06 July 2021
As COVID-19 cases rise again in areas of Australia - including New South Wales - prompting fresh lockdowns, a new report from the Australian Human Rights Commission has highlighted the serious risks that COVID-19 poses to people in the country’s immigration detention network. Although no immigration detainees have, to-date, tested positive in the country (although several staff members have contracted the virus), the commission urged Australian authorities to adopt various measures to better protect detainees.
Following a review of the collective response to the human rights risks posed by the COVID-19 pandemic in the context of immigration detention, the commission identified three key areas of concern: detainee population size, difficulties in physical distancing, and restriction of individuals’ rights. At the same time however, it commended several areas, including the government’s indication that the COVID-19 vaccine will be available for immigration detainees.
With regards to the detainee population, the commission criticises the fact that unlike other countries that released immigration detainees at the start of the crisis, Australia instead increased its immigration detainee population during the first year of the pandemic (from 1,373 in March 2020 to 1,527 in February 2021). The commission notes, “This population increase has contributed to capacity pressures throughout Australia’s network of immigration detention facilities and increased the concentration of detainees in compounds at various times throughout 2020.” The commission thus encouraged Australia to follow expert health advice and release people who present a low security risk into community-based alternatives to detention.
Although it recognises the government’s attempts to provide capacity relief by re-opening North West Point Immigration Detention Centre on Christmas Island, the commission argues that the centre is ill-equipped to respond to a COVID outbreak--due to the island’s isolation, and its lack of sophisticated health care facilities. (The facility’s inadequate health care provision was highlighted recently, in the case of the Murugappan family--a young family of four detained on the island since 2019--whose youngest child was transferred to Perth for emergency medical care after being hospitalised with a suspected blood infection.) As such, the commission writes: “As a matter of urgency, the Australian Government should decommission the use of all immigration detention facilities on Christmas Island, and implement more appropriate solutions to reduce the number of people in closed immigration detention.”
The commission also noted the need for authorities to improve detainees’ ability to socially distance, highlighting the fact that people often have less than the recommended four square metres of personal space, and that detainees are often required to sleep in bunk beds in shared rooms. The commission thus urged the Department of Home Affairs (DHA) and the Australian Border Force to limit bedroom occupancy levels to ensure distancing of 1.5 metres between persons at all times, the partition of sanitary facilities from living and sleeping spaces, and the provision of at least four square metres per person in multi-occupancy rooms.
Finally, the commission has urged authorities to ensure that measures restricting individuals’ rights--such as freedom of movement--are reasonable, necessary, and proportionate to addressing COVID-19 risks. For example, the commission points to the conditions in which individuals are held when quarantining, highlighting that centres have tended to use their “high care” accommodation units, which are usually used as isolation areas for behavioural management. “Bedrooms in these units are sparse, with hard, fixed furniture, and contain a toilet and shower, with some separated by partitions (but not doors). They have limited natural light, and any windows are tinted so there is no view outside, and they cannot be opened. Bedrooms are generally monitored using closed-circuit television (CCTV) cameras, but the Commission does not know if the CCTV is used when a person is in quarantine.”
On 28 May 2021, the commission received a formal response from the DHA to the report’s 20 recommendations. While it agreed to six of these recommendations and agreed in part with two, it noted seven and disagreed with five (including the recommendations that detention centres not exceed their operational capacity and that “high care” accommodation units cease being used for quarantine).
- Australian Human Rights Commission, “Management of COVID-19 Risks in Immigration Detention,” 16 June 2021, https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/management-covid-19-risks-immigration-detention
- N. Mackee and M. McInerney, “As Tamil Family Released, Federal Government Urged to Close Christmas Island and Address Pandemic Detention Risks,” 16 June 2021, https://www.croakey.org/as-tamil-family-released-federal-government-urged-to-close-christmas-island-and-address-pandemic-detention-risks/
- Department of Home Affairs, “Department Response,” 28 May 2021, https://humanrights.gov.au/sites/default/files/homeaffairs_response_covid-19_immigration_detention_2021_0.pdf
22 January 2021
After more than a year of detention inside Melbourne hotels, 65 medically vulnerable male asylum seekers have been released. Previously confined in offshore detention facilities, the men were transferred to mainland Australia in 2019 under the now-repealed Medevac laws, so that they could receive urgent medical treatment. Since their arrival however, they have been held in hotels, including the Park Hotel and the Mantra Hotel, where they have been denied sufficient access to open space or appropriate food, subjected to “prison-like conditions” and “mental torture,” confined in rooms without adequate ventilation, and potentially exposed to COVID-19. In July 2020 a staff member working at the Mantra Hotel tested positive for the virus.
One of the detainees said of his release in a tweet: “This is the most beautiful moment of my life and one that I would like to share with you all. After 2,737 days locked up in detention – I am free. Thank you to all of the amazing people who helped me to stay strong. #GameOver.”
According to the Home Affairs Ministry, which justified the releases on a purely financial basis, all those released were granted “final departure bridging visas” which allow “individuals to temporarily reside in the Australian community while they finalise their arrangements to leave Australia.” In a statement, the ministry said: “The individuals residing in the alternative places of detention were brought to Australia temporarily for medical treatment. They are encouraged to finalise their medical treatment so they can continue on their resettlement pathway to the United States, return to Nauru or PNG or return to their home country.”
On 5 January, detainees held in the Christmas Island Detention Centre--which was reopened in August 2020 allegedly due to the pandemic’s impact upon the government’s ability to remove asylum seekers--initiated riots in protest of their detention conditions. According to one detainee who spoke to the Guardian, the facility’s management had denied detainees the opportunity to hold a peaceful protest--prompting some to react violently and set two of the compounds alight. Reportedly, detainees had been in lockdown for 22 hours a day and were denied access to workable wifi, leading to many struggling with both their physical and mental health. Describing the conditions in the facility, one refugee said, “It’s worse than jail. In jail, you know when you can go home, in detention they don’t have a timeframe for you to go home. You wait around, and you don’t know what’s happening.” Additional disturbances were also reported on 10 January.
- A. MC, “Medically Vulnerable Refugees in Australia Hotels Finally Freed,” Al Jazeera, 22 January 2021, https://www.aljazeera.com/news/2021/1/22/medically-vulnerable-refugees-in-australia-hotels-finally-freed
- J. Taylor, “Nearly All Refugees Held in Melbourne Hotel Detention to be Released, Advocates Say,” The Guardian, 20 January 2021, https://www.theguardian.com/australia-news/2021/jan/20/more-than-20-refugees-to-be-released-from-melbourne-hotel-detention-advocates-say
- The Guardian, “Sydney's Star Casino Fined $5,000 for Breaching Public Health Orders – as it Happened,” 13 July 2020, https://bit.ly/3c2G9Nq
- Business & Human Rights Resource Centre, “Australia: Refugees & Asylum Seekers Held in Hotel Detention Facilities are Subjected to Prison-Like Conditions & Risk COVID-19 Exposure,” 6 September 2020, https://www.business-humanrights.org/en/latest-news/australia-refugees-asylum-seekers-hotel-detention-facilities-are-subjected-prison-conditions-contravention-international-human-rights-standards/
- Moz (Mostafa Azimitabar) (@AzimiMoz), Twitter, https://bit.ly/3sPmUN6
- M. Rachwani, “Christmas Island Detainees Riot and Set Fire to Buildings in Protest Against Conditions,” The Guardian, 6 January 2021, https://www.theguardian.com/australia-news/2021/jan/06/christmas-island-detainees-riot-and-set-fire-to-buildings-in-protest-against-conditions
- P. Karp, “Fresh Disturbance at Christmas Island Detention Centre Due to 'Inhumane' Conditions, Advocates Say,” The Guardian, 10 January 2021, https://www.theguardian.com/australia-news/2021/jan/10/fresh-disturbance-at-christmas-island-detention-centre-due-to-inhumane-conditions-advocates-say
01 July 2020
Despite recommendations from infectious disease experts, medical professionals, civil society, and international human rights observers to reduce detainee populations (see 26 April update), the numbers of non-nationals detained in Australia have increased during the pandemic. This is according to the country’s Commonwealth Ombudsman, Michael Manthorpe, who warned, “There is a risk that upward pressure on numbers in detention will continue in the medium term. This will make adherence to CDNA Guidelines harder and increase the risk should COVID-19 virus occur in one of the facilities. … It has become apparent in other residential settings that just one mishap can lead to a serious outbreak in facilities where large numbers of people are housed in close proximity to one another. For example, a person without symptoms could innocently bring the virus into a facility without their knowledge. … All this being so, we consider that it would be highly desirable for fewer people to be held in immigration detention.”
This assessment followed the completion of the Ombudsman’s investigation into the management of Covid-19 risks in Australia’s immigration detention estate. Aside from the rising numbers of persons in detention, he noted - amongst other points - that although screening was generally in place in most facilities, in several centres there was no oversight of persons exiting the premises. The Ombudsman also flagged the failure to implement compound separation in at least one facility - a failure which resulted in detainees from different compounds using the same communal facilities at the same time.
Some positive points, however, were also noted. These included the fact that facility staff had clearly messaged to detainees that they are able to access personal effects and entertainment during periods of medical isolation - an important policy to help alleviate any reluctance amongst detainees to self-report, given fears of isolation during testing.
This investigation was prompted by a complaint lodged by the Public Interest Advocacy Centre (PIAC) in May on behalf of 14 men held in onshore detention facilities. The men were unable to follow public health advice and practice social distancing in overcrowded detention centres, and their complaint called for an urgent inspection of detention sites in order to assess the adequacy of detention conditions during the crisis.
What this investigation did not refer to, however, was the country’s proposed new law that will see mobile phones banned in onshore detention facilities. According to Australia’s Immigration Minister, who described mobiles as an “unacceptable risk,” this ban is necessary to stop the spread of drugs and contraband items in detention centres. Civil society and NGOs have challenged the proposed policy, arguing that phones are a “lifeline” for detainees - particularly due to their role in helping to support persons’ mental health and wellbeing. With visits suspended during the Covid-19 crisis, mobile phones have played an even greater role for many detainees in the past few months, helping to prevent acute isolation.
- Commonwealth Ombudsman, “Statement by the Commonwealth Ombudsman Michael Manthorpe on the Management of COVID-19 Risks in Immigration Detention Facilities,” 1 July 2020, https://www.ombudsman.gov.au/__data/assets/pdf_file/0013/111235/1-July-2020-Statement-by-the-Commonwealth-Ombudsman-Michael-Manthorpe-on-the-management-of-COVID-19-risks-in-immigration-detention-facilities.pdf
- Public Interest Advocacy Centre Ltd, “Ombudsman Statement on COVID-19 Risks in Immigration Detention: Department Urged to Reduce Numbers,” 1 July 2020, https://piac.asn.au/2020/07/01/ombudsman-statement-on-covid-19-risks-in-immigration-detention-department-urged-to-reduce-numbers/
- H. Ryan, “Dutton ‘s Bid to Ban Mobile Phones in Immigration Detention Centres Could be Unconstitutional,” The Guardian, 24 June 2020, https://www.theguardian.com/australia-news/2020/jun/25/duttons-bid-to-ban-mobile-phones-in-immigration-detention-centres-could-be-unconstitutional
26 April 2020
Despite growing calls from a broad range of actors - including civil society, medical professionals, infectious disease experts, Australia’s Human Rights Commissioner, and detainees themselves--the Australian government had still not taken steps to release vulnerable detainees as of late April. The government has acknowledged that those in correctional and detention settings are most at risk. However, immigration detention measures continue to be imposed even as some refugees previously detained on Manus Islands and Nauru are now detained in Australian hotels.
Protests are reportedly taking place almost daily in detention facilities. One Afghan refugee held in a Melbourne hotel was quoted as saying, “We should be free, we should be released in the community for self-isolation. This is not self-isolation. They are closing the clubs, the bars, the pubs, the gyms, everything … but what about here? We are like some kind of animals?”
On 22 April, a chronically ill refugee held in Australian immigration detention launched a case in the high court seeking his release into the community in a bid to protect him from the virus. Represented by lawyers from Australia’s Human Rights Law Centre, the individual is challenging his detention on the grounds that the Australian government is breaching its duty of care by failing to establish conditions that would allow him to comply with public health guidelines on social distancing. Reportedly, this is the first of “many” cases that may be brought forward.
- International Detention Coalition, “Key Developments on Immigration Detention & Alternatives: Covid-19,” accessed on 21 April 2020, https://idcoalition.org/covid-19/key-developments/
- E. Santow, “We Must Combat Covid-19 but Creeping Authoritarianism Could Do More Harm Than Good,” The Guardian, 7 April 2020, https://www.theguardian.com/commentisfree/2020/apr/08/we-must-combat-covid-19-but-creeping-authoritarianism-could-do-more-harm-than-good
- E. Al-Ghalib, “UN Calls for Release of Refugees in Detention as Risk of Coronavirus Grows,” SBS News, 3 April 2020, https://www.sbs.com.au/news/un-calls-for-release-of-refugees-in-detention-as-risk-of-coronavirus-grows
- B. Robinson-Drawbridge, “This is Not Self-Isolation: Manus Island Refugees Call for Release,” RNZ, 31 March 2020, https://www.rnz.co.nz/international/pacific-news/412987/this-is-not-self-isolation-manus-island-refugees-call-for-release
- Refugees Queue for Food in Brisbane, (Hakeem Kakar, "This is not Self-Isolation: Manus Island Refugees Call for Release," RNZ, 31 March 2020, https://www.rnz.co.nz/international/pacific-news/412987/this-is-not-self-isolation-manus-island-refugees-call-for-release)
02 April 2020
1,100 Australian healthcare professionals have co-signed a letter to the Home Affairs Minister, Peter Dutton, calling for all refugees and asylum seekers to immediately be released from immigration detention. “Failure to take action to release people seeking asylum and refugees from detention will not only put them at greater risk of infection and possibly death," it stated. "It also risks placing a greater burden on wider Australian society and the health care system."
29 March 2020
Numerous civil society organisations have issued calls for the release of immigration detainees in Australia, which took on new urgency after a private security guard at an ad hoc detention centre in a hotel in Brisbane tested positive for Covid-19 in mid-March.
On 23 March, asylum seekers in detention across Australia wrote an open letter to the prime minister pleading for their release into the community. The detainees wrote: “It is only a matter of time before it will breach our closed environment … we are sitting ducks for Covid-19 and are extremely exposed to becoming severely ill, with the possibility of death.” A Jordanian refugee detained in Villawood detention centre in Sydney reported that the crowded detention centre made it impossible to keep four square meters apart from one another and that there was a lack of soap and hand sanitiser available to detainees. Another detainee said the situation was similar at the Kangaroo Point Hotel in Brisbane. Although a guard at the hotel tested positive for Covid-19, none of the detainees were tested and the Australian border force told detainees that they “don’t have kits to test everyone.”
On 27 March 2020, the Home Affairs Department rejected calls to release detainees, claiming: “Infection control plans are in place and plans to manage suspected cases of COVID-19 have been developed and tested. Detainees displaying any COVID-19 symptoms may be quarantined and tested in line with advice from health officials and in accordance with the broader Commonwealth response.”
- B. Smee and B. Doherty, “Fears for Refugees after Guard at Brisbane Immigration Detention Centre Tests Positive for Coronavirus,” The Guardian, 19 March 2020, https://www.theguardian.com/australia-news/2020/mar/19/fears-for-refugees-as-guard-at-brisbane-immigration-detention-centre-tests-positive-for-coronavirus?mc_cid=f703c8e68b&mc_eid=ea525a4cee
- L. Knowles and J. Carter, “Asylum Seekers Plead to be Released from Detention Centres Amid Coronavirus Fears,” ABC, 25 March 2020, https://www.abc.net.au/news/2020-03-25/coronavirus-fears-asylum-seekers-plead-for-release-detention/12084604
- J. Blakkarly, “For a Detainee Inside an Australian Immigration Detention Centre, Covid-19 is Terrifying,” SBS News, 25 March 2020, https://www.sbs.com.au/news/for-a-detainee-inside-an-australian-immigration-detention-centre-covid-19-is-terrifying
- R. Holt and S. Vasefi, “We are Sitting Ducks for Covid-19: Asylum Seekers Write to PM After Detainees Tested in Immigration Detention,” The Guardian, 23 March 2020, www.theguardian.com/australia-news/2020/mar/24/we-are-sitting-ducks-for-covid-19-asylum-seekers-write-to-pm-after-detainee-tested-in-immigration-detention
- E. Al-Ghalib, “Home Affairs Rejects Calls to Release Immigration Detainees Fearful of Coronavirus,” SBS News, 27 March 2020, https://www.sbs.com.au/news/home-affairs-rejects-calls-to-release-immigration-detainees-fearful-of-coronavirus
Last updated: December 2008
Australia Immigration Detention Profile
Beginning in 2001, Australia was subjected to intense international scrutiny because of a controversial policy termed the “Pacific Solution” that was put in place by the John Howard government with the aim of diverting thousands of asylum seekers to offshore detention facilities in Nauru and Manus Island in Papua New Guinea to have their claims processed. In February 2008, shortly after the Labor Party government of Kevin Rudd took office, this policy officially ended when 21 Sri Lankans, the last remaining asylum seekers in Nauru, were resettled in Australia (UNHCR 2008).
Despite this change in policy, Australia has continued to maintain a substantial migration detention infrastructure and some controversial asylum practices. In particular, despite the end of the “Pacific Solution,” Australia continued to transport “unauthorized asylum seekers” (people without appropriate visas who typically arrive by boat) to a detention complex on Christmas Island, which the Howard government had removed from Australia’s official migration zone to keep asylum seekers from accessing official refugee processes available on the mainland (UNHCR 2008).
In July 2008, the government proposed circumscribing its policy of mandatory detention for asylum seekers. The proposal, if passed by the Senate, would allow irregular non-citizens that don’t pose a security threat to be released into the community while their visa status is evaluated or they await deportation. The Christmas Island offshore detention centre would continue to be used for initial processing, health, and security checks of people intercepted offshore, but detainees would be granted access to legal assistance (Senator Evans 2008, The Australian 2008).
As of November 2008, there were 279 migration detainees confined in nine official detention sites, which have a total capacity of 2,380 (DIAC 2008b). Some detained non-citizens are ordered into “Community Detention” or “Alternative Temporary Detention in Community,” typically semi-secure or non-secure detention situations that involve differing degrees of surveillance (DIAC 2008c).
The total number of people detained during 2006-2007 (from July 2006 to June 2007) was 5,485, a significant drop from the 7,375 detained in 2005-2006 and the 8,587 detained in 2004-2005 (DIAC Annual Report 2006-2007). Decreasing numbers of detainees and detention sites, as well as improvements in the treatment of detainees, appear to have been spurred in part by the negative media coverage and intense scrutiny from international and non-governmental organizations.
History and Politics
Early history. Although migration related detention in Australia has been a politically volatile issue in recent years because of the country’s controversial policies on offshore processing and detention of asylum seekers, much of the country's history is bound up with notorious immigration policies.
After James Cook mapped the East Coast of Australia in 1770, Great Britain began establishing penal colonies on what it then called New South Wales (Australia Bureau of Statistics 1998). During the late 1700s and early 1800s, some 160,000 criminal convicts were sent to Australia, which led to the decimation of the native population and the creation of a population of forced laborers who worked to build Australia into a nation (Hughes 1987).
Since the late 1700s, the British colonial administration, and later the Australian federal and state governments, placed immigration at the heart of public policy, recruiting, subsidizing, and encouraging immigrants to settle in Australia (Castles 1992; Hughes 1987). These policies historically focused on European immigrants, with most newcomers to Australia originating from Britain until the mid-1900s (de Lepervanche 1975 in Castles 1992). However, during the 1800s, small waves of non-European immigrants began arriving, including Pacific Islanders who were recruited to work on plantations and Chinese settlers who came during the 1850s gold rush. These Asian immigrants often faced harsh racism, especially during the period of growing nationalism that preceded the establishment of the Federal Australian Parliament in 1901 (MacQueen 1970 in Castles 1992). That same year, the government introduced the Immigration Restriction Act, more commonly known as the “white Australia Policy.” This blocked non-Europeans from immigrating to Australia (Castles 1992; Jupp 1995).
Post-World War II. Shortly after World War II, the government created the Department of Immigration, in part to help boost the Australian economy by encouraging the growth of the population, which at the time totaled just under 8 million. Immigrants have since accounted for approximately 40 percent of population growth. Immigration policy remained primarily oriented toward Britain, with the 1945 Immigration Minister, Calwell, declaring a balance sheet of “ten British immigrants for every ‘foreigner’” (Wilton & Bosworth 1984 in Castles 1992). When labor shortages demanded more than the British could supply, eastern European refugees were invited, resulting in 180,000 settling in Australia between 1947 and 1951. Germany, the Netherlands, and Scandinavia also boosted the figures in those years (Collins 1988 in Castles 1992; Jupp 1995).Southern European migrants were also invited to fill the labor demands, with recruitment agreements established with Italy, Greece, and Malta during the 1950s and 1960s. However, while British and northern European migrants were given assisted passages, could bring their families, and had full labor market and civil rights upon arrival, immigrants from eastern and southern Europe received less assistance, had no right to family reunion, and were shepherded into unwanted jobs (Collins 1988 in Castles 1992).
In 1958, with the country’s immigrant population steadily growing and diversifying, Australia introduced the Migration Act, which covers the entry into and presence in Australia of immigrants, the departure or deportation of immigrants and other persons from the country, and the grounds for holding persons in immigration detention (Migration Act 1958). The Act also gave recognition to the status of refugees. Four years earlier, in 1954, Australia signed the 1951 Convention Relating to the Status of Refugees. However, according to Amnesty International-Australia (2007), “The Refugee Convention is incorporated only by definition of the term 'refuge' in the Migration Act 1958 and not by specifically implementing obligations of the convention.”
The period following passage of the Act was characterized by flexible practices in both immigration and asylum. After the Vietnam War, for example, when more than 2,000 Vietnamese boat people arrived in Australia, the country adhered to the Refugee Convention’s principle of non-refoulement and accepted the refugees. As the European migrant well dried up in late 1960s, the White Australia Policy was slightly relaxed. Yugoslavia and Latin America became the new migrant targets (Castles 1992). During the global recession of the 1970s, the Australian Labor government abolished the White Australia Policy. In its place, entry criteria unrelated to race, ethnicity, religion, or national origin were introduced (Castles 1992). In the late 1970s, immigration reached approximately 100,000 per year (Collins 1988 in Castles 1992).
The 1970s and 1980s. As the numbers of asylum seekers settling in Australia continued to increase in the 1970s,the government sought to put a cap on the figures, hardening its position on the acceptance of asylum seekers. In 1977, the government endeavored to solidify its position on the debate between Australian National Sovereignty and International Refugee Law and Human Rights. It declared that Australia retained the right to decide whether to accept and grant entry to asylum seekers (Joint Standing Committee on Migration Regulations 1992, in Stevens 2002).The processing of refugees and asylum seekers was streamlined with the establishment of the Determination of Refugee Status Committee in 1978, an inter-departmental committee consisting of representatives of the Departments of Immigration and Ethnic Affairs, Foreign Affairs, Prime Minister and Cabinet, and the Attorney General (York 2003). Applicants who were not granted refugee status could appeal to the Federal Court.
Since the early 1980s, immigrants have primarily come from Asia despite steady streams of immigrants from Britain, New Zealand, and some Eastern European countries (Jupp 1995). The 1989 Migration Amendment Act, which clearly defined selection criteria for each visa category, restricted the court’s ability to overrule status determinations. Asylum seekers had to prove that they suffered from natural disasters or political upheavals, and the countries that could produce refugees had to be formally approved and published by the Minister for Immigration (Stevens 2002).
The 1958 Migration Act was codified in 1989 through the Migration Amendment Act, with the implementation of immigration restriction legislation, including administrative detention for all immigrants (excepting New Zealanders) who arrived without a valid visa. The judiciary was not permitted to over-turn administrative detention rulings, but could only review each case in order to determine instances of legal errors (Krongold 2007). Detainees were denied access to bail, and there was no limit to the length of their detention. When asylum was not granted, asylum seekers were removed by the carriers that brought them into Australia. When Chinese, Cambodian, and Vietnamese boat arrivals increased in the late 1980s, Australia placed them in unfenced migrant “hostels” located in major state capitals. Complex determination processing, linguistic barriers, and lack of legal expertise in rapidly evolving migration laws resulted in extensive periods of detention. The Western Australian Port Hedland processing centre was opened in 1991 in order to streamline migration processing (Stevens 2002).
Further amendments to the Migration Act in 1991 empowered the Minister for Immigration with the ability to individually deny asylum seekers a visa. Humanitarian claims were no longer recognized when asylum visas were applied for within Australia, reinforcing the offshore program. After the 1989 Tiananmen Square massacre, 20,000 People’s Republic of China short-term visa holders applied for asylum within Australia. While none were forced to return to China against their will, the government introduced a four-year Temporary Protection Visa (TPV), in place of permanent residency. TPV holders had access to the same support as permanent visa holders, but they could only apply for permanent residency if further protection was required at the end of the four-year period. In 1993, permanent residency was re-introduced for asylum seekers (Stevens 2002).
The Keating Government (1991-1996). The Labor government of Prime Minister Paul Keating (1991-1996) saw the introduction of a number of reforms that restricted the access of both immigrants and asylum seekers. Mandatory detention of “unlawful immigrants,” which remains the official policy of Australia (as of mid-2008), was introduced in 1992, with passage of the Migration Amendment Act, which received bipartisan support. The policy was the product of mounting concerns over the growing numbers of asylum seekers arriving in Australia during the previous two decades, which the government argued had undermined the country’s ability to protect its borders (Stevens 2002). The amendment made detention mandatory for all unauthorized boat arrivals. Migrants, including their children born in Australia, who arrived after November 19, 1989, and before December 1, 1992, were detained. The maximum length of detention was established at 273 days, and could be prolonged because of legal procedures and appeals (Stevens 2002). Additional immigration detention centres were established during the 1990s in remote areas of Australia, with heightened security (Einfeld 1993in Stevens 2002).
The Determination of Refugee Status Committee was replaced by the Refugee Review Tribunal (RRT) in July 1993 to cater for the increase in numbers of refugee applications and to foster the review of on-shore refugee applications. The single-member panels met with the detainees in private and ruled on the status of the applicants. The Minister for Immigration retained the right to override decisions made by the RRT (Stevens 2002).
In the early 1990s a number of Chinese nationals applied for and were granted refugee status based on the grounds of China’s one-child policy. The Federal Court found that refugee status can also be granted to members of such an affected group. The Government reacted strongly on 31 January 1995, introducing the Migration Legislation Amendment Bill (No 3) 1995, in an attempt to exclude government fertility control policies as grounds for refugee claims. The UNHCR presented a number of objections to the Bill, claiming that it is "a most unfortunate precedent, not only for Australia but for the world at large” and "a setback in the interpretation and application of the 1951 Convention" (UNHCR in Poynder 1995). Amidst much debate, Bill No 3 was abandoned and replaced by the Migration Legislation Amendment Bill No 4 1995, which was more implementation oriented than Bill No 3. The Government found that the Bill was essentially the same as the previous one and it was also disregarded (Poynder 1995, Australian Lawyers for Human Rights 2003a).
The Tampa case and the “Pacific Solution.” The Australian government received international criticism in August 2001 when it blocked the Norwegian MV Tampa freighter, which was carrying 438 mainly Afghan asylum seekers it had rescued at sea, from landing on the Australian territory of Christmas Island. Australia claimed that Norway (flag state) and Indonesia (state of embarkation) were responsible for the refugees, but Indonesia, which had not ratified the 1951 Convention on Refugees, refused to receive them. When the Tampa entered Australian waters without permission, the Australian military intervened. The UN High Commissioner for Refugees recommended burden-sharing, but Australia instead appealed to New Zealand, Nauru, and Papua New Guinea, who accepted the asylum seekers (Baillet 2003).
A month after the incident, in September 2001, the Australian government introduced the “Pacific Solution,” a set of legislative changes that allowed for the detention of unauthorized migrants on the island nations of Papua New Guinea and Nauru. The 1958 Migration Act was revised to exclude Ashmore Reef, Cartier Island, Christmas Island, Cocos (Keeling) Islands, and other external territories from Australian territory, creating excised offshore places. Thereafter, people who entered these territories were taken to detention and processing centres in Nauru or Papua New Guinea’s Manus Island. As the migrants had not officially entered Australia, they were denied access to Australian legal protection (Bailliet 2003). Although the government claimed that asylum seekers did have access to standard asylum procedures (DIAC 2007), the United Nations and human rights groups criticized the Pacific Solution for denying asylum seekers access to appeal their detention in Australian courts (Baillet 2003).
Amnesty International filed complaints against Australia with the UNHCR and the UN Committee against Torture, claiming that refugee’s rights to freedom and security were being jeopardized. The Australian public, meanwhile, largely supported the changes, re-electing the John Howard government, which had proclaimed victory over a foreign invasion, two months later (Baillet 2003). The media began associating ”illegal immigrants” with Afghans and terrorists (Nicolacopoulos and Vassilacopoulos 2002), and asylum seekers were described as illegal queue jumpers who were arriving in waves and stealing places from legitimate refugees. Fear of a foreign invasion grew, with policy justified through focusing on Australia’s inability to protect its’ borders. Journalists had restricted access to detention centres and primarily received information from official government documents or detention centre officers. Personal stories of the asylum seekers and details of detention conditions were limited (Leach and Mansouri 2004; Suter 2001).
In late 2007 and early 2008, international media reported the closure of the offshore Nauru and Papua New Guinea Immigration Detention Centres (BBC 2008; UNHCR 2008). The new Labor government, which had defeated the Howard government in the 2007 elections, accepted seven Burmese asylum seekers detained in Nauru (BBC 2008). The final day of operation of the Nauru Immigration Processing Centre was reported in February 2008, with the remaining 24 Sri Lankans granted asylum status visas, thereby ending the ‘Pacific Solution’ (UNHCR 2008).
However, despite termination of the “Pacific Solution,” the new Labor government continued to maintain a firm line on immigration. Responding to questions from the media that suggested the change in policy would relax Australia’s immigration policy, Chris Evans, the Immigration Minister, denied that ending the Pacific Solution would soften Australia’s border policy, and confirmed that boats would continue to be intercepted at sea (BBC 2007). The UNHCR’s regional representative, Richard Towle, while applauding the decision to close the offshore detention centres, expressed concern over the continued detention of refugees on Christmas Island, which remained outside Australia’s “immigration zone,” and appealed to the Australian government to ensure asylum seekers are given appropriate access to refugee determination processes within Australian, including independent appeal rights and speedy processing (UNHCR 2008). Despite calls by international organizations and local NGOs, including the Safecom Project, to close the Christmas Island facility, it remained open as of March 2008 (Project Safecom 2008).
On July 29, 2008, Immigration Minister Chris Evans proposed amendments to Australia’s immigration policy that would make mandatory detention of asylum seekers only a practice of last resort. The proposal, if passed by the Senate, would allow irregular non-citizens that don’t pose a security threat to be released into the community while their visa status is evaluated. Those found not to require protection and who do not meet immigration law entry criteria would be removed from Australia. Also under the proposed changes, the Christmas Island offshore detention centre would continue to be used for initial processing, health, and security checks of people intercepted offshore, but detainees would be granted access to legal assistance community while their visa status is evaluated or they await deportation (Senator Evans 2008).
Immigration today. Currently, Australia's Migration Program assesses applicants for admission based on criteria established by the Migration Act and Regulations, which can include relationship to an Australian permanent resident or citizen, skills, age, qualifications, capital and business skills, and health and character checks. The Migration Program includes three streams with set quotas each year: Skill, Family, and Special Eligibility. In addition, the Humanitarian Program offers resettlement to refugees and displaced persons who have faced violations of their human rights (DIAC 2008d).
A growth in temporary visas granted to international students for study in Australia has seen international education become Australia’s fourth largest export industry. International enrolments made up 15 percent of total revenues for Australian universities and 18 percent of total student enrolments in higher education in 2004 (DFAT 2005).
As of June 2005, nearly 25 percent of the estimated resident population of Australia was born overseas. Of those foreign-born residents, a third was born in northern or western Europe, 17 percent in southern and western Europe, and about 12 percent in South-East Asia. 132,000 settlers arrived in Australia between July 2005 and June 2006, originating from nearly 200 countries. The top five countries of origin were the United Kingdom (17.7percent), New Zealand (14.4percent), China (8.0 percent), India (8.6 percent) and the Philippines (3.9 percent) (DIAC Immigration Fact Sheet Two 2008). The multicultural debate re-emerged in Australia during 2006 after ethnic-related riots broke out on Cronulla beach, in Sydney (Soutphommasane 2006). Shortly afterwards, the conservative Howard government introduced a mandatory citizenship test designed to ensure immigrants meet an appropriate level of “Australian-ness” prior to becoming citizens. The Labor Party Rudd government, which succeeded the Howard government, announced it would review the test in order to make it more fair and relevant to migrants of all backgrounds (Sydney Morning Herald 2008).
Children, Women, and Other Vulnerable Groups
Children. As of November 2008 there were 13 minors (under 18) living in community detention (which does not require the person to be accompanied by a designated person), nine living in alternative temporary detention in the community (which includes detention in the community with a designated person in private houses / correctional facilities / watch houses / hotels / apartmetns / foster care / hospitals), and one living in immigration transit accommodation (DIAC 2008b). No children were being held in immigration detention centres (DIAC 2008b).
Nearly 1,000 children were held in immigration detention during the course of 1999-2000, 14 percent of whom were unaccompanied minors. In 2000-2001, 1,923 children were detained, and in 2001-2002, 1,696 were detained. Most of these children arrived by boat. These figures exclude children who were transferred to Nauru and Manus Island (HREOC 2004). Between July 1999 and June 2003, 3,125 asylum-seeking children arrived in Australia with valid visas (i.e. were not detained). Only 25.4 percent of these visa-holding children were found to be legitimate refugees. During that same period, 2,184 children arrived in Australia without a valid visa (i.e. were detained) and applied for asylum. Over 90 percent of these were eventually recognized as refugees (HREOC 2004).
The Australian government, and in particular the DIAC (which was previously called the Department of Immigration and Multicultural Affairs) received great criticism for its practice of detaining minors. The Human Rights and Equal Opportunities Commission (HREOC) and the Ombudsman of Australia undertook official inquiries between 2002 and 2006 that found the detention of immigrant children to be in breach of international law and international human rights standards (HREOC 2004; Ombudsman 2006). HREOC reported that children who arrived on Australian territory or Australian territorial waters without a visa prior to 2001 were detained in immigration detention centres, reception facilities, and processing centres. After September 2001, asylum-seeker children who arrived on Christmas Island, the Ashmore Islands, or the Cocos (Keeling) Islands, or who were intercepted by Australian authorities, were transferred to detention centres in Nauru and Papua New Guinea’s Manus Island (HREOC 2004).
Both HREOC and the Australian Ombudsman criticized the government for the extensive periods of time that children were detained. In December 2003, the average length of immigration detention of a child was one year, eight months and 11 days. Many children were released within three months of initial detention, but some were detained for much longer (HREOC 2004; Ombudsman 2006). The Ombudsman reported that children who were Australian citizens or lawful non-citizens were also sometimes detained as a visitor of their parents (Ombudsman 2006). The report stated that DIMA policy relating to children was ambiguous, and it accused DIMA staff of practicing unsatisfactory administration with an insufficient understanding of policy and legislation which undermined Australian law. Children were often assigned the same immigration status as their parents, without individual investigation (Ombudsman 2006).
Since the publication of these reports there have been extensive changes in DIAC policy and practice relating to the detention of children. As of July 2005, the Australian government declared that children would be detained in immigration only as a last resort, introducing legislative changes and a reform program that improved the administrative processes and staff attitudes in relations to the detention of children (Ombudsman 2006). Since 2005, the numbers of children in detention have decreased significantly. All families with children have since been moved from immigration detention centres into community detention, or alternative temporary detention in the community. They can still spend up to four to six weeks in detention centres, however, while their referrals are considered for community detention (DIAC 2007).
Women. As of November 2008, there were 17 women in immigration detention and 29 women in alternative temporary detention in community (DIAC 2008b).
A research project on women in immigration detention published by Cox and Priest in 2005 found that women, as a minority of detainees in immigration detention facilities, require protection against prejudices, as well as attention for specific needs relating to contraception, reproduction, mothering, healthcare, and potential harassment and violence. The researchers claimed that Australian facilities had insufficient guidelines on privacy and access to female guards and workers; that the clothing needs and particular modesty requirements were inadequate; that there was no direct access to specialists and general medical practitioners; that mothers were denied privacy and the opportunity to fulfill family needs; and that there were insufficient protocols and procedures surrounding gynecological services, fertility control, antenatal and postnatal care and support (Cox & Priest 2005).
The Australian National Audit Office (ANAO 2005-2006) criticized the contract processes with GSL Australia, particularly in reference to information flows and administrative problems relating to the detention of women (ANAO in Cox & Priest 2005). The Palmer report (2005) found that arrangements governing surveillance of female detainees were not acceptable. The report recommended that contract requirements between the Government and GSL Australia insist that “in all but emergency or extraordinary circumstances, surveillance of female detainees should be done by female detention officers” (Palmer 2005).
Since the 2005 policy changes relating to the detention of children, the number of women in immigration detention has declined, with more women now staying in Immigration Residential Housing than in Immigration Detention Centres (DIAC 2008c).
Trafficked persons. There is no information available on the numbers of trafficked persons who are detained in immigration detention centres in Australia. When DIAC identifies detainees who have worked in the sex industry, they are interviewed and if evidence indicates trafficking has occurred, the interviewees are referred to the Australian Federal Police (DIAC 2003).
Australia is a destination country for trafficked persons, primarily women originating from East Asia and Eastern Europe for commercial sexual exploitation (Piper 2005). They often travel to Australia voluntarily to work in legal and illegal brothels, and are then subject to debt bondage or involuntary servitude. The U.S. Department of State reported incidents of men and women from India, the People’s Republic of China, and South Korea who have also migrated to Australia under labor slavery, debt bondage, and involuntary servitude (Department of State USA 2007). It is estimated that up to 1,000 women are paying off “debt” in Australia at any one time, though this number does not include women who have paid off their debt and remain in Australia (Project Respect 2008).
Australia’s domestic trafficking laws were extended during 2006 to cover deception, exploitative employment conditions and contracts, or debt bondage. Penalties for traffickers were increased for trafficking in children and for employers who exploit workers under forced labor, sexual servitude, or slavery. During 2006, there were four convictions for sex trafficking, with an additional six sex trafficking and two labor trafficking cases before the courts. The Transnational Sexual Exploitation and Trafficking Teams (TSETT) within the Australian Federal Police investigated 14 possible trafficking cases in 2006. In late 2006, a Bangladeshi domestic worker filed a complaint of involuntary servitude work conditions against a United Arab Emirates diplomat in Australia (Department of State USA 2007).
The government provides resources to support anti-trafficking throughout Southeast Asia, including law enforcement training, victim assistance, and prevention activities. Victims of trafficking, their family members, or witnesses are encouraged to participate in the investigations of traffickers. Dozens of assistance visas have been granted since January 2004, permitting such people to remain lawfully in Australia during investigations. These visa holders are entitled to shelter, counseling, and food and living allowances, as administered by the government’s Support for Victims of People Trafficking. Australia also funds two return and reintegration activities in the Asia region, including one for trafficked women and children, and the second specifically for Thai victims. The government has also introduced a referral protocol and interviewing procedure for trafficking cases (Department of State USA 2007).
Controversies and Criticism
A number of official inquiries and investigations into immigration detention conditions were conducted between 2000 and 2007. The findings of these investigations have spurred severe criticism of detention conditions in Australia, and in some cases have brought changes in policies and practices.
Mandatory detention. Church representatives, refugee advocacy groups, and human rights activists have criticized the mandatory nature of detention of non-citizens in Australia. Asylum seekers, they claim, are punished prior to the determination of their asylum status (Einfeld 1993, Birrell 1993, and Brennan 1993 in Stevens 2002). In 1998, the Human Rights and Equal Opportunity Commission (HREOC) declared that Australia’s detention regime violated the 1966 International Covenant on Civil and Political Rights through the denial of the refugees’ right to liberties. The Minister for Immigration has responded to these criticisms by arguing that Australia has the right to exercise its sovereignty in determining who can enter and remain (Ruddock 2000 in Stevens 2002).
The detention management. A complaint was launched against GSL Australia in 2005 by the International Commission of Jurists (ICJ), Rights and Accountability in Development (RAID), the Human Rights Council of Australia (HRCA), Children out of Detention (ChilOut), and the Brotherhood of St Laurence, based on the Guidelines for Multinational Enterprises of the Organization for Economic Co-operation and Development (OECD). They claimed that GSL, through its public-private partnership contract with the government, is fully responsible for the management of the centres and therefore must be held accountable for the human rights of detainees. Violations of human rights, they claimed, were well documented by national and UN human rights bodies and the UN refugee agency. Violations included the detention of immigrants without a specified or legal time limit and inadequate access to appropriate health care, causing high occurrence of depression, self-harm, and suicide attempts (International Commission of Jurists 2005; libertysecurity.org 2005).
In separate accounts in 2002 and 2003, detainees were reported to have set four of the seven Australian immigration detention centres on fire, with police reporting that inmates started fires and attacked guards with iron bars in breakout attempts. Detainees were said to have participated in these riots in protest to their inhumane treatment (DIAC 2002).
The 2005 Palmer Report, a government-sanctioned report spurred by the unlawful detention of Cornelia Rau, a German-born Australian resident, concluded that the management of detention centres was fraught with organizational problems that jeopardized the government’s capacity to carry out its migration policy while respecting human dignity. It concluded that Rau’s detention in Brisbane Women’s Correctional Centre for six months was purely administrative and far removed from the Migration Series Instructions, which set out guidelines for fulfilling public interest powers in reference to the Migration Act 1958 (Palmer 2005).
The detention services contract with GSL Australia was, the Palmer report stated, “fundamentally flawed” and incapable of producing outcomes expected by the government, detainees, and Australian people (Palmer 2005). Mental health assessments and care of detainees were found to be inappropriate, with communication barriers between health care workers and immigration detention center staff. External accountability mechanisms were reportedly lacking, in addition to staff cultural and attitudinal problems, a clear lack of executive leadership, and a great disconnect between detention policy, management in Canberra, and the time reality of processing detainees (Palmer 2005).
Length of detention. The extensive periods of immigration detention in Australia, since the initial 273 day limit was lifted in the early 1990s, has long been in the subject of criticism. In 2004, P.N. Bhagwati, a regional adviser for the UNHCR in the Asia Pacific, stated that detainees in the Woomera Immigration Detention centre “were prisoners without having committed any offence” (cited in Leach & Mansouri 2004). In 2007, HREOC reported on the excessive periods of detention of unlawful immigrants, citing cases such as the stateless Kashmiri Peter Qasim, who was transferred to a psychiatric hospital after being detained for over six years; and three-year-old Naomi Leong, who was released in 2005 after being detained all her life (HREOC 2007). Earlier, in 2005, the Palmer Report had attributed the lengthy periods of detention to inadequate formal training of management staff, a lack of understanding of legislation, and a primitive database infrastructure used for the processing and coordination of detainees (Palmer 2005).
Improvements. HREOC reported marked improvements to detention conditions since the 2005 policy changes, including a significant reduction in tension levels and more positive attitudes of DIAC and GSL staff. There were no complaints from detainees during HREOC’s 2007 visit, in contrast to the multiple complaints HREOC reported in previous years. Many of the problems previously raised by HREOC had been corrected by 2007, with refurbishments and renovations continuing to improve the physical environment of centres. Programs and activities were more readily available to detainees, including increased access to the Internet, excluding those in the NIDC. HREOC also praised the new Sydney and Perth Immigration Residential Housing facilities which, they claim, improve the living conditions of detainees (HREOC 2007).
HREOC still had some criticisms, however, claiming that the external excursion programs, which had increased during 2006, had been reduced at all facilities, with the exception of NIDC. HREOC claimed there was a clear connection between external excursion programs and reductions in tensions, health, and mental health complaints. In addition, HREOC reported in 2007 that the Villawood Immigration Detention Centre, which houses some of the most long-term detainees, remained the “most prison-like of all facilities,” and recommended further refurbishments there (HREOC 2007).
As of November 2008, the government of Australia maintained nine secure detention sites, including five Immigration Detention Centres (IDCs) (for complete list of facilities, see “List of Detention Sites”). Global Solutions Limited Australia (GSL Australia), a private contractor, manages the operations of immigration detention centres and residential housing on behalf of the Australian government.
Detention facilities include Villawood IDC, Northern IDC (Darwin), Maribyrnong IDC, Perth IDC, Christmas Island IDC, Sydney Immigration Residential Housing, Perth Immigration Residential Housing, Brisbane Immigration Transit Accommodation (ITA), and Melbourne Immigration Transit Accommodation (DIAC 2008c). The IDCs are used to accommodate a range of unlawful non-citizens, including people who have overstayed their visas, people in breach of their visa conditions, or people who were refused entry at Australia’s international airports (DIAC 2008c); ITAs house people in short-term detention before they are transferred to long-term centres or returned home, and provide temporary accommodation for people who are considered a low security risk; Immigration Residential Housing is meant to provide a flexible detention arrangement to enable people in immigration detention to live in family-style accommodation (DIAC 2008c; HREOC 2007).
In addition to secure sites, Australia maintains two “alternative” detention programs: a ”Community Detention” program, which does not require that detainees be accompanied by a designated person when they leave their residence; and an “Alternative Temporary Detention in Community” program, which does require that detainees be accompanied by a designated person at all times. Alternative Temporary Detention sites include private houses, correctional facilities, watch houses, hotels, apartments, foster care, and hospitals (DIAC 2008c).
A number of immigration detention centres that had been the subject of intense criticism were closed in recent years, including Baxter Immigration Detention Centre (closed August 2007) and the two offshore processing detention centres—in Papua New Guinea (closed December 2007) and Nauru (closed February 2008) (The Age 2007). Other immigration detention centres that were closed between 2002 and 2004 include: Woomera Immigration Reception and Processing Centre (closed December 2003); Woomera Immigration Reception and Processing Centre (closed April 2003); Curtin Temporary Immigration Reception and Processing Centre (closed September 2002); Singleton Contingency Processing Centre; and Port Hedland Residential Housing Project (closed 2004) (DIAC 2007; HREOC 2004).
The Global Detention Project has also identified eight other sites where immigrants have been detained at some point during the past eight years. These include Arthur Gorrie Prison, Port Phillip Prison, Port August Prison, Casuarina Prison, and Broome Regional Prison (Commonwealth Ombudsman 2001; HREOC 2004); The Glenside Mental Health Facility and the Royal Darwin Hospital (HREOC 2007); and the Brisbane Women’s Correctional Centre (Palmer 2005). The Global Detention Project has not found any evidence suggesting that these places are still used for migrant detention.
Detention Facility Details
The Christmas Island Immigration Detention Centre was opened in 2001 to provide accommodation for a surge in unauthorized boat arrivals. A new facility was still under construction as of early 2008 to replace the temporary facility at Phosphate Hill. The existing centre can accommodate 104 residents (nominal capacity) and has a capacity for a further 104 residents (surge capacity) (DIAC 2008c). The Australian Asylum Seeker Resource Centre (ASRC), an advocacy group, has raised concerns over the new facility on Christmas Island, which the group claims closely resembles an offshore prison and will cost taxpayers more than $500 million to construct. The facility reportedly has electric fences, movement detectors, and cameras on roofs and in every room. Detainees will reportedly wear electronic ID tags that track their whereabouts at all times. There is a hospital, operating theater, and visiting rooms with non-contact glass panels. There are also solitary cells and family units complete with a babies compound, childcare centre, play area, and classrooms (ASRC 2008). Concern has also been raised over the level of access that detainees will have to the Australian appeals system because Christmas Island remains technically in the offshore excised areas of Australia (UNHCR 2008).
The Brisbane Immigration Transit Accommodation, located near Brisbane airport, was opened at Pinkenba in November of 2007 (DIAC 2008c HREOC 2007). The few detainees that have been held in this facility to date have been short term detainees comprised of airport arrivals, visa overstayers, people whose visas have been cancelled, people in transition to other facilities, or people awaiting imminent removal. Detainees can remain for a maximum of 14 days. It consists of three accommodation blocks, each with five rooms (most with two beds) and kitchen, dining, living room, and laundry facilities. The facility, which is considered low security by the Australian Human Rights and Equal Opportunity Council (HREOC), has a medium height low security fence and an infra red line alarm system. Two GSL officers are regularly stationed day and night at the centre and detainees receive key cards to access their bedrooms, with locked cupboards for their belongings. Pre-prepared food is provided by GSL officers. There are large outdoor spaces including a basketball court, DVDs, and internet facilities. A nurse is on site three times a week. HREOC, after inspecting the facility, deemed it “a satisfactory facility for transitional accommodation” (HREOC 2007).
The Melbourne Immigration Transit Accommodation, located in suburban Melbourne, was opened in June 2008 (DIAC 2008). This facility is designed to house people in short-term detention before they are transferred to long-term centres or returned home, and provides temporary accommodation for people who are considered a low security risk (DIAC 2008c).
The Maribyrnong Immigration Detention Centre was opened in 1966, and a new ”purpose-built” centre was opened on site in 1983. In 2005, extensions and refurbishments improved the conditions and increased the “surge” capacity to 100 persons, with a “nominal” capacity of 70. The centre has a visitor reception area; administration health services room; services provider offices; control room; kitchen/dining area; male resident’s area and female resident’s area;recreational, educational, and laundry facilities; limited self-catering facilities; and outdoor exercise areas (DIAC 2008c).
The Northern Immigration Detention Centre was constructed in Darwin in 2001 within the Defense Establishment Berrimah, a military base. Upgrades in 2006 increased the capacity of the detention centre to to help deal with increasing numbers of detentions of illegal foreign fishers, picked up and charged for illegal fishing in the northern waters of Australia. The centre includes accommodation buildings; commercial kitchen/ recreation areas; a cyclone shelter; health services buildings; interview centres; induction centre; visits areas; cabanas; laundries; and administration buildings. The accommodation buildings have four to five rooms per building, each with a double bunk, wardrobe, desk and chairs (DIAC 2008c).
The Perth Immigration Detention Centre was established in 1981 within the Perth Domestic Airport precinct at a facility that had formerly be used by the Australian Federal Police. In addition to migrant detainees, people with a criminal conviction who are awaiting deportation are also detained there. The single level, 1130m2 site includes a “north wing” for men, a “west wing” for women. Each have bathroom facilities, recreation rooms, and kitchen and dining rooms. There is also an ”east wing” that has accommodation and recreational rooms, a visitation room, and administration and resident storage areas. The centre has a nominal capacity of 55 people, with a surge capacity of 64 (DIAC 2008c).
The Villawood Immigration Detention Centre is located in a western suburb of Sydney and was adapted from a migrant hostel into a secure immigration detention centre in 1976. The centre has an operating capacity of 500 people with a “surge capacity” of 700. It includes large dormitories for males; enclosed courtyards and shared kitchen, dining room, laundry and recreation, computer and education facilities; a medical centre and multi purpose medical building; shared rooms and ensuite accommodation for 40 single males; a TV room, day room and outdoor recreation space. The accommodation units have two to three bedrooms and a bathroom. One part of the centre accommodates single women and couples (DIAC 2008c).
Alternative forms of detention. The Australian government introduced what it terms “alternative” detention housing in 2005, including detention in motels, public hospitals, mental health facilities, private homes, and Residential Housing Centres. The DIAC claims that residential housing offers a “domestic environment with greater autonomy for the detained, while remaining formally in immigration detention” (DIAC 2008c). Those in immigration detention can ”volunteer” to be moved to residential housing. Selections are based on health and character screens. This program is designed for low security risk detainees, especially families with children. Detainees are restricted in their ability to enter and leave, but can cook their own food, go on accompanied visits to shops, and attend recreational, educational, and developmental activities (DIAC 2007). They are accompanied 24 hours a day under “softer” immigration conditions (HREOC 2007). Mentally unwell detainees can be held in private homes under the care of “designated persons” (HREOC 2007).
The Perth Immigration Residential Housing was opened in 2007 and includes two single storey buildings, each consisting of five bedrooms, two bathrooms, kitchen and dining facilities, and two living areas. An additional building can be used by residents and their visitors, and is used for administration. The Sydney Immigration Residential Housing was opened in 2006 and is located within the Villawood Immigration Detention Centre. It comprises single storey accommodation for families. There are four duplex houses, each with three bedrooms, two bathrooms, kitchen and two living/dining areas. Each duplex is self-contained and has a small outdoor area. An additional communal building is used for administration. There is one single, large landscaped backyard and residents can have access to recreation and educational facilities. The DIAC claims that the security is ‘subtle and unobtrusive’ for both the Sydney and Perth immigration residential housing (DIAC 2008c).
The DIAC is planning to open an additional Immigration Transit Accommodation for short term, low flight risk people in Melbourne by 2008 and Adelaide by 2008/2009. They will provide hostel style accommodation, with central dining areas and “semi-independent living”, with fewer services than is typically offered in an immigration detention centres, catering to short-stay detainees (DIAC 2007).
Limited information is available on the frequency of use, locations, levels of security, and duration of detention for other forms of alternative detention in private houses, correctional facilities, watch houses, hotels, apartments, foster care and hospitals (DIAC 2008c).
Management of the immigration detention centres. Global Solutions Limited Australia (GSL Australia), previously Group 4 Falck, manages the operations of immigration detention centres and residential housing on behalf of the Australian Government. GSL is a privately owned facilities management company. GSL emerged from the UK-based Group 4 Securitas after a series of mergers and splits of the corporation that first led to the creation of Group 4 Falck Global Solutions, then Securicor. The businesses, which were located in Great Britain, South Africa, and Australia, were then de-merged from the parent company, establishing GSL (Australia) Pty Ltd as a wholly owned subsidiary of Global Solutions Limited (GSL 2008).
GSL claims responsibility for “the care and well being of the people in detention” and uphold “security and good order” (GSL 2008). The company was contracted to operate all Australian Immigration Detention Centres and Immigration Reception and Processing Centres by the DIAC (which was previously called the Department of Immigration and Multicultural Affairs) in August 2003, taking over from the Australasian Correctional Management Pty Limited (HREOC 2004; GSL 2008).
Facts & Figures
All non-citizens who arrive in Australia without a visa, who overstay their visa, who have their visa cancelled, or who are detained as illegal foreign fishers on Australian territorial waters are classified as being unlawfully in Australia and can currently be placed in immigration detention. According to the Australian Department of Immigration and Citizenship (DIAC), the main nationalities of people detained since 2002 have been Indonesian, Chinese, Malaysian, and Korean. Most detainees from Indonesia are unlawful foreign fishers held, according to the DIAC, “only for a short period of time.” The main nationalities of those detained between 2000 and 2002 were Afghani, Iraqi, Iranian, Palestinian, Malaysian, and Sri Lankan (DIAC 2008e).
When a non-citizen, including asylum seekers, is refused permission to stay in Australia, he or she can remain in detention until deported. The UN High Commissioner for Human Rights (UNHCR) questions the “unlawful” status assigned to those detainees who request asylum, defining a person as a refugee as soon as his or her circumstances fit the definition, rather than when formal “refugee” status is given to them. There have been numerous cases of asylum seekers who, after being detained, were eventually granted refugee status (HREOC 2004).
In July 2008, the government proposed circumscribing its policy of mandatory detention for asylum seekers. The proposal, if passed by the Senate, would allow irregular non-citizens that don’t pose a security threat to be released into the community while their visa status is evaluated or they await deportation. The Christmas Island offshore detention centre would continue to be used for initial processing, health, and security checks of people intercepted offshore, but detainees would be granted access to legal assistance (Senator Evans 2008).
As of November 2008 there were 279 people held in immigration detention in Australia (DIAC 2008b). The total number of people detained at some time during 2006-2007 was 5,485, compared to 8,587 in 2004-2005 (the 12-month period is from July to June). There were 4,718 people taken into immigration detention during 2006-2007, compared with 7,522 in 2004-2005 (DIAC Annual Report 2006-2007). These figures illustrate a marked decrease in the detention of immigrants in recent years, matched by the closure of a number of previously key immigration detention centres during 2007. Of the 279 people in immigration detention as of November 2008, 175 were detained as a result of overstaying or breaching the conditions of their visa and 14 were illegal foreign fishers. 34 detainees were unauthorized boat arrivals and 46 were unauthorized air arrivals. 41 of the detainees were seeking asylum or judicial review of a decision in relation to their application for a protection visa (DIAC 2008b).
Immigration detention statistics are updated fortnightly by the Department of Immigration and Citizenship and can be viewed at on its website.
There were 5,044 people released from immigration detention during 2006-07, of which 150 had been granted a protection visa to remain in Australia, 610 were released in Australia based on other grounds, and 4,284 were removed from Australia (DIAC Annual Report 2006-2007).
In 2006-2007, there were 6,768 people deported from Australia, including those removed once released from immigration detention, and those deported upon arrival. Of these, 2,335 were removal departures, classified as unlawful non-citizens under section 198 of the Migration Act, or a deportee under section 200 of the Migration Act. The remaining 4,433 were classified as monitored departures. A total of 1,673 illegal foreign fishers were removed during 2006-2007 (DIAC Annual Report 2006-2007).
Onshore and offshore asylum seekers. The majority of refugees granted asylum in Australia shelter in neighboring countries before applying for refugee status (Refugee Council of Australia 2008). The government’s Offshore Humanitarian Program sets a quota of refugee resettlement places each year, which was 13,000 in 2006-2007. More than 11,000 of these were allocated, as some were carried over, brought forward, or re-credited from the previous or following years. More that 6,000 were classified as refugee places and 5,283 were Special Humanitarian Program and Initial Onshore Protection places (DIAC Annual Report 2006-2007). Australia’s refugee recognition rate in 2000 was 25 percent higher than the average of 7 percent for industrialized countries in 2000 (UNHCR 2001 in Baillet 2003). According to the statistics provided by the UN High Commissioner for Refugees (2007), as of the end of 2006, there was some 1,400 people seeking asylum in Australia.
Asylum seekers who are not granted refugee status offshore and who arrive in Australia are categorized as non-Australian citizens, unlawfully in Australia. The frequent passage to Australia by asylum seekers can include a journey by air to Malaysia or Indonesia, as well as contact with and payment to people-smugglers for false passports and a boat ride to Australia (Leach & Mansouri 2004, pp. 33-34). These asylum seekers are detained upon arrival. Some are allowed to stay in alternative destination programs (see the section “Detention Infrastructure”). Until December 2007, some unauthorized immigrants were moved to offshore processing centres, such as Nauru or Papua New Guinea (DIAC 2007).
If an asylum seeker passes the initial investigation into the legitimacy of their refugee status, they are granted a Temporary Permit Visa (TPV). The TPV provides three-year temporary residence and protection in Australia. Further protection can be applied for prior to the expiration of the initial TPV, but those who do not apply for further protection and remain in Australia are classified as unlawful, and can be detained or removed (DIAC 2008g).
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SOCIO-ECONOMIC DATA & POLLS
B. Attitudes and Perceptions
Detention for deterrence
LEGAL & REGULATORY FRAMEWORK
GROUNDS FOR MIGRATION-RELATED DETENTION
LENGTH OF MIGRATION-RELATED DETENTION
MIGRATION-RELATED DETENTION INSTITUTIONS
Detention Facility Management
Types of Authorised Detention Monitoring Institutions
International Treaties Ratified
Ratio of relevant international treaties ratified
Individual Complaints Procedures
Relevant Recommendations Issued by Treaty Bodies
§11 [..]The State party should strengthen its efforts to bring the conditions of detention in all places of deprivation of liberty into line with relevant international norms and standards, including the Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules), in particular by: [...] (b) ensuring that adequate somatic and mental health care is provided for all persons deprived of their liberty, including those in immigration detention.
§16. [...] The State party should adopt the necessary measures with a view to considering: (a) repealing the provisions establishing the mandatory detention of persons entering its territory irregularly; (b) ensuring that detention should be only applied as a last resort, when determined to be strictly necessary and proportionate in each individual case, and for as short a period as possible; and (c) establishing, in case it is necessary and proportionate that a person should be detained, statutory time limits for detention and access to an effective judicial remedy to review the necessity of the detention. It should also ensure that persons in need of international protection, children and families with children are not detained or, if at all, only as a measure of last resort, after alternatives to detention have been duly examined and exhausted, when determined to be necessary and proportionate in each individual case, and for as short a period as possible. The State party should also continue and redouble its efforts with a view to expanding the use of alternatives to closed immigration detention. It should also adopt all necessary measures to ensure that stateless persons whose asylum claims were refused and refugees with adverse security or character assessments are not held in detention indefinitely, including by resorting to non-custodial measures and alternatives to closed immigration detention.
§17 [...] The State party should adopt the necessary measures to guarantee that all asylum seekers or persons in need of international protection who are under its effective control are afforded the same standards of protection against violations of the Convention regardless of their mode and/or date of arrival. The transfers to the regional processing centres in Papua New Guinea (Manus Island) and Nauru, which in 2013 were deemed by the Office of the United Nations High Commissioner for Refugees not to provide “humane conditions of treatment in detention”, do not release the State party from its obligations under the Convention, including prompt, thorough and individual examination of the applicability of article 3 in each case and redress and rehabilitation when appropriate.2014
§32 [...] pay particular attention to ensuring that its policies and procedures for children in asylum seeking, refugee and/or immigration detention give due primacy to the principle of the best interests of the child.
§81 [...] (a) Reconsider its policy of detaining children who are asylum-seeking, refugees and/or irregular migrants; and, ensure that if immigration detention is imposed, it is subject to time limits and judicial review; [...] (d) Adhere to its High Court ruling in Plaintiff M70/2011 v. Minister for Immigration and Citizenship, and, inter alia, ensure adequate legal protections for asylum seekers and conclusively abandon its attempted policy of so-called “offshore processing” of asylum claims and “refugee swaps”; and evaluate reports of hardship suffered by children returned to Afghanistan without a best interests determination.2012
§24 [...] (a) Review its mandatory detention regime for asylum-seekers with a view to finding an alternative to detention, ensuring that the detention of asylum-seekers is always a measure of last resort and is limited by statute to the shortest time reasonably necessary, and that all forms of arbitrary detention are avoided;2010
§ 23[...] (a)consider abolishing the remaining elements of its mandatory immigration detention policy; (b) implement the recommendations of the HumanRights andEquality Commissionmade in its ImmigrationDetention Report of 2008; (c)considerclosing down the Christmas Island detention centre; and (d)enact in legislation a comprehensive immigration framework in compliance with the Covenant.
§ 24 [...] ensure thatchildren in conflict with the law, including those in detention, are treated in consistence with the Covenant and the UnitedNations Rules forthe Protection of Juveniles Deprived of theirLiberty. The State party should implement the recommendations of the HumanRights andEqualOpportunity Commission in this regard. The situation ofchildren in detention should be addressedwithin the State party’s proposed newchild protection framework.2009
§ 11[...] a) Consider abolishing its policy of mandatory immigration detention for those entering irregularly the State party’s territory. Detention should be used as a measure of last resort only and a reasonable time limit for detention should be set; furthermore, non-custodial measures and alternatives to detention should be made available to persons in immigration detention; (b) Take urgent measures to avoid the indefinite character of detention of stateless persons.
§12 [...] The State party should end the use of “excised” offshore locations for visa processing purposes in order allowall asylum-seekers an equal opportunity to apply for a visa.
§ 22 [...] The State party should ensure thateducation and training of all immigration officials and personnel, including health service providers,employed at immigration detention centres, are conducted on a regular basis. The State party should also regularly evaluate the training provided.
§ 26 [...] With the objective of improving protection of asylum-seekers, the State party should ensure that the Immigration Detention Standards be codified into legislation and provide for an independent monitoring mechanism.2008
64. The Committee recommends that the State party implement the recommendations contained in the HREOC report “A Last Resort?”, and bring its immigration and asylum laws fully into conformity with the Convention and other relevant international standards, taking into account the Committee’s general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin. In particular, the State party should: (a) Ensure that children are nota utomatically detained in the context of immigration and that detention is only used as a measure ofl ast resort and for the shortest appropriate period of time; (b) Seek an assessment by a court or an independent tribunal within 48 hours of the detention of a child in the context of immigration of whether there is a real need to detain that child; (c) Improve considerably the conditions of children in immigration detention when such detention is considered necessary and in the best interests of the child, and bring them into line with international standards; (d) Guarantee periodic review of the detention of children detained in the context of immigration;2005
526. The Committee considers that the mandatory detention under the Migration Act of“unlawful non-citizens”, including asylum seekers, raises questions of compliance with article 9, paragraph 1, ofthe Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party’s policy, in this context of mandatory detention, of not informing the detainees oftheir right to seek legal adviceand of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right.
527. The Committee urges the State party to reconsider its policy of mandatory detention of“unlawful non-citizens”with a view to instituting alternative mechanisms of maintaining an orderly immigration process. The Committee recommends that the State party inform all detainees oft heir legal rights, including their right to seek legal counsel.2000