IEU - End Mandatory Detention: Detention

Issues:

1. A number of concerns have been raised by a Parliamentary Joint Standing Committee over the conditions in which asylum seekers are detained. Many of these concerns have been echoed by Human Rights organisations around Australia and the world. The concerns include: Many detention centres, such as Woomera, are located in remote parts of the country making access to services and access for families extremely difficult.
2. Medical treatment is not always satisfactory, educational facilities are limited and the range of activities and recreational facilities are inadequate for the number of detainees, especially children and teenagers.
3. Doubts have been raised over the ability of ACM to effectively manage the centres, with reports of harsh treatment in some detention facilities. These concerns have been highlighted in a report by the Commonwealth Ombudsman.
4. The UNHCR Executive Committee, the Parliamentary Joint Standing Committee and others have raised concerns over the effects of long term detention on asylum seekers, particularly children.
5. Detention is not subject to judicial review and applies to all unauthorised arrivals for the entirety of the duration whilst their claims are processed, in all cases regardless of circumstance. This has raised concerns that detention is 'arbitrary' and therefore in contravention of Article 9, Paragraph 1 of the International Covenant of Civil and Political Rights (ICCPR).
6. The cost of detention ($120 per person per day) is higher than alternatives.
7. Private contracts for running detention centres have led to commercial in confidence agreements that limit public accountability.
8. There remain many people in detention whose claims for asylum have been refused, but who cannot be repatriated to their home countries. It is unclear what the long-term status of these people is.
9. The introduction to the UNHCR Guidelines on the detention of asylum seekers states that detention should only be resorted to in ?cases of necessity? (emphasis in original). Guideline 2 states that ?As a general principle asylum-seekers should not be detained?. Guideline 6 state that ?minors who are asylum-seekers should not be detained? (emphasis in original) as it breaches Articles 2,3,9,22 and 37 of the Convention on the Rights of the Child (CROC).
10. The Government and others have claimed that allowing asylum seekers to live in the community whilst their claims are processed incurs an unduly high risk that these people will disappear into the community. However, this ignores the fact that asylum seekers who arrive in Australia on valid papers are currently released on bridging visas. The evidence suggests that this group has a far lower rate of acceptance than do unauthorised arrivals suggesting the risk of flight amongst unauthorised arrivals would be lower. This differential treatment also appears to be in contravention of Article 31 of the 1951 Refugee Convention, which states that asylum seekers should not be penalised due to the way in which they arrive in a country.

Alternatives:

1. All unauthorised asylum seekers to be subject to compulsory processing (mandatory detention) for an initial period to allow identity, criminal and health checks to be performed. Priority to be given to unaccompanied minors and families with children.
2. Processing to take place in minimum security facilities, such as the centre to be established at Christmas Island outlined under the following section on 'Processing'. (see Appendix 3 for international comparisons).
3. Asylum seekers to be automatically released from detention after health, criminal and identity checks have been performed, or after a predetermined period, unless a court order is granted to maintain an individual in detention. Such court orders would be conditional on establishing a specific threat to the community due to the health, criminal background or specific flight risk of the individual concerned.
4. Asylum seekers who have satisfied health and criminal check, but who are yet to have their claims processed, are to be released into the community. Community alternatives are cheaper and provide better opportunities to access services, education and employment. This would also improve opportunities for asylum seekers to be immersed within Australian culture. Alternatives include:
   • Community Parole: Parole systems are currently in operation in all states and territories and can be easily replicated. Under a community parole system community organisations, families or individuals will be able to volunteer to house asylum seekers whilst their claims are processed. This may include relatives of the asylum seeker who already have residency in Australia. These organisations or individuals will have responsibility to ensure that asylum seekers report regularly to DIMIA officials, attend official appointments and hearings, and do not travel outside proscribed boundaries without permission (eg state, city, town). A parole system could incorporate a notion of bail where asylum seekers had the financial resources to make this practical. This would be appropriate for those not considered to be a flight risk.
   • Home detention: Home detention is currently in operation in NSW, Qld, WA, SA and the NT. This would involve more intensive monitoring of asylum seekers, both through personal contact and electronic surveillance. Asylum seekers would need to coordinate excursions from their residence with a case worker. Monitoring can be adjusted to account for an individual's flight risk.
   • Transitional Housing: Transitional houses have been developed by the NSW Department of Correctional Services for criminal offenders. This involves creating a secure premise with appropriate monitoring systems that can house people of various flight-risks.
   
   

   Alternative	Cost	Possible Additional Costs
   Community Parole	$5.39	Living allowance. Financial assistance to organisations or individuals housing asylum seekers. Other transitional services.
   Home Detention	$58.83	Living allowance. Housing costs may be met by community organisations/individuals. Other transitional services.
   Transitional Housing	$95.89	Living allowance. Housing costs already included. Other transitional services.
   Detention	$120	It is unclear if this incorporates additional security costs associated with unrest.

   
   

   Additional Costs	Cost	Note
   Living Allowance	$36	This includes money for housing.
   Administrative cost	$27	This relates to DIMIA's administration of the system and is unlikely to apply for Home Detention of Transitional Housing.

   
   
5. No unaccompanied minor to be held in detention. All unaccompanied minors to be automatically placed in foster or emergency accommodation with attention given to counseling, cultural, religious and ethic needs.
6. Detention centres to be located in more populated centres and greater access granted to all members of the public, except where the privacy of detainees may be compromised.
7. The end of the tendering process for managing detention centres with all detention centres to revert to public control and management.
8. Centres to be divided into different sections so that children and families are separated from other asylum seekers in accordance with UNHCR Guidelines.
9. The initial screening of all asylum-seekers at the beginning of detention to identify trauma and torture victims for treatment in accordance with UNHCR Guidelines.
10. Children who are in detention to be offered mainstream education as soon as possible in accordance with UNHCR Guidelines.