Australia’s Mandatory Detention Policy

Australia’s Mandatory Detention Policy

Australia adopted the mandatory detention policy in 1992 under the Migration Act. The section provides that non-citizens within the Australian territory be detained until they are served with a valid visa or deported to their respective countries. Though the policy contravenes common law that holds that every person has freedom from arbitrary detention, the country has held onto the policy to date. People entering Australia unlawfully either by sea or air include asylum seekers, many of whom include the elderly, women, and children who have undergone torture and suffered traumatizing moments. There have been reports of detainees suffering hunger, prompting them to strike and, in extreme cases committing suicide. People who have overstayed their visas despite entering the country lawfully as well as others who have had their visas canceled for varying reasons are also subject to this clause. Before its enactment, there was a different classification of illegal immigrants. Those entering the country by boat were kept in open detention centers and were required to report to Australian authorities daily. People entering the country through fraudulent means were detained for 48 hours before deportation. The amendment of the Migration Act has elicited different viewpoints from different quarters crosscutting lawyers to humanitarians..

Mandatory detention policy in Australia can be traced to the mid-1970s when Australia became a country of first asylum. The country began by tightening laws at entry points before shifting to penalizing asylum seekers and people aiding or organizing the transportation and entry of unauthorized persons. There was a need to strike a balance between national security and Australia’s obligations under international law. There was a general feeling that the latter was subordinate to the former, which led to the formulation of the current mandatory detention policy. The end of the Vietnam War saw the economic isolation of communist states in Southeast Asia. The directive made people flee to neighboring countries in their numbers. People entering Australia were processed and allowed entry as refugees after attaining temporary or permanent permits. Ethnic and economic strife, especially after Vietnam invaded Cambodia, led to an influx of people entering Australia with the number of people fleeing their countries surpassing the numbers allocated. The country felt that the numbers were not sustainable and amended the Migration Act, which left entry into Australia at the discretion of the minister. People entering by boat were barred from entering the country, and officials were given the power to detain agents, owners, and charterers of vessels. Detained persons were presented to the court within forty-eight hours and kept in detention until they obtain a valid permit or deported from Australia. The Migration Amendment Act of 1992 came an interim measure to address the pressing concern of large numbers of people entering Australia in the future.

The Migration Reform Act of 1992 created a distinction between legal and illegal non-citizens. The primary target was people entering Australia by boat and later extended to cover air travel. Successive governments have continued to observe this norm and upheld the policy that provides that;

• Unauthorized persons must not enter Australia before they have been processed and their identity defined. These persons must be granted a valid visa before entering the community.
• Unauthorized persons are available for visa processing, and in the event, they are denied entry, be available for subsequent deportation.
• Health checks are mandatory for unauthorized entrants before they are granted a visa.

The number of unauthorized arrivals continues to grow with a significant boom in 2001 following the Tampa Crisis. The result was the ‘Pacific Solution,’ where unauthorized boats were diverted to processing centers outside the country. The government assumes more stringent and deterrent border policies, including excision and mandatory detention. The Migration Reform Act 1992 nullified the 273-day detention limit and introduced detention charges. People in detention were to cover for their expenses during the time of detention. The Howard Government created room for a temporary protection visa (TPV) in 1999 and was granted to refugees released from detention. TPVs were later abolished in 2008 by the Rudd Government but reintroduced in 2013 by the Abbott Government. TPV holders reapply after three years according to prevailing conditions in their countries of origin. TPV holders have the right to work some jobs and have access to medical care, child care benefit, rent assistance, and family tax benefit, among other benefits. Since 2008, refugees became eligible for a permanent protection visa (PPV) after the resolution by the Australian parliament, where a majority saw TPV as a cruel way to treat people seeking asylum.

The systematic evaluation of the policy is debatable on different grounds. There is no clear criteria followed to determine how long an unauthorized person entering Australia should be held in detention. In Villawood, Australia’s largest detention center, the number is unmanageable. Detained persons include tourists who overstayed their visas, international students who have breached visa conditions, stowaways, stateless persons, criminals whose visas have been canceled, and asylum seekers who have escaped persecution in their home countries. It is imperative that a model for the release, authentication, and deportation of detained persons is reached to ease the economic constrain of holding them. Transparency and discernibility in detention centers ids also subject to review. Infrastructural requirements of detention centers must be evaluated to ensure better conditions for detainees. Health and security risks within detention centers should also be a key priority. They need to separate asylum seekers from criminals and provide health centers within these facilities.

The refugee council has criticized the mandatory detention policy as a taint to Australia’s reputation as a fair and just nation. People in detention centers are forced to endure inhumane conditions. Furthermore, nationals working in detention centers are exposed to emotionally shaking situations. Detainees are also reporting detention for many years. Cases of wrongful detention have also surfaced in the country. Cornelia Rau, a mentally challenged German national holding a permanent visa, had been detained for 11 months. Vivian Alvarez, an Australian, was deported to the Philippines and went missing thereafter. The Palmer Inquiry that followed the deportation of Vivian reported that more than 200 persons had suffered wrongful detention. Detention of children raised spirited concerns culminating in parliament’s affirmation that a minor shall be held in detention after all other avenues have been exhausted. People with children should be held under special conditions that are aimed at protecting the family unit, which has not been fully implemented. The minister should periodically review the cases of people in detention and grant visas where appropriate to promote justice and fairness. The recommendations of the amendment to the migration act distanced from enforceable rights and left the power to detain and grant visas at ministerial discretion. It has also been proven that people with temporary visas are often re-detained with limited legal advice following minor violations.

Social policy is aimed at responding to social needs. It consists of guidelines, legislation, and principles to guide activities that may influence human welfare. The objectives of the social policy include efficiency, improving living standards, promoting equality, social integration, and fostering administrative feasibility. Social policy is aimed at poverty relief and better standards for all. The mandatory detention policy in Australia is subject to review under the social policy. While it is imperative to secure borders due to national security, unauthorized entrants ought to be treated in a humane way. Justice and fairness must be upheld to ensure freedoms are not suppressed, and detainees have access to fundamental services. The mandatory detention policy must be reviewed to ensure people are detained for the shortest periods possible and hasten the process of processing and authentication of detained persons.

Mandatory detention in Australia was enacted as a deterrent to unauthorized arrivals. Since its inception, the number of illegal immigrants has continually declined though the policy has faced criticism and support in varying measures. Proponents of the policy advocate it as a means to protect the Australian people from dangerous entrants who pose a threat to national security. Critics hold that mandatory detention is inhumane, and people held in detention centers ought to receive better treatment given their reasons for seeking asylum. The United Nations High Commission for Refugees directs that detention should apply in cases where the authorities need to verify identity, determine evidence of claims, to protect national security and to process new documents to people who have destroyed previously issued documents. The Australian mandatory detention act is in line with these guidelines though a more efficient model needs to be adopted.