The Bill seeks to bring Australia’s immigration detention system into line with international law by requiring that an officer be satisfied that detention is necessary as a last resort, reasonable and proportionate. It also sets an initial time limit of 90 days, after which the Minister may extend detention in certain circumstances and subject to independent review.

The Kaldor Centre welcomes in particular the proposal to strengthen existing provisions of the Migration Act aimed at preventing the detention of children. The Bill would ensure that children are not held in closed immigration detention centres, while retaining the possibility for the Minister to make residence determinations allowing for ‘community detention’ of children and their families. This proposal would bring Australian practice into line with international law.

Under international law, States are permitted to impose certain restrictions on people arriving in their territory seeking asylum. However, these restrictions must be subject to substantive and procedural safeguards, particularly when they impact fundamental rights to liberty and security of the person. 

It is legal to seek asylum, and so any restrictions on the liberty of asylum seekers must not be punitive. Administrative immigration detention may be permitted for a limited time, for example while initial identity, health and security checks take place, but should ordinarily be used as a measure of last resort and only after other less intrusive alternatives to detention have been considered. 

‘Arbitrary detention is prohibited under international law and runs counter to the values of a liberal democratic society,’ said Kaldor Centre Senior Research Fellow Madeline Gleeson. In order to avoid characterisation as ‘arbitrary’, both the initial decision to detain and the ongoing detention of asylum seekers must be necessary in light of the individual circumstances of each person, reasonable in all the circumstances and proportionate to a legitimate purpose. Under no circumstances may any person be detained in conditions amounting to torture or cruel, inhuman or degrading treatment or punishment. 

‘Extra care is required when making decisions which affect the health and well-being of children,’ Gleeson said. ‘The extreme vulnerability of children seeking asylum should be a decisive factor in all actions concerning them and take precedence over their migration status.’

Detaining children and their families for the purposes of determining migration status is seldom, if ever, in the best interest of the child. Detention should only ever be used as a measure of last resort after all reasonable alternatives have been considered, in the least restrictive setting, for the shortest possible period of time, under conditions that respect their human rights and in a manner that takes into account, as a primary consideration, the best interest of the child.  

Send enquiries to Lauren Martin


T: +61 407 393 070