2.1 Mandatory immigration detention
It is mandatory under the Migration Act for every non-citizen who is in Australia without a valid visa to be detained, regardless of his or her individual circumstances. Once detained, unlawful non-citizens must remain in detention until they are either granted a visa or removed from Australia.
The majority of unlawful non-citizens are detained in closed immigration detention facilities. Of the 9,375 people in immigration detention on 5 September 2013, 6,579 (or 70%) of these people were held in secure immigration detention facilities. The remaining 2,796 were in community detention.
Of the people being held in closed immigration detention facilities in Australia as at 31 August 2013:
- 6,136 people (75%) had been detained for 3 months or less
- 1,881 people (23%) had been detained between 3 and 12 months
- 189 people (2%) had been detained for longer than one year.
As at 13 September 2013 there were 25 secure immigration detention facilities operating in Australia, including four on Christmas Island. A map produced by the Department showing the location of all these facilities is at Appendix 3 of this report.
As shown on the map, there are four different categories used to classify immigration detention facilities:
- Immigration Detention Centre (IDC): high security detention facility
- Immigration Residential Housing (IRH): secure detention in a domestic environment
- Immigration Transit Accommodation (ITA): closed detention facility which has less intrusive security measures than an IDC
- Alternative Place of Detention (APOD): place designated by the Department for detaining unlawful non-citizens who are assessed as posing minimal risk to the Australian community.
(a) Human rights issues
The Commission has raised concerns over many years that the system of mandatory detention leads to breaches of Australia’s international human rights obligations. For instance, Australia has binding obligations under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 37(b) of the Convention on the Rights of the Child (CRC) to ensure that no one is subjected to arbitrary detention.
The Commission’s concerns about Australia’s system of mandatory detention are shared internationally. The United Nations Human Rights Committee has repeatedly found Australia to be in breach of its international obligations under article 9(1) of the ICCPR.
According to the UN Human Rights Committee, the prohibition on arbitrary detention includes detention which, although lawful under domestic law, is unjust or disproportionate. Therefore, in order for the detention of a person not to be arbitrary, it must be a reasonable and necessary measure in all the circumstances.
Under Australia’s system of mandatory detention, the detention of an unlawful non-citizen is not based on an individual assessment that the particular person needs to be detained. Persons who are detained cannot seek judicial review of whether or not their detention is necessary. Under the Migration Act there is no time limit on how long a person can be detained.
These aspects of Australia’s immigration detention regime can result in people being subjected to prolonged and indefinite detention, in breach of Australia’s international obligations.
The Commission has repeatedly raised concerns about the significant human impacts of mandatory immigration detention, including the deterioration of the mental health of detainees (see section 2.4 below).
The Commission has long recommended that, instead of requiring the mandatory immigration detention of broad groups of people, a person should only be detained if it is shown to be necessary in their individual case. Further, time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary.
A further concern is that the conditions for and treatment of people in immigration detention must comply with Australia’s international human rights obligations. Key amongst these is the obligation under article 10 of the ICCPR to ensure that all persons who are detained are treated with humanity and respect for their inherent dignity. Guidelines for the implementation of this obligation and other human rights standards are contained in the Commission’s publication Human rights standards for immigration detention.
The Commission has conducted several visits to immigration detention centres to monitor conditions of detention. The Commission has raised concerns about the conditions in many of Australia’s immigration detention facilities and has found that many are not appropriate places in which to hold people, especially for prolonged periods of time.
Australia’s mandatory detention system has also attracted criticism due to its cost. In 2011–2012 immigration detention cost the Australian taxpayers $1.235 billion. It has also been questioned whether mandatory detention effectively deters people from seeking asylum.
2.2 Children in detention
There are particular challenges relating to the situation of children in immigration detention. The Commission has repeatedly raised concerns about the mandatory detention of children, the number of children in immigration detention and the prolonged periods for which some children are detained. As at 5 September 2013, there were 1,428 children in closed immigration detention. The average age of children in closed detention facilities was 10 years old.
The Commission welcomes the movement of a significant number of families and unaccompanied minors from closed detention facilities into community detention since October 2010. As at 5 September 2013, there were 1,395 children in community detention.
(a) Mandatory detention of children
The CRC requires that a child should only be detained as a measure of last resort and for the shortest appropriate period of time. Australia’s system of mandatory detention requires that children remain in closed immigration detention until they are granted a visa or removed from Australia, unless the Minister for Immigration and Border Protection (the Minister) decides to make a residence determination allowing them to live in community detention.
The Commission requested from the Department information regarding the length of time children had been held in immigration detention. This information had not been provided at the time of publishing.
In 2004 the Commission released A last resort?, the report of the National Inquiry into Children in Immigration Detention (National Inquiry). The National Inquiry found that Australia’s system of mandatory immigration detention of children was fundamentally inconsistent with Australia’s obligations under the CRC; one reason being that the detention of children is used as a first (rather than last) resort.
Since the release of A last resort?, the Commission has welcomed positive changes including that children are no longer detained in high security immigration detention centres and the affirmation by the Federal Parliament in 2005 that minors should only be detained as a measure of last resort. However, as mentioned above, as at 5 September 2013, there were still a large number of children being detained in closed immigration detention facilities.
(b) Conditions of detention for children
In addition to its general obligation in relation to all persons in detention under article 10 of the ICCPR, Australia has a specific obligation under article 37(c) of the CRC to ensure that children in detention are treated with humanity and respect for their inherent dignity.
The 1,428 children in closed immigration detention as at 5 September 2013 were held in the following facilities:
- Construction Camp APOD, Aqua/Lilac APOD and Phosphate Hill APOD on Christmas Island
- Wickham Point APOD, Blaydin APOD and Darwin Airport Lodge APOD in the Northern Territory
- Brisbane and Melbourne ITA
- Perth and Sydney IRH
- Leonora APOD in Western Australia
- Inverbrackie APOD in South Australia
- Pontville APOD in Tasmania.
The Commission has raised concerns about the conditions of detention in some facilities in which children are detained. For example, the Commission has concerns about the impact of detention in harsh physical environments in remote locations (such as at the Leonora APOD), and the lack of appropriate recreational spaces, activities and access to education in facilities such as those on Christmas Island.
The National Inquiry also found that children who are detained for long periods in immigration detention facilities are at high risk of serious mental harm, which may amount to cruel, inhuman or degrading treatment in breach of the CRC. The impacts of detention on mental health are discussed in section 2.4 below.
(c) Unaccompanied minors in immigration detention
As at 19 August 2013 there were 358 unaccompanied minors in immigration detention facilities around Australia. Their ages ranged from 7 to 17 years. In 2013 the majority of unaccompanied minors were held at Pontville APOD.
The Commission visited Pontville in May 2013. The Commission raised concerns about the prison-like nature of the infrastructure at Pontville, which gave the facility a harsh and punitive feel. The Commission was also deeply concerned by the level of despair and anxiety expressed by those unaccompanied minors who had been held there for a prolonged period of time. Between 1 January 2013 and 14 August 2013 there were reports of 50 incidents of actual self-harm and 49 incidents of threatened self-harm at Pontville.
At 5 September 2013 there were 227 unaccompanied minors held at Pontville. Since this date the Australian Government has transferred a significant number of unaccompanied minors from this facility into community detention. On 21 September 2013 it was reported that there were no unaccompanied minors detained at Pontville.
Australia has obligations to children who arrive in Australia unaccompanied, especially those who are seeking asylum, to ensure that they receive special protection and assistance. Australia has an obligation under the CRC to ‘ensure alternative care’ for these children.
An important element of the care of unaccompanied minors is effective guardianship. In the absence of their parents, the legal guardian of an unaccompanied minor has the ‘primary responsibility for the upbringing and development of the child’, and is under an obligation under the CRC to act in the best interests of the child. Under Australian law, the Minister is the legal guardian of ‘non-citizen’ unaccompanied minors.
The Commission has a range of concerns relating to unaccompanied minors in immigration detention. Most significantly, the Commission is concerned that the Minister’s role as guardian of unaccompanied minors creates a conflict of interest, as the Minister is also responsible for administering the immigration detention regime under the Migration Act and for making decisions about granting visas. Given these multiples roles, it is difficult for the Minister, or his delegate, to make the best interests of the child the primary consideration when making decisions concerning unaccompanied minors.
The Commission has repeatedly recommended that an independent guardian be appointed for all unaccompanied minors in immigration detention, to ensure that their rights are protected. In 2012 the Parliamentary Joint Select Committee on Australia’s Immigration Detention Network also recommended that the legal guardianship of unaccompanied minors in immigration detention be transferred from the Minister.
2.3 Refugees with adverse security assessments
As at 6 August 2013 there were 52 refugees in immigration detention facilities in Australia who had been denied a protection visa as a result of receiving an adverse security assessment from the Australian Security Intelligence Organisation. A number of these individuals have been detained for over four years.
There were also five young children who are living in detention with a parent who has received an adverse security assessment. One child was born in immigration detention.
The Commission has for several years raised concerns about people in this situation. Refugees with adverse security assessments cannot be returned to their country of origin as they have been found to have a well-founded fear of persecution. Australian Government policy requires that they remain in immigration detention facilities unless a third country agrees to resettle them. Third country resettlement appears not to be a realistic solution and therefore individuals, including children, are effectively facing a life sentence in detention, this is despite having not been charged with or convicted of any crime.
In October 2012 the Australian Government appointed an Independent Reviewer for Adverse Security Assessments. The Independent Reviewer has recommended in 10 cases that ASIO’s adverse assessment be maintained. ASIO has accepted a recommendation by the Independent Reviewer to overturn adverse security assessments in two cases. One of these cases involved a family of five who had spent over four years in detention as a result of receiving an adverse security assessment. The parents and their three young children (one of whom was born in detention) were released into the community in June 2013 as a result of the Independent Reviewer’s recommendation. No reasons were provided as to why the assessment that led to their prolonged detention was overturned. ASIO is currently reviewing another four cases where adverse security assessments were made after receiving new evidence from the Independent Reviewer.
These decisions highlight the need for greater transparency and accountability in the application of ASIO security assessments to asylum seekers and refugees. The Commission strongly supports independent review of adverse security assessments.
Refugees with adverse security assessments and their children remain indefinitely detained in closed immigration detention facilities. Some adults are detained in high security immigration detention centres such as the Villawood IDC; extremely restrictive environments in which to hold people who could be facing a very long period in detention. While others are detained in lower security immigration detention facilities with less restrictive physical environments, they nevertheless remain detained and are not free to come and go.
In August 2013 the UN Human Rights Committee found that the indefinite detention of a group of 46 refugees with adverse assessments was inflicting serious psychological harm upon them, amounting to cruel, inhuman or degrading treatment under article 7 of the ICCPR, and was arbitrary contrary to article 9(1) of the ICCPR.
The Commission holds grave concerns for the wellbeing of refugees with adverse security assessments. The Commission requested from the Department information on the incidents of self-harm and attempted suicide in relation to this group. This information had not been provided at the time of publishing.
The Commission is of the view that alternative options to indefinite detention in closed facilities should be considered. These alternative options may include, in particular, community detention, if necessary with conditions to mitigate any identified risks. Conditions could include a requirement to reside at a specified location, curfews, travel restrictions, regular reporting and, possibly, electronic monitoring.
2.4 Mental health impacts of detention
Between January 2011 and February 2013 there were 4,313 incidents of actual, threatened and attempted serious self-harm recorded in immigration detention facilities in Australia. In the 2012–2013 financial year there were 846 incidents of self-harm across the immigration detention network.
Between 1 July 2010 and 20 June 2013, there were 12 deaths in immigration detention facilities. Coroners have found that six of those deaths were suicides.
These figures on self-harm reflect the longstanding concern that Australia’s system of mandatory and indefinite detention has a detrimental impact on the mental health of those detained. Rates of mental health problems in the immigration detention population in Australia have been found to be high, and range from depression, anxiety and sleep disorders to post-traumatic stress disorders, suicidal ideation and self-harm.
The UN Human Rights Committee found that Australia breached the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and the right of people detained to be treated with dignity, by continuing to detain people in the knowledge that it was contributing to mental illness.
In May 2013, the Commonwealth Ombudsman published a report following a two year-long investigation. The investigation was prompted by the increasing number of self-harm incidents in immigration detention. The Ombudsman’s findings in relation to the impact of detention on the mental health of asylum seekers align with the observations of medical practitioners and the Commission. In particular, it has been clearly established that detention for prolonged and uncertain periods of time both causes and exacerbates mental illness, and that there is a strong link between the length of time spent in detention and the deterioration of mental health. It is also known that detention in remote, climatically harsh and overcrowded conditions, and a lack of meaningful activities and adequate services have a negative impact on the mental health of detainees.
Research has also found that bringing together groups of people in the same situation, experiencing frustration, distress and/or mental illness, can result in a ‘contagion’ effect; ‘dysfunctional thinking’ can be magnified; behaviours such as self-harm and rioting are reinforced as responses to problems; and witnessing others self-harm can increase the risk of self-harming behaviour in imitation.
The impact of mental illness on detainees extends to impaired cognitive function, memory and concentration. This can have a negative impact on a detainee’s case for asylum by impairing their ability to present a coherent, consistent, fact-based claim.
The mental health impacts on asylum seekers held in detention can continue to affect a person after they have been released into the community. Studies have found a strong association between past detention, particularly detention for over six months, and ongoing poor mental health in people now living in the community. There are particular concerns about the long-lasting impact of detention on the mental health of children. Further, the medical cost of treating mental illnesses exacerbated or initiated by prolonged detention is conservatively estimated at an average of $25,000 per person.
Since 2011 steps have been taken by the Department to strengthen the mental health services and response across the immigration detention network. The Ombudsman noted in particular the efforts to strengthen the Psychological Support Program and the new Programs and Activities Framework, as well as other reforms to the Department’s systems. However, as many medical professionals have indicated, often it is the detention environment itself which causes mental health concerns. Accordingly, it is the removal of people from immigration detention facilities which, in many cases, will prevent the deterioration of mental health.
2.5 Alternatives to detention
Since October 2010 the Australian Government has moved increasing numbers of asylum seekers and refugees from closed immigration detention into the community, pending resolution of their claims for protection. This has been achieved through the use of community detention and bridging visas.
This approach builds on measures introduced by previous Australian governments, in particular the introduction of the community detention mechanism in 2005. At this time the Migration Act was amended to give the Minister the power to make a ‘residence determination’ in respect of a person in immigration detention, which allows that person to live in a specified residence in the community. A person in this position is said to be in ‘community detention’.
As at 5 September 2013 there were 2,796 asylum seekers in community detention.
The Minister also has the discretion to grant a bridging visa to a person in immigration detention when it is in the public interest to do so. On 23 September 2013 the Minister stated that there were over 20,000 asylum seekers living in the community on bridging visas.
The Commission welcomes the increased use of community arrangements which brings the Australian Government’s treatment of asylum seekers and refugees closer into alignment with its international human rights obligations.
In addition to greater compliance with Australia’s international obligations, there are practical benefits of using alternatives to closed immigration detention. For example, as community arrangements entail fewer risks to the health, safety and wellbeing of asylum seekers and refugees, they are likely to lead to lower rates of self-harm as well as fewer claims for compensation. Effective community arrangements allow for a smoother transition to life as an Australian resident for people who are granted protection. Moreover people who are found not to be owed protection have been shown to be more willing and able to return to their countries of origin when they have been living in the community than when held in closed detention. There are also very low rates of absconding from community arrangements. Further, community placement is generally much cheaper than closed detention.
Finally, community placements allow for the full enforcement of migration law and conditions can be applied within a community setting which enable mitigation of any identified risks.
(a) Comparative jurisdictions
Comparable countries across the world use a variety of community-based alternatives to mandatory and indefinite detention of asylum seekers. For example, in most Member States of the European Union there is a presumption against detention, meaning that asylum seekers are not routinely detained and are usually allowed to reside in the community while their claims are processed. Some examples of countries that use community-based alternatives are discussed below.
In 2012 Sweden received 43,900 new asylum applications. Sweden does not generally detain asylum seekers during the processing of their asylum claims. When an asylum seeker arrives in Sweden and applies for asylum, they do so at a reception unit, where they can also be housed for a few days until accommodation is found for them in the community. A person seeking protection is issued with identification documents which are used by immigration officials to track the person’s case and which allows them access to some basic services, including health care. They are given a daily allowance. They are permitted to work in a range of circumstances, and if they do, they must contribute to the costs of their food and accommodation.
In 2012 the United Kingdom (UK) received 27,978 new asylum applications. The majority of asylum seekers are not detained during processing in the UK. They are generally housed in areas outside London by private sector housing agencies contracted by the Home Office. They may apply for a small allowance, and have access to free health care. Asylum seekers may be required to report regularly to the local UK Border Agency staff or over the telephone.
In 2012 Spain had 2,580 new asylum claims. In Spain persons in asylum proceedings are not detained. Asylum seekers are either released into the broader community or accommodated in an open reception centre from which they are free to come and go, while their asylum claims are processed. Asylum seekers can be housed in the open reception centres for up to six months, after which time they are assisted to find independent housing and employment or, if they are vulnerable, they may apply for an extension. Asylum seekers are provided with a small allowance and access to medical and psychological services, a social worker, and educational opportunities. They are also permitted to work.
2.6 Bridging visas without the right to work
On 21 November 2012 the Minister for Immigration and Citizenship announced that some asylum seekers who had arrived by boat since 13 August 2012 and remained in Australia would be given bridging visas and permitted to live in the community while their claims for protection were assessed. The Minister stated that those asylum seekers would not be permitted to work, and would receive ‘only basic accommodation assistance, and limited financial support’.
The Commission strongly supports the use of bridging visas as an alternative to detention. However, the Commission is concerned about the consequences of prohibiting asylum seekers from working.
Australia has an obligation under article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to ensure, as a minimum, ‘the right of access to employment, especially for disadvantaged and marginalised individuals and groups’. Australia may be in breach of this obligation if it denies asylum seekers access to the labour market, especially if this forces them into poverty.
As at 2 September 2013 it was reported that there were over 21,000 asylum seekers living in the community on bridging visas that were prohibited from working.
Asylum seekers on bridging visas who experience financial hardship may be eligible for limited financial assistance. Such assistance may be available for a period of up to six weeks to help with the transition from immigration detention to living in the community, or, if certain vulnerability criteria are met, for a longer period.
The Commission has raised concerns that the levels of financial assistance available are inadequate to address basic needs. There is evidence that the prohibition on asylum seekers supporting themselves through work has placed a considerable strain on the resources of charitable and other community organisations.
UNHCR has raised concerns about the ‘negative impact of an extended period of insecurity’ and has suggested (in relation to Europe) that asylum seekers should not be denied access to the labour market for any longer than six months.
There have already been considerable delays in the processing of asylum seekers who arrived after 13 August 2012. From August 2012 until the end of June 2013, asylum claims from this group were not processed. This led to a reported backlog of over 25,000 claims to be processed. A consequence of this is that there are many asylum seekers who may potentially be living on bridging visas without the right to work for years while waiting for their claims to be processed.
2.7 Enhanced screening process
Between August and October 2012 there was a significant increase in boat arrivals from Sri Lanka. As a result, in October 2012 the Australian Government implemented an ‘enhanced screening process’ that has since been applied to all unauthorised maritime arrivals from Sri Lanka.
Under the enhanced screening process an individual is interviewed by two officers from the Department. If the Department determines that an individual raises claims that may engage Australia’s non-refoulement obligations, they are ‘screened in’ to the refugee status determination and complementary protection system that applies under the Migration Act. If the Department determines that an individual does not raise claims that engage Australia’s non-refoulement obligations then they are ‘screened out’ of the protection assessment process and removed from Australia.
Between 27 October 2012 and 12 August 2013, the Department conducted 3,195 screening interviews and returned 1,070 people from Australia to Sri Lanka as a consequence.
The Commission is concerned that the enhanced screening process may not contain sufficient safeguards to protect people from being removed to a country where they face a real risk of significant harm (refoulement).
The principle of non-refoulement requires Australia to provide asylum seekers with effective access to fair and efficient asylum procedures.
The Commission has raised concerns that the enhanced screening process does not constitute a fair asylum procedure and risks excluding those with legitimate needs for protection. The Commission’s key concerns include:
- people subjected to the enhanced screening process are not informed of their right to seek asylum
- screening interviews may be brief and not sufficiently detailed or probing to ensure that all relevant protection claims are raised
- the process may in fact be used not for screening but for substantive assessment of protection claims without the normal safeguards
- persons subject to the screening process are not informed of their right to seek legal advice and are only provided with reasonable facilities to contact a legal adviser if they make a specific request.
The Commission is also concerned that persons who are ‘screened out’ are not given a written record of the reasons for the decision, nor do they have access to independent review of such decisions.
It is particularly problematic that unaccompanied minors who arrive unauthorised by boat from Sri Lanka are subject to the enhanced screening process and may not receive adequate support through the process. As at 5 September 2013 two unaccompanied minors had been screened out and returned to Sri Lanka.
UNHCR has labelled the enhanced screening process ‘unfair and unreliable’. This accelerated form of processing without access to independent merits review is particularly troubling given that in 2011–12 the Refugee Review Tribunal (RRT) overturned 81.6% of primary decisions by the Department and 86.9% of Sri Lankan asylum seekers arriving by boat were determined to be refugees.
The Commission has recommended that the enhanced screening process be discontinued. Where protection claims are raised, all asylum seekers should be ‘screened in’ and should have their claims fully assessed under the refugee status determination and complementary protection system that applies under the Migration Act, with access to legal or migration advice and assistance, independent merits review and judicial review.
 Migration Act 1958 (Cth), s 189.
 Migration Act 1958 (Cth), s 196.
 Department of Immigration and Citizenship, Response to the Australian Human Rights Commission’s (AHRC) 13 August 2013 request for information concerning detention and asylum seekers, provided by email to the Commission on 16 September 2013 (DIAC response), p 5.
 For a discussion on community detention, see section 2.5 of this report.
 DIAC response, note 26, p 5.
 See the Department’s map of Australia’s immigration detention facilities, attached as Appendix 3 of this report.
 The map is also available on the Department’s website at http://www.immi.gov.au/managing-australias-borders/detention/facilities/ (viewed 1 October 2013).
 International Covenant on Civil and Political Rights, 1966, (ICCPR). At http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html (viewed 1 October 2013).
 Convention on the Rights of the Child, 1989, (CRC). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 October 2013).
 See, for example, Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/WG.6/10/L. 8 (2011), paras 28, 42, 49, 78, 86.123, 86.127, 86.131 and 86.132. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 1 October 2013); Committee on the Rights of the Child, Concluding observations: Australia, UN Doc CRC/C/AUS/CO/4 (2012), paras 80-81. At http://www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_AUS_CO_4.pdf (viewed 1 October 2013).
 See the Human Rights Committee’s comments in A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.4. At http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 1 October 2013); C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002) para 8.2. At http://www.refworld.org/docid/3f588ef00.html (viewed 1 October 2013); Shams et al v Australia, Communication Nos. 1255,1256,1259,1260,1266,1268,1270,1288/2004, UN Doc CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&1288/2004 (2007), para 7.2. At http://www.ag.gov.au/RightsAndProtections/HumanRights/DisabilityStandards/Documents/ShamsetalvAustralia-Viewsof1192007.pdf (viewed 1 October 2013).
 Human Rights Committee, A v Australia, above, para 9.2; Human Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8. At http://www1.umn.edu/humanrts/undocs/session39/305-1988.html (viewed 1 October 2013).
 Human Rights Committee, Van Alphen v Netherlands, above, para 5.8.
 Available at http://www.humanrights.gov.au/publications/human-rights-standards-immigration-detention (viewed 1 October 2013).
 The Commission’s immigration detention reports are available on the Commission’s website at http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 1 October 2013).
 Australian National Audit Office, Individual Management Services Provided to People in Immigration Detention, Report No 21 (2013), p 12. At http://www.anao.gov.au/Publications/Audit-Reports/2012-2013/Individual-Management-Services-Provided-to-People-in-Immigration-Detention (viewed 1 October 2013).
 See A Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, UNHCR Legal and Protection Policy Research Series (2011), p 1. At http://www.refworld.org/docid/4dc935fd2.html (viewed 1 October 2013).
 See, for example, Human Rights and Equal Opportunity Commission (HREOC), A last resort? National Inquiry into Children in Immigration Detention (2004). At http://www.humanrights.gov.au/last-resort-report-national-inquiry-children-immigration-detention-2004 (viewed 1 October 2013). See also the Commission’s reports on visits to immigration detention facilities in Darwin in 2010, in Leonora and Villawood in 2011, and on Christmas Island in 2012, which are all available at http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 1 October 2013).
 DIAC response, note 26, p 1.
 DIAC response, above.
 DIAC response, above.
 CRC, art 37(b).
 See the discussion on alternatives to detention in section 2.5 of this report.
 Human Rights and Equal Opportunity Commission, A last resort?, note 41.
 See Migration Act 1958 (Cth), s 4AA.
 DIAC response, note 26, p 1.
 DIAC response, above. See also the map at Appendix 3.
 See Australian Human Rights Commission, 2011 Immigration detention in Leonora: Summary of observations from visit to immigration detention facility in Leonora (2011). At http://www.humanrights.gov.au/publications/2011-immigration-detention-leonora (viewed 1 October 2013).
 See Australian Human Rights Commission, Immigration detention in Darwin: Summary of observations from visits to immigration detention facilities in Darwin (2010), and Immigration detention on Christmas Island: Observations from visit to Immigration detention facilities on Christmas Island (2012), available at http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 1 October 2013).
 See article 37(a) of the CRC and HREOC, A last resort?, note 41, pp 429-432.
 DIAC response, note 26, p 3.
 DIAC response, above.
 DIAC response, above, p 2.
 B Mounster, ‘Pontville detention centre empty and more than 200 staff fear for jobs’, Herald Sun, 21 September 2013. At http://www.heraldsun.com.au/news/national/pontville-detention-centre-empty-and-more-than-200-staff-fear-for-jobs/story-fnjj6013-1226724074247 (viewed 1 October 2013).
 CRC, arts 20 and 22.
 CRC, art 20(2).
 Article 18(1) of the CRC states that 'the best interests of the child will be [the legal guardian's] basic concern'.
 Immigration (Guardianship of Children) Act 1946 (Cth), s 6(1). See also Department of Immigration and Border Protection, Fact Sheet 69 – Caring for Unaccompanied Minors, at http://www.immi.gov.au/media/fact-sheets/69unaccompanied.htm (viewed 1 October 2013).
 See, for example, HREOC, A last resort?, note 41, Recommendation 3; Australian Human Rights Commission, Submission to the Joint Select Committee on Australia’s Immigration Detention Network (August 2011), Recommendation 26. At http://www.humanrights.gov.au/australian-human-rights-commission-submission-joint-select-committee-australia-s-immigration#s3 (viewed 1 October 2013).
 Joint Select Committee on Australia’s Immigration Detention Network, Parliament of Australia, Final Report (2012), paras 5.95-5.96. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/immigrationdetention/report/index (viewed 1 October 2013).
 DIAC response, note 26, p 11. Previously, most classes of visas, including protection visas, contained a requirement that the applicant meet public interest criterion 4002 (the security requirement). This criterion required that an applicant not be assessed by ASIO to be a risk to security. In October 2012 the High Court of Australia in Plaintiff M47/2012 v Director General of Security & Ors  HCA 46 held that the security requirement was invalid on the basis that it was inconsistent with the provisions of the Migration Act 1958 (Cth). The Government has not yet announced a response to the High Court’s decision.
 See Human Rights Committee, F K A G et al v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (2013). At http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Jurisprudence.aspx (viewed 1 October 2013).
 DIAC response, note 26, p 11.
 Links to the Commission’s work in this area, including a recent fact sheet, are available at http://www.humanrights.gov.au/refugees-adverse-security-assessments (viewed 1 October 2013).
 M Gordon, ‘ASIO to review security findings against detainees’, The Sydney Morning Herald, 11 September 2013. At http://www.smh.com.au/federal-politics/political-news/asio-to-review-security-findings-against-detainees-20130910-2tiak.html (viewed 1 October 2013).
 Gordon, above.
 D Flitton, ‘Refugee family free as ASIO assessment overturned’, The Sydney Morning Herald, 12 June 2013. At http://www.smh.com.au/federal-politics/political-news/refugee-family-free-as-asio-assessment-overturned-20130612-2o4vq.html (viewed 1 October 2013).
 Gordon, note 68.
 Human Rights Committee, F K A G et al v Australia, note 65, paras 9.4 and 9.8; Human Rights Committee, M M M et al v Australia, Communication No. 2136/2012, UN Doc CCPR/C/108/D/2136/2012 (2013), paras 10.4 and 10.7. At http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Jurisprudence.aspx (viewed 1 October 2013).
 Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (2013), p 150. At http://www.ombudsman.gov.au/reports/investigation/2013 (viewed 1 October 2013).
 DIAC response, note 26, p 5.
 On 22 August 2010, an Afghan Irregular Maritime Arrival died in Curtin Immigration Detention Centre. On 20 September 2010, a Fijian national detained in relation to visa compliance issues died in Villawood Immigration Detention Centre, his death was ruled a suicide. On 16 November 2010 an Iraqi Irregular Maritime Arrival died in Villawood Immigration Detention Centre, his death was ruled a suicide. On 8 December 2010 a British man died in Villawood Immigration Detention Centre, his death was ruled a suicide. On 17 March 2011, an Afghan Irregular Maritime Arrival died at Scherger Immigration Detention Centre, his death was ruled a suicide. On 28 March 2011, an Afghan Irregular Maritime Arrival died at Curtain Immigration Detention Centre, his death was ruled a suicide. On 26 October 2011, a Sri Lankan Irregular Maritime Arrival died at Sydney Immigration Residential Housing, his death was ruled a suicide. On 27 February 2012, an Iranian national detained in relation to visa compliance issues died in Sydney Immigration Residential Housing. On 19 April 2013, a Papua New Guinean national detained after his visa was cancelled died in hospital in NSW after being transferred from immigration detention. On 1 May 2013, a Sri Lankan Irregular Maritime Arrival died in Wickham Point Immigration Detention Centre. On 20 June 2013, an Afghan man detained in Villawood Immigration Detention Centre died in hospital.
 Commonwealth Ombudsman, note 73, para 7.85; I Katz et al, The experiences of Irregular Maritime Arrivals detained in immigration detention facilities: Final Report (2013), section 6.2.2. At http://www.immi.gov.au/media/publications/research/ (viewed 1 October 2013).
 See, for example, HREOC, Those who've come across the seas: The report of the Commission's Inquiry into the detention of unauthorised arrivals (1998), pp 153, 154, 167, 218. At http://www.humanrights.gov.au/publications/those-whove-come-across-seas-detention-unauthorised-arrivals-1998 (viewed 1 October 2013); Joint Select Committee on Australia’s Immigration Detention Network, note 63, Chapter 5. An Australian study of families who had been in detention for over 2 years found that 100% of adults in the study in a remote detention centre were diagnosed with a major depressive disorder, 86% with post-traumatic stress disorder and 93% experienced persistent thoughts of killing themselves: Z Steel et al, ‘Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia’ (2004) 28(6) Australian and New Zealand Journal of Public Health 527, p 533.
 See HREOC, Those who’ve come across the seas, above, p 218; Z Steel and D M Silove, ‘The mental health implications of detaining asylum seekers’ (2001) 175(11) Medical Journal of Australia 596; Joint Select Committee on Australia’s Immigration Detention Network, note 63, Chapter 5; Commonwealth Ombudsman, note 73, Part 7.
 Human Rights Committee, C v Australia, note 34, para 10; Human Rights Committee, Madafferi v Australia, Communication No. 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004), para 9.3. At http://www.unhcr.org/refworld/country,,HRC,,ITA,,4162a5a36,0.html (viewed 1 October 2013).
 Commonwealth Ombudsman, ‘Inquiry to examine suicide and self-harm in immigration detention’ (Media Release, 29 July 2011). At http://www.ombudsman.gov.au/media-releases/show/189 (viewed 1 October 2013).
 Reported in HREOC, Those who've come across the seas, note 77, Chapter 15; HREOC, A last resort?, note 41; and Commission reports on visits to immigration detention centres, available at http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 1 October 2013).
 Ipsos Social Research Institute, Evaluation of the Psychological Support Program (PSP) Implementation (June 2012), pp 50-51; J P Green and K Eagar, ‘The health of people in Australian immigration detention centres’ (2010) 192(2) The Medical Journal of Australia 65; Z Steel et al, ‘Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia’ (2004) 28(6) Australian and New Zealand Journal of Public Health 527; L K Newman et al, ‘Suicide and self-harm in immigration detention’ (2011) 195(6) The Medical Journal of Australia 310, p 219.
 Green and Eagar, above, p 65; Ipsos Social Research Institute, above, pp 50-51.
 Commonwealth Ombudsman, note 73, paras 7.37-7.44, 7.50-7.56; HREOC, Those who’ve come across the seas, note 77; Australian Human Rights Commission, Immigration detention at Curtin observations from visit to Curtin Immigration Detention Centre and key concerns across the detention network (2011). At http://www.humanrights.gov.au/publications/2011-immigration-detention-curtin (viewed 1 October 2013).
 Commonwealth Ombudsman, note 73, paras 7.31-7.36.
 Commonwealth Ombudsman, above, para 7.33.
 Commonwealth Ombudsman, above, paras 7.33-7.36.
 Commonwealth Ombudsman, above, para 7.34.
 G J Coffey et al, ‘The meaning and mental health consequences of long-term immigration detention for people seeking asylum’ (2010) 70(12) Social Science & Medicine 2070.
 Coffey et al, above; Joint Select Committee on Australia’s Immigration Detention Network, note 63, paras 5.27-5.30.
 N Procter et al, ‘Refugee and Asylum Seeker Self Harm with Implications for Transition to Employment Participation – A Review’ (2011) 16(3) Suicidologi 30; D Silove et al, ‘No refuge from terror: the impact of detention on trauma affected refugees seeking asylum to Australia’ (2007) 44 Transcult Psychiatry 359.
 Z Steel et al, ‘Impact of immigration detention and temporary protection on the mental health of refugees’ (2006) 188 British Journal of Psychiatry 58.
 M Fazel et al, ‘Mental health of displaced and refugee children resettled in high-income countries: risk and protective factors’ (2012) 379 Lancet 266, p 278; Steel et al, (2004), note 82.
 T Ward, Long-term health costs of extended mandatory detention of asylum seekers, (2011). At http://www.yarrainstitute.org.au/Portals/0/docs/Ward.long-term%20costs%20v12Oct.2011.pdf (1 October 2013).
 Commonwealth Ombudsman, note 73, Part 9.
 Commonwealth Ombudsman, above, p 1 and paras 7.46-7.49.
 For example Commonwealth Ombudsman, above, para 6.36, Parts 8 and 9.
 M Bull et al, ‘Sickness in the System of Long-term Immigration Detention’ (2013) 26 Journal of Refugee Studies 47; Katz et al, note 76, section 7.13.2; Newman et al, note 82, p 219.
 See Migration Act 1958 (Cth), s 197AB.
 DIAC response, note 26, p 5.
 Migration Act 1958 (Cth), s 195A.
 S Lane, ‘Immigration Minister outlines policy shift’, Interview with Minister for Immigration and Border Protection, Scott Morrison, ABC News, 23 September 2013. At http://www.abc.net.au/worldtoday/content/2013/s3854380.htm (viewed 1 October 2013).
 International Detention Coalition and La Trobe Refugee Research Centre, There are Alternatives: A handbook for preventing unnecessary immigration detention (2011), section 5. At http://idcoalition.org/cap/handbook/ (viewed 1 October 2013).
 International Detention Coalition and La Trobe Refugee Research Centre, above, section 4.3.3 and endnotes 51-54.
 Research indicates that less than 10% of asylum applicants abscond when released to proper supervision and facilities, and over 90% of asylum applicants comply with their conditions of release: see Edwards, note 40, Executive Summary; International Detention Coalition and La Trobe Refugee Research Centre, note 103, sections 3.2 and 5.1 and box 12.
 Joint Select Committee on Australia’s Immigration Detention Network, note 63, paras 2.61-2.62, and 7.59-7.69; International Detention Coalition and La Trobe Refugee Research Centre, note 103, box 12.
 Only one EU Member State has a mandatory detention policy. In 2012, the EU completed negotiations on the recast Reception Conditions Directive (Council Directive 2003/9/EC), which contains a list of grounds for detention and regulates detention conditions. See European Union Agency for Fundamental Rights, FRA Annual report 2012 – Fundamental rights: challenges and achievements in 2012 (2013), p 39. At http://fra.europa.eu/en/publication/2013/fundamental-rights-challenges-and-achievements-2012 (viewed 1 October 2013).
 Chapter 1, section 8 of the Aliens Act 2005 (Sweden) provides that ‘The Act is to be applied so as not to limit the freedom of aliens more than is necessary in each individual case.’
 Swedish Migration Board, Housing and financial assistance, note 110.
 Swedish Migration Board, Information for asylum seekers in Sweden, note 111. See also, International Detention Coalition and La Trobe Refugee Research Centre, note 103, box 9.
 UK Home Office, Asylum data tables immigration statistics April to June 2013 volume 1, Table as_02. At https://www.gov.uk/government/publications/tables-for-immigration-statistics-april-to-june-2013 (viewed 1 October 2013).
 The UK Government’s detention policy is set out in Home Office UK Border Agency, Enforcement Instructions and Guidance, Chapter 55. At http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/enforcement/ (viewed 1 October 2013). Asylum seekers subject to the ‘fast-track’ process are detained during that process. In 2011 and 2012, around 10% or 2,118 and 2,482 applicants (respectively) were in the ‘fast-track’ process: UK Home Office, Asylum data tables immigration statistics April to June 2013 volume 2, Table as_11. At https://www.gov.uk/government/publications/tables-for-immigration-statistics-april-to-june-2013 (viewed 1 October 2013). The total number of asylum applications in 2011 was 25,898 and in 2012 was 27,978: UK Home Office, note 114, Table as_02.
 Home Office UK Border Agency, Asylum support – Accommodation, http://www.ukba.homeoffice.gov.uk/asylum/support/accommodation/ (viewed October 2013).
 Home Office UK Border Agency, Asylum support – Cash support, http://www.ukba.homeoffice.gov.uk/asylum/support/cashsupport/ (viewed 1 October 2013).
 Home Office UK Border Agency, Asylum support – Health, http://www.ukba.homeoffice.gov.uk/asylum/support/health/ (viewed 1 October 2013).
 Home Office UK Border Agency, Contact management policy, process and implementation, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/contactmanagement/ (viewed 1 October 2013).
 UNHCR, Asylum Trends 2012, note 108, p 20.
 Global Detention Project, ‘Spain Country Profile’, http://www.globaldetentionproject.org/countries/europe/spain/introduction.html (viewed 1 October 2013).
 International Detention Coalition and La Trobe Refugee Research Centre, note 103, box 8.
 Minister for Immigration and Citizenship, ‘No advantage onshore for boat arrivals’, (Media Release, 21 November 2012). At http://www.minister.immi.gov.au/media/cb/2012/cb191883.htm (viewed 16 August 2013).
 This policy was implemented on 20 November 2012 through registration of the legislative instrument Migration Regulations 1994 – Specification under paragraphs 050.613A(1)(b) and 051.611A(1)(c) – Classes of Persons – November 2012 (available at http://www.comlaw.gov.au/Details/F2012L02201 (viewed 1 October 2013)), which removed the exemption from the ‘no work’ condition for ‘Bridging E’ visas granted to asylum seekers arriving at offshore entry places after 13 August 2012.
 Minister for Immigration and Citizenship, note 123.
 International Covenant on Economic, Social and Cultural Rights, 1966, (ICESCR). At http://www.austlii.edu.au/au/other/dfat/treaties/1976/5.html (viewed 1 October 2013).
 Committee on Economic, Social and Cultural Rights, General Comment No 18: Article 6 of the Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/GC/18 (2005), para 31. At http://tb.ohchr.org/default.aspx?Symbol=E/C.12/GC/18 (viewed 1 October 2013).
 See P Mathew, Reworking the Relationship between Asylum and Employment (2012), p 117. Note that in this type of situation, the right to an adequate standard of living in article 11(1) of the ICESCR may also be engaged.
 N Selvaratnam, ‘Asylum seekers in Australia anxious over election’, SBS News, 2 September 2013. At http://www.sbs.com.au/news/article/2013/08/29/asylum-seekers-australia-anxious-over-election (viewed 1 October 2013).
 Asylum seekers who are eligible may receive financial assistance equivalent to 89% of the Centrelink Special Benefit rate (at 30 September 2013, a maximum of $31.85 a day for a single adult) to help with basic living expenses and general healthcare, as well as rent assistance at 89% of the Centrelink Rent Assistance rate (at 30 September 2013, a maximum of $55.20 a week for a single person): See information about the Asylum Seeker Assistance Scheme and Community Assistance Support on Australian Red Cross, Migration Support, http://www.redcross.org.au/migration-support.aspx (viewed 1 October 2013). For Centrelink rates see Department of Human Services, Special Benefit, http://www.humanservices.gov.au/customer/services/centrelink/special-benefit, Newstart Allowance, http://www.humanservices.gov.au/customer/services/centrelink/newstart-allowance and Payment rates for Rent Assistance, http://www.humanservices.gov.au/customer/enablers/centrelink/rent-assistance/payment-rates (all viewed 1 October 2013).
 This support is called Community Assistance Support Transitional Support (CAS TS): see Australian Red Cross, Fact Sheet, Migration Support Programs: Transitional Community Assistance Support (August 2012) at http://www.redcross.org.au/files/20120816_CAST_FACTSHEET.pdf (viewed 1 October 2013).
 For information about the criteria to qualify for assistance, see Department of Immigration and Citizenship, Fact Sheet 62 – Assistance for Asylum Seekers in Australia at http://www.immi.gov.au/media/fact-sheets/62assistance.htm (viewed 1 October 2013) and Fact Sheet 64 – Community Assistance Support Program at http://www.immi.gov.au/media/fact-sheets/64community-assistance.htm (viewed 1 October 2013).
 See, for example, B Hall, ‘Alarm over asylum underclass’, The Age, 28 May 2013. At http://www.theage.com.au/federal-politics/political-news/alarm-over-asylum-underclass-20130528-2n9ks.html (viewed 1 October 2013); J Lee, ‘Helping hand extended to strangers’, The Age, 12 September 2013. At http://www.theage.com.au/federal-politics/political-news/helping-hand-extended-to-strangers-20130911-2tl13.html (viewed 1 October 2013).
 United Nations High Commissioner for Refugees, Note on the Integration of Refugees in the European Union (May 2007), paras 10 and 14. At http://www.unhcr.org/refworld/docid/463b24d52.html (viewed 1 October 2013). See further on this point the discussion in P Mathew, note 128, pp 115-117.
 See, for example, P Maley and S Maher, ‘Insiders warn of asylum backlog’, The Australian, 12 July 2013. At http://www.theaustralian.com.au/national-affairs/policy/insiders-warn-of-asylum-backlog/story-fn9hm1gu-1226677895193# (viewed 1 October 2013).
 See, for example, P Maley, ‘Detention or TPV: Abbott’s bid to clear backlog’, The Australian, 16 August 2013. At http://www.theaustralian.com.au/national-affairs/election-2013/detention-or-tpv-abbotts-bid-to-clear-backlog/story-fn9qr68y-1226698087619# (viewed 1 October 2013).
 Evidence to the Senate Legal and Constitutional Affairs Legislation Committee (Estimates), Canberra, 28 May 2013, p 47 (Martin Bowles). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Festimate%2F0f70343a-b92d-45d8-b692-58b9623ba9cd%2F0001%22 (viewed 1 October 2013).
 DIAC response, note 26, p 10.
 Australia’s non-refoulement obligations arise under articles 6, 7 and 9 of the ICCPR; articles 6 and 37 of the CRC; articles 3 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, (CAT). At http://www.austlii.edu.au/au/other/dfat/treaties/ATS/1989/21.html (viewed 1 October 2013); and article 33 of the Convention Relating to the Status of Refugees, 1951, as amended by the Protocol Relating to the Status of Refugees, 1967, (Refugee Convention). At http://www.unhcr.org/3b66c2aa10.html (viewed 1 October 2013). See further UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007), Part I. At http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=45f17a1a4 (viewed 1 October 2013).
 UNHCR, above, para 8 (and the citations in footnote 14).
 See the discussion in section 2.2(c) ‘Unaccompanied minors in immigration detention’ above.
 DIAC response, note 26, p 10.
 UNHCR, ‘Humanitarian response to asylum-seekers needed: UNHCR’, (Media Release, 17 June 2013). At http://unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=322:humanitarian-response-to-asylum-seekers-needed-unhcr&catid=35:news-a-media&Itemid=63 (viewed 1 October 2013).
 Department of Immigration and Citizenship, Asylum statistics—Australia, note 18, p 13.