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Immigration detention and human rights

What are the human rights of people in immigration detention?

The human rights of people in immigration detention are of special concern to the Commission because the right to liberty is a fundamental human right recognised in major human rights instruments to which Australia is a party, including the International Covenant on Civil and Political Rights.

Further, the human rights of vulnerable groups – including children, asylum seekers and refugees – are given special protection under international law.

The conditions for and treatment of people in immigration detention should comply with Australia’s international human rights obligations. These are contained in a range of international treaties the Australian Government has voluntarily become a party to, including:

These treaties cover a broad range of rights and freedoms. The key human rights principles relevant to people in immigration detention include the following:

What is Australia’s law and policy on immigration detention?

Under the Migration Act 1958 (Cth) (Migration Act), it is mandatory for any non-citizen in Australia (other than in an excised offshore place) without a valid visa to be detained. These people – called ‘unlawful non-citizens’ under the Migration Act – may only be released from immigration detention if they are granted a visa or removed from Australia.

Under the Migration Act, unlawful non-citizens in excised offshore places such as Christmas Island may be detained. However the policy of the Australian Government is that all asylum seekers who arrive in excised offshore places will be subject to mandatory detention.

In July 2008, the Minister for Immigration announced a policy known as ‘New Directions in Detention’, which includes seven key immigration values. Of those values, the Commission welcomed the following:

The Commission recommended that these five values be both enshrined in law and implemented in practice as soon as possible. Unfortunately, to date they have not been enshrined in legislation and some of them are not being implemented in practice.

There have however been some positive developments in recent times. In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. In October 2011, the government announced that, following initial health, security and identity checks, increasing numbers of people in immigration detention facilities would be considered for placement in the community on bridging visas or in community detention. The Commission welcomed these developments and is monitoring progress towards their full implementation.

For further information, see:

Who is detained?

Examples of ‘unlawful non-citizens’ detained under the Migration Act include:

For further information on issues relating to people in immigration detention because their visa has been cancelled under the character provisions of the Migration Act, see the Commission's background paper, Immigration detention and visa cancellation under section 501 of the Migration Act.

How many people are in immigration detention?

The number of people being held in immigration detention in Australia changes on a constant basis. The Department of Immigration and Citizenship regularly publishes statistics setting out the number of people in immigration detention.

As at 30 November 2011, there were 5733 people in immigration detention in Australia – 4788 on the mainland and 945 on Christmas Island.

Of these 5733 people, 4409 were being held in immigration detention facilities and 1324 were in community detention.

How long are people held in immigration detention?

There is no set time limit to how long a person may be held in immigration detention in Australia. The period of time a person spends in detention may vary from a few days up to a few years, or even longer.

The Department of Immigration and Citizenship regularly publishes statistics setting out the length of time people have been in immigration detention.

As at 30 November 2011, there were 5733 people in immigration detention in Australia. Of those people, more than half had been in detention for six months or longer and more than two thirds had been in detention for one year or longer. There were 97 people who had been in detention for two years or longer.

Are children detained?

Children are held in immigration detention in Australia. While there have been significant improvements to the conditions in which detained children are held over the past five years, including the recent transfer of many children into community detention arrangements, the Commission continues to have serious concerns about the impact of immigration detention on affected children.

Prior to 2005, hundreds of children and their family members were detained in remote immigration detention centres, some for months or even years. Most of these children had arrived by boat and were seeking asylum in Australia.

The Commission was gravely concerned about the human rights of these children. In 2004, the Commission released A last resort?, the report of its National Inquiry into Children in Immigration Detention. The Inquiry found that the mandatory immigration detention system was fundamentally inconsistent with Australia’s obligations under the Convention on the Rights of the Child (CRC). Under the CRC, a child should only be detained as a measure of last resort and for the shortest appropriate period of time. The Inquiry also found that children who are detained for long periods are at high risk of serious mental harm.

In 2005, the Migration Act was amended to affirm ‘as a principle’ that a minor should only be detained as a measure of last resort. Children are now no longer held in Australia's high security immigration detention centres. However, children are still held in low security immigration detention facilities. These include immigration residential housing in Sydney, Perth and Port Augusta, immigration transit accommodation in Melbourne, Brisbane and Adelaide and various ‘alternative places of detention’ on Christmas Island and the mainland. The Commission has significant concerns about this practice.

The Commission is particularly concerned about the mandatory detention of child asylum seekers on Christmas Island. The policy of the Australian Government is that all asylum seekers who arrive in excised offshore places will be subject to mandatory detention – this includes families with children and unaccompanied minors.

The Department of Immigration and Citizenship publishes statistics setting out the number of people, including children, in immigration detention. As at 30 November 2011, there were 975 children in immigration detention on the mainland and Christmas Island. Of these, 534 children were in community detention and the remainder were in immigration detention facilities.

In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. The Commission welcomed this announcement and encouraged the government to expand the initiative to include all children in immigration detention. As the statistics above show, significant progress has been made in moving children into community detention, but many children remain in immigration detention facilities.

For further information on issues relating to children in immigration detention see:

Where are people detained?

Immigration detention centres

Immigration detention centres (IDCs) are the most secure of Australia’s immigration detention facilities. As of January 2012 there were IDCs in the following locations:

The Australian Government is planning to open an additional IDC at Yongah Hill (Northam) in Western Australia.

Immigration residential housing

The immigration residential housing (IRH) facilities are closed detention facilities, but they have less intrusive security measures than IDCs. They provide more flexible accommodation including housing that can accommodate families. As of January 2012 there were three IRH facilities:

Immigration transit accommodation

Immigration transit accommodation (ITA) facilities are closed detention facilities, but they have less intrusive security measures than IDCs. They were originally intended to be used for people who were departing Australia or transitioning to other places of detention, but have increasingly been used for longer-term stays. As of January 2012 there were three ITA facilities:

Alternative places of detention

Immigration detainees may be held in designated alternative places of detention. These can include places such as correctional centres, hospitals, hotels, psychiatric facilities, foster care arrangements, or with a designated person at a private residence. For people detained in one of these alternative places of detention, the conditions and restrictions on them will depend on where they are held and what arrangements are made for a designated person to supervise their detention.

There are also a number of low security immigration detention facilities that are classified by DIAC as alternative places of detention. These include the Construction Camp on Christmas Island and facilities in Perth, Leonora, Darwin, Brisbane and Inverbrackie. People detained in such facilities remain under supervision and are not free to come and go.

Community detention

Some immigration detainees are permitted to live in the community in what is known as ‘community detention’. This was introduced in 2005, when the Migration Act was amended to allow the Minister for Immigration to make residence determinations. Under a residence determination, a person in immigration detention is permitted to live at a specified residence in the community.

People in community detention are generally not under physical supervision. However, legally they remain in immigration detention. There are conditions attached to their residence determination, which can include requirements such as reporting to DIAC on a regular basis, and sleeping at a particular residence every night. People who are placed in community detention are not permitted to work.

Why are some people detained on Christmas Island?

In September 2001, the Migration Act was amended to designate a number of islands, including Christmas Island, as ‘excised offshore places’. A person who becomes an unlawful non-citizen (a non-citizen without a valid visa) by entering Australia at such a place is referred to as an ‘offshore entry person’. The purpose of these amendments was to bar offshore entry persons from being able to apply for a visa, unless the Minister for Immigration determines that it is in the public interest to allow them to do so.

Under the Migration Act, unlawful non-citizens in excised offshore places such as Christmas Island may be detained. However the policy of the Australian Government is that all asylum seekers who arrive in excised offshore places will be subject to mandatory detention.

The Commission has significant concerns about the mandatory detention and offshore processing of asylum seekers on Christmas Island. The Commission has recommended that the Australian Government stop using Christmas Island as a place in which to hold people in immigration detention, and repeal the provisions of the Migration Act relating to excised offshore places.

For further information on these issues see:

Are there minimum standards for conditions in immigration detention?

Australian law and policy do not set out standards for conditions or treatment of people in immigration detention. The Commission has recommended that minimum standards should be codified in Australian law, to ensure that conditions in immigration detention comply with internationally accepted human rights standards.

As discussed above, conditions for people in immigration detention should comply with Australia’s international human rights obligations, as contained in a range of treaties to which Australia is a party.

In addition, there are a range of international guidelines relating to the treatment of detained persons. These include:

In 2000, the Commission developed the Immigration Detention Guidelines, based on relevant international standards. The Guidelines are intended to act as a minimum benchmark against which conditions in Australia’s immigration detention facilities can be measured.

Does Australia’s mandatory detention system breach human rights?

Australia continues to have one of the strictest immigration detention regimes in the world – it is mandatory, it is not time limited, and people are not able to challenge the need for their detention in a court. The Commission has for many years called for an end to this system because it leads to breaches of Australia’s human rights obligations, including the obligation not to subject anyone to arbitrary detention.

To avoid being arbitrary, detention must be necessary and reasonable in all the circumstances of the case, and a proportionate means of achieving a legitimate aim. If that aim could be achieved through less invasive means than detaining a person, their detention will be arbitrary.

Australia’s mandatory detention system fails to provide a robust and transparent individual assessment mechanism to determine whether the immigration detention of each person is necessary, reasonable or proportionate. The detention of unlawful non-citizens is not an exceptional step, but the norm – and it is often for lengthy periods.

The Commission acknowledges that use of immigration detention may be legitimate, in some circumstances, for a strictly limited period of time. However, the need to detain a person should be assessed on a case-by-case basis taking into consideration their individual circumstances. A person should only be held in an immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and that risk cannot be met in a less restrictive way. Otherwise, they should be permitted to reside in community-based alternatives while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks.

Further, under Australia’s international human rights obligations, anyone deprived of their liberty should be able to challenge their detention in a court. To comply with article 9(4) of the ICCPR, the court must have the power to order the person’s release if their detention is not lawful. The lawfulness of their detention is not limited to compliance with Australia’s domestic law – it extends to whether their detention is compatible with the requirements of article 9(1) of the ICCPR, which affirms the right to liberty and prohibits arbitrary detention.

Currently, in breach of its international obligations, Australia does not provide access to such review. While people in immigration detention may be able to seek judicial review of the domestic legality of their detention, Australian courts have no authority to order that a person be released from immigration detention on the grounds that the person’s continued detention is arbitrary, in breach of article 9(1) of the ICCPR.

For further information see:

Children’s rights

In 2004 the Commission released A last resort?, the report of its National Inquiry into Children in Immigration Detention. The Inquiry found that the mandatory immigration detention system was fundamentally inconsistent with Australia’s obligations under the Convention on the Rights of the Child.

In particular, the Inquiry found that the mandatory detention system failed to ensure that children would only be detained as a measure of last resort and for the shortest appropriate period of time. In addition, long-term detention significantly undermines a child’s ability to enjoy a range of other human rights, including the right to education and the right to enjoy the highest attainable standard of physical and mental health.

In 2005 the Migration Act was amended to affirm ‘as a principle’ that a child should only be detained as a measure of last resort. Now, children are no longer detained in high security immigration detention centres. However, children are still held in lower security immigration detention facilities. The Commission continues to have significant concerns about this, as discussed above. In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. And, while significant numbers of children remain in immigration detention facilities, many have been transferred into community detention.

For further information see:

Are there viable alternatives to mandatory and indefinite detention?

There are effective alternatives to holding people in immigration detention centres or other closed facilities for prolonged and indefinite periods. In fact, the use of community-based alternatives is required of the Australian Government under its international obligations.

There are a wide range of benefits associated with community-based alternatives to holding people in immigration detention facilities for prolonged periods. These can include physical and mental health benefits; lower costs; the lodgment of fewer compensation claims for wrongful detention; faster and easier immigration processing; high rates of compliance with immigration processes; easier transition to life as an Australian resident when people are found to be refugees and increased willingness to return when people are found not to be owed protection.

The Australian Government already uses some positive community-based alternatives for people who would otherwise be subject to detention in immigration facilities. For example, bridging visas have for years been granted to many asylum seekers who arrive in Australia by plane. These are temporary visas that allow a person to live freely in the community while their immigration status is resolved or while they are waiting to leave the country. Further, people in immigration detention may be issued a residence determination which allows them to live at a specified residence in the community while legally remaining in detention. People in community detention are generally not under supervision and can move about in the community, subject to conditions such as reporting regularly to authorities.

For years, the Commission repeatedly raised concerns about the under-utilisation of community-based alternatives including community detention and the grant of bridging visas. However, there have been some positive developments in recent times.

In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. Considerable numbers of people were moved out of closed detention facilities under this initiative. In October 2011, the government announced that increasing numbers of people in immigration detention facilities would be considered for placement in the community on bridging visas and in community detention. The Commission looks forward to the full implementation of this policy announcement.

The Commission welcomed both these developments. However, with its system of mandatory, indefinite, non-judicially reviewable detention, Australia continues to have one of the strictest immigration detention regimes in the world and significant numbers of people remain in closed detention facilities.

For further information about community-based alternatives to facility based detention, see:

How does the Commission promote and protect the human rights of people in immigration detention?

The Commission has monitored and reported on the conditions for people in immigration detention in Australia for more than a decade. The Commission’s work on immigration detention includes:

Investigating complaints about alleged breaches of human rights in immigration detention facilities

Do you think you have been discriminated against, or had your human rights breached, while in immigration detention?

The Commission has statutory powers to investigate complaints by individuals about alleged breaches of their human rights while in immigration detention.

The Commission usually attempts to resolve these complaints through conciliation between the parties. If conciliation is unsuccessful or inappropriate and the Commission finds that there has been a breach of human rights, it can prepare a report of the complaint for the federal Attorney General. Such reports must be tabled in Parliament. However, the Commission cannot legally enforce the recommendations it makes in these reports.

Past Commission reports have found breaches of human rights including the following:

Click here to read Commission reports on breaches of human rights in immigration detention.

Click here for further information about the Commission’s complaints handling powers and procedures.

National Inquiries

Visits to immigration detention facilities

The Commission conducts visits to Australia’s immigration detention facilities in order to monitor conditions in the facilities. The Commission’s aim is to ensure that conditions meet internationally accepted human rights standards.

The general procedure for a Commission visit to an immigration detention facility is as follows:

The Commission releases public reports outlining issues of concern arising from its visits to immigration detention facilities. See the Commission’s current and past reports below.

Recent reports on visits to immigration detention facilities

In September 2011, the Commission released a report on its visit to Curtin Immigration Detention Centre in Western Australia:

In May 2011, the Commission released a public statement on its visit to the immigration detention facilities at Villawood in NSW:

In February 2011, the Commission released a public statement on its visit to the immigration detention facility in Leonora, Western Australia:

In December 2010, the Commission released a public statement on its visit to the immigration detention facilities in Darwin:

In October 2010, the Commission released a report on its 2010 visit to the immigration detention facilities on Christmas Island:

Past reports on visits to immigration detention facilities

Photos taken during visits to immigration detention facilities

Click here to view photos taken during Commission visits to immigration detention facilities.

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