Damon Mcknight
Australia's response to illegal immigration has been a highly controversial topic over the past two decades. The Migration Act 1958 defines illegal immigration to Australia, distinguishing between lawful non-citizens with valid visas and unlawful non-citizens without. The Department of Home Affairs administers immigration, and Australia operates detention facilities and offshore processing centres, managed by Serco. Australia's mandatory detention policy has been criticised as indefinite detention, including of children, and inhumane treatment, resulting in a UNHRC ruling against it in 2013. The majority of illegal immigrants are visa overstayers, with a small number arriving by boat.
| Characteristics | Values |
|---|---|
| Definition of illegal immigration | The Migration Act 1958 distinguishes between "lawful non-citizens" (valid visa holders) and "unlawful non-citizens" (without a valid visa). |
| Administration | Department of Home Affairs |
| Majority of illegal immigrants | Visa overstayers |
| Number of visa overstayers (2009-2010) | 15,800 out of 4.5 million temporary entrants |
| Number of visa overstayers (as of June 2010) | 53,900 or 0.2% of the population |
| Number of foreigners living illegally (2018) | 60,000+ |
| Number of foreigners living illegally (2021) | 100,000+ |
| Detention facilities | 10 detention centres on the mainland and 3 offshore centres (Nauru, Christmas Island, Manus Island) |
| Detention management | British services company Serco |
| Detention policy | Mandatory detention of asylum seekers for security and health checks |
| Detention of children | Required if seeking asylum; detained until asylum claim finalised or bridging visa issued |
| Detention controversy | UN Human Rights Committee found Australia guilty of illegal detention, lack of judicial remedy, and inhumane treatment |
| Supreme Court of Papua New Guinea ruling (2016) | Detention of asylum seekers on Manus Island breached their constitutional right to freedom |
| Mandatory detention rules | Apply to those with visas cancelled by the Minister, even after living in Australia long-term |
| Indefinite detention law | Instituted by the Keating government in 1992, continued by subsequent governments, but deemed unlawful by the High Court in 2023 |
| Illegal Maritime Arrivals (IMAs) | Term used for those arriving by sea without a visa; the term "illegal" for asylum seekers is controversial |
| Nationality of visa overstayers | Malaysians, Chinese, Americans, Brits |
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What You'll Learn
Mandatory detention of asylum seekers
In Australia, anyone who does not possess a valid visa is subject to mandatory detention, including asylum seekers. This policy was established by the Keating government's Migration Reform Act 1992, which came into operation on 1 September 1994. It was initially intended as an interim measure to address a wave of boat arrivals from Indochina. The Act distinguishes between "lawful non-citizens" (those with valid visas) and "unlawful non-citizens" (those without valid visas).
Under this policy, asylum seekers are detained while undergoing an assessment process that includes security and health checks to determine if they have a valid reason for remaining in Australia. This process can be lengthy and uncertain, with some decisions taking over eight months. The mandatory detention policy has been popular with sections of the Australian electorate, and it is believed to have contributed to Howard's victory in the 2001 federal election.
The Pacific Solution, enacted by the Howard government, further tightened controls on unauthorised arrivals. This policy involved excising many islands from the Australian migration zone and transferring asylum seekers to third countries, primarily small island nations in the Pacific Ocean, to determine their refugee status. The Pacific Solution was dismantled by the Rudd government but was partially restored under the Gillard government due to increased boat arrivals and reported deaths at sea.
The harsh conditions in Australian detention centres have been a subject of concern. The High Court of Australia ruled in 2004 that these conditions did not render the detention unlawful. However, the indefinite detention of unsuccessful asylum seekers, particularly those who could not be removed to another country, has been a contentious issue. The detention regime has been criticised as one of the harshest in the world, with reports of deaths, medical neglect, child abuse, and physical and sexual assault in offshore detention centres.
While seeking asylum in Australia is not a criminal offence, the term "illegal" has been controversially applied to asylum seekers. The Australian government's mandatory detention policy aims to uphold the integrity of its immigration program and manage its borders effectively.
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Indefinite detention
Australia's Migration Act 1958 defines illegal immigration to the country, distinguishing between "lawful non-citizens" (those with valid visas) and "unlawful non-citizens" (those without valid visas). Australia's immigration detention facilities are managed by the British services company Serco on behalf of the Australian government. The country currently operates three offshore centres and ten detention centres on the mainland, including Nauru, Christmas Island, and Manus Island.
In 1992, the Keating government introduced a policy of mandatory detention for unlawful non-citizens, responding to a wave of boat arrivals from Indochina. This policy permitted indefinite detention, a change from the previous limit of 273 days. The High Court of Australia upheld the constitutionality of indefinite mandatory detention of non-citizens in 2004, but this interpretation was overturned in 2023, with the High Court concluding that the practice was unlawful and unconstitutional.
Under Australia's immigration detention policy, asylum seekers are mandatorily detained while undergoing an assessment process that includes security and health checks to determine if they have a legitimate reason to stay in the country. This process can take months or even years, particularly for children, who are often detained in remote areas of Australia. The United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane or degrading treatment in 2013.
The indefinite detention of asylum seekers has been a controversial issue in Australia, with organisations criticising the practice. While Australia's geographical position as an island provides some protection against illegal immigration, the government has faced criticism for its handling of unauthorised boat arrivals and the conditions in offshore processing centres.
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Offshore processing centres
The use of offshore processing centres was first implemented in response to the "Tampa incident" in August 2001, where 433 asylum seekers were transferred to Nauru for processing. This led to the signing of a Memorandum of Understanding (MOU) with Nauru and an MOU with Papua New Guinea (PNG), allowing for the housing and assessment of asylum claims on Manus Island. The centres operated until 2008, when they were closed due to a decrease in boat arrivals and untenable living conditions.
In 2010, the Gillard Government revisited the idea of offshore processing due to increasing unrest and crowding in onshore detention facilities. The Expert Panel provided 31 recommendations, including a short-term solution of re-establishing processing centres in Nauru and Manus Island. The centres were reopened in 2012, with the Manus Regional Processing Centre closing again in 2017.
The offshore processing centres have been the source of much controversy, with accusations of human rights abuses, riots, and escapes. Journalists are forbidden from entering the centres, and there have been allegations of refugees being subjected to beatings, racial slurs, and sexual assaults. The United Nations High Commissioner for Refugees (UNHCR) has criticised the centres as an "indictment of a policy meant to avoid Australia's international obligations."
The Australian government has defended its use of offshore processing, stating that it is necessary to send a message that illegal boat arrivals are not welcome in Australia. The government also highlights its commitment to resettling refugees, with Australia taking in around 13,770 migrants per year as a signatory to the United Nations Convention relating to the Status of Refugees.
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Visa overstayers
Overstaying a visa is a breach of Australian law and can result in serious consequences, including detention, deportation, and a ban from re-entering the country for at least three years. The Australian government may also bill the individual for the cost of removal from the country. It is important to note that each temporary visa has a specific validity date, and overstaying occurs when an individual stays in Australia beyond the specified date without a substantive visa or a bridging visa.
If an individual overstays their Australian visa for less than 28 days, they may be detained, deported, or banned from re-entering. However, if they overstay for more than 28 days, they may be subject to an exclusion period, during which their future visa applications may be refused for at least three years. This exclusion period applies even if the individual voluntarily leaves Australia. After the three-year period, the person can only obtain another visa by repaying any debts owed to the Commonwealth Government, including removal and detention costs.
To avoid becoming a visa overstayer, individuals should ensure they comply with the conditions of their visa and regularly check their visa status using the Visa Entitlement Verification Online (VEVO) system or the myVEVO mobile app. These platforms allow visa holders to access information about their work rights, study rights, travel conditions, and expiry date. Additionally, seeking legal advice from registered migration agents or lawyers specialising in migration matters is crucial if an individual finds themselves in this situation.
In some cases, visa overstayers may have options to regularise their stay in Australia. They can explore other visa options, such as applying for a different type of valid visa, a bridging visa, or a protection visa, depending on their circumstances. However, it is essential to seek legal guidance from migration lawyers to navigate these complex scenarios accurately.
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Illegal Maritime Arrivals (IMAs)
Australia's response to Illegal Maritime Arrivals (IMAs) has been a highly contentious issue for the last two decades. The country's geographical position as an island nation offers a natural barrier to illegal immigration, with the majority of those in the country illegally being visa overstayers. However, there has been a notable wave of IMAs, predominantly from Cambodia and Indonesia, who undertake dangerous boat journeys to reach Australia.
In response to this, the Australian government has implemented a mandatory detention policy for IMAs. This policy, introduced in 1992 by the Keating government, was a shift from the previous regime of discretionary detainment. Under the current policy, asylum seekers are mandatorily detained while undergoing security and health checks to determine if they have a legitimate reason for staying in Australia. This process can take a significant amount of time, resulting in prolonged detention for those seeking asylum. This indefinite detention has been deemed controversial and criticised by human rights organisations and the United Nations Human Rights Committee, which found Australia guilty of illegal detention and inhumane treatment.
The Australian government operates a number of immigration detention facilities, both within the country and in offshore processing centres. These include centres on Nauru, Christmas Island, and Manus Island. The Manus Island detention centre was ordered to close by the Supreme Court of Papua New Guinea in 2016, which ruled that the detention of asylum seekers breached their constitutional right to freedom. Despite this, the Australian government has continued to enforce its mandatory detention policy, with the support of subsequent governments.
The term "illegal maritime arrivals" itself has been a subject of controversy. While seeking asylum in Australia is not a criminal offence, the use of the term "illegal" has been deemed valid by the Australian Broadcasting Corporation's Fact Check unit when referring to an individual's entry status. This terminology has been criticised as dehumanising and misleading, particularly when applied to asylum seekers.
In summary, Australia's response to IMAs has been characterised by a strict mandatory detention policy, implemented to deter and manage the arrival of asylum seekers by boat. This approach has been a source of significant controversy and has been criticised by human rights organisations and legal bodies. The Australian government's handling of IMAs continues to be a sensitive political issue.
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Frequently asked questions
The Migration Act 1958 defines an "unlawful non-citizen" as someone without a valid visa.
Asylum seekers are mandatorily detained while they undergo a security and health assessment to determine if they have a legitimate reason for staying in Australia. This process has been deemed inconsistent with human rights by the Human Rights and Equal Opportunity Commission.
Australia operates a number of immigration detention facilities, including several offshore processing centres. These centres have been criticised for their conditions and for detaining children.
In 2018, it was reported that more than 60,000 foreigners were living illegally in Australia, a number that increased to over 100,000 by 2021. The majority of "illegal immigrants" are visa overstayers.
Australia's treatment of asylum seekers and refugees has been a touchy political topic for the last 20 years. The government has been criticised for keeping refugees in offshore detention centres with poor conditions and for indefinite detention, which was ruled unlawful and unconstitutional in 2023.
