On 30 September 2015 2,044 people were in immigration detention in Australia.
About half of those people were illegal arrivals, about one quarter overstayers and about one quarter people whose visas had been cancelled. The number of people in immigration detention peaked in 2013 when around 13,000 people were in immigration detention1.
Of the people currently in detention, 195 are recorded as New Zealanders (174 men and 21 women). The largest nationality by representation are Iranians. Due to sustained pressure from the Australian Human Rights Commission and community groups, the position of children in immigration detention has been addressed by statutory amendment and change in policy, although a terrible legacy remains.
It should be noted that the above total of immigration detainees does not include 1,565 people currently held in “regional processing centres” in Nauru and Papua New Guinea. These facilities exist as part of Australia’s “third country processing regime”. The Australian Human Rights Commission has noted that this regime may lead to breaches of Australia’s human rights obligations (see https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/transfer-asylum-seekers-third-countries).
Kiwis in detention
New Zealanders are permitted to live in Australia permanently under “special category visas” provided that they satisfy security, character and health requirements and remain of good character.
Section 501 of the Migration Act 1958 enables a visa for a person living in Australia to be cancelled. The grounds are character based and invoked in the case of a person sentenced to imprisonment for 12 months or more. Under the law before 1998, such action could only be taken in respect of a person who had resided in Australia for less than 10 years. That is no longer the case.
People who have their visas cancelled fall within Australia’s policy of mandatory detention for “unlawful non-citizens” which means that they must be detained in immigration detention unless subject to a residence determination permitting them to enjoy “community detention”. It is not clear from the public statistics if there are New Zealanders currently living in the community in Australia following residence determinations and, if so, how many there are.
The fact that some of those who have had their visas cancelled have lived in Australia for years does not prevent the cancellation of residence visas or the imposition of immigration detention. The case of a New Zealand mother of four who spent 30 months in immigration detention2 suggests that it is not easy to avoid immigration detention in such circumstances.
Rights for detainees
The Australian Human Rights Commission has spent more than a decade advocating against the policy of mandatory detention on the grounds that it can lead to arbitrary and prolonged detention (in breach of Australia’s obligations under Article 9(1) of the International Covenant of Civil and Political Rights), particularly where detainees seek to challenge the decisions taken in relation to their entry into or entitlement to remain in Australia. So far, Australian governments have adhered to this rigid policy. The Human Rights Commission has published information about the rights of detainees which can be accessed from its website (see https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/human-rights-standards-immigration-detention).
It should be noted that Australia does not have a Bill of Rights. Two jurisdictions (the Australian Capital Territory and Victoria) have enacted human rights legislation that applies to laws with their jurisdictions but no such protection exists at the Commonwealth level.
Australian human rights are protected by the courts in Australia by reference to the Constitution and common law principles, such as the principle of legality. The Human Rights Commission is not a “court” and has no ability to make orders binding the executive government.
The High Court of Australia has reviewed immigration detention and the actions of Australia’s immigration authorities on a number of occasions. The precise limits which the Court is prepared to place on immigration detention are still uncertain.
The separation of powers between the executive and judicial branches of government in Australia is enshrined in Ch III of the Australian Constitution. Detention by the executive is capable of being unconstitutional if it exceeds executive authority, for example if it becomes “punitive”3.
While in Lim and Plaintiff S4/20144 the High Court laid down potential limits to immigration detention (requiring that it be not “punitive” and be reasonably capable of being seen as necessary to carry out the relevant purposes of the Migration Act), in Al Kateb5 the High Court concluded, in the case of a stateless man, that immigration detention could potentially be indefinite.
Although in Vasiljkovic v Commonwealth6 two justices of the High Court rejected the suggestion that the rights under Ch III of the Constitution benefit only citizens and not aliens, more recently, in CPCF v Minister for Immigration and Border Protection7 four justices of the High Court marked the practical limits of that indistinction in suggesting that any damages recoverable by an unlawful non citizen for unlawful imprisonment in Australia could be effected by the lack of liberty of such persons.
Two of the justices (Justices Keiffel and Keane) suggested that only nominal damages could be awarded. While that authority may be limited to compensatory claims arising from detention, it is nevertheless of concern that the removal of liberty by the executive’s policy of mandatory detention may itself limit rights in relation to that detention.
Christmas Island is located approximately 2,600kms from Perth and 500km south of Indonesia. It is an external Territory of Australia. Apart from immigration detainees, it has about 2,000 people living there.
The immigration detention facility on Christmas Island is one of the seven such facilities operated by Australia; the others all being on the Australian mainland.
It is easy to understand why people detained on Christmas Island would find it intimidating and isolating. What is more difficult to understand is why people taken into immigration detention from the Australian mainland would be transported there.
Recent riots at the facility have again highlighted concerns about its operation, which is shrouded in secrecy. (Such secrecy has also been applied to other “operational” aspects of Australian border protection – such as whether or not Australian agents have paid money to boat captains conveying asylum seekers to Australia to induce them to travel back to Indonesia.)
In Australia there is a distinction recognised between the substitution of an unlawful form of imprisonment for one which has been authorised and the imposition of harsh or restrictive conditions to imprisonment which is nonetheless authorised and lawful; the former being actionable but the latter not so8. Unfortunately, this distinction is unlikely to assist New Zealanders detained on Christmas Island.
You may find these issues disturbing. I hope that it may assist you to read that many of your colleagues in Australia certainly do.
Peter Tierney is a barrister sole based in Dunedin and Sydney who divides his time working between New Zealand and Australia. He practises both criminal and civil law and is also a qualified mediator in both countries. His main areas of practice include torts, estate litigation and advice, contractual and business disputes, Trans-Tasman legal issues and professional liability matters.
1. Department of Immigration and Border Protection statistics.
2. See the AHRC report: https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-3.
3. Chu Kheng Lim v Minister for Immigration  HCA 64 (8 December 1992).
4. Plaintiff S4/2014 v Minister for Immigration and Border Protection  HCA 34 (11 September 2014).
5. Al-Kateb v Godwin  HCA 37 (6 August 2004).
6.  HCA 40 (3 August 2006) per Gummow and Hayne at 83.
7.  HCA 1 (28 January 2015).
8. TD v The State of New South Wales  NSWCA 32 (26 February 2013) per Basten JA 55ff