Submission by Human Rights Watch on the Inquiry into the Ending Indefinite and Arbitrary Immigration Detention Bill 2021

This submission addresses the Ending Indefinite and Arbitrary Immigration Detention Bill 2021 (‘the bill’), which establishes a new legal framework governing immigration detention in Australia.[1] The bill makes mandatory detention illegal, provides alternatives to immigration detention that are focused on the immediate needs of refugees and non-citizens, and dismantles Australia’s current offshore immigration detention policies.[2]

Human Rights Watch supports many measures in the bill, which if enacted, would help bring Australia in line with its international law obligations and best practice in relation to immigration detention. These include the following issues:

Ending offshore detention

The proposed law would dismantle Australia’s abusive offshore processing policy.[3] The offshore processing policy has caused immeasurable suffering for thousands of vulnerable asylum seekers for nearly a decade. Since July 2013, the Australian government has forcibly transferred more than 3,000 asylum seekers to offshore processing camps in Papua New Guinea and Nauru.[4] Human Rights Watch has documented the severe abuse, inhumane treatment, and medical neglect suffered by refugees and asylum seekers in Australia’s offshore processing system. The policy is linked to the deaths of 12 people,[5] including from murder,[6] medical neglect,[7] and suicide.[8] Offshore processing is not only harmful, it is extraordinarily expensive, regularly costing the Australian government more than AU$1 billion a year.[9]

Successive Australian governments have used detention of refugees and asylum seekers as a form of deterrence. Under international law, immigration detention should not be used as punishment, but rather should be an exceptional measure of last resort to carry out a legitimate aim.[10] Adults should be detained for the shortest time necessary, while children should not be placed in immigration detention at all.[11]

Children in detention

The bill allows children to be detained as a measure of last resort, placing a seven-day maximum on detention of persons age 18 years or under.[12] As research from Canada has shown, even brief periods of immigration detention are acutely stressful – and in some cases traumatic – for children.[13] International standards recognize that immigration detention of children, alone or with their families, is never in their best interests and is a violation of children’s rights.[14] Authorities should instead “adopt solutions… that allow children to remain with their family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved and the children’s best interests are assessed.”[15]

Time limits on immigration detention

The bill sets a limit of three months as the maximum time a person can be held in immigration detention.[16] A person may only be taken into, or kept in, immigration detention for the range of reasons outlined in the bill, which include “to document the non-citizen’s entry” and “to prevent the non-citizen from absconding if there is evidence of a risk of the non-citizen absconding,” among others.[17] We would caution that a risk of absconding should be assessed on an individualized basis using objective criteria.

As of September 2021, the average period for people held in Australian detention was 689 days – the highest average ever recorded.[18] Australian authorities have detained 117 people for five years or more,[19] with several having spent more than 10 years in detention. The protracted and indefinite nature of immigration detention is inhumane[20] and takes a significant toll on detainees. Many refugees and asylum seekers experience significant psychological distress in detention,[21] some have fled traumatic experiences that are then exacerbated by prolonged, indefinite detention in Australia’s onshore and offshore centers.

Provision of information to detainees

Consistent with international law,[22] the bill requires that authorities taking a person into immigration detention provide that person with information, orally and in writing, and in a language the person understands, about their legal rights and the reasons for detention.[23]

Independent monitoring

The bill provides that detention centers be subject to external independent inspections every six months.[24] This is necessary to ensure that detention facilities comply with international human rights standards that require scrutiny and monitoring by an independent body.[25]

Ending mandatory immigration detention

The law, if enacted, would end mandatory immigration detention in Australia. There are currently 1,459 people in immigration detention facilities in Australia.[26] These include some refugees who were transferred to Australia from Nauru or Papua New Guinea for medical treatment who are detained in hotel rooms, where access to sunlight, space to exercise, and fresh air is limited.

Australia’s immigration detention policies violate its obligations under international law,[27] including the prohibition on arbitrary detention under the ICCPR.[28] The UN Working Group on Arbitrary Detention has called for immigration detention to be gradually abolished.[29] The Global Compact for Safe, Orderly and Regular Migration has also called on countries to prevent arbitrary arrest and detention and to “prioritize non-custodial alternatives to detention.”[30] Detention is a severe intrusion on the right to liberty and, in the vast majority of cases, detention for immigration-related reasons is neither necessary nor proportionate to the goal of enforcing immigration laws, particularly in light of the effectiveness of alternatives to detention. Detention of individuals solely due to their immigration status is harmful, expensive, and ineffective as a deterrent to migration.[31]

The framework proposed in the bill draws on United Nation High Commissioner for Refugees detention guidelines,[32] incorporates principles of family unity, the rights and best interests of the child, recognises the lawfulness of seeking asylum, and adheres to refugee and international human rights law.[33] Adopting the proposed framework would help bring Australia in line with international law and best practice and put an end to the immeasurable harm the current regime continues to cause.

Alternatives to detention and access to services

Human Rights Watch has conducted research into pilot programs testing alternatives to immigration detention in several countries, including the United States.[34] Our research has shown that alternatives that place the basic needs and dignity of refugees and non-citizens’ at the forefront of policy, such as those outlined in this bill, offer a rights-respecting alternative to detention while simultaneously furthering governments’ legitimate immigration enforcement aims. Alternatives have proven not only more humane than detention, but effective in achieving immigration enforcement goals at a lower cost than detention.[35]

Community based alternatives to detention have been successfully used in countries across Europe. For example, Bulgaria, Cyprus, and Poland initiated alternative programs in 2017 in which refugees and non-citizens’ are provided with casework support in the community while their cases are progressing. The programs’ services range from legal help to intensive, holistic support. An evaluation after the first two years found that 86 percent of participants across the three programs remained engaged with immigration procedures.[36]

This bill, if enacted, will give priority to refugees and non-citizens’ immediate needs and ensure access to assistance, such as accommodation and financial support, while in the community. It will futher protect their rights by ensuring that any person living in the community has access to services including health services, free and independent legal services, and education.[37]

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