"Between a rock and a hard place": Australia's mandatory detention of asylum seekers.

Author:Motta, Francesco P.
 
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Abstract

For fourteen years Australia has detained asylum seekers arriving unlawfully in its territory. It also intercepts asylum seekers arriving in the territorial waters, detaining them in third countries and preventing them from seeking refugee status in Australia (the "Pacific Solution"). This paper traces the development of the policy, its current implementation, the justification employed by the government for maintaining it, and its legality under international law. On examination of these issues, it is evident that the justification for the mandatory policy is flawed; that the costs of the policy--in terms of the physical and mental well-being of asylum seekers themselves, and the social and financial impact on the Australian community--are too great, and it puts Australia in breach of its obligations under international law. However, the government has not canvassed alternatives to the mandatory detention policy and has no intention of changing it. This leaves asylum seekers who enter Australian territory unlawfully literally and figuratively between a "rock and hard place."

Resume

Depuis 14 ans l'Australie a eu pour politique de detenir les demandeurs d'asile qui arrivent illegalement sur son territoire. Il intercepte aussi les demandeurs d'asile qui penetrent dans ses eaux territoriales, les detenant dans des pays tiers et les empechant de revendiquer le statut de refugee en Australie (la , comme on l'appelle). Cet article retrace le developpement de cette politique, la maniere dont elle est presentement mise en oeuvre, les raisons evoquees par le gouvernement pour justifier son maintien, et sa legality an regard du droit international. Lorsqu'on examine ces questions de pre', il devient clair que la justification offerte pour cette politique obligatoire comporte des lacunes; que les cohts de la politique--en terme du bien-etre physique et mental des demandeurs d'asile, aussi bien qu'en terme de l'impact social et financier sur la societe australienne --sont trop eleves, et qu'elle place l'Australie en position de violation de ses obligations vis-a-vis du droit international. Cependant, le gouvernement n'a pas explore les alternatives possible' d la politique de detention obligatoire et n'a aucunement l'intention de la changer. Ainsi, les demandeurs d'asile qui entrent illegalementsur le territory australien se retrouvent quasiment coinces.

Introduction

In Australia, freedom from arbitrary detention is a fundamental right derived from the common law. (1) Yet for fourteen years, Australia has enforced a policy that requires any person who arrives or remains in Australian territory unlawfully (2) to be detained until either any application for a visa is finalized (3) or they are removed from the country. Among those detained (4) are asylum seekers arriving unlawfully by boat and plane, and include many who have suffered torture and trauma, the elderly, the sick, pregnant women, and children. (5)

In recent months there have been press reports of detainees hunger striking, rioting, and committing acts of self mutilation (6) from frustration at being detained for long periods in conditions that are increasingly recognized as substandard by the Australian community. (7) There has been strident criticism of the policy both nationally and internationally --from Australia's own Human Rights Commission, HREOC, and other human rights and international organizations--particularly concerning the detention of children. (8)

However, far from ameliorating the detention regime, the government has significantly strengthened it--making it almost impossible for asylum seekers to obtain information regarding their rights under Australian law so as to make Protection Visa applications, (9) to access legal advice, or to have their detention reviewed by the courts. Simultaneously, access to the detention centres by the media and members of the general public is strictly limited. (10)

Furthermore, the government has now implemented a policy of detaining vessels carrying asylum seekers (11) entering Australian territorial waters, arresting the asylum seekers, and deporting them to South Pacific nations (such as Nauru), (12) where they are detained pending processing (the so-called "Pacific Solution"). (13) Since these places are outside Australia, persons detained there have no right to apply for refugee status under Australian law, no guarantee of proper processing, no access to advice, and no appeal rights against adverse decisions affecting them. These offshore detention centres are not easily accessible to the press nor are they subject to independent scrutiny by members of the Australian public. (14)

Currently, there is no other country which has such a strict policy of mandatory detention of all those who enter the country unlawfully regardless of their status or condition.

This paper shall examine the content of Australia's detention policy: how it developed, how it is currently implemented, its effects on asylum seekers, the justifications of government in support of the policy, and its legality. Finally, there is a discussion concerning the underlying rationale of the policy.

Mandatory Detention--Its Rise and Rise

The mandatory detention policy developed over twenty-five years in conjunction with Australia's policy towards onshore refugee applicants. Australia's migration laws are founded in the Australian Constitution, which empowers the Commonwealth Parliament to "make laws for the peace, order and good government of Australia" with respect to, inter alia, "immigration and emigration," "nationality and aliens," and "external affairs." (15) As interpreted by the High Court of Australia, this authorizes the Commonwealth Parliament to legislate regarding the treatment of "non-citizens," including their admission, stay, detention, and removal. Also relevant is the principle of common law that "aliens" (16) are not to be treated as "outlaws" and should not be detained without proper authority conferred by law. (17)

Australia's policy towards unauthorized arrivals immediately hardened when it became a country of first asylum in the mid-1970s. From initially tightening entry control and punishing those organizing the transport or unlawful entry of people into Australian territory, by the late 1980s the government began to direct its policy to penalizing asylum seekers themselves, both as a means of "deterrence" and for the protection of national security. Essentially, Australia does not want to be a country of first asylum but prefers to permit ingress to the country through an orderly system that it controls. (18) This blurring of policy imperatives between the need for national security on the one hand, and obligations owed under international law on the other, has seen the latter consistently subordinated to the former and has led to the current policy of mandatory detention of asylum seekers entering the country unlawfully.

Until the mid-1970s the arrival of asylum seekers was exceptionally rare in Australia. There was no formal system for assessing claims to refugee status at this time, the grant of an entry permit being solely at the discretion of the Minister under the then Section 6 of the Migration Act. (19) Resulting from the end of the Vietnam War and the enforced economic isolation of Communist countries in Southeast Asia, large numbers of people began to flee on boats to neighbouring countries. Australia suddenly found itself confronted by potential refugee applicants as a country of first asylum. (20) In response, Australia instituted a more regularized system for the processing of refugee claims, (21) although the grant of refugee status was still at the discretion of the Minister. (22) There was no "mandatory detention policy" as such for asylum seekers; applicants were held in processing centres until identification checks and final assessment of their claims. If granted refugee status, they would be given a temporary or a permanent entry permit. If refugee status was refused, they were removed.

After a further influx of ethnic Chinese being actively "forced" from Vietnam during the Sino-Vietnamese War in 1978-79, Australia instituted an organized migration scheme as part of an internationally agreed plan. (23) However, ongoing ethnic and economic problems in Vietnam and the Vietnamese invasion of Cambodia meant that the numbers fleeing quickly outstripped the numbers allocated. Some countries responded in the early 1980s by refusing entry to the "boat people." (24)

In response to the arrival of some two thousand people on boats in Australia in 1980, the government amended the Migration Act, formally providing a legal basis for the Minister's discretionary assessment of refugee status according to the Refugees Convention and his power to grant an entry permit. (25) At the same time, the Immigration (Unauthorised Arrivals) Act 1980 (Cth) (hereinafter IUA Act) (26) vastly increased the powers of Commonwealth officials to board, search, and detain ships, and to arrest and detain masters, owners, agents, and charterers of vessels, etc., involved in the transportation of "unauthorized arrivals." (27) The IUA Act also granted to Commonwealth officials the authority either to grant a person who arrived in Australia aboard a vessel (ship or airplane) without an entry permit issued pursuant to the Migration Act 1958 a permit to disembark the boat or airplane on whatever conditions the officer determined, (28) or to arrest such a person without warrant. (29) The law required that such a person, if arrested, be taken before a "prescribed authority (30) within forty-eight hours of the initial arrest, or within a period of time as was reasonably practicable thereafter. (31) The prescribed authority could formally order in writing the continued detention of that person where satisfied that the arrest and subsequent detention of the individual were pursuant to the IUA Act. (32) A person the subject of such an order...

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