Download our factsheet on mandatory detention of asylum seekers in Australia (pdf 162KB)

Australian law and mandatory detention

Mandatory detention legislation was first introduced in Australia in May 1992. The legislation was varied in 1994, retaining its mandatory character and reinforcing the indefinite character of the detention regime. This legislation ensured that asylum seekers arriving in Australia without prior authorisation could be detained for unspecified and prolonged periods of time, causing untold psychological damage to children, women and men. Provisions for release pending the outcome of an application to remain in Australia were limited and rarely implemented.

The longest period of time any person has been detained in Australia is 7 years.

In 2004 a number of cases challenging the parameters of the mandatory detention regime came before the High Court. Controversially, the High Court found that even intolerable conditions of detention did not affect the validity of the detention itself. It also found that a person could be detained, possibly indefinitely, if there was no prospect for their removal from Australia; thus, the equivalent of a life sentence could be imposed. The High Court also found that the mandatory detention of children under the legislation was also valid. These findings show the limited impact that international human rights law has had to date on Australian law-making.

International human rights standards and mandatory detention

The UN Human Rights Committee has consistently found the mandatory detention regime to breach basic human rights standards. Other international and Australian agencies and authorities have also consistently expressed grave concern about a number of aspects of Australia’s mandatory detention scheme. This consistent criticism prompted a group of politicians, led by Petro Georgiou MP, to press for some important changes to the detention scheme, particularly as it affected children. As a result, a number of aspects of the detention program were relaxed, in particular leading to the release of [most] children from detention. However, the mandatory detention scheme stills remains in place today.

Changes under the Rudd Government

Since the change of government in November 2007 there have been a number of significant developments to Australia’s immigration policy. Notably, the closure of the Nauru detention centre, the abolition of Temporary Protection Visas, and the review of long term detention cases. In June 2008, the new Minister for Immigration, Chris Evans announced some key changes to the detention scheme which would use detention in immigration detention centres as a ‘last resort’. While the ‘New Values in Immigration Detention’ will factor in review procedures, including by the Ombudsman, the new government still regard mandatory detention as ‘an essential component of strong border control’.

Amnesty International Australia believes that neither the recent recommendations by the Joint Standing Committee on Migration in its Inquiry into Immigration detention in Australia, nor the Minister’s proposal go far enough. Children may not be detained in immigration detention centres, but they may still be detained in immigration centres. Furthermore, Amnesty International regards timely judicial scrutiny of detention decisions and practices to be vital to ensuring a detention scheme’s compliance with human rights standards. We are concerned that the proposed internal and Ombudsman review mechanisms are ‘toothless’ and a 12 month delay in judicial scrutiny of decisions by officers of the immigration department to detain an individual is too little too late.

Myths and misconceptions

It is a criminal offence to enter a country illegally or without authorisation

In fact, most countries, including Australia, do not regard it as a criminal offence to enter a country without authorisation. So while people are detained, they are not charged with an offense. This is especially important for refugees and asylum seekers. Under International and Australian law a person fleeing persecution is an asylum seeker, which is a legal status. It is prohibited to impose a penalty on a refugee for unlawful entry or presence in a country that is party to the Refugee Convention (such as Australia).

The arrival of boat people in Australia is a threat to our security

In fact, there is no evidence that Australia’s security has ever been threatened by the arrival of boat people on its northern shores. Even at the height of the September 11 hysteria, when arguments were made that the arrival of asylum seekers could be a ‘pipeline for terrorists’, the Director-General of ASIO conceded that not a single unauthorised boat arrival had been found to be a genuine security risk.

Mandatory detention is an essential component of strong border control

In fact, effective control of Australia’s borders has not been compromised by the arrival of boat people even at their highest numbers. With or without mandatory detention, asylum seekers have arrived, had their claims processed, and been granted or denied visas. Mandatory detention is not essential to any of these processes. Furthermore, mandatory detention does not deter asylum seekers desperate to find a safe haven in which to rebuild their lives.