Australian Human Rights Commission Submission to UN Committee Against Torture, 17 October 2014 Mandatory immigration detention 128. It is mandatory under the Migration Act for every non-citizen who is in Australia without a valid visa to be detained, regardless of his or her individual circumstances, until they are either granted a visa or removed from Australia.113 The majority of unlawful non-citizens are detained in closed immigration detention facilities. 129. The Commission has raised concerns over many years that the system of mandatory detention leads to breaches of Australia’s international human rights obligations because: 130. • The detention of an unlawful non-citizen is not based on an individual assessment about whether the particular person needs to be detained • Persons who are detained cannot seek judicial review of whether or not their detention is necessary • Under the Migration Act there is no time limit on how long a person can be detained, resulting in people being subjected to prolonged and indefinite detention • Mandatory immigration detention has significant human impacts, including the deterioration of the mental health of detainees • The conditions in many of Australia’s immigration detention facilities are such that they are not appropriate places in which to hold people, especially for prolonged periods of time. The Commission has long recommended that, instead of requiring the mandatory immigration detention of broad groups of people, a person should only be detained if it is shown to be necessary in their individual case. Further, time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary. Children in detention (a) Mandatory detention of children 131. Children must also be held in closed immigration detention, unless the Minister decides to make a residence determination allowing them to live in community detention. 132. In 2004 the Commission released A last resort? National Inquiry into Children in Immigration Detention (2004 National Inquiry). The report found that Australia’s system of mandatory immigration detention of children was fundamentally inconsistent with Australia’s obligations under the CRC; one reason being that the detention of children is used as a first (rather than last) resort. 37