The Policy of Mandatory Detention of Asylum Seekers in Australia - Essay Example

The Policy of Mandatory Detention of Asylum Seekers in Australia Name: University: Course Title: Instructor: Date of Submission: Introduction Fleet (2007, p.40) postulates that the Migration’s Act 1958 makes it an offence to be in Australia unlawfully or rather without authorization from Australian immigration officials. The Australian law requires that all non-citizens must be in possession of a valid visa absent which one would be considered unlawful non-citizen in Australia. In 1992, the policy of mandatory detention was introduced in response to the rising unauthorised arrival of Indochinese asylum seekers (Phillips and Spinks, 2013). As a result, the law requires immigration officers to detain individuals who arrive in or are in Australia without valid, expired or cancelled visas (authorized and unauthorized arrivals) (Australian Human Rights Commission, 2004a). The policy of mandatory detention of asylum seeks regards no distinction between the detention of children as well as that of adults. According to the Refugee Council of Australia (2012), the policy of mandatory detention applies to diverse groups such as those who breach visa conditions and those who have overstayed their visas. Asylum seekers who find their way in Australia via boats or otherwise without due authorization from Australian authorities have been disproportionally affected by the law. This essay seeks to provide a discussion about the policy of mandatory detention of asylum seekers informed by a critical understanding of human rights and community development. Key Human Rights Issues Surrounding the Policy of Mandatory Detention According to the United Nations, detention is defined as follows: “Deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority” (Australian Human Rights Commission, 2004a). An examination of the Australian policy on detention conducted in 1998 by The Human Rights and Equal Opportunity Commission as it was applied during that time indicated that it was not only contrary, but also inconsistent with the human rights issues. As such the report reasoned that the Australia’s policy on detention contravened the human rights stipulated both in the Convention on the Rights of the Child (CRC), as well as the International Covenant on Civil and Political Rights (ICCPR) (Refugee Council of Australia, 2012). In addition, Fleet (2007, p.40) argues that the policy of mandatory detention of asylum seekers in Australia violates the 1948 United Nations Universal Declaration of Human Rights (UDHR) as well as the 1954 Convention Relating to the Status of Refugees. This is because Australia does not receive “floods” of unauthorized asylum seeker to warrant such a policy (Saul, 2012, p.31; Motta, n.d, p.24). However, for a very long time Australian immigration officials did not use the policy of mandatory detention of asylum seekers only as a risk management tool. Australia’s policy of mandatory detention of asylum seekers has no time limit. Prolonged and indefinite detention in immigration facilities is a significant violation of human rights. Asylum seeks arriving in Australia absent authorization underwent prolonged detention in the determination of whether or not they were genuine asylum seekers. This is done regardless of whether or not the asylum seekers posed health or security threats or risk to Australian citizens and communities. The Australian government is not obligated under any legal framework to releases such individual from detention. Some asylum seekers may be detained for weeks while others for several years. As a result, the rights of already vulnerable men, women and children from a wide range of backgrounds have been violated by unnecessarily prolonged detention in Australia’s immigration facilities. The resultant is unnecessary expenditure running into millions of dollars in yearly basis (Refugee Council of Australia, 2012). Prolonged or indefinite detention has significant mental health implications. Research has established a link between prolonged or indefinite detention in immigration facilities and metal health disorders. Australian Psychological Society (2011) indicates that asylum seekers detained for longer periods of time or indefinitely become uncertain about their future, have feelings of loss of independence and control over their lives, experience monotonous life in detention, become overwhelmed by the though of family members’ situations, and adverse implications of past trauma and torture (Australian Psychological Society, 2008, p.9). All these contribute to mental health and wellbeing deterioration. Such mental health disorders may include depression, stress, insomnia, anxiety, cognitive problems, emotional challenges, adverse coping strategies like self harm, and suicide among others. Most Australian immigration detention facilities are located I isolated offshore or remote areas. As a result, there is minimal delivery of crucial services to the detained asylum seekers such as legal counsel, communication, interpretation, physical and mental health, as well as socio-cultural and religious support. All these contribute to gross contravention of human rights (Refugee Council of Australia, 2012). Australian Human Rights Commission (2004b) posits that detention of children is also significant human rights issue associated with the policy of mandatory detention of asylum seekers in Australia. The Convention on the Rights of the Child (CRC), article 37 (b) stipulates that all children are entitled to their liberty and they shall not be arbitrary or unlawfully deprived of this. If a child has to be arrested, detained or imprisoned then these must only be applied as last resort and in conformity with the law for the shorted time as appropriate. Article 37 (d) reiterate that any child deprived of liberty has the right to prompt access to legal representation and other necessary assistance (Australian Human Rights Commission, 2004a). Migration Amendment (Detention Arrangements) Act 2005 asserts the stipulations of the Convention on the Rights of the Child (CRC). This facilitated the release of all children in detention facilities together with their families into community detention programs in Australia. Additionally, children are no longer held in Australia’s high security immigration centres of detention. Despite all these legal frameworks for children rights protection, it is unfortunate that Australian immigration officials still hold children in a wide range of closed immigration detention facilities usually for prolonged time periods (Refugee Council of Australia, 2012). The Politics Informing the Policy of Mandatory Detention In 1992, the enactment of the Migration Amendment Act 1992 by the Keating labour government introduced the policy of mandatory detention to curb the rising arrival of unauthorized asylum seekers in Australia by boat. According to the law, immigration officials are mandated to detain unlawful non citizens within the migration zones of Australia. The law only gives exception to those granted temporary lawful status through bridging visas while arrangements for deportation or alternative visas are underway. Unauthorized asylum seeks are usually detained while the immigration officials determines their reasons for being in the country (Phillips and Spinks, 2013). The policy of mandatory detention focuses on two main areas. First, the policy seeks to ensure that individuals who unlawfully arrive in Australia do not get entry to the country’s community absent satisfactorily completed checks on security, identity, character and health; as well as being granted a visa. Secondly, the policy of mandatory detention seeks to ensure that those individuals who are not duly authorised to be in the country are available for deportation or rather removal from the country (Phillips and Spinks, 2013; henckels, n.d, p1). According to the Commonwealth of Australia (2010), the policy of mandatory detention was last expanded in 1994 and has since been maintained by successive governments in Australia like Howard and Rudd/Gillard governments though with bipartisan support in Australian parliament. In the mid 2008, the minister in charge of immigration services introduced new directions in a speech titled “New Directions in Detention”. The new directions included seven crucial values on immigration to guide the policy and practices on mandatory detention, as well as new processing regime for unauthorized asylum seekers in Australia. The primary objectives of the new directions included the following. First, foster risk-based approach to immigration detention of unauthorized asylum seekers in the country. Second, ease and quicken the resolution of cases involving unauthorized arrivals in the country. In essence, the new directions required the immigration department to consider detention as the last resort; detain unauthorised asylum seekers for the shortest possible time; and reject or do away with arbitrary or indefinite detention of unauthorised asylum seekers in Australia. The new directions introduced by the Australian government in the mid 2008 was aimed at not only enhancing the country’s border security, but also treating unauthorised asylum seekers in Australia more fairly and humanely (Phillips and Spinks, 2013). With regard to children asylum seekers, it has been the policy of the successive Australian governments not to hold children in the country’s immigration detention facilities. The policy requires that children and their families be promptly put under community detention. The objective of community detention for children and their families is to enable them access support and social welfare services from non-governmental organizations and state agencies. However, there are occasions when children are detained in low-security immigration detention facilities like residential housing and transit accommodation (Motta, n.d, p.26; Phillips and Spinks, 2013). On health care, detained unauthorized asylum seekers have access to appropriate health care services commensurate to those available to the broader Australian communities. People detained in low-security immigration detention facilities like residential housing and community detention, health care services are accessed via community based health care service providers. Those detained in facility based detention centres receive health care services through onsite primary health care services. They may also be referred to external health care services providers in the community should clinical need arise (Phillips and Spinks, 2013). Classical Community Development Models That Can Be or Has Been Used In Advancing a Human Rights-Based Response to the Policy of Mandatory Detention, and How This Can Be Carried Out In Practice Structural functionalism or rather the structural functional approach is one of the three classical community development models that can be or has been used in advancing a human rights-based response to the policy of mandatory detention alongside symbolic interactionism (symbolic – interaction approach) and conflict theory/approach. Structural functionalism was fronted by sociological theorist such as Auguste Comte, Herbert spencer, Emile Durkheim, Robert Merton and Talcott Parsons among others. They theorists postulated that the society is a system with both interconnected and complicated parts which work harmoniously in unison. As such, this approach views the society from a macro level perspective. Social structure plays and stability in social behavior is significant for effective functioning of the society. In addition, the operation of the society as a system is influenced by societal structure’s function as well as the implications of social patterns. Social institutions’ roles and functions are crucial in keeping the society stable. With regard to dysfunction and change, structural functionalism stipulate that society’s survival is subject to the contribution of social life absent which it will ultimately disappear (Macionis, 2006, p.14). From the foregoing, the role played by Australia’s immigration services as a social institution is crucial in advancing the protection of the rights of men, women as well as children who arrive in Australia unauthorized to seek asylum in the country. In order for the society to be complete social systems and structures such as the Australian immigration services must acknowledge and recognize unauthorized asylum seekers in Australia as crucial components of the society. This will foster or rather facilitate the protection of their human rights as stipulated by international legislative frameworks such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the 1948 United Nations Universal Declaration of Human Rights (UDHR), the 1954 Convention Relating to the Status of Refugees, as well as Australia’s Migration Amendment (Detention Arrangements) Act 2005 among others (Fleet (2007, p.40; Motta, n.d, p.24; Saul, 2012, p.31). Various studies, researchers and policy analysts have postulated that there are viable and feasible community development-oriented alternatives to mandatory detention of asylum seekers in Australia. However, it is critical to emphasize that such approaches must be risk-based where unauthorised arrival in the country are briefly detained for health, character, identity, security checks, and ultimately community release and not necessarily community detention (Phillips and Spinks, 2013). According to Motta (n.d, p.26), the current system of mandatory detention of asylum seekers in Australia should be replaced with community release. Motta (n.d, p.26) however, argues that in accordance with the HREOC’ “Submission to the Senate Legal and Constitutional References Committee inquiry into Australia’s refugee and humanitarian program, such community release of unauthorized asylum seeker in the country should be based conditional reporting to the immigration officials. For this to be feasible and effective, the application of classical community development models including structural functionalism, symbolic interactionism and conflict theory will play a significant role. Conclusion This essay paper has provided a critical discussion about the policy of mandatory detention of asylum seekers informed by a critical understanding of human rights and community development. Immigration detention is a not punitive in nature, rather administrative. It is employed as a risk management tool and not as a punitive approach against unauthorised asylum seekers. It is solely meant to prevent unauthorized arrivals in Australia. The purpose of the policy of mandatory detention of asylum seekers in Australia is to facilitate checks on identity, security and health with the objective of mitigating any potential threats or risks to the Australian citizens and communities. However, this paper has established that the policy on mandatory detention of asylum seekers in the Australia significantly violates international legislative frameworks seeking to advance the protection of human rights especially men, women and children who seek asylum in foreign countries. Structural functionalism is one of the three classical community development models which can be applied to facilitate or rather advance human rights-based response to the policy of mandatory detention in Australia. Many studies have indicated that community release based on mandatory reporting could be a viable alternative to mandatory detention of unauthorised asylum seekers in Australia. Bibliography Australian Human Rights Commission 2004a, Australia's Immigration Detention Policy and Practice. Retrieved July 8, 2013 from: http://www.humanrights.gov.au/publications/6-australias-immigration-detention-policy-and-practice Australian Human Rights Commission 2004b, Australia’s Human Rights Obligations. Retrieved July 8, 2013 from: http://www.humanrights.gov.au/publications/4-australias-human-rights-obligations Australian Psychological Society 2008, Psychological wellbeing of Refugees Resettling in Australia. Retrieved July 8, 2013 from: http://www.psychology.org.au/Assets/Files/Refugee-Lit-Review.pdf Australian Psychological Society 2011, Submission to the Joint Committee on Australia’s Immigration Detention Network. Retrieved July 8, 2013 from: http://www.psychology.org.au/Assets/Files/APS-Submission-to-Australias-Immigration-Detention-Network.pdf Commonwealth of Australia 2010, Fact Sheet 82 – Immigration Detention. Retrieved July 8, 2013 from: http://www.immi.gov.au/media/fact-sheets/82detention.htm Fleet, S 2007, Mandatory Detention in Australia, Illawarra Unity - Journal of the Illawarra Branch of the Australian Society for the Study of Labour History, 7(1), pp.40-46. Henckels, C n.d. Mandatory Detention of Stateless Asylum Seekers in Australia: Would a Bill of Rights Make a Difference? Retrieved July 8, 2013 from: http://www.victoria.ac.nz/law/centres/nzcpl/publications/human-rights-research-journal/publications/vol-4/Henckels.pdf Macionis, J 2006 Society: The Basics, Eighth Edition. Upper Saddle River, NJ: Pearson/Prentice Hall. Motta, F.P., n.d. “Between a Rock and a Hard Place”: Australia’s Mandatory Detention of Asylum Seekers. Refuge, 20(3), pp.12-43. Phillips, J and Spinks, H 2013, Immigration detention in Australia. Retrieved July 8, 2013 from: http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/Detention Refugee Council of Australia 2012, Mandatory detention. Retrieved July 8, 2013 from: http://www.refugeecouncil.org.au/f/as-det.php Saul, B 2012, Dark Justice: Australia’s Indefinite Detention of Refugees on Security Grounds under International Human Rights Law. Melbourne Journal of International Law, 13, pp.1-46. Read More