Background – Women in immigration detention Immigration detention is mandatory in Australia for all non-citizens who are in Australia without a valid visa (unlawful non-citizens).23 Once detained, an unlawful non-citizen must remain in detention until either granted a visa or removed from Australia.24 However, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, unlawful non-citizens cannot continue to be kept in immigration detention for the purpose of their removal from Australia if there is no real prospect of their removal becoming practicable in the reasonably foreseeable future.25 The mandatory detention of an unlawful non-citizen is not based on an individual assessment of the need for detention. The Department’s detention review processes do not consider whether detention is reasonable, necessary or proportionate on the basis of particular reasons specific to the individual, and in light of the available alternatives to closed detention. Unlawful non-citizens subject to immigration detention are usually detained in purpose-built immigration detention centres, with 7 being in operation as of August 2024.26 The Commission has previously recommended that closed immigration detention should only be used in circumstances where it is strictly necessary to manage unacceptable risks to the community.27 In some circumstances, individuals can be released from immigration detention centres into alternative, communitybased arrangements. This may include release on short-term visas (such as a Bridging Visa E) or a residence determination, where the Minister determines that a person may reside in a specified place rather than being held in a detention centre.28 Both of these options involve the Minister exercising a legal power that is personal, non-compellable, and discretionary. Since 1 July 2015, the ABF has been responsible for administering detention operations and removals, while the Department remains responsible for the overall policy framework for detention as well as matters relating to visa processing and status resolution. External contractors play a central role in the management of immigration detention facilities. Serco Australia Pty Limited (Serco) is the contracted detention services provider, responsible for the day-to-day running of the facilities, including security and provision of services and activities. International Health and Medical Services (IHMS) is the contracted health services provider, responsible for providing onsite physical and mental health services to people in detention. The Australian Government also operates an offshore processing regime, which involves transferring people seeking asylum to third countries for their claims to be processed.29 Regional processing arrangements were in place in Papua New Guinea until the end of 2021 and continue to operate in Nauru. The Commission has consistently expressed serious concerns about Australia’s offshore processing arrangements and emphasised that transferring asylum seekers to third countries does not release Australia from its obligations under international human rights law.30 While the Commission is also concerned about the experience of women detained in community-based arrangements and offshore processing,31 this thematic Report is limited in its scope to the experience of women in closed onshore immigration detention facilities. Background – Women in immigration detention 11