An alternative to indefinite mandatory detention of asylum seekers

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.