"Between a Rock and a Hard Place": Australia's Mandatory Detention of Asylum Seekers

Refuge

Volumn 20, Issue 3, 2002, Pages 12-43

  Motta, Francesco P ^a  

^a NONE   (Canada)

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[No Author keywords available]

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EID: 84937385937     PISSN: 02295113     EISSN: 19207336     Source Type: Journal    
DOI: 10.25071/1920-7336.21262     Document Type: Article

References (14)

1. Infra note 17. All Australian legislation can be obtained online: Australasian Legal Information Institute Homepage fs2 (date accessed: 24 February 2002). The "Immigration Department" has undergone various name changes reflecting its role according to evolving government policy. It has been known as "DILGEA" (Department of Immigration, Local Government and Ethnic Affairs); "DIEA" (Department of Immigration and Ethnic Affairs); "DIMA" (Department of Immigration and Multicultural Affairs) and most recently "DIMIA" (Department of Immigration, Multicultural and Indigenous Affairs). The same applies to the title of the Minister for Immigration, whose various acronyms have included "MILGEA", "MIEA," and "MIMA," and who is now referred to by the acronym "MIMIA" (Minister for Immigration, Multicultural and Indigenous Affairs). In this paper I shall refer to the former as "DIMIA" and the latter as the "Immigration Minister" or the "Minister." Since no Immigration Minister has been female, I refer to the person holding that office with the third person pronoun "he" and its declensions.
2. I.e., without a valid visa, and more often than not without identity papers and passports. The Migration Act 1958 (Cth) (No.62 of 1958) (hereinafter Migration Act), s.13(1) defines a "lawful non-citizen" as "a non citizen in the migration zone who holds a visa that is in effect"; s.14 defines "unlawful non-citizen" as a person who is present within the "migration zone" unlawfully, i.e., without a valid visa: Infra note 47 and 69. See Department of Immigration, Multicultural and Indigenous Affairs, Unauthorised Arrivals and Detention-Information Paper (Canberra: DIMIA, 15 October 2001) at 3; online: DIMIA Homepage (date accessed: 20 February 2002): "In broad terms, there are four kinds of unlawful non-citizens: Persons whose visas have expired, persons whose visas have been cancelled, persons who have entered Australia illegally (unauthorised arrivals) and persons whose visas have ceased by operation of migration law."
3. Most often "refugee status," which is a criterion for Protection Visas: Infra note 9.
4. The mandatory detention policy covers all "unlawful non-citizens" including those who have arrived unlawfully. All are commonly referred to as "detainees." For the purposes of this paper "asylum seekers" shall be used to denote more specifically those who arrive by boat or plane without lawful permission, are denied entry, and may or may not have actually applied for a Protection Visa.
5. Given the length of time that some spend in detention, many of the children can spend their early childhood or some of their formative years in detention, although never willingly having committed an offence against any law of the Commonwealth: M. Einfeld, "Is There a Role for Compassion in Refugee Policy?" (2000) 23(3) University of New South Wales Law Journal [hereinafter UNSW L.J] 303-14at308. Forthe numbers of women and children in mainland detention centres, infra note 126. Under the Immigration (Guardianship of Children) Act 1946 (Cth), s. 6 the Immigration Minister is the guardian of all non-citizen children who do not arrive in the company of a relative over the age of twenty-one.
6. Human Rights and Equal Opportunity Commission [hereinafter HREOC], Those Who've Come across the Sea: Detention of Unauthorised Arrivals (Canberra: AGPS 1998) at 101: "[h]unger strikes are not a new phenomenon among asylum seekers detained in Australian immigration detention centres. They certainly occurred in the early 1980s. In response to a hunger strike in 1992 by three Cambodian women at Vil-lawood, the then Minister for Immigration promulgated a regulation allowing the Department to direct physicians to force-feed asylum seekers whose lives are at risk because of their refusal to eat. The provision has been amended from its original form and is now contained in [Migration Regulations 1994] regulation 5.35." According to the press information page, Immigration Minister, Philip Ruddock MP, "Detention Update", as at 28 January 2002 there were 287 individuals on hunger strike in mainland Australia's IDCs (including five minors); forty-one individuals had "stitched" their lips together in protest, and of these nine were also participants in the hunger strike. Online: Immigration Minister, Philip Ruddock MP Homepage (date accessed: 24 March 2002).
7. "Refugees Desperate" The Age (27 January 2002); "Policy on Refugees Repugnant - We Are All Immigrants" The Age (26 January 2002); "Never Confuse the Law with Justice" The Sydney Morning Herald (30 January 2002); "Refugee Hunger Protest Grows" The Sunday Age (16 January 2002).
8. In July 2000, the UN Human Rights Committee stated: "The Committee considers that the mandatory detention under the Migration Act of'unlawful non-citizens', including asylum seekers, raises questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party's policy, in this context of mandatory detention, of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right." Online: UNHCHR Homepage (date accessed: 25 September 2001) ; HREOC, Preliminary Report on the Detention of Boat People (November 1997). HREOC, supra note 6; HREOC, Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program (November 2000)(infra note 85); Human Rights Watch, No Safe Refuge: The Impact of the September 11 Attacks on Refugees, Asylum Seekers and Migrants in the Afghanistan Region and Worldwide, Human Rights Watch Backgrounder (18 October 2001); U.S. Department of State, Country Reports on Human Rights Practices - 2001: Australia, released by the Bureau of Democracy, Human Rights, and Labor, 4 March 2002; online: U.S. State Department Homepage (date accessed: 24 March 2002) .
9. Migration Act, s.36(1) states that a criterion of a Protection Visa is that the applicant "meets the definition ofa refugee as found in the United Nations Convention relatingto the Status ofRefugees of 28th July 1951 and the Protocol Relating to the Status of Refugees, 31 January 1967". See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, Janu-ary 1992) ["UNHCR Handbook"], online: UNHCR Homepage (date accessed: 21 February 2002). The Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137, Australian Treaty Series (A.T.S.) 1954, No. 5 (entered into force for generally and for Australia 22 April 1954). The Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, A.T.S. 1973 No. 37 (entered into force generally 4 October 1967, entered into force for Australia 13 December 1973). Both the Refugees Convention and the Optional Protocol are referred hereinafter as the "Refugees Convention." The Migration Regulations 1994 (Cth) (hereinafter "1994 Regulations") contain the other criteria for the grant of a Protection Visa, among which is that "the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention" [1994 Regulations, Schedule 2, Part 866, clause 866.221; and Schedule 2, Part 785, clause 785.221]. 10. The government claims that journalists and photographers from many media organizations have participated in tours to Immigration Detention Centres (hereinafter IDCs) arranged by the Department. There have been numerous tours of IDCs since 1992. In recent years the media visited Port Hedland in June 1999 and February 2000; Woomera in November 1999 and in January, March, and December 2001; Maribyrnong in March 2001; and Curtin in June 2001. Of course, these "tours" are arranged by the Department and are highly orchestrated and controlled; the government claims this is for security reasons and the need to protect the identity and privacy of asylum seekers: Infra note 92. The government further claims that visits to the centre by external bodies average more than one a week and that this demonstrates "that the immigration detention program is among the most closely scrutinised of government programs." On 26 January 2002, during riots and unrest at the Woomera Detention Centre, the media were forcibly removed from outside the perimeter fencing; however, the government stated that DIMIA had no knowledge of the directive to move the media and that it was not a DIMIA directive. This of course begs the question, if DIMIA did not know of the directive what other events concerning the IDCs is the government not aware of? The government claims that IDCs are monitored or scrutinized, that they are subject to both administrative and judicial review, and that they are subject to full parliamentary scrutiny and accountability, even claiming that immigration detention is among the most closely scrutinized government programs. A number of government and non-government agencies make regular visits to detention facilities, such as the HREOC, the Commonwealth Ombudsman, the Australian Parliament's Joint Standing Committee on Migration, other members of Parliament, and the Immigration Detention Advisory Group. Press information page of the website of the Immi-gration Minister, Philip Ruddock MP, "January 2002 Rebuttals to False Information Relating to Immigration Detention"; on-line: Immigration Minister, Philip Ruddock MP Homepage (date accessed: 24 March 2002).
10. "Boat people" is the term commonly used to denote those arriving unlawfully by boat in Australian territory.
11. These countries usually accept this burden after being granted millions of dollars in extra aid assistance. This should be added to the true financial cost of the policy; see "Costello Forced to Find $400m as Refugee Costs Spiral" Australian Financial Review, (14 February 2002) and "Budget Faces $1.8bn Hit from Refugees and Terror" Australian Financial Review (30 January 2002).
12. The name the government devised for its program of expelling asylum seekers.
13. Infra note 127.
14. Commonwealth of Australia Constitution Act, 63 & 64 Victoria c12, s.51(xix), (xxvii), (xxix).