Monthly Archives: July 2013

What is Mandatory Detention?

Mandatory detention is the practice of compulsorily detaining or imprisoning people seeking political asylum. While Australia is not the only country to detain unauthorised arrivals in certain circumstances, it is the only country where there is mandatory immigration detention for all unlawful non-citizens. Currently, asylum seekers who arrive without authority by boat are detained and usually transferred to Christmas Island while their reasons for being in Australia are identified.[1] 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[2]

Prior to 1992, asylum seekers were held in detention under the Migration Act 1958 (Cth) on a discretionary basis.[3] Mandatory detention was introduced under the Migration Amendment Act 1992 (Cth). The initial purpose of this policy was as a temporary and exceptional measure to deal with a particular class of individuals. That is, Indochinese unauthorised boat arrivals fleeing in the aftermath of the Vietnam War.[4]

Immigration Minister, Gerry Hand, presented the rationale for this rigorous change in migration policy 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.’[5]

It was proposed that mandatory detention would:

  1. Facilitate the processing of refugee claims;
  2. Prevent unlawful migration; and
  3. Save the cost of re-locating people into the community.

With the enactment of the Migration Reform Act 1992, the class of individuals falling under the application of the mandatory detention provisions has been extended to all ‘unlawful’ non-citizens.[6] The Act distinguished between ‘lawful’ non-citizens and ‘unlawful’ non-citizens. The former are those who could acquire lawful status by the grant of a bridging visia and thereby avoid detention. The latter, ‘unlawful’ non-citizens, including unauthorised boat arrivals had arrived in Australia without authority and therefore, were not afforded the opportunity to apply for a bridging visa. The Migration Reform Act 1992 also removed the temporary, 273-day detention limit that applied under the Migration Amendment Act 1992 allowing for the possibility of indefinite detention for asylum seekers or failed applicants.

Howard Government

The Howard Government was responsible for giving effect to the Pacific Solution; a policy of offshore processing which essentially excised Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands from Australia’s migration zone. This meant that non-citizens arriving unlawfully at one of these territories could not make a valid application for a visa to Australia.[7] Instead, unauthorised arrivals were transferred to offshore processing centers on Nauru and Manus Island (Papua New Guinea) until their asylum claims were processed.

Rudd and Gillard Government

The Rudd Government formally ended the Pacific solution on 8 February 2008. However, in response to increases boat arrivals, the Gillard Government reversed this decision in 2012 and reintroduced the policy of transferring asylum seekers to offshore processing centers in both Nauru and Papua New Guinea.[8]

A new direction for immigration detention policy was announced in 2008 with the aim of allowing the government to maintain a strong stance on border security while, treating people fairly and humanely. Under this new policy, detention was seen as a ‘last resort’ as opposed to standard practice.[9] Despite this, in practice, long-term mandatory detention continues. Poignantly, on 9 April 2010, the Rudd Government announced it would suspend the processing of new asylum claims from Sri Lankan nationals for three months and Afghan nationals for a period of six months due to changed circumstances in Afghanistan and Sri Lanka.  Those affected by the suspension remained indefinitely in immigration detention until the suspension was lifted in July 2010 for Sri Lankans, and September 2010 for Afghans.[10]

Recently, The Gillard Government accepted all the recommendations of the Expert Panel on Asylum Seekers Report released on 13 August 2012. The report put forward ‘an integrated set of proposals’ including the short-term options for legislation that allowed for the establishment of processing centers in Nauru and Papua New Guinea.[11] The Government also introduced a ‘no advantage’ principle meaning that asylum seekers could not be resettled any sooner than they would have been had they not travelled to Australia by boat.[12] Due to the large number of arrivals in 2012, it was announced that people who arrived after 13 August 2012 would not necessarily be transferred offshore but would still have the ‘no advantage’ principle applied to their case onshore and if found to be refugees, may not be issued with permanent protection visas but instead could be issued with bridging visas without work rights.[13]

Statistics and Recent Updates on Immigration Detention


The Department of Immigration and Citizenship periodically publishes statistics setting out the number of people in detention. As at 30 April 2013, there were 8797 people in immigration detention in Australia.[14] This figure included 6302 people in immigration detention facilities on the mainland, and a further 2495 in immigration detention on Christmas Island.

The aim of immigration detention centers are to accommodate a range of unlawful non-citizens, mainly people who have over-stayed their visa, people in breach of their visa conditions, or people who were refused entry at Australia’s international airports.[15] Currently, Australia has 10 operational immigration detention facilities.[16]  These detention centers are located at Villawood (Sydney), Maribyrnong (Melbourne), Perth, Christmas Island, Darwin (Northern Territory), Curtin (Western Australia), Scherger (Queensland), Wickham Point (Northern Territory), Pontville (Tasmania), and Yongah Hill (Western Australia).

Conditions in Detention

Immigration detention centers are often located in remote locations such as Weipa, the Northern Territory and Wickham Point. The duration and conditions, including overcrowding and inadequate infrastructure, in these centers has resulted in several hunger strikes, rooftop demonstrations and suicide attempts. On 29 November 2011, the Government released an independent report that reviewed incidents of unrest at the Christmas Island and Villawood detention centers earlier in 2011. The report found that the immigration detention infrastructure on Christmas Island was not able to cope with either the number or varying risk profiles of detainees.[17] A further report by the Australian National Audit Office (ANAO) in February 2013 found that there is ‘considerable variability’ in the standard of services delivered across the detention network and that ‘inconsistency in service provision can lead to tensions within the detainee population’, which in turn may contribute to unrest.[18]  In summary, detention can be harmful to individuals health and wellbeing, and of more concern, it is not consistent with individual’s fundamental right to liberty.[19]

Sarah Brown

[1] Australian Government Department of Immigration & Citizenship, Irregular Maritime Arrivals: You arrived in Australia from 13 August 2012 <;.

[2] For more information on the history of mandatory detention see, Janet Phillips and Harriet Spinks, ‘Boat arrivals in Australia since 1976’ (Background Note, Parliamentary Library, 15 July 2011) <;.

[3] The Migration Legislation Amendment Act 1989 allowed officers to arrest and detain anyone suspected of being an ‘illegal entrant’.

[4] Joint Standing Committee on Migration, Immigration detention in Australia: a new beginning: criteria for release from detention, The Parliament of the Commonwealth of Australia, Canberra, September 1990, 3.

[5] Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1992, 2370 (Gerry Hand).

[6]  The Migration Reform Act 1992 came into effect 1 September 1994.

[7] Under the Migration Amendment (Excision from Migration Zone) Bill 2001 and Migration Amendment (Excision from Migration Zone) Bills 2001.

[8] Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; Janet Phillips,  ‘The ‘Pacific Solution’ revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island’ (Background Note, Parliamentary Library, Parliament of Australia, 4 September 2012) 2.

[9] Minister for Immigration and Citizenship Chris Evans, ‘New Directions in Detention – Restoring Integrity to Australia’s Immigration System’ (Speech delivered at Australian National University, Canberra, 29 July 2008) <;.

[10] Minister for Immigration and Citizenship Chris Bowen, ‘Suspension of processing of Afghan asylum seeker claims to be lifted’ (Media Release, 30 September 2010) <>; Paul Maley and Lanai Vasek, ‘Processing ban on Afghan asylum-seekers lifted’, The Australian  (online), 1 October 2010, <;.

[11] Expert Panel on Asylum Seeekers, Report of the Expert Panel on Asylum Seekers, Department of the Prime Minister and Cabinet, Canberra, August 2012, 7-8 <>.

[13] Minister for Immigration and Citizenship Chris Bowen, ‘No advantage onshore for boat arrivals’ (Media Release, 30 September 2010) <;.

[14] DIAC, Immigration Detention Statistics Summary (30 April 2013) Australian Government Department of Immigration and Citizenship <;.

[15] Australian Government Department of Immigration and Citizenship, About Immigration Detention Facilities (2013) <;.

[16] DIAC, ‘Location of Operational Facilities’ (2012) <>.

[17] A Hawke and H Williams, Independent Review of the Incidents at the Christmas Island Immigration Detention Center and Villawood Immigration Detention Centre (31 August 2011) Australian Government Department of Immigration and Citizenship <>.

[18] The Auditor- General, Individual Management Services Provided to People in Immigration Detention Canberra (11 February 2013) Australian National Audit Office <;.

[19] Janet Phillips and Harriet Spinks, ‘Boat arrivals in Australia since 1976’ (Background Note, Parliamentary Library, 15 July 2011) 171 <;.



Filed under Immigration Detention

Update: Plaintiff S138/2012 v Director General of Security & Ors

Since our last post concerning the case of Plaintiff S138, the plaintiff has been released from detention on the recommendation of Justice Stone and therefore, the hearing has been vacated and the matter concluded. However, the legal questions including statutory construction and the constitutional validity of detention raised within the post remain undecided.


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