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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, including in article 9(1) of 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 immigration detention policy?

Under the Migration Act 1958 (Cth), it is mandatory for any non-citizen in Australia (other than in an excised offshore place) without a valid visa to be detained. These persons – called ‘unlawful non-citizens’ under the Migration Act – may only be released 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. The current policy of the Australian Government is that all unauthorised boat arrivals in excised offshore places will be subject to mandatory detention on Christmas Island.

In July 2008, the Minister for Immigration announced new directions for Australia’s immigration detention system. Click here to read the Minister’s speech. The new directions are based on seven key immigration values. Of these values, the Commission welcomes the following:

The Commission welcomes the statement of the above values and hopes to see them translated into policy, practice and legislative change as soon as possible.

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.

Are children detained?

Prior to 2005, hundreds of children and their family members were detained in immigration detention centres in Australia. These numbers reached a peak in 1999-2000 when as many as 1923 children were detained. Most of these children had arrived by boat with their family members, and were seeking asylum. Some children had arrived unaccompanied.

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 report found that the immigration detention of children placed the Australian Government in breach of its international human rights obligations, particularly under the Convention on the Rights of the Child. Under the Convention, the detention of a child should only be used as a measure of last resort and it should be for the shortest appropriate period of time.

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. Since that change, children are no longer held in high security immigration detention centres. Many children are either given a bridging visa or are placed in community detention.

However, some children are still held in lower security immigration detention facilities. These include immigration residential housing in Sydney and Perth, immigration transit accommodation in Melbourne and Brisbane and various alternative places of immigration detention. The Commission has significant concerns about this practice.

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

Some children (including unaccompanied minors) are detained in a closed immigration detention facility on Christmas Island – the ‘construction camp’. The Commission considers this a concerning regression from the 2005 changes to the Migration Act which affirmed the principle that children should only be detained as a last resort.

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

Where are people detained?

Immigration detention facilities

Most immigration detainees are held in closed immigration detention facilities. These include immigration detention centres, immigration residential housing and immigration transit accommodation.

The immigration detention centres (IDCs) are the most secure facilities. As of October 2009 there were IDCs in the following locations:

The immigration residential housing (IRH) facilities are closed detention facilities, but they have less intrusive security measures than IDCs. Tthey provide more flexible accommodation including housing that can accommodate families. As of October 2009 there were two IRH facilities:

Immigration transit accommodation (ITA) facilities are closed detention facilities, but they have less intrusive security measures than IDCs. They are generally used for short term detention, usually for ‘low risk’ detainees. As of October 2009 there were two ITA facilities:

Alternative places of immigration detention

Immigration detainees can also be held in alternative places of immigration detention. These include places such as correctional centres, hospitals, hotels and psychiatric facilities. They can also include foster care arrangements, and detention in the community with a designated person at a private residence.

For people held in an alternative place 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.

On Christmas Island, DIAC uses a former construction workers’ camp as an alternative place of immigration detention. People held at the construction camp - which may include families with children and unaccompanied minors - are in immigration detention 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, an immigration detainee can live at a specified residence in the community.

These people are not under physical supervision. However, legally they remain in immigration detention. There are conditions attached to their Residence Determination, which usually include requirements such as reporting to DIAC on a regular basis, sleeping at their stipulated residence every night, and refraining from engaging in paid work or a formal course of study.

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.

Further, under the Migration Act, an offshore entry person can be removed to a ‘declared country’ using ‘such force as is necessary and reasonable’. Previously, asylum seekers were transferred to immigration detention centres on Nauru and Manus Island as part of the ‘Pacific solution’.

The Commission commended the current Australian Government for closing those detention centres in 2008. However, the government has stated its commitment to retaining the excision of offshore islands, and to detaining unauthorised boat arrivals on Christmas Island.

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 should stop using Christmas Island as a place in which to hold people in immigration detention, and should 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 does not set out standards for conditions or treatment of people in immigration detention. The Commission has recommended in the past that minimum standards should be codified in Australian law, to ensure that conditions in immigration detention comply with internationally accepted human rights standards.

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?

The Commission has consistently called for an end to mandatory immigration detention because it places Australia in breach of its obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

The ICCPR and the CRC require Australia to respect the right to liberty and to ensure that no one is subjected to arbitrary detention. If detention is necessary in exceptional circumstances then it must be a proportionate means to achieve a legitimate aim and it must be for a minimal period.

The Commission accepts that immigration detention may be legitimate for a strictly limited period of time in order to obtain basic information about health, security and identity. However, under current practice, the detention of unlawful non-citizens is not an exceptional step, but the norm - and it is often for lengthy periods.

The Migration Act does not permit the individual circumstances of detention of a non-citizen to be taken into consideration by the Australian courts. It does not permit the reasonableness and appropriateness of detaining an individual to be considered by the courts. Australia is therefore in breach of its obligations under the ICCPR (article 9(4)) and the CRC (article 37(d)), which require that a court be empowered to order an individual’s release from detention, if appropriate.

For further information see:

Children’s rights

In A last resort? the Commission found that Australia’s mandatory detention laws led to numerous breaches of the CRC, including those provisions requiring special protection for child asylum seekers and refugees.

In particular, the Commission found that the mandatory detention system leads to a fundamental breach of a child’s right to be detained only 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 important human rights, for example 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 the principle that children should only be detained as a last resort. Children are no longer detained in high security immigration detention centres. However, children are still held in lower security immigration detention facilities and in community detention, as discussed above.

For further information 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 of immigration detainees in Australia since the introduction of mandatory detention in 1992. 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

Inspections of 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.

Current reports on immigration detention facilities

In October 2009, the Commission released the report of its 2009 visit to the immigration detention facilities on Christmas Island:

Past reports on immigration detention facilities