Immigration detention in Australia
The Australian government has a policy and practice of detaining in immigration detention facilities non-citizens not holding a valid visa, suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and removal in immigration detention until a decision is made by the immigration authorities to grant a visa and release them into the community, or to repatriate them to their country of origin/passport. Persons in immigration detention may at any time opt to voluntarily leave Australia for their country of origin, or they may be deported or given a bridging or temporary visa. In 1992, Australia adopted a mandatory detention policy, obliging the government to detain all persons entering or being in the country without a valid visa, while their claim to remain in Australia is processed and security and health checks undertaken. Also, at the same time, the law was changed to permit indefinite detention, from the previous limit of 273 days. The policy was instituted by the Keating government in 1992, and was varied by the subsequent Howard, Rudd, Gillard, Abbott, Turnbull, Morrison and Albanese governments. The policy is regarded as controversial and has been criticised by a number of organisations. In 2004, the High Court of Australia confirmed the constitutionality of indefinite mandatory detention of non-citizens in Al-Kateb v Godwin. However, this interpretation was overturned in a landmark decision, NZYQ v Minister for Immigration, in 2023, with the High Court concluding the practice was unlawful and unconstitutional.
Mandatory detention rules also apply to persons whose visa has been cancelled by the Minister, for example on character grounds, allowing such persons to be detained in immigration detention and deported, some after living in Australia for a long period. Furthermore, if a person has Australian citizenship and another citizenship, their Australian citizenship can be revoked.
Length of detention
There is no maximum time limit for detaining a person in Australia under immigration laws. The length of immigrant detention has steadily increased in the past decade, and as of May 2020, the average period of time for people held in detention facilities was 553 days. The Australian Department of Home Affairs provides updated monthly detention statistics.In some cases, people have been held in detention for over 10 years, such as Ghader, an Ahwazi man from Iran who has been detained since 2010, and Said Imasi, a stateless man born in Western Sahara. Ghader has a daughter, born in 2015, whom he has not seen since she was a baby. In February 2019, Imasi made a legal challenge to the High Court of Australia, attempting to overturn the landmark Al Kateb v Godwin decision.
In June 2019, it was revealed that a Tamil man from Sri Lanka had been held in detention for 9 years. The man, who was blind, as well as mentally and physically disabled, was being held in Villawood Detention Centre at the time of publishing. In 2002–2003, the man was captured by the Sri Lankan Army and tortured, after which he fled the country. He was recognised as a refugee by Australia, but received an adverse security assessment from Australian Security Intelligence Organisation.
Behrouz Boochani was held in offshore detention at the Manus Island Detention Centre from 2013 to 2017, and was detained elsewhere on Papua New Guinea until 2019.
History of mandatory detention
Mandatory detention of asylum seekers in Australia was established by the Keating government by the Migration Reform Act 1992 which came into operation on 1 September 1994. It was originally intended as an interim measure. Controls on unauthorised arrivals were tightened under the subsequent Howard government, including under the Pacific Solution policy, contributing to a sharp decline in boat arrivals and, consequently, to numbers of people being detained. The Pacific Solution was dismantled by the Rudd government and partially restored under the Gillard government in response to increased boat arrivals and reported deaths at sea.Mandatory detention was introduced to "support the integrity of Australia's immigration program" and "management of Australian borders" and to distinguish between those who have submitted themselves to offshore entry processes prior to arrival and those who have not. Under the policy, asylum seekers are mandatorily detained while they "undergo an assessment process, including security and health checking, to establish if they have a legitimate reason for staying in Australia".
Keating government (1992–1996)
Before 1992, the Migration Legislation Amendment Act 1989 had created a regime of administrative detention of unlawful boat arrivals. Although officers were obligated to arrest and detain anyone suspected of being an ‘illegal entrant’, detention was discretionary. Between November 1989 and January 1994, there was a "second wave" of unauthorised boat arrivals comprising eighteen boats carrying 735 people.By June 1992, there were 478 people in immigration detention of whom 421 were boat arrivals, compared to five in immigration detention in January 1985. The Keating government's interim measures in 1992 were contained in the Migration Amendment Act 1992, which set up a regime of mandatory detention, with bipartisan support. Immigration Minister Gerry Hand told Parliament in his Second Reading Speech:
The Migration Amendment Act 1992 did impose a 273-day limit on detention, but specifically disallowed judicial review. The final scheme was contained in the , which came into operation on 1 September 1994, which broadened the application of mandatory detention to all who did not hold a valid visa, and removed the 273-day detention limit. The Act also introduced detention charges whereby an unlawful non-citizen was liable for the costs of his or her immigration detention.
Non-citizens in Australia without a valid visa were to be considered unlawful and would have to be held in detention, though those who met certain criteria and were not considered flight or security risks could secure lawful status by means of a bridging visa – but bridging visas would not be made available to those who arrived in Australia without visas in the first place. The government argued that this distinction was justifiable because visa overstayers had already submitted themselves to proper entry processing offshore and were therefore in a different category to those who had not and that boat arrivals had demonstrated a high likelihood of absconding where detention was not in place.
Howard government (1996–2007)
The Liberal-National Party Coalition led by John Howard defeated the Keating government in the 1996 federal election. In 1999 the Howard government created the temporary protection visa category for asylum seekers whose claims for refugee status had been accepted. These visas were granted only to unauthorised arrivals and were criticised because they left the refugee in limbo indefinitely. These people did not have rights to work, to family reunion, a right to return to Australia if they left, and their status was to be reviewed every three years.Australia's immigration policies towards asylum seekers were a significant issue in the 2001 federal election. Howard said in a campaign policy speech:
The Tampa affair arose during the election campaign. Following the election, the Howard government made significant changes to Australia's immigration policy. It put in place a policy known as the Pacific Solution, which was enacted via an amendment to the Migration Act 1958, the Migration Legislation Amendment Act 2001 reinforced the practice of mandatory detention, providing for the indefinite detention of asylum seekers. The policy was implemented by then Australian Immigration Minister Philip Ruddock. Under this policy, many islands were excised from the Australian migration zone, and asylum seekers were removed to third countries to determine their refugee status, namely at detention camps on small island nations in the Pacific Ocean. Also, a policy of turning back boats where possible was instigated. Howard's policies were often controversial, were criticised by some human rights groups and were the subject of protest both within and without detention centres. Through the final years of the Howard government, Australia's detention facilities were near empty, few boat voyages were being attempted and the practice of detention of children had been ended.
Also in 2001, the Border Protection Bill provided the government with the power to remove any ship in the territorial waters of Australia, use reasonable force to do so, provide that any person who was on the ship be forcibly returned to the ship, and guaranteed that no asylum applications may be made by people on board the ship.
Mandatory detention of asylum seekers was popular with sections of the Australian electorate. Some commentators argue that it helped Howard win the 2001 federal election. While the Australian Labor Party supported the policy as Opposition, in June 2005 a small backbench revolt in Howard's party led by Petro Georgiou and Judi Moylan resulted in some concessions to humanitarian concerns, including the promised release of long-term detainees and review of future cases by an ombudsman.
Many of those detained in Australia's detention centres between 1999–2006 have been asylum seekers from Iraq and Afghanistan who sought protection or asylum under Australia's obligations to the United Nations Convention Relating to the Status of Refugees. More than 80 percent of these were found to be refugees by the Immigration Department, with some decisions taking more than 8 months. Few asylum seekers were able to be repatriated.
On 6 August 2004, the High Court of Australia handed down its decision in the case of Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and held that the harsh conditions of detention did not render the detention unlawful. On the same day, the High Court also handed down its decision in Al-Kateb v Godwin which held that unsuccessful asylum seekers who could not be removed to another country, despite their wish to leave Australia, could continue to be held in immigration detention indefinitely.