Omari Gates
Australia has a history of detaining non-citizens without valid visas, suspected visa violators, and those with unauthorised arrivals in immigration detention facilities. The country's mandatory detention policy, introduced in 1992, has been criticised by humanitarian groups and intellectuals for its controversial treatment of asylum seekers and refugees. Despite international obligations to protect the human rights of asylum seekers and refugees, Australia has faced accusations of indefinite detention, inhumane treatment, and violating the right to freedom. The country's stop the boats policy, aimed at deterring illegal immigration, has been replicated by other nations such as the UK, although the effectiveness and ethics of such measures remain debated.
| Characteristics | Values |
|---|---|
| Illegal immigration classification | Illegal Maritime Arrivals (IMAs) and non-IMAs |
| Migration Act 1958 distinction | "lawful non-citizens" and "unlawful non-citizens" |
| Administration | Department of Home Affairs |
| Majority of people in Australia illegally | Visa overstayers |
| Number of visa overstayers in 2009-2010 | 15,800 |
| Number of visa overstayers as of June 30, 2010 | 53,900 |
| Number of foreigners living illegally in Australia in 2018 | 60,000+ |
| Number of foreigners living illegally in Australia by 2021 | 100,000+ |
| Number of immigration detention facilities | 13 (3 offshore, 10 on the mainland) |
| Examples of facilities | Nauru, Christmas Island, Manus Island |
| Mandatory detention policy year | 1992 |
| UN Human Rights Committee findings in 2013 | Guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane/degrading treatment |
| Average time spent in onshore immigration detention (as of December 2015) | 445 days |
| Number of people in onshore detention (as of December 2015) | 1792, including 91 children |
| Countries most detainees came from (as of December 2015) | Iran, New Zealand, Sri Lanka, China, Vietnam, Afghanistan |
| Number of migrants arriving by boat in 2013 | 20,000 |
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What You'll Learn
Mandatory detention policies
The Australian government operates a number of immigration detention facilities, including ten detention centres on the mainland and three functioning offshore centres on Christmas Island, Nauru, and Manus Island. These facilities are managed by the British services company Serco on behalf of the Australian government. The time spent in these detention centres can be lengthy, with an average detention period of 445 days as of December 2015, an increase from May 2014.
The mandatory detention policy has faced criticism from human rights organisations and the United Nations. In 2013, the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, and inhumane or degrading treatment. The Australian government has obligations under various international treaties, including the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Rights of the Child, to protect the human rights of asylum seekers and refugees, regardless of their legal status or country of origin.
In response to overcrowding and capacity constraints, the Australian government announced in 2012 that some asylum seekers liable for transfer to a third country would be released into the community on bridging visas. However, thousands of people remain in closed immigration detention facilities, and the Supreme Court of Papua New Guinea ruled in 2016 that the detention of asylum seekers on Manus Island was illegal, breaching their constitutional right to freedom. Despite this, the Australian government has maintained its mandatory detention policies, arguing that they are necessary for border control and distinguishing between those who have submitted themselves to offshore entry processes and those who have not.
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Australia's 'stop the boats' policy
Australia has a history of immigration detention facilities, both within the country and offshore. The Migration Act 1958 distinguishes between "lawful non-citizens" (those with valid visas) and "unlawful non-citizens" (those without valid visas). In 1992, the Keating government introduced a policy of mandatory detention, requiring the government to detain all those without valid visas while their claims are processed. This was in response to a wave of boat arrivals from Indochina.
The mandatory detention policy has been controversial, with opposition from various groups on humanitarian grounds. In 2013, the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, and inhumane or degrading treatment. Despite this, Australia continues to operate offshore processing centres, with reports of human rights abuses, including deaths, medical neglect, child abuse, and physical and sexual assault.
In 2013, the Coalition government announced Operation Sovereign Borders (OSB), a key component of which was the Regional Deterrence Framework (RDF). OSB is led by the Australian Border Force and aims to stop maritime arrivals of asylum seekers. The RDF, budgeted at A$420 million, seeks to engage with countries in the region, particularly Indonesia, to prevent asylum seeker vessels from leaving for Australia.
The "Stop the Boats" slogan has been criticised for demonising asylum seekers and justifying indefinite offshore detention. The Australian government has been accused of people smuggling, with allegations that authorities paid Indonesian boat crews to return asylum seekers to Indonesia. The government has also been criticised for its secrecy around asylum seeker boat arrivals and its refusal to release information to the public.
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The UK's adoption of Australia's immigration policies
Australia has been regarded by some politicians and observers in Europe as a model for hard-line policies towards refugees. The country has a policy of detaining non-citizens without a valid visa, suspected visa violators, and those subject to deportation in immigration detention facilities. This mandatory detention policy was introduced in 1992 to distinguish between those who submitted themselves to offshore entry processes and those who did not.
The UK has shown interest in adopting similar policies, with the Home Office studying Australia's offshore detention policy and the UK Minister for Immigration, Chris Philp, speaking with the Australian Border Force Commissioner to learn more about their approach. This is despite the controversy surrounding Australia's system of mandatory detention, with groups such as Amnesty International and the Australian Greens opposing it on humanitarian grounds.
The UK's interest in Australia's immigration policies stems from a period of heightened attention to maritime arrivals and dissatisfaction with the perceived failures of its current asylum system. Australia's approach to immigration and asylum has been criticised as inhumane and expensive, with offshore processing not effectively deterring people from travelling by boat. Despite this, some UK MPs believe that the Australian model is the best way to control illegal immigration and protect the country's borders.
The UK's potential adoption of Australian-style immigration policies raises concerns about the inherent cruelty of the system. The UN High Commissioner for Refugees and Médecins Sans Frontières have found high rates of mental illness among asylum seekers and refugees in offshore processing centres. Additionally, the Australian government has been found guilty of illegal detention and inhumane treatment by the United Nations Human Rights Committee.
While the UK considers adopting harder-line immigration policies, it is important to weigh the potential benefits against the potential harm to asylum seekers and the country's international standing. The UK, as a liberal democratic state, has advocated for compliance with international law and the protection of human rights, which may conflict with the implementation of certain aspects of Australia's immigration policies.
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Australia's obligations to human rights treaties
The country has also signed and/or ratified optional protocols to these treaties, such as those aiming at the abolition of the death penalty, and those protecting women and children's rights. However, for a treaty to become a 'direct source of individual rights and obligations', it must be incorporated into Australian legislation. This is because the Australian Constitution separates the functions of the Commonwealth Executive, which deals with treaties, and the Commonwealth Parliament, which deals with laws.
Despite this separation of powers, certain provisions of human rights treaties are reflected in Australian law. For example, the Migration Act 1958 refers to the protection obligations outlined in the Refugee Convention, and child protection laws reflect the obligation to protect children from abuse as outlined in the Convention on the Rights of the Child (CRC).
Australia's immigration detention policies have been the subject of controversy and opposition from humanitarian groups. In 2013, the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane and degrading treatment. In 2015, the average time spent in onshore immigration detention was 445 days, and this average has increased since. In 2016, the Supreme Court of Papua New Guinea ruled that the detention of asylum seekers on Manus Island was illegal, yet the Australian government refused to take responsibility for these asylum seekers.
In summary, while Australia has obligations to several human rights treaties, these are not always directly reflected in domestic law, and the country has faced criticism and legal repercussions for its immigration detention policies.
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The legality of the term illegal for asylum seekers
The legality of the term "illegal" for asylum seekers is a complex issue that varies across different countries and jurisdictions. While the Universal Declaration of Human Rights Article 14 states that everyone has the right to seek asylum from persecution, the legal status and protections afforded to asylum seekers can differ significantly.
In the context of the United States, asylum seekers may apply for affirmative or defensive asylum by filing a Form I-589, Application for Asylum and for Withholding of Removal. This form must be filed within 1 year of arriving in the United States. Asylum seekers may be granted the right to remain in the country and apply for employment authorization while their application is being processed. However, they may face restrictions on their rights to work, volunteer, or move freely within the country.
In the European Union, asylum seekers who have not yet been granted official refugee status have restricted rights to healthcare access, which may include emergency medical and psychological care. The specific provisions can vary depending on the host country. For example, Germany's Asylum Seekers Benefits Act limits asylum seekers to emergency healthcare, vaccinations, and limited specialty care for pregnancy and childbirth.
It is important to note that asylum seekers are individuals who have not yet been granted refugee status and are in the process of seeking international protection. They should not be confused with illegal immigrants, who have entered a country without authorization and are subject to deportation. However, if an asylum seeker's application for protection is rejected, they may be considered an illegal immigrant and may be asked to leave the country.
The legality of the term "illegal" for asylum seekers is dependent on the specific context and the laws of the country in question. While asylum seekers have the right to seek protection under international law, their legal status and rights may vary depending on the country's immigration policies and the outcome of their asylum application.
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Frequently asked questions
The Migration Act 1958 defines illegal immigration to Australia by distinguishing between "lawful non-citizens" (those in Australia holding a valid visa) and "unlawful non-citizens" (those without a valid visa).
Australia operates a number of immigration detention facilities within the country, as well as several offshore processing centres. All Australian immigration detention facilities are managed by the British services company Serco on behalf of the Australian government.
Australia has obligations under various international treaties, including the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Rights of the Child, to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of their legal status. However, in 2013, the United Nations Human Rights Committee found Australia guilty of 138 counts of illegal detention, lack of judicial remedy, or inhumane and degrading treatment.
The "stop the boats" policy was a slogan used by former Australian Prime Minister Tony Abbott during his 2013 election campaign, in response to the arrival of 20,000 migrants from countries like Indonesia, Iran, and Sri Lanka. The policy aimed to block certain individuals from seeking asylum by boat and involved detaining people who arrived by boat indefinitely in offshore detention centres.
