Problems with Australia's Mandatory Detention Policy
There are seven key problems with Australia's mandatory detention
1. Dubious legality
The legality of the policy is doubtful and the majority of those
who are adversely affected by the policy are the very people Australia
has voluntarily agreed to provide real protection under the Refugee
Uniya agrees with Mr Ruddock that:
The length of the period of detention should not be considered
in the abstract but must be considered alongside the reasons for
detention (that is to ensure that unlawful non-citizens are available
for processing, to allow identity, security and health checks to
be made and to ensure availability for removal if they are not owed
The Australian mandatory detention policy goes further than this.
It is the extent to which the policy that goes further than this
which is of doubtful legality.
Consistent with the High Court's decision in the Lim Case
ten years ago, detention of all persons, including children, should
be restricted to migration purposes and should take place in locations
which are well suited to the purpose of detention, especially the
efficient processing of visa applications. Deterrence in the desert
is the big lie in the government's policy.
The Australian government is right to reject alternatives which
would permit detention of unaccompanied adults and mandate the release
of family groups with children. Such a policy would only encourage
parents to put children to sea on these dangerous voyages.
2. The policy penalises refugees
Asylum seekers should not be penalised for entering or remaining
in Australia illegally. This is not morally justifiable. Nor is
it consistent with Australia's obligations under the Refugee Convention.
As has been recognised recently by a Federal Court judge:
The Refugees Convention is a part of conventional international
law that has been given legislative effect in Australia. It has
always been fundamental to the operation of the Refugees Convention
that many applicants for refugee status will, of necessity, have
left their countries of nationality unlawfully and therefore, of
necessity, will have entered the country in which they seek asylum
unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking
refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking
refuge from the Taliban in Afghanistan and many others, may also
be called "unlawful non-citizens" in the countries in which they
seek asylum. Such a description, however, conceals, rather than
reveals, their lawful entitlement under conventional international
law since the early 1950's (which has been enacted into Australian
law) to claim refugee status as persons who are "unlawfully" in
the country in which the asylum application is made.
3.Australia's form of detention does not assist in processing
The government justifies detention in part because it helps with
the processing of claims.
Whereas previously our mainland detention centres were primarily
processing centres for those with a real expectation of release
on a visa, at the moment they are centres primarily for holding
those denied a visa, waiting to go home voluntarily or by force.
The deterrence aspect of these facilities is highlighted by the
realisation that none of these persons is eligible for transfer
to Villawood or Maribyrnong where they might have access to visitors
and be spared the horrendous heat and winds of the three select
Every fairminded person including the government's own Immigration
Detention Advisory Group thinks that Woomera should have closed
long ago. There are less than 130 detainees now in that facility.
It is a hell-hole, dehumanising for the detainees and the workers
alike. But it is our twenty-first century Port Arthur. Its deterrent
value to government is enormous. It is the jewel in the crown of
desert detention. There is no other policy reason for keeping it
open. There is no sensible financial reason for keeping it open.
It is far removed from state services such as children's services
and police. It is too isolated a place for public servants and tribunals
comfortably and efficiently to process claims for refugee status.
DIMIA sees an ongoing use for Woomera because this ensures that
"we have a network of centres in order to best manage the diversity
of the detainee caseload. Retaining the Woomera IRPC also makes
possible the operation of the alternative housing project for women
and children in the Woomera township." But let's face it: Woomera's
main purpose now is to emit a double signal to would-be asylum seekers
and to fear-filled voters. Dispersing the 130 Woomera detainees
to other places would deprive government a precious transmitter.
With the opening of the new Baxter detention facility, the government
now has 2,000 beds available in other detention facilities and yet,
given that no boats have reached the Australian mainland for more
than a year, there are only 550 in detention on mainland Australia.
The Australian detention regime is now split between the mainland
and the Pacific solution venues. On the mainland, there are three
reception centres where unlawful non-citizens are detained: Woomera
and Baxter in South Australia and Port Hedland in Western Australia.
They are all run by ACM under contract to DIMIA. The contractual
arrangement, the appointment of senior DIMIA staff to outside consultancies
and the Pacific solution are key elements in removing the process
from judicial, parliamentary and public scrutiny.
Off-shore processing is done in the hope that it will be spared
judicial review by the High Court. Consultants and ACM staff unlike
public servants cannot readily be compelled to give evidence to
parliamentary committees. These reception centres previously held
a majority of detainees who were awaiting a decision from the primary
decision maker or the Refugee Review Tribunal. If the applicants
were Afghan or Iraqi they had a very good chance of success.
Detention in an accessible place and in a more work friendly environment
might help with processing. The detention regime contributes to
and helps to disguise the uneven performance of our decision makers
especially when it comes to the Iraqis and Afghans who have been
applying for protection this last year.
Most of the Afghans and Iraqis held in these desert camps have
been proved to be refugees with every right to be integrated into
the Australian community.
During the last financial year (1 July 2001 - 30 June 2002), the
Refugee Review Tribunal (RRT) set aside 62% of all Afghan decisions
appealed and 87% of all Iraqi decisions appealed. This means that
Afghan asylum seekers got it right 62% of the time when they claimed
that the departmental decision makers got it wrong. And the public
servants got it wrong 87% of the times that the Iraqi applicants
claim to have been mistakenly assessed.
Meanwhile the RRT set aside only 7.9% of decisions appealed by
members of other ethnic groups. Even more disturbing than these
comparisons is the statistic that in the last financial year, the
RRT finalised 855 detention cases of which 377 were set aside. This
is a 44% set aside rate in detention cases. 82% of all Afghan and
Iraqi applicants were found to be refugees by the primary decision
makers (7,330 out of 8,965 applicants) over the last three years.
Nonetheless it is concerning that the primary decision makers get
it wrong so often when they reject any Afghan or Iraqi claim.
4. Offering discriminatory visa conditions
In the months ahead, the government will be tempted to return
to detention those TPV holders whose visas have now expired and
whose renewed asylum claims will be rejected because of changed
circumstances especially in Afghanistan. If the government sees
through such a policy, these detention centres will become even
more gross centres of despair - removal centres in the middle of
the desert inhabited by Afghans who have no assurance that the changes
back home are substantial, effective and durable, making it safe
for them to return. Given that these applicants were found to be
refugees three years ago, it must be conceded that if they had entered
Australia on (say) a student visa, they would have been eligible
for a permanent protection visa three years ago.
Surely it is fairer that they continue to be treated as refugees
(whatever the minutiae of our visa requirements) until the government
can genuinely be satisfied of a change of conditions in Afghanistan
warranting the invocation of the Cessation Clause (Article 1C) of
the Refugee Convention. If the government is to insist that the
4,000 Afghan and Iraqi TPV holders whose visas come up for reassessment
in the next nine months prove again that they are refugees, it is
imperative that the applicants once again be provided with at least
the same level of legal assistance they were provided at the time
of their initial applications. Three years ago, it was easy for
an Hazara to prove persecution under the Taliban regime. This does
not mean that such an applicant might not face other persecution
if returning home now. To establish such a claim would require painstaking
research, especially given the applicant's three or four year absence
from home. Also there are the complex questions whether the applicant
is now eligible for a permanent or temporary visa depending on whether
he or she was continuously resident in a place where UNHCR or country
protection could have been invoked.
To date the mandatory detention regime has been acceptable to
the Australian public because the detainees were so "other", so
faceless and so unknown. It is an altogether different matter for
government to march off young Afghans from the abattoirs where they
have been working and from the soccer pitches on which they have
triumphed these last three years back to the desert Gulag - all
in the name of border protection when only one boat person has reached
land without a visa this last year.
The regime has also been acceptable because the government has
been prepared to allow the harshest manifestations of the policy
to be mitigated by the issue of bridging visas to unaccompanied
minors and by the legal fiction of ongoing detention for some young
persons in the company of a carer in a capital city. But the cost
to these young people has been the arbitrary deprivation of liberty,
curtailing their capacity to catch public transport to school or
even to attend a school or course of their choice. If the government
were concerned for the well-being of these Afghan unaccompanied
minors in our midst, rather than simply offering them a cash payment
to return home, why not attend to their real concern. Most of them
have written numerous letters home but received no reply. Why does
the government not send one of its officers together with a person
trusted by the unaccompanied minors to seek out their families and
to bring back news so that the minors might make an informed choice
whether to return? And if this service can be provided for unaccompanied
minors, why not for other Afghans whom the government wishes to
depart our shores?
5. Removal of detainees
The situation in our mainland detention centres could become more
despairing given the fact that the majority of the detainees have
now exhausted all appeals and are awaiting removal. Some will go
voluntarily; others will not. The government may eventually be able
to force some to leave. But there is no way they can force the Afghans
or Iraqis to leave. Recently the UNHCR and the Afghan government
have reached agreements with the British and French governments.
According to UNHCR, "The emphasis is on voluntary repatriation,
although the agreements also recognise that Afghans who are not
recognised as refugees and who are without current protection needs
or other humanitarian concerns, can legitimately be returned 'in
a closely co-ordinated, phased and humane' process after the end
of winter." The Afghan Minister for Refugees, Enayetullah Nazeri,
has been pleading that Europe and other countries not send back
more refugees now just before their winter. They are struggling
to absorb the 1.6 million who have returned from Pakistan and Iran.
Meanwhile the UN is appealing for $US64 m for food for the winter.
Our government continues to give detained Iraqis a choice between
ongoing detention and return to the border of Iraq. This is an unconscionable
choice which could be formulated only by those wanting to clear
the Canberra books at all costs. Any Iraqi who is not a security
risk should now be released into the Australian community until
the threat of bombing by us has passed or until the dust from the
bombs has settled. To give Iraqis who fled the Hussein regime a
choice between Australian detention at Woomera or Australian bombing
at home is an obscenity.
If we continue to detain Afghans, Iraqis and Iranians without any
hope of their being released in to the community, we will be transforming
these processing centres into punitive jails which labour under
insuperable institutional defects. There is no regime of carrots
and sticks to ensure good behaviour. The well behaved rejectee cannot
be promised early release. The misbehaving rejectee cannot be threatened
with the loss of privileges or visa. The ACM staff are very demoralised,
most junior staff now being on short term contracts awaiting the
result of the new tender process. The stress levels among staff
at Woomera and Port Hedland have been very high of late.
It is very misleading of the government to continue telling the
public that "Detainees who have failed to engage Australia's protection
obligations can bring their detention to an end by choosing to leave
Australia and by cooperating in removal arrangements."
The Palestinians in Woomera have been very co-operative and are
desperate to leave Australia if we are not prepared to permit them
and their families residence rather than detention.
The Minister's statement is equally misleading in relation to the
increasing number of Iraqis who cannot return home. Their ongoing
detention on the eve of war to which we will be party is not "reasonably
capable of being seen as necessary for the purposes of deportation"
Despite Mr Ruddock's "detailed rebuttals" of the UN report, there
is an increasing caseload of detainees who have been rejected and
cannot be moved, this being no fault of theirs. Furthermore, the
detention of some applicants has been lengthened by the government's
decision to appeal to the full Federal Court decisions which have
been favourable to asylum seekers.
Justice Merkel and Justice Mansfield have recently ruled (in separate
decisions) that the detention of a Palestinian applicant and an
Iraqi applicant (respectively) is unlawful and unconstitutional
as the removal of the relevant applicants was not reasonably
practicable, in the sense that in the particular circumstances
there is no real likelihood or prospect of remove in the reasonably
6. The Legal and Political Impossibility of Protecting Children
Though Minister Ruddock has had carriage of the portfolio for six
years detaining children with regret, he has not yet concluded a
satisfactory memorandum of understanding with any State government
for the care of children in the mainland reception centres. He has
not finalised any document with any Western Australian government
regardless of its political persuasion. He had signed an agreement
with the previous Liberal government in South Australia. But Labor
Premier Mike Rann has made clear that it is not worth the paper
it is written on when it comes to the interests of children.
Detention of children in the desert, far removed from regular State
children's services and in a political hothouse where there is no
agreement between State and Federal governments for the delivery
of children's services is a recipe for institutionalised child abuse.
7. Resettlement of refugees from Pacific centres
Meanwhile 200 refugees have been resettled in Australia after enduring
the added trauma of detention in Nauru and Manus Island where there
are still another 1,000 detainees, 300 of whom have been found to
be refugees. They must wait longer in detention while countries
including Australia decide whether to accept them for resettlement.
by Frank Brennan SJ AO.