Ruqayyah Snyder
Australia has a number of measures in place to combat illegal immigration, which is defined by the Migration Act 1958 as distinguishing between lawful non-citizens (those with valid visas) and unlawful non-citizens (those without). The country operates immigration detention facilities, both within the country and offshore, to hold asylum seekers while they undergo assessment. Mandatory detention was introduced in 1992 to distinguish between those who have submitted themselves to offshore entry processes and those who have not. This policy has been deemed controversial and criticised by human rights organisations, with the United Nations Human Rights Committee finding Australia guilty of illegal detention, lack of judicial remedy, and inhumane or degrading treatment in 2013. Australia also works to prevent people smugglers, who provide access by air and sea, through the Joint Agency Taskforce, Operation Sovereign Borders (OSB).
| Characteristics | Values |
|---|---|
| Immigration laws | Migration Act 1958, Migration Legislation Amendment Act 1989 |
| Administration | Department of Home Affairs |
| Categories of immigrants | "lawful non-citizens" (valid visa holders) and "unlawful non-citizens" (without valid visas) |
| Detention centres | 3 offshore centres, 10 detention centres on the mainland |
| Detention centre management | Serco, a British services company |
| Detention centre locations | Nauru, Christmas Island, Manus Island |
| Detention policy | Mandatory detention for asylum seekers |
| Detention period | Indefinite, previously limited to 273 days |
| Detention justifications | "Support the integrity of Australia's immigration program" and "management of Australian borders" |
| People smugglers | Individuals or groups facilitating illegal entry by air or sea |
| Task force | Joint Agency Taskforce, Operation Sovereign Borders (OSB) |
| Number of illegal immigrants | Estimated at over 100,000 in 2021 |
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What You'll Learn
Mandatory detention for asylum seekers
Australia has one of the world's strictest immigration detention regimes, with mandatory detention for asylum seekers. This policy was established by the Keating government's Migration Reform Act 1992, which came into operation on 1 September 1994. The Act mandates that any non-citizen in Australia without a valid visa must be detained. These detainees can only be released if they are granted a visa or removed from the country. This policy was implemented to "support the integrity of Australia's immigration program" and "management of Australian borders".
The Australian government has justified this policy as a necessary measure to distinguish between those who have submitted themselves to offshore entry processes and those who have not. It is also seen as a way to control unauthorised arrivals, with the belief that it will lead to a decline in the number of people being detained. However, critics argue that this policy leads to breaches of Australia's human rights obligations. The indefinite detention of asylum seekers, particularly children, has been a significant concern for human rights organisations.
The mandatory detention policy has undergone several changes under different governments. The Howard government tightened controls on unauthorised arrivals, contributing to a sharp decline in boat arrivals. This policy, known as the Pacific Solution, was enacted via an amendment to the Migration Act 1958 and provided for the indefinite detention of asylum seekers. Under this policy, asylum seekers were removed to third countries, namely detention camps on 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 in response to increased boat arrivals and reported deaths at sea. Despite some concessions to humanitarian concerns, the mandatory detention policy remained popular with sections of the Australian electorate, and it is believed to have played a role in the outcome of the 2001 federal election. The Australian Labor Party supported the policy while in opposition, but a small revolt within Howard's party in 2005 led to some concessions, including the promised release of long-term detainees and a review of future cases by an ombudsman.
The human rights of those in immigration detention are of particular concern, and Australia's mandatory detention policy has been criticised for its potential to violate these rights. As of 31 January 2023, there were 1061 people in immigration detention facilities, with an additional 516 people, including 146 children, living in the community after being approved for residence determination.
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Offshore processing centres
The Australian government's decision to employ offshore processing was driven by a desire to deter illegal boat arrivals. The government maintained that those seeking asylum by boat were "not welcome in Australia". The centres were established following the Tampa incident in August 2001, which involved 433 asylum seekers. Subsequently, Australia signed Memoranda of Understanding (MOUs) with Nauru and PNG, allowing for the housing and assessment of asylum seekers' claims on these islands.
The operation of these centres has been mired in controversy. Organisations such as Amnesty International, the Australian Human Rights and Equal Opportunity Commission, Human Rights Watch, and the United Nations have raised concerns about human rights abuses and a lack of transparency and accountability. There have been reports of violent clashes, beatings, racial slurs, and sexual assaults within the facilities. Additionally, the prolonged detention periods have been criticised for causing further harm to individuals who have already endured human rights abuses in their home countries.
The Manus Island detention centre ceased operations in September 2003, and the Nauru centre closed in 2008 due to a decrease in boat arrivals and untenable living conditions. However, the centres were reopened in 2012 as boat arrivals increased. The Gillard Government acknowledged the detrimental impact of offshore processing and intended it as a short-term measure. Despite this, Australia continued to send asylum seekers to these centres, and as of 2020, the country had three functioning offshore centres.
The resettlement of refugees processed through these centres has also proven challenging. Both PNG and Nauru have been reluctant to allow permanent settlement, and only a small number of refugees have been able to settle in these countries. Australia's offshore processing policy has been criticised by the United Nations High Commissioner for Refugees (UNHCR) as an attempt to circumvent Australia's international obligations regarding refugee protection.
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Visa overstayers
According to the Australian Bureau of Statistics, the majority of people in Australia illegally are visa overstayers. In the period from 1 July 2009 to 30 June 2010, approximately 15,800 people overstayed their visas out of 4.5 million temporary entrants during that period (about 0.35%). As of 30 June 2010, the number of visa overstayers in Australia was estimated to be around 53,900, or 0.2% of the Australian population. By 2021, it was reported that more than 100,000 foreigners were living illegally in Australia.
There are several consequences for overstaying a visa in Australia, including detention, deportation, and being banned from re-entering the country for at least three years. Overstaying a student visa can also result in additional penalties such as fines. To avoid these consequences, it is important to comply with the conditions of the visa and seek legal advice if there is a risk of overstaying.
If a person has overstayed their visa, they should contact a lawyer or migration agent immediately to understand their options. They may be able to apply for a bridging visa or another type of valid visa, such as a protection visa or a dependent child visa, depending on their individual circumstances. In some cases, they may be able to extend their current visa or apply for a different class of visa. However, if a person has overstayed their visa and purchased a ticket to another country, they should not go to the airport and attempt to leave normally as they may be arrested and taken to a detention centre. Instead, they should apply for a Bridging Visa E, which will allow them to stay until their flight date.
It is important to note that overstaying a visa can have significant consequences for future travel to Australia. Any future visa applications will be subject to increased scrutiny, and the person may be required to declare the overstay on all future applications. Additionally, if a person has overstayed their visa by more than 28 days, they will be subject to an exclusion period of at least three years, during which they will be unable to obtain another visa unless they repay any debts owed to the Commonwealth Government.
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People smuggling
Under the Migration Act 1958, entering Australia without a valid visa is an offence, and people smuggling offences carry significant penalties, including imprisonment. The Australian government has a comprehensive approach to tackling people smuggling, including international cooperation and disruption of criminal networks. They work closely with other governments and organisations through mechanisms like the Bali Process, which addresses irregular migration and related transnational crimes in the Indo-Pacific region.
The Joint Agency Task Force, Operation Sovereign Borders (OSB), plays a crucial role in combating people smuggling. OSB is a military-led border security operation that aims to protect Australia's borders and prevent people from risking their lives at sea. The Australian Ambassador for People Smuggling and Human Trafficking also works to promote international cooperation and coordinate the international elements of OSB.
Additionally, Australia has ratified significant international treaties to abolish human trafficking and modern slavery and has committed to progressing the ratification of the International Labour Organization's Protocol to address forced labour. Australia also provides humanitarian funding to support displaced people, refugees, and asylum seekers.
The Australian government's efforts to combat people smuggling extend beyond enforcement, as they also focus on addressing the root causes of irregular migration and promoting safe and legal migration pathways through their development and humanitarian programs.
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Indefinite detention
Australia has a history of detaining non-citizens without valid visas, suspected visa violations, illegal entry, or unauthorised arrivals. In 1992, the Australian government introduced a mandatory detention policy, requiring the government to detain all persons without valid visas while their claims to remain in the country are processed. This policy also permits indefinite detention.
The indefinite detention of migrants has been a highly controversial issue in Australia, with the practice being deemed unlawful and a violation of human rights. In 2004, the High Court of Australia ruled that indefinite mandatory detention of non-citizens was constitutional in the Al-Kateb v Godwin case. This decision was based on the interpretation that migrants without valid visas would remain in detention until they could be repatriated to their country of origin or granted a visa and released into the Australian community.
However, this interpretation was challenged multiple times in subsequent years, particularly in cases where migrants could not be returned to their countries due to risks or statelessness, but were also not granted international protection in Australia due to character requirements. In November 2023, the High Court of Australia overturned its previous ruling, declaring that indefinite immigration detention is unlawful. This landmark decision brought an end to a long-standing human rights violation concern.
The rights of children in immigration detention have also been a significant concern. The Human Rights and Equal Opportunity Commission's 1998 report, "Those who've come across the seas", found that Australia's detention policy was inconsistent with and contrary to human rights, specifically the Convention on the Rights of the Child (CRC). The report highlighted that the detention of children should only be used as a last resort and for the shortest appropriate period of time. Despite this, children seeking asylum in Australia are often required to stay in detention for months or even years while their claims are being finalised.
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Frequently asked questions
The Migration Act 1958 defines an illegal immigrant as an "unlawful non-citizen", i.e., someone without a valid visa.
Australia operates a number of immigration detention facilities, both within the country and offshore, to hold asylum seekers while their applications are processed. All Australian immigration detention facilities are managed by the British services company Serco on behalf of the Australian government.
In December 2015, there were 1792 people in onshore detention, including 91 children, most of whom were from Iran, New Zealand, Sri Lanka, China, Vietnam, and Afghanistan.
The Australian government works to prevent people smugglers from facilitating the transport of irregular immigrants by sea through the Joint Agency Taskforce, Operation Sovereign Borders (OSB).
