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What the changes to mandatory detention really mean
Many of you will have heard of the government's changes regarding the Mandatory Detention policy. It's very positive that the Minister for Immigration, Senator Chris Evans, is genuinely trying to improve the system of mandatory detention and make it fairer, however there is still plenty of work to be done.
Below is a summary of what these changes mean in reality, based on what has been released so far by the government. I start with the positives and then discuss the areas where work is still needed.
Has mandatory detention ended?
No.
The proposed changes are a step forward and represent a 'work in progress' but they do not end the policy of Mandatory Detention.
This policy will continue to detain all undocumented arrivals (except children) in detention centres until health and security checks are done. There are no time limits set.
How will the new policy be a positive step forward?
1. Release from detention after health, character and security checks are completed
Once a person who arrives in Australia undocumented (i.e. without a passport or genuine passport) has had their security, identity and health checks completed they will be released into the community (pending no security concerns) rather than remain in detention.
Under the Howard government asylum seekers, even after completing these checks, would remain in detention until either granted asylum or deported, often after many years.
2. Funding for legal representation to asylum seekers in detention
Asylum seekers held on Christmas Island will have access to IAAS funded migration advice. This means that they have access to a paid lawyer to represent their case. Under the Howard government asylum seekers held on excised islands had no such assistance.
3. Immigration Ombudsman to review every 6 months people in detention
Currently the Immigration Ombudsman reviews cases of people in detention after 2 years. The minister has proposed that this change to a 6 monthly review by the Ombudsman which is a positive initiative. Unfortunately the Ombudsman's powers are still only recommendatory.
4. Significant change in philosophy towards the use of detention
Most significant is the change in philosophy. The new Minister for Immigration does not seek to use detention as a punitive measure. He aims to use detention as a measure of last resort and is opposed to it being arbitrary in any way. There is also an in-principle commitment to detention being used for the shortest practicable time. People after completing their checks are to be released into the community unless there is a reason established to detain them.
This is a very significant and positive shift from the previous government's approach. Detention was used to punish asylum seekers and demoralise them so they would give up and leave Australia as well as provide a deterrent to others.
Where work still needs to be done
1. There is no time limit on the period of detention
The proposed changes put no time limit on how long a person can be detained. Potentially a person could be detained for months or longer if there are difficulties in ascertaining identity for example.
2. There is no independent review of people who are detained
Whilst the immigration ombudsman is independent and will review people's detention more often, their powers are recommendatory only. They cannot order that a person be released from detention.
The model proposed is that every 3 months a senior officer within the department will review the detention of a person to assess whether continued detention is justified. The minister said that the "department will have to justify a decision to detain - not presume detention".
Concerns remain about the lack of independent monitoring. Who will that person be? Who will they be accountable to? What powers will they have? What will be the criteria to continue the detention of a person?
An independent body separate from DIAC with the power to release asylum seekers if they believe the continued detention of a person is not justified, is required.
3. The new centre on Christmas Island will be temporarily closed – but can be used in the future
Christmas Island will remain closed for the time being but will be re-opened and used if there is a large arrival of undocumented arrivals. The questions are how many would justify the use of it?
However, more importantly why would we keep Christmas Island at all?
What purpose does offshore processing serve? It's against the spirit of the Refugee Convention and undermines the government's stated commitment not to use detention as a form of punishment.
4. We need an end to mandatory detention
We need an end to mandatory detention. Between 1977 and 1981 over 2000 Vietnamese refugees arrived by boat to Australia. Most had neither passports nor documents. They were not locked up. They were housed in migrant hostels where they had English classes and were assisted to find housing and jobs.
The ALP introduced mandatory detention in 1992 initially with a 9 month time limit. This was soon changed to indefinite detention. The community hostel model worked well in assisting refugees in the past – we can do it again.
We see no justification for detaining people while health checks are done, we don't detain anyone else in our community on this basis. We believe we could accommodate asylum seekers in a community based reception centre model until health, character and security checks are done. They could then either be accommodated in the community or the hostel while their cases are being processed.