Immigration detention in Australia

This thesis explains why immigration detention persists as part of Australia's immigration policy. It argues that this form of incarceration has a long history in Australia, and that it fulfils specific social and political functions. The thesis also demonstrates that immigration detention is punitive and therefore breaches Australia's constitution.

Exporting detention : Australia-funded immigration detention in Indonesia

Since 2000, Australia has provided significant levels of funding and resources to encourage Indonesia to use immigration detention to deter asylum seekers from making the onward journey to Australia. In this way Australia has effectively extended its domestic policy of immigration detention beyond its own national borders. The provision of Australian funding for detention in Indonesia has resulted in an increased propensity of Indonesian officials to detain. This article examines the outcomes and implications of this transfer of immigration detention policy for asylum seekers and refugees in Indonesia. It draws on interviews conducted with individuals who have spent time in Indonesia’s immigration detention centres, and Indonesian immigration officials, to assess the conditions of the detention centres. The particular arrangement between Australia and Indonesia, however, fails adequately to protect the human rights of immigration detainees. Ultimately, the detention of asylum seekers in Indonesia serves as one more barrier to finding effective protection in the Asia-Pacific region.

At the discretion of management: immigration detention in Indonesia

 This chapter outlines the policy, practice, and human impact of immigration detention in Indonesia. An important part of the Indonesian immigration detention story is the role of Australia, and this chapter explains how Australian diplomacy, human resources, and funding have been central to the development of Indonesia's immigration detention network.

Secrecy and human rights abuse in Australia’s offshore immigration detention centres

All asylum seekers who arrive in Australia’s territorial waters by boat are subject to mandatory, indefinite and unreviewable detention on Nauru and Papua New Guinea. This offshore detention regime is characterised by a high degree of secrecy, low levels of transparency and accountability, and few opportunities for external oversight. This has created a closed, controlled environment, in which people are routinely neglected and harmed. To better understand the human impact of Australia’s offshore detention regime, this article draws on research from social psychology regarding human behaviour in closed institutions. This research – which has substantially informed prison policies throughout the Western world – demonstrates the critical importance of external oversight, openness and transparency for the protection of human rights of people in closed institutions. This knowledge has not been applied to Australia’s offshore immigration detention regime. To the contrary: creating a closed, opaque system of detention has been an explicit policy goal of the Australian government. By actively restricting transparency, this research demonstrates that not only are the abuses of detainees’ human rights hidden from the public eye, they are inevitable.

Immigration detention: the migration of a policy and its human impact

Before the turn of the century, few states used immigration detention. Today, nearly every state around the world has adopted immigration detention policy in some form. States practice detention as a means to address both the accelerating numbers of people crossing their borders, and the populations residing in their states without authorisation. This edited volume examines the contemporary diffusion of immigration detention policy throughout the world and the impact of this expansion on the prospects of protection for people seeking asylum. It includes contributions by immigration detention experts working in Australasia, the Americas, Europe, Africa and the Middle East. It is the first to set out a systematic comparison of immigration detention policy across these regions and to examine how immigration detention has become a ubiquitous part of border and immigration control strategies globally. In so doing, the volume presents a global perspective on the diversity of immigration detention policies and practices, how these circumstances developed, and the human impact of states exchanging individuals' rights to liberty for the collective assurance of border and immigration control. This text will be of key interest to scholars, students and practitioners of immigration, migration, public administration, comparative policy studies, comparative politics and international political economy.

Australia-Indonesia cooperation on asylum-seekers: a case of 'incentivised policy transfer'

Australia and Indonesia have engaged in cooperation on asylum policy since the late 1990s, bilaterally on immigration detention and people-smuggling agreements, and multilaterally through the Bali Process. Seen from a global perspective, this form of cooperation is one of many such bilateral and multilateral agreements that stymie the ability of asylum-seekers to gain effective and durable protection. This article argues that policy transfer theory can explain how these agreements are achieved, their political implications, and their outcome for the refugee regime and the asylum-seekers reliant on the regime for protection. In the case study of Australia and Indonesia, the authors argue that the cooperation is best understood as a form of ‘incentivised policy transfer’, whereby Australia has provided substantial financial and diplomatic incentives to Indonesia to adopt policies consistent with Australia's own. The implications for asylum-seekers in the Asia-Pacific region are substantial, and include an increase in the use of immigration detention in Indonesia and the introduction of border security measures that restrict the ability of asylum-seekers to reach territory where they may claim protection under the Convention Relating to the Status of Refugees.

The passage of authority: imagining the political transformation of Australia’s Christmas Island, from sovereignty to governance

In 2012, Australia’s Christmas Island is best known as an island of immigration detention, a key component of Australia’s growing offshore border security apparatus, where interdicted boat arrivals seeking asylum are detained and processed. This article offers one account of how the Island came to be what it is, by providing two snapshots of the operable set of power relations on Christmas Island, then and now: ‘Island in the Sun’, and ‘Tropics of Governance’. Side by side, their stark contrast reveals the passage of authority through time and place, from the embodied, unified voice of the sovereignty of the British Empire to the palliative communication and bureaucratic sincerity that characterise governance. By disclosing shifting patterns of emergence and decay and showing border security’s intimate relation to governance, this article seeks to offer a deepened understanding of the current detention situation in its immanence. What can now be seen as Christmas Island’s past follies also reveals the restless work of successive political imaginations, the shifting ways and means by which an island can be translated into a solution to a political problem, and how successive solutions tend toward wreck and ruin.

Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.

The Εffects of censoring and the spiral of silence on focus group interviews: a case study of discussions on immigration

Focus groups assess the oral expressions of opinions of participants on a particular topic under discussion. They have several advantages over other qualitative research methodologies such as depth interviews because focus groups can discover people's attitudes and motivations while revealing the underlying views or values held by them. However, as focus groups elicit more socially expressed and contested opinions and discourses than Individual opinions, their discussions can be contaminated by the situational constraints and social pressures within the group. These include group dynamics, confonnity, censoring, the Group Leader Effect, the Groupthink Syndrome, the effects of the Spiral of Silence, characteristics of group members, and the climate of opinion within the group and in society at the time. This case study examines the effects of these factors on the 'horizontal interactions' between group members during a discussion with undecided voters about immigration, using two situations where focus group members took offence at comments made by another and challenged them, when the topic under discussion was personally relevant to them. Other members of the group, offending or otherwise, then remained silent, retracted their opinions to placate the challenger, and expressed neutral or conciliatory opinions in an effort to return the discussion to a state of equilibrium. It then examines some measures that can reduce such contaminations, including
methodological triangulation, where several methods and methodological
approaches are used to examine a given phenomenon, instead of just one method, such as the sole use of transcripts of focus group discussions.