An alternative to indefinite mandatory detention of asylum seekers

Since 1989 Australia has imposed indefinite mandatory detention on virtually all persons coming here without entry documents to seek protection. The laws, policies and programs under which this treatment is meted out violate human rights, traumatise already traumatised people, distress and shame many Australians, cause international embarrassment and cost Australian taxpayers a fortune.

There has to be a better way of dealing with the claims by on-shore asylum seekers. There is. There has been for almost a decade.

As early as 1994 a number of refugee and human rights non-government organisations and the Human Rights and Equal Opportunity Commission endorsed a Charter of Minimum Requirements for Legislation Relating to the Detention of Asylum Seekers. The Charter provided general principles and an outline of a system to implement those principles.

In September 1996 a Detention Reform Co-ordinating Committee established following the endorsement of this Charter submitted a draft alternative detention model to the Minister for Immigration and Multicultural Affairs. Under this model restrictions of the current type on the liberty of Protection Visa applicants are kept to a minimum, usually less than 90 days.

After the initial period in closed detention most applicants would move to a more liberal regime appropriate to the individual’s circumstances. Regular review of each applicant’s detention status is recommended so as to improve the ability to match the restrictions imposed on an applicant’s liberty to his or her circumstances.

In 1998 the Human Rights and Equal Opportunity Commission developed that model further in a detailed proposal in its report Those who’ve come across the seas: detention of unauthorised arrivals. That model remains a viable, effective alternative.

The events of 2001 led to more work on alternative models. In June 2001 the Conference of Leaders of Religious Institutes (NSW) released a Policy proposal for adjustments to Australia’s asylum seeking process. Later in 2001 another non-government organisation, Justice for Asylum Seekers, extended this work in proposing the Transitional Processing and Reception Model.

All these models are similar. They constitute an acceptable and appropriate framework for a better approach to refugees and asylum seekers. The framework is clear.

First, a period of initial mandatory detention, consistent with government and opposition policy, is acceptable. International law and practice recognises that detention is permissible if required by reason of public health, public safety, public security and identification.

What is not acceptable is extending mandatory detention indefinitely, denying individual assessment of the need to detain and prohibiting judicial review of detention beyond the initial period.

Significantly all those participating in the public debate about detention of asylum seekers support speedy determination of status. The present policy of indefinite detention provides no incentive whatsoever to departmental authorities to complete the process within a reasonable period of time.

As a result initial processing can extend for many months, sometimes even more than a year. Limiting the period of mandatory detention will provide a powerful and effective incentive to ensure the prompt determination of applications.