Mandatory detention in Australia

From Wikipedia, the free encyclopedia.

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.

A High Court decision in 2005 means that detention can also be indefinite. Palestinian asylum seeker Peter Qasim is unable to return to the Occupied Territories, making him effectively stateless, and his application for asylum has been rejected. The Court ruled that the government had the right to keep him in detention, even without any prospect of release.

Contents

1 History of Mandatory detention

2 Effect of mandatory detention on detainees

3 Criticism

4 Australian Citizens Detained

5 References

6 External Links

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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.

This thereby laid the foundation for the most controversial aspect of mandatory detention - indefinite detention in purpose built 'detention centres' in remote areas run by correctional services, without charge or trial.

Under section 196 of the Australian Migration Act some 9500 asylum seekers were detained. Many of these were men, women and children from Iraq and Afghanistan who saught protection or asylum under Australia's obligations to the United Nations Convention Relating to the Status of Refugees. Over 80 percent of these were found to be refugees by the Immigration Department, with decisions taking up to 8 months or more. Few asylum seekers were able to be repatriated, with 278 detainees in October 2003 when the system was at its peak being incarcerated for between two and three years. Australia's longest serving detainee Peter Qasim has been detained for over 6 years without charge or trial. Those eventually found to be refugees were issued with a temporary protection visa which forms a parallel plank of the government's refugee policy.

Mandatory detention of asylum seekers was popular with the Australian electorate and helped John Howard win the 2001 federal election. While the Australian Labor Party supported the policy from Opposition, in June 2005 a small backbench revolt in Howard's own party led by Petro Georgiou and Judith Moylan resulted in some concessions to humanitarian concerns, including the promised release of long term detainees and review of future cases by an ombudsman.

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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.

For more information on the effects of mandatory detention on detainees, see Woomera Immigration Reception and Processing Centre.

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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)

The system of mandatory detention, while popular with a majority of voters, has been the subject of passionate controversy. Opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees to name a few. Among the intellectual opponents of the system has been Professor Robert Manne, whose Quarterly Essay "Sending Them Home: Refugees and the New Politics of Indifference" (2004) called for an end to both mandatory detention and the temporary protection visa system on humanitarian grounds.

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Australian Citizens Detained

In February 2005 it was revealed that a mentally ill Australian citizen, Cornelia Rau, had been held in detention as an unauthorized immigrant for ten months. In May, it was revealed that a total of 33 cases of people being wrongfully detained under the Migration Act were known, including one case of a women forcibly deported and subsequently missing. As of May it was not known how many actually spent time in an immigration detention facility. By late May, over 200 cases of possible wrongful immigration detention had been referred to the Palmer Inquiry.

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References

"ABC News Online (http://www.abc.net.au/news/newsitems/200502/s1296993.htm)." Secrecy blamed for Rau's ordeal. Accessed on May 3, 2005.
"The Age (http://www.theage.com.au/news/National/Govt-says-33-have-been-wrongly-detained/2005/05/02/1114886315719.html)." Govt says 33 have been wrongly detained. Accessed on May 3, 2005.
"The Sydney Morning Herald (http://www.smh.com.au/news/National/Wrongful-detention-200-cases-go-to-inquiry/2005/05/25/1116950727865.html)." Wrongful detention: 200 cases go to inquiry. Accessed on June 8, 2005.