What is Mandatory Detention?
Mandatory detention is the practice of compulsorily detaining or imprisoning people seeking political asylum.
Mandatory detention in Australia is, in practice, limited to only those asylum seekers who apply for refugee status at the border. Other unlawful non-citizens, such as onshore processed asylum seekers who arrive by plane with appropriate documentation, are generally granted bridging visas and released into the community pending the outcome of their claim. Accordingly, the application of the law is inconsistent and provides a legal basis upon which people arriving by boat are found prima facie ‘unfit’ to live freely amongst those in the community.
History of Mandatory Detention in Australia
Prior to 1992, asylum seekers were held in detention under the Migration Act 1958 (Cth) on a discretionary basis. The Migration Amendment Act 1992 (Cth) changed this by introducing mandatory detention for all asylum seekers arriving by boat. The rationale for this rigorous change in migration policy was presented by, immigration minister, Gerry Hand, in his second reading speech:
“The amendment provides the incentive for the parties involved in the process not to embark on tactics calculated to delay the final processing of claims. For its part, the Government has no desire to keep these people in custody longer than necessary and would prefer that a proper decision is made as quickly as possible.”
It was proposed that mandatory detention would:
– facilitate the processing of refugee claims
– prevent unlawful migration, and
– save the cost of re-locating people into the community
The legislation was proposed following an influx of Vietnamese, Chinese, and Cambodian refugees over the preceding years. The legislation disallowed judicial review but maintained a 273 day limit on detention. This limit has since been removed, so the possibility of indefinite detention for exists for asylum seekers or failed applicants.
Statistics and Recent Updates on Immigration Detention
The Department of Immigration and Citizenship periodically publishes weekly statistics setting out the number of people in detention. As at 31 July 2011, there were 5 780 people in immigration detention in Australia. This is a decrease from statistics from 20 May 2011, according to which 6 720 persons were being held in immigration detention.
Currently, Australia has ten operational immigration detention facilities with two more to open in the near future. There are also plans to reopen the Papua New Guinean Manus Island detention centre, which has been closed for the past seven years. A scant Memorandum of Understanding was concluded between Australia and PNG on 19 August but the practical effect of this agreement is in doubt following the recent High Court decision in M70/2011 v Minister for Immigration.
- The Immigration Department says it plans to move asylum seekers into a new detention centre at Wickham Point, south of Darwin, by the end of the year.
Details about the centre:
– 1,500 beds
– Costs to the government for building the facility – $9.2 million.
– Government will pay private developers $74 million over 3 years to lease the site.
– The centre will cost an estimated $300 million per year to operate.
- Immigration Minister Chris Bowen announced plans in April 2011 to house 400 male asylum seekers in a converted army barracks at Pontville, north of Hobart.
A new temporary detention centre is scheduled to be complete in September. The centre, which will be located in Tasmania, is estimated to cost up to $15 million in capital and will be in operation for six months.
- A report on the conditions inside Australia’s immigration detention centres has been provided by Comcare, the Federal Government’s workplace safety agency.
According to Lateline‘s coverage of Comcare’s report, of which only one page of “main points” has been made public, the findings include: “[…] clear indications (that Villawood staff advise were present at the time) that the riots were reasonably foreseeable. Despite the apparent clear indications, no critical incident plans were in place for staff to follow, should such a situation occur.”
Serco is the company that runs the detention network on behalf of the Immigration Department. The Comcare report details how Serco’s staff is thrown into situations of extreme risk with little idea of how to respond:
“Serco staff provided information about the level of serious assaults on staff, witnessing the deaths of detainees and the distress of having to deal with it. Staff also advised of feeling inadequately trained and the lack of instruction, supervision, and support during times of critical incidents.”
Lateline also recently obtained a log of incidents in the Christmas Island Detention Centre detailing up to 12 incidents of self-harm or attempted suicide per day. Comcare’s report suggests that number could be even higher.
Serco is now under investigation by the Commonwealth Ombudsman and a Joint Select Committee was established by Parliament on 16 June 2011 to ‘conduct a comprehensive inquiry into Australia’s Immigration Detention Network, including its management, resourcing, potential expansion, possible alternative solutions, the Government’s detention values, and the effect of detention on detainees.’
 Migration Amendment Act 1992 (Cth) s 3 (inserting s 54Q into the Migration Act 1958 (Cth)).