Australian laws

Australia’s approach to UNHCR-defined refugees resettled from camps is derived from our international obligations. Once they enter Australia, all offshore refugee and humanitarian entrants are subject to the same laws which apply to all Australians.

Migration act

The Migration Act 1958 relates to the entry into, and presence in Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

According to the Act, all persons within Australian borders must be detained if they do not possess either a valid visa or Australian citizenship. This is applied to asylum seekers who arrive on the Australian mainland without a valid visa and are held in immigration detention until they are granted a visa or removed from Australia (mandatory detention).

Under the Act, asylum seekers who arrive without a valid visa in excised offshore places such as Christmas Island may be detained. However, the current policy of the Australian Government is that all irregular maritime arrivals in excised offshore places will be subject to mandatory detention, presently on Christmas Island.

Ministerial discretion

The Migration Act permits the Immigration Minister of the day to exercise discretionary powers. For example, if a person has been refused a Protection visa and exhausted the review processes, he or she can apply to the Minister to be granted a visa. If a person has new or extenuating circumstances relating to their claims of persecution, the minister can choose to permit that person to lodge a fresh application. Most of these powers come under section 417 of the Act. The minister’s discretionary power is non-reviewable but a person can be permitted to lodge multiple Ministerial applications. The guidelines for when a Minister can exercise their discretionary powers include:

  • whether there is a risk to the person’s security, human rights or human dignity if returned to their country of origin;
  • meeting of Australia’s international obligations ;
  • if the person is a member of an Australian family unit;
  • if the person has exceptional skills;
  • length of time the person has lived in Australia;
  • applicant’s physical and mental health; and
  • issues of statelessness and other considerations.

Mandatory detention

Prior to 1992, the detention of asylum seekers who arrived by boat was permissible under the Migration Act 1958, but on a discretionary basis. Mandatory detention for unauthorised arrivals was introduced under the Migration Amendment Act 1992, as part of the codification of migration policy. The rationale given by the then Immigration Minister, Gerry Hand, was that detention would facilitate the processing of refugee claims, prevent de-facto migration and save the cost of locating people in the community.

On 1 September 1994 the Migration Reform Act 1992 commenced. This introduced mandatory detention for all ‘unlawful non-citizens’ (i.e. for everyone without a valid visa). The intention was to effectively regulate the determination of refugee status and ‘removal of people who do not establish an entitlement to be in Australia’.

Amendments introduced since 2000 have expanded powers to administer detention centres (Migration Legislation Amendment (Immigration Detainees) Act 2001), and prevented court orders for release (Migration Amendment (Duration of Detention) Act 2003). Some modifying of the policy was introduced in 2001 by the then Immigration Minister Philip Ruddock, through a residential housing project for women and children and community detention arrangements.

Policy changes in June 2005 saw families with children placed in community detention arrangements. Targets of three months were to apply to both the primary decision and the merits appeal decision by the Refugee Review Tribunal. Ombudsman’s reports and recommendations on people in detention longer than two years would be tabled in Parliament, and the immigration minister’s discretionary powers to grant visas was extended. The Migration Amendment (Mandatory Detention) Bill 2005 was subsequently introduced into the House of Representatives on 21 June 2005. At this time the Government emphasised its commitment to mandatory detention, excision of territory for migration purposes, offshore processing and, if necessary, turning boats around at sea.

In 2008 a new Government announced the ‘New Directions in Detention’ Policy which stated that children would be detained as a last resort and that for all asylum seekers, detention would be used for the shortest practicable time.

This information was adapted from Immigraton detention in Australia (updated 20 March 2013), Background Notes, Parliamentary Library, Parliament of Australia.