Mandatory detention in Australia - Definition and Overview

In Australia, the term mandatory detention describes the legislation and actions of the Australian government to detain all persons entering the country by boat without a valid visa, including children. During the late 1990’s and early 2000’s, these unathorised arrivals, popularly referred to as boat people, were transferred to one of the Australian immigration detention facilities on the Australian mainland, or to Manus Island or Nauru as part of the Pacific Solution. Mandatory detention remains a very controversial aspect of Australian immigration policy.

History of Mandatory detention

Mandatory detention laws were introduced in Australia with bi-partisan support in 1992. The legislation was proposed as a result of an influx of Vietnamese, Chinese, and Cambodian asylum seekers over the previous few years. The legislation specifically disallowed judicial review, but did impose a 273 day limit on detention.

In 1994 new legislation broadened the application of mandatory detention and removed the 273 day limit.

Effect of mandatory detention on detainees

The Human Rights and Equal Opportunity Commission (HREOC) held an inquiry into mandatory detention of children who arrived without a visa over the period 1999-2002. The inquiry found that children detained for long periods of time were at a high risk of suffering mental illness. Mental health professionals had repeatedly recommended that children and their parents be removed from immigration detention. The inquiry found that the Australian governments refusal to implement these recommendations amounted to “..cruel, inhumane and degrading treatment of those children in detention”. [1] (http://www.humanrights.gov.au/human_rights/children_detention_report/report/exec.htm)

The inquiry also found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.

Criticism

In October 2001, Human Rights Watch sent a letter to Australian Prime Minister John Howard regarding new legislation, The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The new act further strengthened the practise of mandatory detention, allowing for indefinite detention of unauthorised arrivals. The letter said:

The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the U.S. government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law. [2] (http://www.hrw.org/press/2001/10/australia1031-ltr.htm)

External Links

HREOC Report – A Last Resort? - Australia's Immigration Detention Policy and Practice (http://www.humanrights.gov.au/human_rights/children_detention_report/report/chap06.htm)