Critical Analysis of Australia's Mandatory Detention Policy: A Report

This report delves into Australia's mandatory detention policy, examining its origins, implementation, and ethical implications. The policy, established in 1992, mandates the detention of non-Australian citizens arriving without valid visas. The report analyzes the policy's formulation, considering issues of empowerment, participation, equality, justice, and fairness. It highlights human rights concerns, including breaches of international law, and the detrimental impact of detention on the mental health of asylum seekers. The analysis explores whether the policy aligns with the objectives of social policy in promoting equality, justice, and fairness. The report concludes by advocating for policy reforms, including limiting detention periods and prioritizing the well-being of those in detention, particularly children, while adhering to human rights principles.

Running Head: Social Policy
Australia’s Mandatory Detention Policy
Report
System04104
7/17/2019

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Introduction
Australia’s mandatory detention policy was framed to detain the non-Australian
people who arrive in the country without any legal document or valid visa. These asylum
seekers can be held by the government under this policy and the only way to end the
detention of such type of people is to take granted visa from the government or after
receiving permission from the government to stay in Australia or after their transfer to their
home country. This report discusses the background of Australian mandatory detention policy
and it also helps to understand whether this policy can be justified as a rightful and ethical
way to ensure the integrity of the Australian immigration program. The report also helps to
understand that this Australian policy whether follows the basic norms of equality, justice,
fairness or humanity.
What is mandatory detention policy?
The Australian mandatory detention policy was framed in 1992 with bi-partisan
support. The policy was framed to detain those people who arrive in the country unlawfully
and without legal documents. According to this policy, all non-Australian citizens must be
detained in the immigration custody, who do not have a valid visa or legal documents until
they get a valid visa or removed from the country (Rivas & Bull, 2018). An unlawful or non-
Australian citizen is any person who does not have a valid visa or local residential
documents. These non-Australian citizens also include asylum seekers who arrive in the
country for protection or want to live in various refugee camps of the country. However,
people whose valid visa is expired or who overstayed in the country or people who have their
visa cancelled will be liable to deportation to their home country. Many people think that this
policy was framed for those asylum seekers or non-Australian residential who were boat
arrivals or entered in the country illegally by seaways (Fleay, Hartley & Kenny, 2013).
Formulation and Implementation of the Policy
Australian mandatory detention policy was formulated in 1992 after bringing reforms
in the ‘Migration Act of Australia, 1992.’ The detention policy was formulated as a reaction
of the arrival of 438 Vietnamese, Chinese, and Cambodian ‘boat people’. This detention
policy was passed by the Australian parliament in the duration of the Keating government in
1992. Before 1992, the Migration Act of Australia shows a clear difference between illegal

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entrants in the country and unauthorised border arrivals such as boat arrivals. After 1992,
Australia’s mandatory detention policy authorised the Australian government to detain people
from not more than 273 days who arrived in the country by boats without any legal
permission or authority of the Australian government (Silove & Mares, 2018). This policy
was framed to control over the illegal entry of boat arrivals and to restrict those asylum
seekers who arrive in the country without permission. This policy was also formulated to
restrict these types of people to enter in the country. The mandatory detention policy was also
formulated to make a tighter control over the immigration policy of the country. However,
the government brings frequent changes in this act and ensures every time that unauthorised
arrivals of people can be strictly reduced in the country, and stop them to enter in the local
Australian community. However, illegal entrants are those people who entered the country by
fraud or by any illegal ways. These types of people were liable to be deported to their
respective country and the government could not detain them more than 48 hours (Fleay,
2015).
However, the detention period of asylum seekers or boat arrivals were always a
concern, which was raised by various human rights organisation and various other NGO’s
that, are working for the farewell of asylum seekers and refugees (Hartley & Pedersen, 2015).
Through this policy, the government ensures that the identity of every people can be assessed
and then after they have been granted a visa to stay in the country. The policy also enables
the government to deport those people whose visa application were rejected by the
government or if the application of people to stay in the country was rejected by the
Australian government (Opeskin, 2012).
Human Right Concerns about this Policy
According to this policy, any people who have no legal documents or a valid visa to
stay in the country is subject to immigration detention. However, the only way to come out
from the detention is to get the valid visa from the government or being liable to get
permission from the government to stay in the country (Garnier & Cox, 2012). However, if
the person failed to do so, he will be kept in detention for a long time of period or even for
lifetime detention. According to a judgement of the Australian High Court, those individuals
whose custody cannot be over or ended, then they must be detained in the country (Silove &
Mares, 2018). It means, a person who applied for asylum seekers and ask protection from the
government if failed to prove himself as an asylum seeker, will be kept in detention for an

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indefinite time. This detention can be termed in a lifetime detention period even without any
enquiry, trial, or charge. This is a major concern according to human rights and it proves that
it is not justifiable or fair for those people who are not guilty neither they were any victim in
any crime.
Breach of International Law
The decision of Australian high court is to detain the person for an indefinite period
without any enquiry or charges is the breach of international law related to human rights.
According to the Article 9 of ICCPR (International Convention on Civil and Political Rights),
any person who detained in the immigration custody must be liable to take proceeding before
a court release an order of lawfulness or unlawfulness of detention. The rights of freedom
from arbitrary detention is also mentioned in article 3 (right of liberty) and Article 9
(prohibition on arbitrary detention) of Universal Declaration of Human Rights. These articles
and laws related to human rights reflect that the Australian mandatory detention policy is a
breach of international law and it is not fair and justifiable with the people (Kronick,
Rousseau & Cleveland, 2011). The Amnesty International also stated that the Australian
detention policy breaches the laws of ICCPR and also stated that the current high court
decision to detain people for indefinite time is the breach of many other international law and
instruments, including convention related to status of refugees, 1951 and convention related
to rights of the child, 1989. However, the Amnesty International asks the Australian
Parliament to take the right action, take this issue as a matter of urgency, and make suitable
amendments in the policy. The Amnesty international ask the Australian parliament to ensure
that no person will be detained in the violation of basic human rights (Grewcock, 2018).
These laws and conventions clearly stated that the current Australian mandatory
detention policy is the breach of many laws and it is not fair and justifiable for refugees and
asylum seekers who need protection from the country. It also shows the misbehaviour and
inhumanity of Australian government with the small children of these refugees who arrived
in the country in search for basic needs, such as food, shelter, and safety (Newman, 2013).
Impact of Detention Policy on the Mental Health
One cannot imagine the impact of indefinite detention on the mental health of asylum
seekers or refugees. It is almost irrefutable to measure the impact when a person is detained

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for an indefinite time without any criminal record or any crime. However, people detained in
the immigration detention in Australia are suffering from various mental health issues and it
is really against the violation of human right laws that government failed to provide proper
treatment to the prisoners (Garnier & Cox, 2012). The basic treatment that people get in
detention is also against the international principle of human treatment. The Australian
government provide inhuman and cruel treatment to those people who detained as the boat
arrival or illegal non-citizen of Australia. However, there were many complaints reported to
suicide attempts, protest, riots, and a hunger strike by the prisoners within the immigration
detention centre of Australia. It shows the unfairness, injustice, inequality, and cruel
behaviour with the asylum and refugee people in Australia under its mandatory detention
policy (Newman, Proctor & Dudley, 2013).
Conclusion
In conclusion, the mandatory detention policy of Australia is breaching many
international human rights rules and regulations. The Australian government need to reform
this policy and should limit the detention of people up to a limited period of time. This policy
is not a fair policy and it should be amended according to the international conventions on
refugees and asylum seekers. However, this unfair and unjustifiable policy is a subject of
regular judicial scrutiny and review. The government should avoid the indeterminate and
indefinite custody of asylum seekers and it can be replaced by the deportation of people to
their home country after a certain period of time. Apart from this, the government should also
take care of the basic principle of human rights in consideration with those people who kept
in the immigration detention centre. They are human, are liable to receive proper healthcare,
and are liable to get basic facilities like food, shelter, and education, especially the health and
education of children is a major concern.

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References
Fleay, C. (2015). The limitations of monitoring immigration detention in
Australia. Australian Journal of Human Rights, 21(1), 21-45.
Fleay, C., Hartley, L., & Kenny, M. A. (2013). Refugees and asylum seekers living in the
Australian community: The importance of work rights and employment
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Garnier, A., & Cox, L. (2012). Twenty years of mandatory detention: the anatomy of a failed
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https://researchmgt.monash.edu/ws/portalfiles/portal/35024096/The_Refereed_Procee
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Grewcock, M. (2018). Immigration Detention and the Limits of Human Rights. Human
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Hartley, L., & Pedersen, A. (2015). Asylum seekers and resettled refugees in Australia:
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Political Psychology, 3(1), 142-160.
Kronick, R., Rousseau, C., & Cleveland, J. (2011). Mandatory detention of refugee children:
A public health issue?. Paediatrics & child health, 16(8), e65-e67.
Newman, L. (2013). Seeking asylum—trauma, mental health, and human rights: An
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Opeskin, B. (2012). Managing international migration in Australia: Human rights and the
“last major redoubt of unfettered national sovereignty”. International Migration
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Rivas, L., & Bull, M. (2018). Gender and Risk: An Empirical Examination of the
Experiences of Women Held in Long-Term Immigration Detention in
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Silove, D., & Mares, S. (2018). The mental health of asylum seekers in Australia and the role
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