Immigration detention and human rights

Date: 
Wednesday 1 January 2014

The human rights of people who are in immigration detention are of special concern to the Commission. 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 and the Convention on the Rights of the Child. People who are held in detention are particularly vulnerable to violations of their human rights.

 

Why people are held in immigration detention in Australia

Since 1992 Australia has had a system of mandatory detention. Any non-citizen who is in Australia without a valid visa must be detained according to the Migration Act 1958 (Cth) (Migration Act). These people may only be released from immigration detention if they are granted a visa, or removed from Australia.

Categories of people who are currently in immigration detention in Australia include:

  • people who have arrived in Australia without a visa, including people seeking asylum from persecution
  • refugees who have received adverse security assessments
  • people who have had their visa cancelled on character grounds
  • students who have had their visa cancelled because they breached one or more of the conditions attached to the visa
  • people who have overstayed their visa
  • people who are suspected of involvement with people smuggling
  • non-nationals who are alleged to have been illegally fishing in Australian territorial waters.

Children are held in immigration detention in Australia – click here for further information.

 

Numbers of people in immigration detention, and how long they have been detained

The number of people being held in immigration detention in Australia changes on a constant basis. As at 30 June 2014 there were 3,624 people held in immigration detention facilities and 3,007 in community 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 weeks up to a few years, or even longer. As at 30 June 2014 the average period of time a person would spend in closed immigration detention was 350 days, but 168 people had been held in immigration detention for over 2 years.

The Department of Immigration and Border Protection publishes statistics setting out the number of people in immigration detention, and how long they have been in detention for. For a summary of the most recent immigration detention statistics, click here.

 

Where in Australia people are detained

Immigration detention centres

Immigration detention centres (IDCs) are the most secure of Australia’s immigration detention facilities. As of September 2013 there were IDCs in the following locations:

  • Christmas Island IDC on Christmas Island
  • Curtin IDC in Western Australia
  • Maribyrnong IDC in Melbourne
  • Northern IDC in Darwin
  • Perth IDC
  • Scherger IDC in Queensland
  • Villawood IDC in Sydney
  • Yongah Hill IDC in Western Australia

Villawood IDC, New South Wales

Immigration residential housing

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 September 2013 there were three IRH facilities:

  • Perth IRH in a suburb of Perth
  • Port Augusta IRH in South Australia
  • Sydney IRH next to Villawood IDC

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 in the process of being transferred to other places of detention, but have increasingly been used for longer-term stays. As of September 2013 there were three ITA facilities:

  • Adelaide ITA in Kilburn
  • Brisbane ITA in Pinkenba
  • Melbourne ITA in Broadmeadows

Alternative places of detention

Immigration detainees may be held in designated ‘alternative places of detention’ (APOD). 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, what conditions and restrictions apply to them will depend on where they are held, and what arrangements are made for them to be supervised while detained there.

There are also a number of low security immigration detention facilities that are classified by DIAC as alternative places of detention. As at September 2013 these include:

  • Phosphate Hill, Construction Camp, Lilac APOD and Aqua APOD on Christmas Island
  • Wickham Point APOD, Darwin Airport Lodge APOD in the Northern Territory
  • Leonora APOD in Western Australia
  • Inverbrackie APOD in South Australia
  • Pontville APOD in Tasmania

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 at a specified residence in the community, in what is known as ‘community detention’. Legally these people remain in immigration detention, but in community detention they are generally not under physical supervision.  For further information see alternatives to using closed immigration detention.

As at 30 September 2013 around 34% of the people in immigration detention had been placed in community detention. The Commission welcomes the increased use of community arrangements but remains concerned that thousands of people are still in closed immigration detention facilities.

 

Asylum seekers transferred and detained in other countries

Under the third country processing regime introduced in August 2012, asylum seekers who arrive by boat in Australia must be transferred to a third country as soon as is reasonably practicable, unless the Minister for Immigration exercises his or her discretion to exempt them from transfer.  Since August 2012 hundreds of asylum seekers have been transferred and are in immigration detention on Nauru and Manus Island in Papua New Guinea. For more information see transfer of asylum seekers to third countries.

 

The human rights of people in immigration detention

Australia’s international human rights obligations are relevant to how people are treated while in immigration detention. These obligations are contained in a range of international treaties that the Australian Government has ratified, including:

These treaties cover a broad range of rights and freedoms. Key human rights principles in these treaties which are relevant to people in immigration detention include:

  • Everyone has the right not to be subjected to arbitrary detention.
  • Children should only be detained as a measure of last resort, and for the shortest appropriate period of time.
  • Anyone who is detained has the right to challenge the lawfulness of their detention in court, and should have access to independent legal advice and assistance.
  • All persons who are detained should be treated with humanity and respect for their inherent dignity.
  • No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
  • In all actions concerning children, the best interests of the child should be a primary consideration.
  • Refugees and people with certain claims under the ICCPR, CAT or CRC cannot be returned to a country where their life or freedom would be threatened.
  • Everyone is entitled to respect for their human rights without discrimination.

The conditions for people in immigration detention, and the manner in which they treated while in detention, should comply with these human rights obligations. To help facilitate this, in April 2013 the Commission published Human rights standards for immigration detention, setting out benchmarks for the humane treatment of people held in immigration detention facilities.

Human rights standards for immigration detention

The purpose of the Standards is to assist independent bodies such as the Commission to monitor and inspect Australia’s immigration detention facilities (see further information about the Commission’s role in relation to people in immigration detention). The Standards should also assist in providing a framework for the monitoring and inspections that will be undertaken when Australia becomes party to the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (OPCAT).

There are also a range of international guidelines on the treatment of people who are in detention. These include:

 

Australia’s mandatory detention system leads to breaches of human rights

Australia continues to have one of the strictest immigration detention regimes in the world. Not only is it 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 of mandatory immigration detention because it leads to breaches of Australia’s human rights obligations, including its obligations under the ICCPR and CRC not to subject anyone to arbitrary detention.

The Commission has raised particular concerns about the mandatory detention of children, including in A last resort?, the report of the National Inquiry into Children in Immigration Detention, released in 2004. The National Inquiry found that Australia’s system of mandatory detention was fundamentally inconsistent with Australia’s obligations under the CRC. For further information about the Commission’s concerns regarding the detention of children, see children in immigration 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.

The Commission acknowledges that use of immigration detention may be legitimate, in some circumstances, for a strictly limited period of time. However, in order to avoid detention being arbitrary, there must be an individual assessment of the necessity of detention for each person, 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 the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks.

Australia’s mandatory detention system does not 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.

Also, 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, that court must have the power to order the person’s release if their detention is found to be arbitrary.

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.

 

Alternatives to using closed 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 human rights obligations. For more information, see alternatives to closed immigration detention.

 

What the Commission does to 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
  • conducting visits to immigration detention facilities and publishing reports on those visits
  • developing minimum standards for the protection of human rights in immigration detention, the Human rights standards for immigration detention
  • conducting national inquiries

For further information about work the Commission does to promote and protect the human rights of people in immigration detention, see the Commission’s role.