeatedly found Australia’s detention system to be arbitrary, discriminatory, and in violation of international law. 
• As of January 2022, Australia had failed to establish a National Preventive Mechanism—a critical detention monitoring body—in each of its territories as required by the Optional Protocol to the UN Convention against Torture, which it ratified in 2017. 
• People languish in detention for years: The average length of detention is nearly 700 days and dozens have been detained for more than five years.
• Thousands of children have been subject to prolonged detention, resulting in severe physical and mental harm.
• Prolonged detention has catastrophic impacts on the physical and mental health of detainees, leading to high rates of self-harm, depression, anxiety, and psychological disorders. 
• Detention is very expensive: It costs nearly $400,000 per detainee per year compared to less than $50,000 for housing a person in the community. 
• Australia has outsourced its entire detention system to a series of private contractors who have been accused of committing grave abuses--including murder--against detainees and cutting corners on the delivery services.
• Monitors have repeatedly criticised the appalling conditions in Australia’s detention facilities, including overcrowding and lack of communal and outdoor spaces, the remote location of many detention centres, and the extreme isolation of detainees, who are prevented from using mobile phones. 
• Unlike other countries who released immigration detainees into the community at the start of the COVID-19 pandemic, Australia increased its detainee population during the first year of the pandemic. 
• The country ceased its overseas detention operations in Papua New Guinea but it maintains offshore processing in Nauru. It also re-opened the detention facility on Christmas Island after the emergence of COVID-19 even though the Australian Human Rights Commission said it was not suitable for confining people during a pandemic. 
• Independent observers have faced barriers gaining access to Nauru and Manus Island and Australia has been persistently criticized for the lack of transparency surrounding its offshore operations. 
• Detainees in offshore detention facilities must wait years to be transported to Australia for medical treatment, but a 2019 “Medevac Bill” that allowed for such transfers was quickly repealed. 

 INTRODUCTION

Australia’s migration-related detention system is uniquely severe, arbitrary, and punitive. And that is precisely the message that Australia’s political establishment—with significant public support—appears committed to communicating to the rest of the world. Deplorable and abusive immigration detention conditions and practices abound in many countries in the world; Australia, however, brings together a range of extreme policies in its detention regime, provides them blanket legal cover, aggressively defends them in the face of growing international opprobrium, and spreads them to countries near and far.

Key features of the Australian migration system are its policy of mandatory indefinite detention of undocumented non-citizens, offshore processing of asylum seekers, the inclusion of children in mandatory detention, and extreme lengths of detention (as of 2021 the average length of detention was nearly 700 days and at least 50 people had been in detention for more than eight years). National and international experts, judicial bodies, and human rights advocates have repeatedly denounced these policies as violating fundamental human rights as well as the country’s international legal obligations. Nevertheless, some countries have sought to emulate these polices, most notably in Europe, where Denmark, the United Kingdom, and others have proposed schemes that are similar to Australia’s notorious “Pacific Solution.” 

Whereas many migrant detaining countries employ complex and sometimes misleading laws, terminology, and regulations to frame their migration detention systems, Australian law and policy can be blatantly clear in comparison. Thus, for example, although countries in Europe generally provide a broad set of legal norms to define and ground differing migration-related detention measures, Australia’s detention laws seem banal and stark: all non-citizens unlawfully in Australia are mandatorily and indefinitely detained until granted a visa or removed.

Another remarkable quality of Australia’s system, which figured prominently in the media hype surrounding the decision in January 2022 to revoke the visa of renown professional tennis player Novak Djokovic, is the extraordinary (“God-like”) power of the immigration minister. Under the Migration Act, the minister has the sole authority and discretion to grant a person a visa and thus enable their release from detention, if the minister thinks it is “in the public interest” to do so. This ministerial power is not subject to the same rules as provided elsewhere in the Migration Act, nor is it necessary for the minister to provide information to Parliament explaining the use of this power. According to the Refugee Council of Australia, “the effect of this is to give the Minister virtually complete discretion in deciding whether to release a person from detention.” 

The legal foundation of Australia's immigration detention regime—the 1958 Migration Act—has been amended on multiple occasions. The government's responses to changing conditions—including increases in Indo-Chinese arrivals in the 1980s and the onset of refugee flows from Middle Eastern countries in the 1990s—have invariably led to further tightening of restrictions. This has included the adoption of amendments that limit the ability of detainees to enjoy basic human rights and circumvent Australia’s international obligations. A case in point is a provision designating certain Australian islands as “excised” territories in order to prevent asylum seekers detained on them from accessing legal procedures and safeguards. 

The severe impact of Australia’s detention practices on the health and well-being of migrants, refugees, and asylum seekers has been well documented. The Australian Human Rights Commission has repeatedly expressed serious concerns about the mental health impacts on immigration detainees who are held for prolonged periods in remote immigration detention sites as well as the negative effects of limiting detainees’ ability to have easily accessible communication with family, friends, legal representatives, and others. Commenting on these problems, the Human Rights Commissioner said: “That people are detained for so long in Australia’s immigration detention system is not the necessary consequence of irregular migration, which affects many parts of the world. People are detained for long periods in Australia’s immigration detention network because of Australia’s current legal and policy framework. … As a liberal democracy, Australia takes its human rights obligations seriously. This means we should confront a difficult truth: we can and we must do better to protect the human rights of people subject to immigration detention.”

Given the high cost—roughly 360,000 AUS per person per year in a detention centre versus 47,000 for housing in the community—and severity of Australia’s migration detention system, it would seem that the country is facing extraordinary migration pressures. And yet, this is far from the case. In reality, Australia receives among the lowest number of asylum seekers and irregular migrants in the world, primarily due to its geographic isolation. In 2021, for example more than 190,000 asylum applications were lodged in Germany, 87,000 in France, 67,400 in Spain, and 37,500 in the UK. By comparison, roughly 11,000 people arriving by plane made asylum applications in Australia the same year. 

Numerous UN human rights officials have condemned Australia’s policies of mandatory and indefinite detention and the racist narratives that appear to underpin them. Visiting Australia in 2011, then UN High Commissioner for Human Rights Navi Pillay declared that mandatory, arbitrary detention had "for many years cast a shadow over Australia's human rights record.” 

Both Pillay and the current UN High Commissioner for Human Rights, Michelle Bachelet, who visited Australia in 2019, raised concerns about racism. “There is a racial discriminatory element here which I see as rather inhumane treatment of people, judged by their differences: racial, colour or religions,” said South African-born Pillay in 2011; Bachelet argued that “the public narrative in Australia surrounding migration and asylum … has become weaponised by misinformation and discriminatory and even racist attitudes, including with respect to Islam.” Urging greater compassion and respect for the human rights of migrants and refugees in Australia—itself a country of migrants—Bachelet stressed: “Desperate human beings seeking safety and dignity are victims, not criminals; they are people just like us—tired and in need. And they are moving—many of them—because they have no other choice.”

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