Mandatory detention: twenty years of inhumane public policy

Yesterday, May 6^th, marked the 20th anniversary of Australia's policy of mandatory detention. The policy has eroded Australia's standing as a good middle power global human rights actor. More precisely, the inclusion of children within the mandatory detention regime has bought national and international condemnation.

Mandatory detention legislation was first introduced in Australia in 1992. Legislation was amended in 1994 to reinforce indefinite detention. The Labor government's policy ensured that all asylum seekers arriving in Australia without prior authorisation could be detained for unspecified and prolonged periods of time. Amnesty International has consistently argued that prolonged mandatory detention causes untold psychological damage to detainees, especially for children.

Of the estimated 200 million asylum seekers who crossed international borders in 2010, approximately one quarter were children. Australia is the only country in the world with a policy of mandatory detention of children. Greece, Israel, Malaysia, Mexico, South Africa and the U.S. do detain children in immigration facilities, however in these countries child detention is not the first resort but the last resort. The International Detention Coalition argue that asylum seeker children should never be detained because it is not in the best interests of the child, their protection or safety. National legislation, for all states that have signed international human rights conventions therefore should enact the liberty of children as a fundamental human right.

The 2004 National Inquiry into Children in Immigration Detention - 'A last resort?' prepared by Australia's Human Rights and Equal Opportunities Commission (HREOC) was tabled in the federal parliament. According to the international organisation End Immigration Detention of Children, the report remains a benchmark, demonstrating children who are detained are at risk of a of variety psychosocial and developmental problems directly linked to their detention experiences, including Post Traumatic Stress Disorder (PTSD) and depression.

The HREOC report found that mandatory detention of children is fundamentally inconsistent with the Convention on the Rights of the Child (CRC) to which Australia is a signatory.
Of particular concern in the 2004 report was: that Australia's policy of mandatory detention of children was not the last resort but the first resort; that mandatory detention was not in the best interests of any child; and that children were not living an environment that fostered self-respect and dignity and failed to ensure recovery from past torture and trauma. Mandatory detention amounted to cruel, inhumane and degrading treatment of children and exposed them to physical and mental violence.

The same report recommended that Minister for Immigration exercise use of Ministerial discretion to grant humanitarian visas under Section 417 of the Migration Act 1958 (Cth) and that Australia's immigration detention laws should be amended to comply with the Convention on the Rights of the Child. Yet, the Australian High Court has maintained the legislative power of the federal government to mandatorily detain asylum seekers, including children, arguing that the intolerable conditions of detention do not affect the validity of the detention itself.

The High Court also found that the mandatory detention of children under the legislation was also valid. In the case of the Minister for Immigration v B (2004) 219 CLR 365 the High Court found that the Family Court had no jurisdiction to order the Minister for Immigration to release children from detention. The U.N. Human Rights Committee however has consistently found that the mandatory detention regime is a breach of basic human rights. Even findings against the federal government on behalf of children traumatised by detention have failed to deter ongoing bipartisan support for the policy.

The passing of the 2005 Migration Amendment (Detention Arrangements) Act supporting the principle that children should only be detained as a matter of last resort, the November 2007 legislative changes that ended the 'Pacific Solution' and abolished Temporary Protection Visas, and 2008 Labor announcement titled 'New Values in Immigration Detention', while improvements, are indicative that mandatory detention remains core to Australia's migration-human rights policies.

While in October 2010 the Gillard Government announced that it would be release children from detention, the Refugee Council of Australia notes that the policy was not immediate and continue to remain concerned that protection of children during the refugee determination process has not been sufficiently addressed.

On the 20^th anniversary of mandatory detention, 4,197 asylum seekers are currently detained in immigration detention facilities, with 428 children held under mandatory detention measures. Some time referred to as 'Alternative Places of Detention', government statistics might suggest that all 428 children are living in the Australian community. However, for example, Christmas Island is considered an alternative place of detention, where 32 children are currently being held. The majority of children held come from Afghanistan and Iran.

As the International Detention Coalition note mandatory detention is not a "sustainable migration solution." It is certainly not for those children and their families currently detained under two decades of bipartisan mandatory detention policies.