Australia's rights commission found five breaches over a detained family; Home Affairs rejected all

The Australian Human Rights Commission has published a report finding that the Commonwealth breached the rights of a family of four held in immigration detention, and the Department of Home Affairs has told the Commission that it does not accept any of the findings. The report, YA family v Commonwealth of Australia (Department of Home Affairs, Minister for Immigration, Citizenship and Multicultural Affairs and Australian Border Force) [2026] AusHRC 190, is dated January 2026. It was sent to the Attorney General, Michelle Rowland, by the Commission's president, Hugh de Kretser, under section 11(1)(f) of the Australian Human Rights Commission Act 1986.

The inquiry itself was conducted by the previous president, Emeritus Professor Rosalind Croucher. Because two of the four complainants are children, Professor Croucher made a direction under section 14(2) of the Act allocating pseudonyms, and the report records that the family agreed to publication in that form. On the facts set out in the report, the parents are Tamil Sri Lankan citizens who arrived separately by sea in 2012 and 2013, were detained on arrival, were released on bridging visas, and married in 2014. Their two daughters were born in Australia in 2015 and 2017. The family's visas ceased in 2018 and they were detained. A removal to Sri Lanka in 2019 was stopped by an injunction filed in the Federal Circuit Court. The family was then held at the Phosphate Hill alternative place of detention on Christmas Island until a ministerial intervention on 15 June 2021 allowed them to live in community detention in Perth. Bridging visas followed in May 2022 and permanent visas later that year.

Professor Croucher found five acts inconsistent with the family's human rights. They were the Department's failure to consider referring the case to the Minister between March and August 2018; two 2018 and 2019 decisions by the relevant Minister not to consider using the discretionary powers in sections 195A and 197AB of the Migration Act to let the family live in the community; the failure of Ministers to consider using those powers at all between September 2018 and 14 June 2021; the Australian Border Force decision to hold the family on Christmas Island between 30 August 2019 and 15 June 2021; and a failure to consider lifting the statutory bar so the younger daughter could apply for a protection visa. The articles engaged were 9(1), 10(1) and 17(1) of the International Covenant on Civil and Political Rights and 3(1), 16(1), 22(1), 37(b) and 37(c) of the Convention on the Rights of the Child. The report notes that detention can be lawful under Australian law and still arbitrary under international law.

Six recommendations followed, including that the Minister introduce legislation making the detention of a child on migration grounds unlawful, or failing that a right to prompt review of any child's detention by a court or tribunal, and that the Border Force be directed never to use Christmas Island to detain children and families.

The Department's reply, dated 6 January 2025 and reproduced in part 13 of the report, states that it does not agree that the Commonwealth acted contrary to any of the covenant or convention articles named. It partially agreed with two recommendations and referred four others to government as matters for its consideration. It pointed to section 4AA of the Migration Act, which affirms that detaining a child is a measure of last resort, and to judicial review available under section 75(v) of the Constitution.

The pattern is not confined to one file. The Commission's index of reports to the Minister lists numbers 175 to 192, published between April 2025 and June 2026, and every one of them names the Department of Home Affairs. In Mr Hanna v Commonwealth [2026] AusHRC 191, dated May 2026, de Kretser found that force used against a detainee at the Melbourne facility on 11 August 2022 was excessive and breached article 10(1). The Department declined the recommended apology and compensation because the matter is in civil litigation, while disclosing that its own preliminary use of force review found the force accorded with Serco training yet was not proportionate, reasonable or necessary. It referred the matter to a Border Force review team on 21 November 2025. In Ms BH v Commonwealth [2025] AusHRC 189 the Department again recorded that it did not agree.

Departmental statistics for 31 May 2026 record 1,156 people in held immigration detention, an average of 445 consecutive days, 12 children in alternative places of detention, and 66.4 per cent of detainees held for 365 days or less. On 29 April 2026 de Kretser told the National Press Club that Australia's treatment of people seeking safety by sea remains among the harshest in the world. Human Rights Watch, in a country chapter published on 3 February 2026, noted that Australia is the only Western democracy without a national human rights act.

What happens next is unresolved. The Commission's findings carry no enforceable remedy, and whether these reports are tabled in Parliament is a matter for the Attorney General. The Border Force review begun in November 2025 has not reported publicly. Nor is it known whether the government will act on any of the six recommendations it has left with itself to consider.