Detention In Australia Research Articles

Immigration detention in Australia: the constitutional incompatibility of the Migration Act’s definition and its practical implications

ABSTRACT This article examines the constitutional validity of s 5(1) of the Migration Act 1958 (Cth), which includes prisons and remand centres as facilities for immigration detention. It argues that this statutory definition is arguably unconstitutional because it conflates the non-punitive purpose of immigration detention with the inherently punitive nature of imprisonment. The article further explores the High Court’s jurisprudence on the matter, the principles of punitive and non-punitive detention, and the implications for the rule of law and individual rights.

Lived experiences of youth justice detention in Australia: reframing the institution in a decarcerated state

ABSTRACT This article reconsiders youth justice detention in the Australian context by exploring the lived experiences of youth detention in New South Wales (NSW) and the Northern Territory (NT). In drawing upon narratives from children and young people who have experienced detention, this article argues for shifting youth detention away from highly securitised environments, instead presenting an alternative and provisional relational rights-based framework and approach. This reimagined youth justice detaining environment builds upon the current efforts to raise the minimum age of criminal responsibility across Australia to 14, and other significant measures of decarceration. This dramatically limited and transformed carceral environment would actively seek to support these young people to reach their potential through nurturing their capabilities in a trauma-informed, therapeutic and relational rights-based environment, and then linking them in with highly resourced long-term transition pathways away from the justice system.

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs: The End of Indefinite Immigration Detention in Australia?

N/A

Preventing torture and other cruel, inhuman or degrading treatment of children in detention in Australia

This article considers the multitude of inquiries and investigations into the treatment of children in youth detention in Australia over the past five years (2017–2022) as well as examples of practices that constitute torture and other cruel, inhuman or degrading treatment under international law (in particular, solitary confinement, use of restraints and force and strip searching). It explores how Australia might move beyond reacting to such treatment to preventing it because of the international and national monitoring and oversight mechanisms introduced by the Optional Protocol to the Convention Against Torture (OPCAT).

Do mobile phone bans show that immigration detention is becoming more like prison?

ABSTRACT The mobile phone enables people to be heard through walls of confinement. During the suspension of visits to immigration detention in the COVID-19 pandemic, mobile phones were a lifeline to family and friends. There is also a long history of people using phones to document and communicate their experience in Australian-run detention to the world. The Australian government’s attempts to ban mobile phones in detention provide a lens, and in this paper, a case study, to explore whether immigration detention in Australia is becoming more like prison. I argue that while the official purpose for detention remains administrative not punitive, the proposed mobile phone bans reveal the changing function of detention in Australian border control. Mobile phone bans show how people in influential roles have reimagined the legal subject of detention from the ‘asylum seeker’ to the ‘migrant criminal’. Proposals to ban mobile phones also convey a transformation in how immigration detention is legally conceived – from a civil space under the supervision of police and the general criminal law to a more segregated space ruled from within. Drawing on scholarship on law, crimmigration, and carcerality, this paper traces how mobile phone bans came to be regarded as the natural next step in detention law-making.

Living Death at the Intersection of Necropower and Disciplinary Power: A Qualitative Exploration of Racialised and Detained Groups in Australia

This article challenges state-sponsored violence in Australia by exploring the experiences of young Indigenous people in youth detention and refugees in immigration detention in Australia as a form of living death. This article examines how this living death manifests by qualitatively analysing publicly accessible first-hand accounts from Indigenous young people about their experiences of youth imprisonment and from refugees about their experiences of immigration detention onshore and offshore. The findings suggest that when necropower and disciplinary power intersect four overlapping expressions of violence emerge: structural violence, epistemic violence, physical violence and brutality, and disciplinary violence. It is the complex overlapping of these multiple forms of harm that creates an experience of living death. In privileging the voices of young Indigenous people and refugees, this article also recognises their continued refusal of past and present colonial structures and the associated violence of carceral spaces.

Sensing the border(s): Sound and carceral intimacies in and beyond indefinite detention

This article examines a sound-based digital project co-created with refugees and asylum seekers held in indefinite detention in Australia and Papua New Guinea to advance understandings of the sensory violence of borders – and resistance to borders – and their reordering of intimate realms. In where are you today (2020), refugees/asylum seekers catalogued their carceral environments in 10-minute sonic vignettes which were distributed to listeners daily via text message, for 30 consecutive days. Drawing on sensory methodologies and feminist orientations towards the intimate, the article considers how this sound project alerts us to an alternative sensory politics attuned to the quiet, quotidian and exhausting labour of resisting Australia’s racialised border regime. Through a close listening to selected recordings, we argue the intimacies shared through where are you today produce knowledge about embodied practices of care, breath, touch and waiting in indefinite detention. Networked, transborder sound projects can unsettle both incarcerated and non-incarcerated subjects’ relationships to their environments, opening affiliative possibilities for coming into relation with the border(s) in new ways. We conclude that the project’s creators forge and sustain carceral intimacies within and despite the border’s affective violence, and that sound is a particularly affective and evocative means of conveying and creating these intimacies, in and beyond indefinite detention.

Offshore Detention in Australia: Behrouz Boochani’s No Friend but the Mountains: Writing from Manus Prison (2018)

This article focuses on the “Pacific Solution,” the Australian national policy of controlling illegal migration by detaining refugees in Immigrant Detention Centres in offshore Pacific islands of Manus and Nauru, and the human rights issues it raises. It refers to Behrouz Boochani’s prize-winning refugee memoir, No Friend but the Moun- tains: Writing from Manus Prison (2018) as both a prison narrative of resilience and a politically resistant text, and it discusses Boochani’s representation of Manus Detention camp as “The Kyriarchal System” in terms of Foucault’s “monstrous heterotopia.” The ar- ticle emphasises the issues of accountability and responsibility in the bilateral governance arrangements of the Manus Detention Centre between Australia and Papua New Guinea, and considers the possibility of more humane detention practices in the future.

Can Charters of Rights Limit Penal Populism? Irreducible Life Sentences, Disproportionate Sentences and Preventive Detention in Australia and under the Human Rights Act 1998 (UK) & the European Convention on Human Rights

Can Charters of Rights Limit Penal Populism? Irreducible Life Sentences, Disproportionate Sentences and Preventive Detention in Australia and under the Human Rights Act 1998 (UK) & the European Convention on Human Rights

Crystalline methamphetamine (ice) use prior to youth detention: A forensic concern or a public health issue?

Links between crystalline methamphetamine (CM) use and criminal offending are often drawn in the media; however, there has been little scientific research into this relationship. The aim of this study was to ascertain the prevalence and correlates of lifetime CM use among a sample of young people in detention in Australia and to examine whether an association exists between lifetime CM use and recidivism in this population.The sample included 202 young people (164 males) in youth detention in the state of Victoria, Australia. Participants were administered questionnaires related to lifetime substance use and socio-environmental experiences. Lifetime mental health data and offending data were obtained for each participant from public mental health and policing databases. More than one third (38%) of the sample reported lifetime CM use. In multivariate logistic regression analyses, older age, male gender, polysubstance use, and high levels of community disorganisation were associated with CM use. The presence of a psychiatric diagnosis over the lifetime was not significantly associated with CM use. CM use was also not significantly associated with violent recidivism. Efforts to address CM use and related harm in detained youth should include community-based strategies to reduce CM use among this vulnerable population following their release from detention. However, the findings suggest that CM use on its own is unlikely to be an important consideration for professionals concerned with determining which young people should be selected for treatment designed to reduce the risk of violent recidivism.

Aged care, detention and OPCAT

ABSTRACTAustralian parliaments and courts have recognised that aged care facilities with closed units can be places of (civil) detention where patients/consumers are deprived of their liberty. Current monitoring of these places of detention is substandard and inadequate, as evidenced by the multiple federal and state inquiries into South Australia’s Oakden Older Persons Mental Health Service. The monitoring of closed aged care facilities needs urgent strengthening via the use of rigorous, human-rights-based standards. The urgency to improve the system of monitoring for this form of civil detention coincides with Australia’s 2017 ratification of the Optional Protocol to the Convention Against Torture (OPCAT). Australia’s commitment to OPCAT ushers in the establishment of National Preventive Mechanisms (NPMs) at the federal and state levels to strengthen monitoring of all places of detention in Australia. The Federal Government has indicated that Australia’s NPMs will initially focus on ‘primary’ places of detention. While closed aged care facilities are less traditional places of detention, this paper argues that the Federal Government, if it has learned anything from Oakden, should not delay strengthening its system of monitoring for these closed facilities.

Monitoring places of immigration detention in Australia under OPCAT

ABSTRACTAustralia’s ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in December 2017 indicated a commitment to closer engagement with the United Nations human rights treaty system and a welcome reaffirmation of independent monitoring of States’ compliance with their obligations under international human rights law. However, the extent to which this ratification represents a ‘victory’ for human rights remains to be seen and will depend on how OPCAT is implemented in Australia over the coming years. This article seeks to identify some of the challenges likely to arise in implementing OPCAT in the context of immigration detention in Australia. It starts by identifying the relevant places of immigration detention, before surveying the bodies that already monitor these places and considering whether they do so in an OPCAT-compliant manner. It concludes by considering some of the most pressing outstanding challenges likely to arise in the Australian immigration context and offering general recommendations on how they might be resolved.

See you in the funny pages: penal sites, teletechnics, counter-artifactualities

ABSTRACTA 2016 image by cartoonist Chris Kelly powerfully brings together two regimes of detention in Australia, one ‘domestic’ and directed largely at Indigenous prisoners, the other ‘offshore’, and directed at refugees and asylum seekers. In both cases, it was CCTV footage which provided the means of exposure of violent abuses in these detention systems, although this exposure simultaneously exposes the very failure of CCTV, as a mechanism deigned precisely to magnify the state’s powers of surveillance. This paper traces the interactions between inmates, advocates, activists and artists in these two campaigns of exposure. It reprises James Der Derian’s 2001 concept of MIME-NET (Military-Industrial-Media-Entertainment Network) to explore the possibilities of a new social activism of images.

Gender and Risk: An Empirical Examination of the Experiences of Women Held in Long-Term Immigration Detention in Australia

Free to read via publisher Previous research concerned with the experience of immigration detention focuses on the general immigration detention population, which mainly consists of men. This means that the experiences of men are treated as the norm, despite it being likely that women experience immigration detention differently. This study addresses this gap by focusing on the experiences of women detainees in long-term immigration detention in Australia. It examines the effects of long-term immigration detention on their mental health through a descriptive quantitative analysis and a qualitative inductive thematic analysis of data contained in publically available reports released by the Department of Immigration and Border Protection and the Commonwealth Ombudsman. This study provides empirical detail describing how the experiences of women held in long-term immigration detention are similar and different to those of the general immigration detention population. We conclude by considering how these differences can be understood through a gendered understanding of risk.

Fetal Alcohol Spectrum Disorder (FASD): Knowledge, attitudes, experiences and practices of the Western Australian youth custodial workforce

BackgroundFetal Alcohol Spectrum Disorder (FASD) is a condition caused by prenatal alcohol exposure and characterised by lifelong physical, behavioural and cognitive abnormalities. Primary disabilities, such as impairment in memory, attention, cognition, language, executive function, and adaptive function, can lead to young people with FASD becoming engaged with the justice system. Little is known about the extent of FASD in youth detention in Australia, or of the capacity custodial staff have to manage and support young people with FASD. In tandem with a study assessing the prevalence of FASD among youth in detention in Western Australia (WA), this study aims to establish the current knowledge, attitudes, experiences and practices regarding FASD and other neurodevelopmental impairments among youth custodial officers in order to develop training resources for this workforce. MethodsWe invited youth custodial officers in the only youth detention centre in WA to participate in an online or hardcopy survey. The survey was developed following extensive consultation with the workforce and investigated their knowledge, attitudes, experiences and practices relating to FASD and other neurodevelopmental impairments. This included experience working with young people with FASD and other impairments, and attitudes towards relevant training. Results112 youth custodial officers (51% of the youth custodial workforce) completed the survey. While many respondents had heard of FASD (77%) and understood it is relevant to the justice system (74%), limited in-depth FASD knowledge existed. Many respondents were unsure or unaware that FASD is permanent brain damage (53%) and cannot be outgrown (57%). Respondents were infrequently informed if a young person in detention had a diagnosis of FASD. Almost all custodial officers indicated motivation to complete training to further understand FASD (92%) and other neurodevelopmental impairments (94%), with particular interest in the application of management strategies appropriate for affected young people. ConclusionsA lack of specific knowledge, inadequate training to recognise and manage young people with neurodevelopmental impairments, and inconsistent information-sharing processes reduce the ability of the custodial workforce to care for young people with FASD and other neurodevelopmental impairments. These findings have supported the development and evaluation of training resources targeting the specific needs and requests of the WA youth custodial workforce, and this is now underway.

Correlates of self-harm and suicide attempts in justice-involved young people.

The purpose of this study was to ascertain the prevalence and correlates of self-harm among young people in detention in Australia. The sample included 215 (177 male; 38 female) young people who were in youth detention in the state of Victoria, Australia. Participants were administered a series of questionnaires related to self-harm, mental health, socio-environmental experiences and behaviours. Overall, one-third (33%) of the sample reported previous self-harm and 12% reported at least one suicide attempt. In a multivariate logistic regression analysis, a history of childhood trauma, contact with mental health services, and low educational interest significantly increased the likelihood of self-harm. Young people who reported a suicide attempt scored significantly higher on the measure of childhood trauma than did youth who had engaged in non-suicidal self-harm. Findings demonstrate a strong connection between childhood traumatic experiences and suicidal behaviours for youth in detention. Trauma histories and mental health concerns must be considered when identifying youth at increased risk of self-harm.

Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia

ObjectivesTo estimate the prevalence of fetal alcohol spectrum disorder (FASD) among young people in youth detention in Australia. Neurodevelopmental impairments due to FASD can predispose young people to engagement with...

Protecting Human Rights in Detention

People held in detention are inevitably at risk of abuse. The recent Northern Territory revelations only remind us of this reality. Australia's failure to ratify the UN OPCAT was highlighted in the recent UN Periodic Review: ratification would require comprehensive independent monitoring of all places of detention. Effective monitoring is vital; at the same time it cannot on its own ensure rights protections, and this article argues that both enforceable rights, and robust monitoring, are essential if Australia is to address rights abuses in detention in Australia.

The need for a rights-based public health approach to Australian asylum seeker health.

Public health professionals have a responsibility to protect and promote the right to health amongst populations, especially vulnerable and disenfranchised groups, such as people seeking asylum and whose health care is frequently compromised. As at 31 March 2016, there was a total of 3707 people (including 384 children) in immigration detention facilities or community detention in Australia, with 431 of them detained for more than 2 years. The Public Health Association of Australia and the Australian Medical Association assert that people seeking asylum in Australia have a right to health in the same way as Australian citizens, and they denounce detention of such people in government facilities for prolonged and indeterminate periods of time. The position of these two professional organisations is consistent with the compelling body of evidence demonstrating the negative impact detention has on health. Yet in recent years, both the Labour and Liberal parties—when at the helm of Australia’s Federal Government—have implemented a suite of regressive policies toward individuals seeking asylum. This has involved enforced legal restrictions on dissenting voices of those working with these populations, including health professionals. This paper outlines Australia’s contemporary offshore immigration detention policy and practices. It summarises evidence on asylum seeker health in detention centres and describes the government’s practice of purposeful silencing of health professionals. The authors examine how Australia’s treatment of asylum seekers violates their health rights. Based on these analyses, the authors call for concrete action to translate the overwhelming body of evidence on the deleterious impacts of immigration detention into ethical policy and pragmatic interventions. To this end, they provide four recommendations for action.

The limitations of monitoring immigration detention in Australia

Australia's mandatory detention policy allows for non-citizens without a valid visa to be held in sites of immigration detention on an indefinite basis. This means that asylum seekers who arrive without a valid visa can be detained from their time of arrival to Australia until their protection claim is finalised, unless ministerial discretion is exercised to enable their release into the community. Thousands of asylum seekers who arrived by boat have consequently endured long periods of indefinite detention in prison-like conditions in facilities established by the Australian government, both within Australia and in offshore locations. Many of these sites are in remote locations and there is limited monitoring provided by formal state and non-state bodies across this detention network that is systematic, transparent and independent. There are also few civil society groups and individuals with the capacity to assume a monitoring role. This article explores the inhibiting factors of monitoring immigration detention in Australia and offshore locations, and the prospects for securing systematic and transparent independent scrutiny should Australia ratify the Optional Protocol to the Convention against Torture (OPCAT). It also highlights the limits of an OPCAT-consistent monitoring system in the promotion and protection of the rights of asylum seekers.