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.

If departmental officials do not do their job within a reasonable period of acceptable mandatory detention, then the asylum seeker should be entitled to be considered for release, subject to whatever conditions may be determined to be necessary and prudent.

The Human Rights and Equal Opportunity Commission recommended an initial period of detention of thirty days, with two possible extensions of thirty days, making a total period of possible detention of ninety days. These proposals remain acceptable and appropriate.

Many have argued against any period of mandatory detention, no matter how brief. There are strong ethical and moral grounds for this position and so it should not be dismissed out of hand. International human rights law, however, permits a brief initial period of detention, as indicated, and the model proposed here is based upon the minimum requirements of international law.

But those provisions are minimum requirements. Australia can and perhaps should look to do what is right, not merely the minimum that is required of us. Of course, the very problem with the present situation is that we are not even meeting our minimum commitments.

Second, before the end of the initial period of thirty days each asylum seeker should receive individual assessment for release. Not every asylum seeker will be released. There will be some whose continued detention is justified and reasonable and acceptable under international law.

The Human Rights and Equal Opportunity Commission identified those

• whose identity cannot be verified
• whose application for a Protection Visa has not been lodged for processing
• who are considered on reasonable grounds to pose a threat to national security or public order or public health or safety
• who are assessed as very likely to abscond or
• who refuse to undertake or fail the health screening.

The critical element is that these assessments are made on an individual, person by person

basis and not be general judgements applied to an entire group of asylum seekers or to all asylum seekers.

The Commission also listed those who should be given priority for release:

• children under18 years of age and close relatives of a child detainee under 18 years of age
• unaccompanied minors
• those older than 75 years of age
• single women
• those requiring specialist medical attention that cannot be provided in detention
• those requiring specialist medical attention due to previous experience of torture or trauma and which cannot be provided appropriately in detention.

The Human Rights and Equal Opportunity Commission proposed that the initial decision on release should be made by departmental officers subject to tribunal and judicial review. Those who are not released before the end of 90 days are entitled to a statement of reasons for and judicial review of the decision to continue their detention.

The model proposed by Justice for Asylum Seekers takes a different approach. It provides for release or continued detention to be determined by an assessment panel with both departmental and outside members.

Third, those who have not been properly denied release on one of the grounds set out above should be released on an appropriate bridging visa subject where necessary to restrictions on movement. The bridging visa may provide certain restrictions on the freedom of movement of the asylum seeker.

The Human Rights and Equal Opportunity Commission proposed two types of bridging visa, an open detention bridging visa, and a community release bridging visa, but this level of complexity is unnecessary.

All that is required is the introduction of a new category of visa to which can be attached an appropriate level of supervision as the individual circumstances of each visa holder necessitate.

The Australian criminal justice system already provides a range of release options with varying degrees of supervision for those on bail or parol or probation. The options include reporting to police or other officials, living and remaining in a specified place or district, home detention and electronic monitoring.

These same, well-tried options could be made available for asylum seekers released from detention. The conditions on the visas proposed by the Human Rights and Equal Opportunity Commission seem unnecessarily restrictive, making the options attached to the visas very narrow.

A better approach involves complete flexibility in determining the appropriate conditions to be attached to a visa. No person should be subjected to more restriction of freedom than is necessary. Each person should be individually assessed and, where some restriction is considered necessary, for example, for one of the reasons relevant to a decision to continue detention, then it should be the least appropriate restriction necessary for the individual asylum seeker.

Fourth, any asylum seeker who breaches the conditions set for his or her release without good reason may be returned to detention and should not be eligible to re-apply for release for a period of 30 days from the time of return to detention.

Further if circumstances change so that an asylum seeker who was released comes within one of the five categories of person who may be detained, the person may be returned to detention. Where an asylum seeker is returned to detention, his or her detention must be reviewed before the completion of a 30 day period. In considering release the departmental officer may consider each of the criteria applicable in relation to an initial decision to detain.

Finally, any asylum seeker detained beyond the initial period of 30 days may seek review of the decision to continue detention. A departmental officer may review at any time and must do so at least every 30 days.

An asylum seeker may also seek independent external review of the necessity of continued detention beyond the 30 day initial period and of the necessity and appropriateness of any restrictions imposed as conditions for release. Where the review is undertaken by a tribunal, the Federal Court should be able to review the decision of the tribunal on a point of law.

This basic model is a workable alternative to the present system. It respects the human rights of asylum seekers. It offers appropriate protection to the Australian community. It is also, coincidentally, far less expensive than the present system, a far lesser drain on taxpayers’ resources.

There is no agreed method for calculating cost but on any basis the cost is great and growing. The Human Rights and Equal Opportunity Commission reported various estimates of the costs of the detention system during the 1990s:

• in 1994, according to a parliamentary committee report, $55.64 per person per day at Port Hedland, $58.49 at Villawood and about $200 at other centres
• in September 1997, according to a ministerial statement to Parliament, $161.77 per person per day at Port Hedland and $111.11 at other centres
• in 1998, according to the Australian National Audit Office, $69 per person per day in 1994-95, increasing by more than 50% in the following year to $105 per person per day.

The Conference of Leaders of Religious Institutes (NSW) provided a telling comparison of the costs per person per day of detention and of supervised release in the community, as calculated by a NSW parliamentary committee in June 2000:

No immigration detention centre is comparable to a minimum security prison. The cost per person per day would be similar to that in a medium or maximum security prison. The cost of an alternative release option would be more than the costs shown here for the criminal justice system because most convicted persons released under this scheme have their own homes to return to.

Asylum seekers would not and so housing costs would be in addition to those shown. Nonetheless, there remains a very significant difference. Community options are far less expensive.

These estimates were calculated before the so-called Pacific Solution was devised and implemented. The cost of this approach is unknown but it has been estimated at $500 million this year, far more than the disclosed cost of the on-shore system. The alternative model offers real savings to taxpayers as a bonus on top of the more ethical, more humane dimensions.

The alternative approach I have described here is similar to the approaches taken successfully in most other western countries. In Sweden, for example, where this kind of approach has been taken for many years, the average stay in a detention centre is a mere 47 days. One argument against a release scheme is that it will not deter other asylum seekers. But detention solely as a means to deter others is unacceptable and a violation of the Refugee Convention and of human rights law. And in any event there is no evidence that the various deterrent steps taken by Australian governments over the last decade have worked. Another argument is that released asylum seekers will abscond.

Careful assessment before release and appropriate reporting requirements after release will minimise the risk of absconding. Experience in the United States, where release of asylum seekers is routine pending determination of status, is that few abscond. Indeed in one pilot monitoring scheme 95 % met every reporting requirement.

The present situation cannot continue. It is unsustainable on practical grounds. It simply is not working. It is expensive. It is destroying Australia’s good name. It is distorting Australian aid priorities and warping development patterns in small poor Pacific Island states. But far graver than any of these facts, present policy is violating human rights.

Contrary to what is said by many of our national political leaders and many media commentators change towards fairness and decency in refugee policy is possible. It is necessary if we are to restore our integrity in our own eyes and in the eyes of the world. We have the wit to devise a better approach. All it now requires is the will. And a little bit of decency.