MSWPG7213 Mandatory Detention Of Asylum Seeking Children - Assignment Solution

Global and Domestic Context

Mandatory Detention

The Keating Government introduced the mandatory detention policy in 1992 by enacting the Migration Amendment Act 1992. The mandatory detention policy in Australia was designed in 1992 in response to unlawful boat arrivals within the Australia territory. This policy requires the detention of all the unlawful non-citizens unless they are granted a lawful status temporarily through a visa (Phillips & Spinks, 2013). 

Detention of Unauthorized Arrivals 

According to the Migration Act 1958, all the non-citizens arriving unlawfully in Australia must be detained. These include the asylum seekers and other migrants entering Australia despite the expiration or cancellation of visa. The asylum seekers who enter Australia without authorization must be detained mandatorily, automatically, and indiscriminately (Field, 2006). 

Forced Displacement

There is a substantial increase in forced displacement all across the globe. 51.2 million people in the world were displaced forcibly by the end of 2013. This number had increased to 65.3 million in as less as two years. Of 65.3 million forcibly displaced people, 3.2 million people were the asylum seekers (United Nations High Commissioner for Refugees, 2014) 

Figure 1: Forcibly Displaced People between 2010 and 2015 (United Nations High Commissioner for Refugees, 2011)

Even though global displacement has increased, Australia still receives an unchanging number of asylum applications. In fact, the number has relatively decreased as a proportion of the total global applications. 15,977 and 16,177 asylum applications were received by Australia in 2013 and 2015, forming 1.5% and 0.5% of the global total respectively (United Nations High Commissioner for Refugees, 2014). 

Immigration Detention and Community Alternatives

Detention Facilities in Australia 

Closed immigration detention facilities are used to detain most of the unlawful non-citizens. There were a total of nine immigration detention facilities in Australia during the period of publication. Five Immigration Detention Centres (IDCs) operated in Maribyrnong, Villawood, Yongah Hill, Perth and North West Point. Since they are characterised as “medium to high risk,” these facilities are not used by the children. Melbourne, Brisbane, and Adelaide operate three lower security facilities, referred to as “Immigration Transit Accommodation (ITA).” By the end of 2016, only 1,364 people were held in the closed detention facilities operating in Australia (Department of Immigration and Border Protection, 2016). 

Arbitrary Detention 

The United Nations Human Rights Committee (UNHRC) states that arbitrary detention is lawful, but unjust. Hence, a person shall not be detained arbitrarily if their detention is reasonable in any given case. The Migration Act of 1958 states that unlawful non-citizens must be detained anyhow. They shall not be released from detention unless removed from Australia or granted a visa (Australian Human Rights Commission, 2017). 

The Pacific Solution 

The Pacific Solution was initiated in 2001. It is an offshore processing strategy that forcibly transfers the asylum seekers to the Republic of Nauru and the Papa New Guinea (PNG). Asylum seekers entering Australia through the sea are sent to these two Pacific states. Costs associated with the camps are financed by the Australian government. Besides, the government also bears the costs of aid donations. International Organization for Migration (IOM) and the Australian government ensure that the camps in Nauru and PNG are not turned into detention centres. Following this logic, the government of Australia has announced that its detention policy is now discretionary, instead of being mandatory. This is because the asylum seekers will not be detained in Australia anymore, but would rather move to an offshore processing centre. However, many critics and the asylum seekers argue that these offshoring processing centres are rather the places where children and adults are held in arbitrary detention (Field, 2006).