Refugees in Australia - Q & A (vii) - What is the problem with mandatory detention?

It is the issue of mandatory, prolonged detention of asylum seekers arriving in Australia without authorisation, that has polarised many opinions in the community. Amnesty International recognises the need to maintain national security and where initial detention may be necessary for health, security and identification checks. However, the debate must remained focused on the effects of long-term, prolonged detention, and why this is a violation of fundamental human rights.

Since 1 September 1992 all people arriving in Australia without proper travel documents are immediately detained. They remain in detention from a few hours to up to a few years until they are either granted a visa or deported. This includes all people seeking protection as refugees. By contrast, people who enter Australia on a valid visa and who then claim protection as a refugee are not usually detained.

Detention of asylum seekers without proper travel documents is automatic. There are no charges laid, and no appearance before a magistrate or court to decide if detention is absolutely necessary or appropriate. Except for rare situations, Australian law prohibits the release of detained asylum seekers while their refugee claim is being assessed.

Amnesty International does not oppose all detention for people arriving in Australia without valid documentation. There are instances where initial detention may be necessary, for example to establish a person's identity or perform health and security checks. However, international human rights law requires that governments do not detain people automatically or beyond what is a reasonable length of time. In Amnesty International's view, delays in a refugee determination process, whether caused by appeals or other factors, are not sufficient justifications to continue an asylum seeker's detention.

Detention of all asylum seekers without charge or judicial review amounts to arbitrary detention. It this aspect of detention - ongoing and prolonged with no notification of release - that amounts to a serious violation of the rights to liberty and freedom from arbitrary detention.

Any person arriving in Australia, regardless of their modes of transport or lack of documentation has a right to seek protection from persecution or torture. Amnesty International urges the Australia government not to discriminate against people seeking refuge and protection from torture because they arrive in Australia without valid documentation. The 1951 Convention on the Rights of Refugees (Refugee Convention), a human rights treaty that Australia has ratified and thus agreed to adhere to, clearly outlines that a refugee seeking protection from persecution shall not be penalised for entering a country without valid documentation. This applies to Australia. Currently, Australia is punishing those who deserve our compassion.

Amnesty International has grave concerns about the effects of arbitrary, ongoing detention on detainees, particularly on children. Many people kept behind razor wire fences of detention centres have survived torture and ill-treatment, escaping from situations of violence and abuse. Many have lost loved ones and have been forced to leave their homes suddenly. Having survived traumatic experiences, the effects of being isolated in sometimes remote, harsh environments further accentuate their mental despair and anguish.

Up to 80 per cent of detainees are granted refugee status and provided with visas to remain in Australia. This very high rate heightens concerns that those kept in detention have experienced grave human rights violations and are not economic migrants whose illegal entry into Australia the policy aims to prevent.

Amnesty International is one of many organisations expressing concerns regarding the conditions and effects of detention.

In May 2002, the UN Working Group on Arbitrary Detention (WGAD) and the Office of the UN High Commissioner for Human Rights (OHCHR) sent delegations to investigate conditions of detention and the legal regime governing the detention of asylum-seekers without trial or judicial oversight. In July 2002, the OHCHR delegate described the detention regime as "offensive to human dignity" and reported "serious concern" about the human rights situation of people in immigration detention, particularly children and unaccompanied minors. In December 2002, a WGAD report expressed similar concerns about "the psychological impact" of the detention regime, its "automatic and indiscriminate character, its potentially indefinite duration and the absence of juridical control of the legality of detention". The Australian government rejected the findings of both reports.

In November 2002, the national Human Rights and Equal Opportunity Commission (HREOC) found that Australia had breached its international human rights obligations by transferring six asylum-seekers from immigration detention to prisons, where they were arbitrarily detained without charge alongside convicted felons. One man had been held without judicial oversight in prison and immigration detention since December 1997.

In December 2002, the HREOC found that five asylum-seekers in Port Hedland detention centre had been arbitrarily detained for more than six days in isolation in dim or dark rooms before an immigration official became aware of their treatment. During the six days, they were allowed outdoors only twice for 10 to 15 minutes, and only one was given a change of clothes after five days. Despite reports by the official, the government took no action until alerted by AI Australia.