In November, the High Court ruled the government could not indefinitely detain a non-citizen if there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.
The court’s full reasons, delivered this week, are grounded in what should be relatively uncontroversial propositions. Depriving a person of their liberty is usually a punitive act that should only occur as a result of a court exercising its judicial power to adjudge and punish criminal guilt.
The executive government has power to operate a form of “administrative” immigration detention. However, it must be able to justify such detention as necessary for a legitimate and non-punitive statutory purpose, and detention must only continue if and for as long as necessary to achieve that purpose. Neither parliament nor any government minister has an unfettered right to detain a person indefinitely, at will and without oversight.
These findings are not radical. They reflect basic principles of Australian law that have been upheld in our Constitution since Federation and are essential to any democracy based on the rule of law. They bring Australia into line with both international law and state practice from comparable jurisdictions abroad.
Yet the case and its subsequent political fallout have dominated headlines for weeks, stirring up divisive rhetoric around both migration and the treatment of former prisoners. New laws have been rushed through parliament with bilateral support but little analysis, imposing unprecedented conditions on people who had been unlawfully detained and were released following the High Court’s decision. Further restrictions are yet to come, and with them, no doubt, a fresh wave of legal challenges.
This is “crisis” law-making at its worst – reactionary, spurred on by a contrived sense of urgency and inflamed by fearmongering and political opportunism.
Legislation that infringes fundamental rights and liberties, particularly those of marginalised or unpopular groups, must be drafted with great care. It should be informed by reasoned debate, grounded in an evidence base that has been rigorously tested and subject to meaningful scrutiny. Laws that limit basic rights must be proportionate to a legitimate objective and should intrude on those rights only to the extent necessary to achieve their purpose.
Since freedom is one of the most basic rights, all reasonable alternatives should be considered before detention. Crucially, restraints on liberty should be based on individualised assessments of risk, not migration status, and subject to robust judicial oversight.
Indefinite detention is not the only issue in this system. Over the course of 30 years, mandatory immigration detention has become such an entrenched feature of Australia’s migration system some might find the alternative unfathomable. Yet for most people seeking protection in host countries, a presumption of liberty is the global norm. Australia is the outlier in this regard.
Problematic detention practices exist in many countries, but the Global Detention Project describes Australia’s immigration detention policies as “uniquely severe, arbitrary, and punitive”. Australia appears to be the only liberal democracy with a regime of automatic detention for all non-citizens without a valid visa, including those who seek asylum immediately upon arrival. No exceptions are made for children, people with disabilities, the elderly, survivors of torture and trauma, pregnant women or others with special needs.
By law, if a government officer knows or reasonably suspects a person is an “unlawful non-citizen”, they must detain that person immediately and are not permitted to undertake an individual assessment of the need to detain or explore less intrusive alternatives before doing so.
Once detained, non-citizens enjoy few enforceable rights. There are no legislative time limits on detention and in most cases no grounds on which to challenge the duration or conditions of detention before a court or other independent body with authority to order release.
Under international law, detention in these circumstances is arbitrary and prohibited. Given the clear evidence of serious mental and physical harm caused by immigration detention, particularly for people held for extended periods without clear time frames for release, it may also amount to cruel, inhuman and degrading treatment or punishment. Such treatment is subject to an absolute prohibition under international law and can never be justified by reference to migration or border control objectives.
Following the introduction of mandatory immigration detention in the early 1990s, the first large-scale detention of asylum-seeking children came with the arrival of more than 2000 children – some with families, some alone – in 1999-2003. Most were fleeing conflict and human rights abuses in Iraq, Iran and Afghanistan. All were routinely detained but more than 92 per cent would eventually be found to be refugees and released.
A national inquiry by the Human Rights and Equal Opportunity Commission – now the Australian Human Rights Commission (AHRC) – later confirmed what health professionals and child advocates had been telling the government for years. Australian immigration detention centres were having a serious and detrimental impact on the physical and psychological safety of children, placing them at high risk of serious mental harm. Indeed, in some cases, the inquiry found the Commonwealth’s conduct rose to the level of subjecting children to cruel, inhuman and degrading treatment, particularly where it had failed to implement repeated recommendations by mental health professionals that certain children be removed from the detention environment with their parents.
By 2005, a small group of Liberal backbenchers became instrumental in securing a Howard government amendment to the Migration Act recognising the “principle” that a minor “shall only be detained as a measure of last resort”. In parliament, Bruce Baird declared: “Let us never again see children in detention in this country. They should not be behind barbed wire or razor wire. It is an indictment that we have let it happen.”
Subsequent practice revealed a mere statement of principle was insufficient to keep children out of detention. They continued to be detained in greater numbers until, by July 2013, a record 1992 children were held in immigration detention centres across Australia.
A subsequent inquiry by the AHRC found, again, that prolonged detention was having “profoundly negative impacts on the mental and emotional health and development of children”. Babies especially were facing unacceptable risks of harm. Despite efforts to support these children, the inquiry found it was the fact of detention itself causing harm, with both the deprivation of liberty and exposure to high numbers of mentally unwell adults causing emotional and developmental disorders among children.
No children are currently held in closed immigration detention centres in Australia. However, we are only ever one cancelled or expired visa away from a child being put behind bars. Now is the time to act to ensure that alternative arrangements and legal protections are in place before the next family is affected.
International recognition of the inappropriateness of detaining children seeking asylum and their families has been growing for more than a decade, with an emerging consensus that it will rarely be justified under international law.
In 2012, the UN High Commissioner for Refugees published detention guidelines affirming children “should in principle not be detained at all” and noting the “well-documented deleterious effects of detention on children’s well-being, including on their physical and mental development”. The guidelines advised that an “ethic of care”, rather than enforcement, should govern the treatment of asylum-seeking children. That same year, in a case involving the brief detention of a Kazakh refugee family in France, the European Court of Human Rights affirmed the extreme vulnerability of the family’s two young children should be a “decisive factor” taking precedence over their migration status.
With the unanimous adoption of the New York Declaration for Refugees and Migrants by the United Nations General Assembly in 2016, all states reaffirmed their obligations to asylum-seeking children under international law. They specifically recognised “detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child”. They guaranteed only ever to use it as a measure of last resort, in the least-restrictive setting, for the shortest possible period of time, under conditions that respected human rights and in a manner that took into account the best interest of the child as a primary consideration. Specifically, all states, including Australia, committed to working towards ending the practice entirely.
These commitments were welcomed by leading children’s rights experts, including the special rapporteur on the human rights of migrants and the respective chairs of the UN Committee on the Rights of the Child, the Committee on Migrant Workers and the Working Group on Arbitrary Detention. Collectively, they called on states to prohibit immigration detention of children by law and “cease the practice quickly and completely”. Despite endorsing these commitments on the international stage, Australia continues to lag behind other countries in implementation.
Earlier this week, amid the furore over the High Court ruling on indefinite detention, MP Kylea Tink introduced a private member’s bill that sought to refocus the national debate back onto broader questions about the purpose and role of detention generally within our migration system.
The Migration Amendment (Limits on Immigration Detention) Bill 2023 proposes three legislative changes that would rectify some of the most grievous aspects of Australian practice without dismantling the overall architecture of the immigration detention regime. First, a requirement that government officers be satisfied that detention is reasonable, proportionate and necessary as a last resort when first making the decision to detain. Second, a time limit of 90 days, after which the minister may extend detention in certain circumstances and subject to independent review. Third, a requirement that children not be held in closed immigration detention centres.
The bill is unlikely to become law in its current form but does show us the kinds of issues we should be discussing now with a view to reforming key features of the immigration detention system. Let us not wait until the next “crisis” to rush through ill-conceived and untested laws. Matters this important are worthy of a more careful and considered debate.
This article was first published in the print edition of The Saturday Paper on December 2, 2023 as "The case against mandatory detention".
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