The immigration laws of Australia provides for mandatory detention of immigrants who have either arrived in Australia without a visa, overstayed their visa, or have their visa cancelled unless they are granted permission to stay in Australia. {Migration Act (1958)}[i] The object of Migration Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.[ii] The Act provides that the illegal immigrants be detained in the Immigration Detention Facilities (IDFs) and Residential Housing Centers (RHCs) by the Department of Immigration and Multicultural and Indigenous Affairs, (DIMIA). Detainees can also be held in any other place approved by the Minister in writing, for example, a hospital, migrant center or a holding room at an airport.[iii]
Despite Australia being a signatory to many treatises protecting human rights including the United Nations 1951 Convention and 1967 Protocol regarding the Status of Refugees, the detention system in Australia is far from meeting the international standards enshrined in those treaties. It is pertinent to note that in Australia, judicial review of detention laws is quiet restricted. Therefore, the detainees lack fair opportunity of being able challenge their detention on the basis of violations of their human rights under any international charter that Australia may be a party to. At the camps, the detainees are met with hardships and inferior conditions like overcrowding, lack of proper sanitation, ill treatment by the detention officials, prolonged periods of detention and in some occasions, the men are separated from their wives and children.[iv]
Consequently, many detainees have been reported to suffer mental, and psychological agony due to the indefinite stay at the camps. Their attitude and experience of Australia has been observed to have changed to one of disgust and disappointment making it difficult for those successful in acquiring legal status to immediately and effectively integrate into the society. In case of children detainees, the situation is made worse by the fact that they are forced to miss out on formulative influences in their development. The negative impact is conspicuously reflected in their health (including mental health) education and the lack of the ability to develop in a normal environment (HREOC, 2001)[v].
Humanity demands that all persons deprived of their liberty should be treated with respect for the inherent dignity of the human person. Providing for mandatory detention of illegal immigrants without holding a preliminary inquiry is not only inhuman but also against the principles of natural justice. In fact, there should be a statutory provision compelling the authorities to advice the illegal immigrants of their right to make an application for protection visa and seek legal assistance.
Mandatory detention should be replaced by a legitimate process that provides for judicial review of decisions denying personal liberty to the victims. The government should push for amendment of the Migration Act (1958) to impose specific time limits for detention, provide better access to information and communication between the detainees and their legal advisors and set the minimum standards of treatment in consonance with the International Laws and Treaties. The administrative approach of the detention officials should be focused on protection and care rather than criminality and illegitimacy.
[i] Australia migration Act 1958
[ii] section 4 migration act 1958
[iii] Section 5, Migration Act 1958.
[iv] Article 9.1 of the Convention on the Rights of the Child, to which Australia is a signatory, provides that parties to the Convention shall ensure that “a child is not separated from his or her parents against their will, except when it is necessary for the best interests of the child.” Cited in Human Rights and Equal Opportunity Commission’s report, 2001
[v] 3.1.2, excerps
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