#Sherine Al Shallah

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The “Biloela family” was released into community detention – what is it and how does it fit into the Australian asylum system?

The following piece was written by Sherine Al Shallah, economist and JD law candidate at University of New South Wales. It was published on the website of the Kaldor Centre for International Refugee Law on 17 June 2021. 

On 15 June 2021, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke announced that the Murugappan family of four would be moved – from immigration detention on Christmas Island, to a ‘community detention placement’ in Perth. 

What is immigration detention?

Under Australian law, every person who is not an Australian citizen and who does not have a valid visa to enter or remain in Australia must be detained, and cannot be released from detention except in accordance with the conditions and powers set out in the Migration Act 1958 (Cth). In many cases, these conditions rely on the relevant Minister exercising broad, non-compellable and non-reviewable discretionary powers. There is no automatic exemption for people seeking asylum, meaning everyone arriving by boat without a visa must be detained on arrival. Even after being released, asylum seekers face risks of re-detention in various circumstances, including if their visas are cancelled or expire and they are subject to deportation. 

Section 5 of the Migration Act defines immigration detention as including being held in a detention centre, prison or remand centre, police station or watch house, or ‘another place approved by the Minister in writing’. This last category of places can include a placement in the community if the Minister thinks that it is ‘in the public interest’ to exercise his or her power under section 197AB to make a ‘residence determination’. Residence determinations allow the people covered by them to reside in a specified place, subject to certain conditions, rather than be held in a closed detention facility.

What is community detention?

Community detention is generally used to refer to residence determinations made by the Minister under section 197AB, and the conditions with which people subject to those determinations must comply. For example, the Refugee Council of Australia describes it as:

a form of detention … where people live in the community but in a specified place determined by the government (known as ‘residence determinations’), under certain restrictions. 

Community detention may come with reporting or other conditions, such as ‘requirements to live at a specified location, curfews, travel restrictions, regular reporting or even electronic monitoring’, as Jane McAdam and Fiona Chong note in Refugee Rights and Policy Wrongs (NewSouth, 2019).

The Minister generally grants community detention when circumstances warrant release from closed detention due to physical or mental health concerns which require additional support. Community detention tends to be accompanied by paid accommodation, needs-based support under the Status Resolution Support Services (SRSS) program, access to public schools and access to Medicare. People in community detention usually do not have work rights. [Read more here.]