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20 Years of Mandatory Immigration Detention: the imperative for community-based arrangements for those who seek Australia’s protection

Commission Commission – General

20 Years of Mandatory Immigration Detention:
the imperative for community-based arrangements for those who seek Australia’s protection

Catherine Branson QC,
President, Australian Human Rights Commission

Speech to Australian Refugee Association

Friday, 22 June 2012


Acknowledgments and introduction

Thank you for your kind introduction. I wish to start today by acknowledging
the Kaurna People of the Adelaide Plains, the traditional owners of the land on
which we are meeting. On behalf of the Australian Human Rights Commission, I pay
my respects to their elders past and present.

I also wish to thank the Australian Refugee Association for their invitation
to speak this evening. It is a privilege to deliver the third ARA World Refugee
Day oration, and to do so in the footsteps of distinguished predecessors: the Rt
Honourable Mr Malcolm Fraser AC, a former Prime Minister of this country; and Mr
Hieu Van Le AO –Lieutenant Governor of South Australia and a former
refugee from Vietnam. Mr Le’s contribution is just one of many that
refugees and other new arrivals continue to offer our national story.

Examples such as this, of course, are what we celebrate in Refugee Week,
along with those achievements of the global community in valuing the dignity of
all people – in restoring their hope for a better life. For in this
year’s Refugee Week theme can be found the purpose of organisations like
the ARA – a body which, for over 30 years, has helped to restore hope to
vulnerable people; and to foster recognition that refugees are an integral part
of a thriving, prosperous community.

As each new conflict or global upheaval has brought new narratives, new faces
to our shores, agencies like the ARA have helped Australia resettle over 750,000
people since the start of WWII. This is an achievement of which we can, as a
nation, be rightfully proud. Our nation has restored hope in these lives, and in
return has been vastly enriched by their contribution. Each year we resettle in
Australia close to 14,000 people through our humanitarian program, and over the
last twenty odd years have resettled over 11,000 women who were at heightened
risk in the countries to which they had fled. Australia is also a major donor to
the United Nations High Commission for Refugees, and proposes to spend $39
million in the next financial year to deliver services to humanitarian entrants
and new migrants. We show great generosity to people in desperate need.

As we reach the 20th anniversary of Australia’s mandatory
immigration detention system, one of the more ignoble chapters in our domestic
immigration policy, we should reflect not only on its impact on vulnerable
lives, but on recent positive developments that signal, perhaps, a genuinely new
direction in our treatment of those that seek Australia’s protection
– developments that are helping us regain some ground as a mature and
compassionate member of the global community.

Mandatory and indefinite detention

One of the strictest immigration regimes in the Western world,
Australia’s mandatory immigration detention system was introduced with
bipartisan political support and described at the time as an interim
measure.[1] Rather than being
repealed, however, two years, later mandatory detention also became potentially
indefinite through the removal of previous time limitations.

I need not detail here the controversy that has tailed this system ever
since. Many in this audience will have joined the widespread call to end it and,
certainly, over the last decade especially, the Commission has repeatedly
highlighted its devastating effects. In doing so we have investigated complaints
from many people in detention, conducted two national inquiries and visited a
number of immigration detention facilities. When we do, what we find is
compelling evidence of the real and lasting damage wreaked by closed detention
environments on already vulnerable human beings – of suicides, attempted
suicides and self-harm; of deteriorating mental health; of a needless
undermining of humanity.

As an Afghan man at Curtin Immigration Detention Centre told my staff in
mid-2011:

We feel that we have lost everything here – our hope, our
health, our memories, our names, our ability to help our families, our
minds....We are all dying here, from the inside out.

As this man’s words suggest, often what we find on our visits is that
people have lost the very sense of hope that sustained them on their journey
here – languishing in detention without knowing when or if they will be
released, when their claim will be decided, or when they can seek to be reunited
with loved ones.

One of the most tragic examples to come before me as President of the
Commission, was that of an Iranian boy just 10 years old when he was detained in
2001. He spent three years in closed detention with his parents, during which
time its effects on his mental state were meticulously documented.

In fact, his Individual Management Plan records around 45 incidents of
self-harm, including the young boy cutting himself with razors and attempting to
hang himself. It notes his nightmares, bedwetting, increasing withdrawal, and
that he sometimes stayed up all night to watch over his parents. Yet he remained
in closed detention – evidence mounting of his disintegrating health.

Some years on, assessments of this young boy, now a young man, suggest that
he may never fully recover his self-esteem; his capacity to relate to others, to
pursue or achieve goals severely damaged; the hope he and his family once held
for their lives in Australia seemingly – perhaps irrevocably – lost.

New
directions

Given examples such as this – ones which should never be repeated
– we can be encouraged that a significant change in approach has occurred
since this time. For example, in 2008, the Australian Government released its New Directions in Detention policy – one which, despite retaining
the mandatory detention framework, heralded a different direction, with
detention to be used as a last resort; for the shortest practicable period; and
with a presumption that community based arrangements were to be used unless a
person was assessed as presenting too great a risk to the community. Indefinite
and arbitrary detention was acknowledged to be unacceptable. Detention of
children in immigration detention centres, too, was ruled out of bounds.

Though this policy seemed to falter initially, as mentioned, it has provided a framework for more recent positive developments. In October 2010, the
Government announced its intention to transfer the majority of children in
immigration detention into community detention by June 2011, and it has done so.
As at 20 June 2012, a total of 4088 people, including 1910 children, had been
approved for community detention since the October 2010
announcement.[2] In the previous month
there were a total of 635 children in community detention and 281 children in
closed detention facilities.[3] This
shift is positive. However, there is clearly still far more to be done.

And, in November 2011 the Government announced that eligible asylum seekers
who had arrived by boat would be progressively considered for release on
bridging visas following satisfactory completion of initial health, security and
identity checks. As at 20 June 2012, 2614 people had been released from
detention on bridging visas since that
time.[4]

Commission staff have visited some of these people and seen how, with
appropriate supports, community based arrangements offer a far more humane and
promising solution than closed detention. One man told us:

I really breathed the air into my body for the first time in so many
months. And I thought – I can live again now.

Another young stateless Faili Kurd man, who had been in closed detention for
14 months before being released into the community on a bridging visa told
us:

I believe that being outside of detention, even with all the
difficulties, is better than in detention. Here you have a friend to go to, a
park to go to. Even on the best day in detention, you are still looking at the
wires around you...

Certainly, these steps are more in accordance with our responsibilities at
international law, with which many of you will be familiar. Under international
law, immigration detention must be used only as a measure of last resort, in
exceptional circumstances, in the least restrictive form; for the shortest
practicable time and be subject to judicial oversight. In particular,
Australia’s obligations under the International Covenant on Civil and
Political Rights
and Convention on the Rights of the Child require
that no one be subjected to arbitrary detention. The United Nations Human Rights
Committee has stated that, to avoid being arbitrary, detention must be a
proportionate means to achieve a legitimate aim, with consideration given to
alternative, less restrictive, means.

International experience, practical benefits

The recent move towards a community based approach to people seeking asylum
is also more in accordance with the approach of many nations around the world
– all the more relevant when we put Australia’s response to the
arrival of asylum seekers into perspective.

This audience will know that, despite community and media perceptions of
‘boatloads’ of arrivals, in truth, most people seeking asylum do not
get anywhere near Australia. In fact, over 80% of the world’s refugees are
hosted by developing nations, with 75% hosted by a country neighbouring their
country of origin – Tunisia, Egypt, Turkey, Jordan and Lebanon all keeping
their borders open, for example, during the recent uprisings in the Middle
East.[5] Further, Pakistan, the
world’s largest refugee hosting country, shelters 605 refugees to every US
dollar of Pakistan’s per capita
GDP.[6] Meanwhile, in 2011 alone,
Yemen received over 100,000 asylum-seekers and migrants who crossed the Gulf of
Aden from the Horn of Africa by boat, with Somalis given prima facie refugee status upon arrival.[7]

In contrast, in 2010-11, only 11 491 people applied for protection in
Australia: less than 1% of the total number of asylum seekers
worldwide.[8] In the same year, asylum
seekers who arrived by boat comprised less than 3% of Australia’s total
migration
intake.[9] Clearly, then, other nations are grappling with a far greater challenge on their
doorstep.

Just as importantly, many nations have been taking a community based approach
for some time. For example, in Canada, people may be released from immigration
detention on bail or bond and incur financial consequences if they breach its
conditions. In Spain, asylum seekers are either
released into the community or accommodated in open reception centres from which
they are free to come and go. Sweden, meanwhile, uses a ‘reception
program’ under which asylum seekers spend around a week in a transit
centre and are then issued with identification documents which they can use to
access some basic
services.[10]

Certainly, international research demonstrates that systems which provide
people with appropriate support while they reside in the community, and which
offer better access to case management and legal advice, have better
implications for people’s physical and mental health as well as for their
potential transition to resident status.

After all, as one man detained at the Northern Immigration Detention Centre
in Darwin told Commission staff:

... If we lose our minds and are not able to help ourselves, how can
we make a contribution?

Equally, community-based arrangements for asylum seekers help facilitate
immigration processing – particularly when compared with the inaccessible
nature of many Australian IDCs. They are also considerably cheaper, the costs of
providing for asylum seekers in the community in Canada, for example, estimated
at $10-12 per person per day, compared with $179 for detention.

While international law dictates that community-based arrangements ought to
be the norm for asylum seekers as they await a determination of their claims,
clearly there are also many practical benefits. Like other nations, then,
Australia is moving towards a more constructive approach – enabling the
integration of contributing, functioning people into the life of the community,
rather than shouldering the support of those damaged by the very system from
which they sought help.

Despite these improvements, however, the Commission has also seen that
despair is not limited to people who are being held in closed detention.

Although community-based arrangements offer an undoubtedly better approach,
those without permission to work – to support themselves and their
families and to contribute to Australian society – still struggle. One
young man, who arrived in Australia alone as a minor, told Commission staff:

I felt happy at first – I thought this is freedom. But it is
not....I cannot work. I cannot study the things I need to progress in life... I
want to make a contribution and I want to develop. But now I feel like I am very
old.

Without opportunities to contribute, it seems we still have some way to go if
we are truly to harness the benefits of a community based scheme.

Adverse Security Assessments

An area in which Australia still has a great deal of terrain to cover,
however, concerns the growing number of people who, though recognised refugees,
have received adverse security assessments from ASIO and therefore remain in
detention with, at present, no prospect of release. Currently this includes
around 50 adults, some of whom have children with them. In fact, one toddler has
spent his entire life in detention, while other young children have only ever
experienced flight and detention.

These people have not been told the reasons they have been assessed as posing
a risk to Australia’s security. They do not have access to any meaningful
review by our courts and tribunals of the decisions made about them. Under
current arrangements they will remain in closed detention unless another country
agrees to resettle them or unless the situation in their country of origin
resolves to the extent that they are no longer considered refugees.

Two months ago, Commission staff visited 27 refugees who had received such
assessments. Some asked for assistance in arranging a ‘mercy
killing’ and showed staff letters written to government requesting the
same. Others merely wept, despair their only possible response.

As one man told Commission staff:

...In Sri Lanka they can shoot me. One shot and I’m gone. Here,
I am dying every day....

Another simply asked:

How can anyone live without a destination?

Obviously, the Government has an obligation to safeguard our security, and
Australians should expect nothing less. As other nations have discovered,
however, there are alternatives – the United Kingdom, Canada and
New Zealand all using more transparent and equitable systems. Equally, bodies
such as the Joint Select Committee on Australia’s Immigration Detention
Network have recommended different approaches.

These include allowing refugees to challenge an adverse assessment in the
Security Division of the Administrative Appeals Tribunal – extending them
a right that already exists for Australian citizens and permanent residents and,
without which, it will remain impossible to detect if a critical error has been
made. Doing so would not require the disclosure of sensitive intelligence, with
other countries using ‘special advocates’ who are security cleared
and bound by confidentiality agreements.

Consideration could also be given to introducing a system of graded risk
assessments – managing specific risks according to their severity. This
may well find that some people are safe to live in the community with
appropriate conditions, as occurs in other countries.

This week, the claim of one person who received an adverse security
assessment has been before the High Court. His argument is that he has not been
afforded procedural fairness and that his indefinite detention is unlawful. We
will await the outcome of this decision with much interest as it will have a
significant impact on all of those who are currently indefinitely detained
because they have an adverse security assessment.

Whatever the result, it is clear to the Commission that the continuation of
indefinite detention – particularly of children – is something that
we should deplore as a compassionate, responsible community. It denies people
the humanity to which they clung with such determination as they travelled to
seek the sanctuary of a safer place.

Restoring hope

It is not my intention tonight to condone the practice of people smuggling,
nor to minimise the grave risks associated with travel to Australia by boat.
Nevertheless, whatever the manner in which people seek Australia’s
protection, I believe that it is incumbent upon us to find approaches which not
only accord with our international obligations, but which also do not compound
the challenges that their arrival already presents.

Full of desperation the likes of which most Australians will never know, many
refugees and asylum seekers relinquish almost all that they have, holding their
children over long and often terrifying journeys as they whisper promise of a
better life. However they come, it is hope that bears them across the waves
– hope for safety; and for freedom from assumptions based upon their race
or cultural background. Yet hope has often been the very thing extinguished by
the crudities of a system which, for many, has instead embodied the absence of
possibility.

As a nation built on immigration, we have long known the benefits that new
arrivals bring – the contributions they can make; the diverse perspectives
and experience that enrich us all. Surely it makes sense to shape a system
which, with appropriate health and security considerations, allows new arrivals
to contribute; which observes the principles that we would expect to be afforded
ourselves – and which, in doing so, vindicates the faith placed in us as
members of the international community, by those who seek our protection, at the
start of their perilous journey.

As one man who had received an adverse security assessment told Commission
staff this April:

All our dreams and feelings for the future have been put in a dark
room and locked.

As other nations have demonstrated, and as Australia is starting to learn,
there are steps we can take to improve our system. Community based
arrangements as the norm for asylum seekers; and provision of greater
transparency and access to merits review of adverse security assessments for any
affected refugees are only two of these vital steps.

I believe that Australia has the maturity and vision to shape a system which
keeps our nation safe and observes human rights. This Refugee Week we
should reflect not only on how we can help to restore hope in the lives of those
who have endured flight and fear; but also in the integrity of Australia’s
response.


[1]G Hand (Minister for
Immigration, Local Government and Ethnic Affairs), Migration Amendment Bill
1992
, Second reading speech, 5 May 1992. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1992-05-05%2F0031%22 (viewed 2 June 2012).
[2] Advice
received from the office of the Minister for Immigration and Citizenship, 22
June 2012.
[3] As at 18 May.
Minister for Immigration and Citizenship, ‘An update on community
detention’, Media Release, 21 May 2012. At http://www.minister.immi.gov.au/media/cb/2012/cb186759.htm (viewed 22 June 2012).
[4] Advice received from the office of the Minister for Immigration and Citizenship,
22 June 2012.
[5] A Guterres,
United Nations High Commissioner for Refugees, ‘The changing face of
global displacement: responses and responsibilities’, Address to the Lowy
Institute for International Policy,
Sydney, 14 February 2012, p 3.
[6] United Nations High
Commissioner for Refugees, A Year of Crises: UNHCR 2011 Global Trends (2012), p 15. At http://www.unhcr.org/4fd9e6266.html (viewed 22 June 2012).
[7] A
Guterres, United Nations High Commissioner for Refugees, ‘The changing
face of global displacement: responses and responsibilities’, Address to
the Lowy Institute for International Policy,
Sydney, 14 February 2012, p 6.
[8] Department of Immigration and
Citizenship, Nation Building: Annual Report 2010-11 (2011), p 119. At http://www.immi.gov.au/about/reports/annual/2010-11/ (viewed 22 June 2012).
[9] Australian Human Rights Commission, 2011 Immigration detention at Curtin:
Observations from visit to Curtin Immigration Detention Centre and key concerns
across the detention network
(2011), Part A, Section 2. At http://www.humanrights.gov.au/human_rights/immigration/idc2011_curtin.html (viewed 22 June 2012).
[10] Above, Part C, Section 10.