Immigration detention and human rights
- What are the human rights of people in immigration detention?
- What is Australia’s immigration detention policy?
- Who is detained under Australia’s immigration detention policy?
- Where are they detained?
- Are children kept in immigration detention?
- What are excised offshore places?
- Is Australia’s policy of mandatory immigration detention a breach of human rights?
- How are the rights of detainees protected in immigration detention centres?
- How does HREOC protect and promote the human rights of people in immigration detention?
What are the human rights of people in immigration detention?
The human rights of people in immigration detention are of special concern to the Human Rights and Equal Opportunity Commission because the right to liberty is a fundamental human right recognised in all major human rights instruments, such as article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).
While international law recognises that there are occasions when the state deprives people of their liberty, it also says that detention must not be unlawful and must not be arbitrary (ICCPR, article 9(1)).
People deprived of their liberty must also be treated with humanity and respect for the inherent dignity of their person.
The human rights of those with special needs – in particular children
and asylum seekers and refugees – deserve special protection.
What is Australia’s immigration detention policy?
Since 1992, Australia’s Migration Act 1958 (Cth) has made it mandatory for any person in Australia 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. This can take weeks, months or even years.
Who is detained under Australia’s immigration detention policy?
Examples of ‘unlawful non-citizens’ who will be detained under the Migration Act include:
- people who have arrived in Australia by plane or boat without a visa, including those seeking asylum from persecution in their countries of origin
- students who have had their visas cancelled for breaching the conditions of their visa
- people who overstayed their visa
- people who have had their visas (including permanent residency visas) cancelled on character grounds
- illegal foreign fishers.
Children and their families may also be
detained, although since 2005 children and their families have generally been
placed in community detention rather than facility-based detention (see
below).
Where are they detained?
The majority of immigration detainees are kept in immigration detention facilities. As at June 2008 these are:
- Villawood Immigration Detention Centre (IDC) in Sydney, NSW
- Maribyrnong IDC in Melbourne, VIC
- Perth IDC in Perth, WA
- Northern IDC in Darwin, NT
- Christmas Island IDC.
People may also be detained in Immigration Residential Housing (IRH) facilities, which provide more flexible and family-style accommodation. In 2008 there are two IRH facilities:
- Villawood Immigration Residential Housing
- Perth Immigration Residential Housing.
In addition, Immigration Transit Accommodation (ITA) facilities provide short term detention in a more flexible style of accommodation. An ITA has been established in Pinkenba, Brisbane. There are also plans to establish ITAs in Melbourne and Adelaide.
In 2005 the federal parliament amended the Migration Act to allow the Minister for Immigration to make Residence Determinations for individual detainees (‘community detention’). Under Residence Determinations, detainees can live in the community without being accompanied by a guard. Their accommodation and expenses are paid for by the Department of Immigration and Citizenship under an agreement with a community organisation. Most families with children are given Residence Determinations.
In addition, people may also be held in alternative accommodation arrangements, such as correctional centres, hospitals and motels, usually for temporary periods of time.
Under the previous federal government, people who arrived without a visa in an ‘excised offshore place’, such as Christmas Island, could be detained on the island of Nauru (or previously, Manus Island). This policy was colloquially called the ‘Pacific Solution’. HREOC consistently called for repeal of this policy on the grounds that it risked breaching the human rights of asylum-seekers and refugees (see Media Release 2006). However, the Australian Labour Party government officially ended the policy of sending asylum seekers to Nauru in January 2008 (see Media Release 2008).
However, the excised offshore places policy remains (see below).
Are children kept in immigration detention?
In June 2005, the government introduced amendments to the Migration Act, which stated that the parliament affirms that, as a principle, children will only be detained as a measure of last resort.
All families and children were released from immigration detention facilities on bridging visas or into community detention, under Residence Determinations (see above). For shorter periods of time, children and their families may be placed in residential housing centres or alternative detention arrangements.
Prior to 2004, a large number of children and their families were detained in immigration detention centres. 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 families, seeking asylum. Some had arrived without their families.
HREOC was gravely concerned about the human rights of these children. In 2004, HREOC produced A last resort?, the final report of the National Inquiry into Children in Immigration Detention. The report found that the immigration detention of children placed the Australian government in breach of its human rights obligations.
HREOC welcomed the 2005 amendments, in particular the introduction of Residence Determinations, which have allowed most families with children to be accommodated within the community. HREOC has recommended that most detainees who have been in detention for longer than three months, not only those with families, should be given Residence Determinations (see Summary of Observations following the Inspection of Mainland Immigration Detention Facilities 2007).
However, it should be noted that children and families living in the community are still considered to be in immigration detention as defined under the Migration Act, and must meet any conditions of their particular Residence Determination. Further, the power to make a Residence Determination for a child and their family lies with the Minister. It is a non-compellable, non-delegable power.
What are excised offshore places?
In September 2001 the previous government introduced laws which meant that unauthorised boat arrivals in Australia’s ‘excised offshore places’ (including Christmas Island, Ashmore and Cartier Islands and the Cocos Islands) were either detained at Christmas Island or transferred to offshore processing centres on Manus Island (PNG) or Nauru.
A number of other islands on Australia’s borders have been added to the list of excised offshore places since 2001.
Although in January 2008 the ALP Government ended the policy of sending asylum seekers to Nauru, they have stated their intention to continue detaining these persons on Christmas Island.
People who arrive in excised offshore places are unable to access the same legal assistance as those who arrive on mainland Australia. Also, their cases cannot be reviewed by the Refugee Review Tribunal or the courts.
HREOC is
concerned that the lack of legal safeguards increases the risk of a person
genuinely in need of Australia’s protection being returned to a place of
persecution. There is also potential for asylum seekers to be detained for
excessive periods of time, which raises serious concerns about arbitrary
detention. (See HREOC’s
Submission to the Senate Inquiry on the Migration Amendment (Designated
Unauthorised Arrivals) Bill 2006).
Is Australia’s policy of mandatory immigration detention a breach of human rights?
HREOC has consistently called for an end to the policy of mandatory immigration detention because it places Australia in breach of its obligations under the International Covenant of Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
The ICCPR (article 9(1)) and CRC (article 37(b)) 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.
HREOC accepts that mandatory detention may be legitimate for a strictly limited period of time in order to get basic information about health, security and identity. However, under current practice, the detention of unlawful non-citizens, often for lengthy periods, is not an exceptional step but the norm.
The Migration Act does not permit the individual circumstance of detention of non-citizens to be taken into consideration by courts. It does not permit the reasonableness and appropriateness of detaining an individual to be determined by the courts. Australia is therefore in breach of its obligations under ICCPR (article 9(4)) and CRC (article 37(d)) which require that a court be empowered, if appropriate, to order release from detention.
Children’s rights
A last resort? found that Australia’s mandatory detention laws resulted in numerous and repeated breaches of the Convention on the Rights of the Child, including breaches of those provisions requiring special protection for child asylum seekers and refugees.
In particular, HREOC found that the immigration detention policy creates a fundamental breach of a child’s right to be detained as a matter 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 variety of other important rights, for example the right to enjoy the highest attainable standard of physical health.
In 2005 the mandatory detention laws were amended to include the principle
that children only be detained in immigration detention centres as a measure of
last resort. Most children and families are no longer placed in facility-based
detention.
How are the rights of detainees protected in immigration detention centres?
There are limited mechanisms to protect the rights of immigration detainees.
Courts
Courts are the only institution in Australia with the power to enforce rights and responsibilities. Courts can review the legality of Department of Immigration and Citizenship (DIAC) decisions to detain an individual and to grant a visa only. The federal government has sought to limit the jurisdiction of the courts in both these areas. Courts have limited scope to review the conditions of detention.
HREOC
Under the Human Rights and Equal Opportunity Commission Act, HREOC has the power to monitor the conditions within detention centres. This includes investigating individual complaints of breaches of human rights in detention. If an agreement can’t be reached, then the President of HREOC will write a report to the federal Attorney-General, who must table the report in parliament. However, HREOC’s recommendations are not legally enforceable.
Commonwealth Ombudsman
The Commonwealth Ombudsman also has the power to investigate individual complaints about the administration of immigration detention. In 2005 the government gave the Commonwealth Ombudsman extra powers to review the cases of people in immigration detention for more than two years. However, the Ombudsman also does not have the power to legally enforce his or her recommendations.
Immigration Detention Advisory Group (IDAG)
An Immigration Detention Advisory Group (IDAG) was established in 2001 to provide advice to the Minister on the appropriateness and adequacy of services, accommodation and amenities in detention. Although IDAG has unfettered access to the centres, their role is advisory only.
Department of Immigration and Citizenship (DIAC)
The Department of Immigration and Citizenship also has its own mechanisms to review conditions in detention.
The Australian government contracts a private provider, GSL (Australia), to run its immigration detention facilities. The contract between DIAC and GSL requires regular reporting on a range of service requirements, including the conditions for immigration detainees. HREOC understands that the new contract between DIAC and the service provider will include penalties for the provider who does not meet certain service requirements.
Although the mechanisms described above provide some accountability for providing a standard of care for detainees, HREOC is of the view that legislative codification of the minimum standards of treatment in immigration detention would ensure that detainees can:
- enforce their rights to be treated in accordance with human rights standards; and
- obtain a direct remedy upon breach of those standards.
A last resort? recommended that Australia’s laws should codify the minimum standards of treatment of children in detention centres (Rec 4).
There is still no Commonwealth legislation regulating the conditions in
detention and providing a remedy for any breach.
How does HREOC protect and promote the human rights of people in immigration detention?
HREOC has monitored and reported on the conditions of immigration detainees in Australia since the introduction of the policy of mandatory immigration detention in 1992. This work includes:
- investigating individual complaints of human rights violations in immigration detention
- conducting National Inquiries (see National Inquiries)
- monitoring the conditions within detention centres through regular inspections (see Inspections of immigration detention facilities)
- developing minimum standards for the protection of human rights in immigration detention (see Immigration Detention Guidelines 2000)
- examining proposed laws (see Submissions)
- educating the Australian public, for example through speeches or educational materials (see Speeches or Education)
- commenting on policy and laws relating to immigration detention and asylum
seekers.
Investigating individual complaints of human rights breaches in immigration detention
HREOC can investigate complaints by individuals of breaches of their human rights in immigration detention. HREOC tries to resolve these complaints by conciliation between the two parties. If an agreement can’t be reached, then the President of HREOC will write a report to the federal Attorney-General, who must table the report in parliament. However, HREOC’s recommendations are not legally enforceable.
Some of the rights that have been breached in these individual cases are:
- No one shall be subjected to arbitrary arrest or detention (article 9(1), ICCPR)
- All persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the person (article 10(1), ICCPR)
- Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subjected to separate treatment appropriate to their status as unconvicted persons (article 10(2), ICCPR)
- An alien lawfully in the territory shall, unless where compelling reasons of
national security require, be allowed to submit the reasons against their
expulsion and have their case reviewed by a competent authority (article 13,
ICCPR).
A list of reports on breaches of human rights of individuals in immigration detention can be found at: www.humanrights.gov.au/legal/HREOCA_reports/
National Inquiries
- A last resort?: National Inquiry into Children in Immigration Detention (2004)
- Those who’ve come across the seas: detention of unauthorised arrivals (1998)
Inspections of immigration detention facilities
HREOC conducts regular visits to immigration detention facilities in order to monitor whether the conditions meet human rights standards.
In 2000, HREOC produced Immigration Detention Centre Guidelines, which draw on relevant minimum standards of what is required to comply with humane detention under the ICCPR and CRC.
The general procedure for HREOC visits is as follows:
- Conduct a tour and general inspection of the detention facilities.
- Meet with and interview relevant GSL and DIAC management staff.
- Conduct separate interviews with medical, counselling, education, recreation and other staff.
- Meet with the detainee representative committee.
- Meet with and interview any detainees who are under 18, or who were under 18 on arrival, and their parents.
- Meet with and interview any adult detainees who wish to speak to HREOC about their detention on an individual basis.
- View and copy any documents relevant to the safety, security, education, health, mental health, recreation or other matters pertaining to the systems in place to ensure the appropriate treatment of detainees in the facilities. This may include copies of the log of complaints made to DIAC and/or GSL.
- Follow-up with GSL and DIAC any issues arising during the visits.
HREOC makes a report or summary report of the inspections.
Current reports on immigration detention facilities
Summary of Observations following the Inspection of Mainland Immigration Detention Facilities 2007
In January 2008, HREOC released its report 'Summary of Observations following
the Inspection of Mainland Immigration Detention Facilities’. The report
covers visits of immigration detention facilities conducted between August and
November 2007.
The Department of Immigration and Citizenship (DIAC) and the private detection provider (GSL) were invited to respond to an advance copy of the report
- HREOC's Summary of Observations following the Inspection of Mainland Immigration Detention Facilities (2007)
- DIAC response to report
- GSL
response to report
Past reports on immigration detention facilities
- Summary of Observations following the Inspection of Mainland Immigration Detention Facilities (2006)
- Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner (2001)
- Report on a visit to Curtin IRPC and response by DIMA (2000)
- 1998-99 Review of Immigration Detention Centres
