Lyla Lindsey
Australia has been criticised for its harsh immigration detention policies, which have been deemed inconsistent with human rights. Under Australian law, non-citizens without valid visas are mandatorily detained, and courts have limited powers to review the lawfulness of detention. This has led to indefinite detention for some migrants, with the Supreme Court of Papua New Guinea ruling that the detention of asylum seekers on Manus Island was illegal. In 2023, the High Court of Australia ruled that indefinite immigration detention is unlawful, but concerns remain about the Minister's discretionary powers to grant visas and release detainees.
| Characteristics | Values |
|---|---|
| Detention of non-citizens without a valid visa | Mandatory |
| Detention of children | Mandatory, often for months or years |
| Detention of asylum seekers | Mandatory |
| Detention of refugees | Mandatory |
| UNHCR's definition of detention | Confinement in a restricted location where freedom of movement is curtailed |
| Detention policy in contravention of rights | Convention on the Rights of the Child (CRC) |
| Detention of illegal entrants | Discretionary |
| Detention of migrants without a visa | Mandatory |
| Migration Act on detention | Prescribes mandatory detention of migrants without a visa |
| Leaving detention | Granted a visa or leaving Australia |
| Minister's power to grant a visa | Not subject to the same rules as elsewhere in the Migration Act |
| Court review of detention | Limited |
| Lawfulness of indefinite detention | Ruled unlawful by the High Court of Australia in 2023 |
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What You'll Learn
Detention of children
Australia's mandatory immigration detention policy requires the detention of all non-citizens without a valid visa. This includes children, who are detained alongside adults in remote areas of Australia. While the Australian government has justified this as a necessary measure to gather basic information about asylum claims, health, identity, and security issues, human rights organisations have criticised it as a violation of human rights, specifically those outlined in the Convention on the Rights of the Child (CRC).
The CRC, which Australia ratified in 1990, stipulates that children must only be detained as a last resort and for the shortest appropriate period of time. It also grants children the right to challenge the legality of their detention before a court or independent body. However, in practice, children in Australia are often detained for months or years, with limited review by the courts, as there is no time limit on their detention under the Migration Act 1958.
The United Nations Human Rights Committee has found Australia guilty of illegal detention on numerous occasions, and in 2013, specifically ruled against the country on 138 counts of illegal detention. The Committee has also stated that Australia's system of mandatory immigration detention results in arbitrary detention, which is contrary to the CRC's prohibition on arbitrary detention.
The Australian Human Rights Commission has expressed serious concerns about the impact of mandatory immigration detention on children, particularly those who are unaccompanied minors. They have recommended the appointment of an independent guardian for these children to ensure their rights are protected and that their best interests are prioritised.
While there have been some improvements, such as the transfer of children to community-based alternatives, the detention of children in Australia remains a highly controversial issue, with human rights organisations arguing that it violates the country's international human rights obligations.
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Mandatory detention rules
Australia's detention policies are considered some of the harshest in the world. Mandatory detention rules apply to non-citizens who are in Australia without a valid visa. This includes people who arrive without a visa and those whose visas have expired or been cancelled. Under these rules, immigration officials are required to detain such persons.
The Migration Amendment Act 1992 set up a regime of mandatory detention, with bipartisan support. The Migration Reform Act 1992, which came into operation on 1 September 1994, broadened the application of mandatory detention to all who did not hold a valid visa. This legislation removed the previous 273-day limit on detention and allowed for indefinite detention. The law gives the Minister the power to grant a person a visa and release them into the community if they deem it to be 'in the public interest'. However, this power is not subject to the same rules as elsewhere in the Migration Act for granting a visa, and the Minister has complete discretion in deciding whether to release someone from detention.
The purpose of mandatory detention is to support the integrity of Australia's immigration program and management of its borders. Asylum seekers are mandatorily detained while they undergo an assessment process, including 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 long-term detention for many individuals.
The United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of independence, and improper treatment of detainees. The UN Committee on the Rights of the Child has also raised concerns about the placement of children in immigration detention centres, and the UN Human Rights Committee has found that Australia's immigration detention system breaches human rights on several occasions. In 2023, the High Court of Australia concluded that the practice of indefinite mandatory detention of non-citizens was unlawful and unconstitutional.
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Indefinite detention
Australia has been criticised for its indefinite detention of immigrants. Under the Migration Act 1958, there is no time limit on the detention of asylum seekers, which has resulted in children being detained for months or years, often in remote areas of Australia.
In 1992, the Keating government introduced a regime of mandatory detention for those without a valid visa, subject to a 273-day limit. However, in 1994, the Keating government removed this limit, allowing indefinite detention. This policy has been continued and varied by subsequent governments.
In 2004, the High Court of Australia upheld the constitutionality of indefinite mandatory detention of non-citizens in Al-Kateb v Godwin, finding that the Migration Act gave the Commonwealth the power to detain people even when there was no reasonable prospect of their removal. This decision was criticised by human rights organisations, including Amnesty International Australia, which argued that indefinite detention is inhumane, cruel, and punitive, and a violation of international law.
In 2023, the High Court overturned its previous decision in NZYQ v Minister for Immigration, concluding that indefinite immigration detention is unlawful when there is no real prospect of a person's removal becoming practicable in the reasonably foreseeable future. This decision resulted in the release of 153 immigration detainees.
Despite this ruling, indefinite detention continues to be practised in Australia, with human rights and refugee groups highlighting Australia's human rights abuses in immigration detention to the UN. Amnesty International Australia has expressed concern that the High Court's affirmation of the constitutional validity of prolonged immigration detention while visa applications are processed reinforces cruel and inhumane practices, even for individuals whom Australia has a legal obligation to protect.
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Detention of asylum seekers
Australia has obligations to protect the human rights of all asylum seekers and refugees who arrive in the country, regardless of how or where they arrive and whether they have a visa or not. However, Australian law requires the detention of all non-citizens who are in the country without a valid visa. This means that people seeking asylum are generally detained, often for long and uncertain periods. There is no independent review of the decision to detain, and people have been detained for increasingly long periods. The detention of people seeking asylum under this regime is one of the harshest in the world, and causes terrible suffering.
The Australian government has a policy of detaining in immigration detention facilities non-citizens without a valid visa, suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and removal. Under the Migration Act 1958, asylum seekers who arrive in Australia without a valid visa must be held in immigration detention until they are granted a visa or removed from the country. This detention is indefinite, with no limit in law or policy to the length of time for which a person may be detained.
Mandatory detention was introduced to "support the integrity of Australia's immigration program" and "management of Australian borders". It was also put in place to distinguish between those who have submitted themselves to offshore entry processes and those who have not. Under this policy, asylum seekers are detained while they "undergo an assessment process, including security and health checking, to establish if they have a legitimate reason for staying in Australia".
In 2001, the Border Protection Bill provided the government with the power to remove any ship in Australian territorial waters, use reasonable force to do so, and ensure that no asylum applications could be made by people on board. This policy was popular with sections of the Australian electorate and helped Howard win the 2001 federal election. The Australian Labor Party supported the policy as the Opposition. However, in 2005, some concessions to humanitarian concerns were made, including the promised release of long-term detainees and a review of future cases by an ombudsman.
In 2010, the Australian government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. In 2011, the government announced that increasing numbers of people in closed immigration detention facilities would be considered for transfer into the community on bridging visas or placement in community detention. However, the detention of asylum seekers in Australia continues to face criticism from human rights organisations and has been found to breach the constitutional right to freedom in some cases.
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Detention of refugees
Australia has a policy of mandatory immigration detention for all non-citizens who are in the country without a valid visa. This includes refugees and asylum seekers. People who arrive in Australia without a visa or whose visas have expired or been cancelled are detained indefinitely while their asylum claims are being processed or until they are deported.
The Australian government argues that this policy is necessary to maintain border security and prevent unauthorised entry into the country. However, it has been widely criticised by human rights organisations and the United Nations for violating international law and human rights standards. In 2013, the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, and in 2023, the High Court of Australia ruled that the practice of indefinite mandatory detention was unlawful and unconstitutional.
Asylum seekers and refugees in Australia are often held in detention centres, which can include Immigration Detention Centres (IDCs), Immigration Transit Accommodation (ITAs), or other places such as hotels, hospitals, and aged care homes ('Alternative Places of Detention', or APODs). These detention facilities have been criticised for their harsh conditions and negative impact on the mental and physical health of those detained, particularly children.
The detention of children, especially those who arrive unaccompanied, has been a key concern for human rights organisations. Between 1999 and 2003, 2184 children were detained in mandatory detention facilities, often with their families, with no opportunity to argue their case before an independent tribunal or court. This has led to children being detained for extended periods, sometimes for years, which can have a detrimental impact on their development and well-being.
While the Australian government has made some efforts to address these concerns, including creating temporary protection visas for asylum seekers and allowing for community detention in certain cases, the mandatory detention policy remains in place. As of 30 June 2025, there were still 996 people in detention facilities, including men, women, and children seeking asylum or refugee protection in Australia.
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Frequently asked questions
Australian law requires the detention of all non-citizens without a valid visa. This includes adults and children seeking asylum, who are often detained for months and sometimes years. In 2023, the High Court of Australia ruled that indefinite immigration detention is unlawful, overturning its previous decision from 2004.
Those detained are held in immigration detention centres, sometimes in remote areas of Australia or offshore. In 2010, there were 100 asylum seeker boats intercepted in Australian waters. The average time spent in onshore detention centres has increased since 2014, with an average of 445 days in December 2015.
The UNHCR and the Australian Human Rights Commission have found that Australia's detention policies are inconsistent with and contrary to human rights. The indefinite detention of children is a key concern, with the Migration Act 1958 allowing for their long-term, indeterminate, and effectively unreviewable detention.
