Cry if you want to as mandatory detention turns 25

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Friday 5 May is the 25th birthday of the introduction of mandatory detention in Australia by the Keating government. It is by no means a 'happy birthday'. Rather it is a sombre reminder of how control, power and political vilification can be used for political ends.

Bleak looking birthday candlesMandatory detention was initially described by the then Labor Minister Gerry Hand as an 'interim' measure. One wonders how long a medium or long term measure would be! The change was introduced into parliament at 4.06pm, and voted through by the evening.

There was a hearing scheduled for two days later in the Federal Court seeking the release of some Cambodian asylum seekers from Port Hedland detention centre into the community. One of the aims of the change of 5 May was to stifle the chances of such a release.

Minister Hand stated: 'I now wish to foreshadow major government amendments to the bill ... The government is conscious of the extraordinary nature of the measures which will be implemented by the amendment aimed at boat people. I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community.

'Their release would undermine the government's strategy for determining their refugee status or entry claims. Indeed, I believe it is vital to Australia that this be prevented as far as possible. The government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community.'

In the next 25 years, we have seen the policy unsuccessfully challenged in the High Court, which is clearly troubled by it, and found to be arbitrary detention by the UN Committee for Human Rights. Yet it remains in place, and extended to offshore centres in Nauru and Manus Island. It is paid for entirely by the Australian government, yet we are told that responsibility for those detained in those offshore centres is a sovereign issue for the governments there.

Another development during the past quarter-century of mandatory detention has been the increased use of statutory bars to prevent asylum seekers from lodging any application, unless the Minister personally intervenes (literally personally) to permit it.

This statutory bar was first introduced by Minister Ruddock in 2001 with the creation of 'excised offshore places' such as Christmas Island, which meant these territories were 'outside' the migration zone for the purposes of lodging applications. At the time, a question was asked in parliament about whether Tasmania could be 'excised'. The Minister replied that that was not intended.

 

"All this to prevent 'those who've come across the seas' from sharing in the 'boundless plains' extolled by our national anthem."

 

Prime Minister Gillard managed to excise the whole country in June 2013 with the definition of 'unauthorised maritime arrival' (UMA) as a person arriving by boat without a visa, who was thereby excluded from lodging any visa application unless the statutory bar was lifted.

There are now more sections in the Migration Act dealing with statutory bars — mainly directed at asylum seekers — than the total number of sections in the whole of the Immigration Restriction Act of 1901. More recently, Minister Dutton tried to extend the ban on applications to the lifetime of the asylum seeker, even if they became resettled elsewhere, such as in the US. The bill remains in parliament, presumably waiting for a more malleable Senate.

Another development has been the increased vilification of asylum seekers in the political arena. This too has been a bipartisan effort. Prime Minister Hawke was interviewed in 1990 by Jana Wendt and stated that 'there is obviously a combination of economic refugeeism ... People saying they don't like a particular regime or they don't like their economic circumstances, therefore they're going to pull up stumps, get in a boat and lob in Australia. Well that's not on ... We're not going to allow people just to jump that queue by saying we'll jump into a boat, here we are, bugger the people who've been around the world.'

The 'refugee queue myth' goes back before Hawke, but it persists. Under Ruddock and especially Minister Morrison it morphed into the 'good refugees / bad refugees' dichotomy. 'Good refugees' are those Australia handpicks, excluding those with medical issues. 'Bad refugees' are those who arrive here directly and seek asylum. Not only are they 'queue jumpers', but now there is a connotation of criminality, with the insistence of Morrison and Dutton to refer to 'unauthorised maritime arrivals' as 'illegal maritime arrivals'.

The term 'illegal' is only in the Migration Act to refer to the term previously used before 1 September 1992 for 'unlawful non-citizens'. Yet the insistence on referring to asylum seekers as 'illegal' runs through the Department of Immigration and is on the website, despite the fact the term is not correct. Maybe they should undergo English tests themselves to check their ability to pronounce the word 'unlawful' before insisting on English tests for prospective citizens.

The last 25 years have seen significant increases in unreviewable government power, exercised in ways which are not transparent or are subject to limited review. To prevent disclosure of abuses, contractors or short term employees, including medical staff, are made to sign agreements preventing disclosure of information that in other contexts would fall under the category of mandatory reporting, such as alleged abuse of minors. All this to prevent 'those who've come across the seas' from sharing in the 'boundless plains' extolled by our national anthem.

 

"This is an unhappy birthday indeed. But the abuse of power and political point-scoring inherent in the regime of mandatory detention can and should be challenged."

 

A significant development in the last 25 years has been the ongoing attempts to stifle and eliminate judicial review. A major change was the introduction in 2001 of the 'privative clause', which stated there was no judicial review at all. This was read down by the High Court a few years later. More recently, in 2014 we saw the introduction of very limited review for boat arrivals in the Immigration Assessment Authority (IAA). The IAA does not provide full merits review, and has been designed to reduce the chances of legal errors, not by improving the system, but by taking away significant procedural fairness provisions and the right to a hearing on review.

As recently as this week, on 3 May the High Court unanimously held that it is lawful to hold in detention a mother and daughter brought from Nauru for medical treatment. They arrived from Nauru on 1 November 2014 and were detained until 16 December 2016 when they were released into a specified residence, technically still detention, but not in a detention centre. The court noted that the law required they be detained until they could be removed from Australia, regardless of how long that might take.

So this is an unhappy birthday. But the abuse of power and political point-scoring inherent in the regime of mandatory detention can and should be challenged. For as Chief Justice Brennan said in a speech in 1998, 'An important check on possible misuse of executive power — indeed, on the exercise of any power — is publicity. Misuse of power flourishes in the dark; it cannot survive the glare of publicity.'

 


Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the board of the IARC .

Topic tags: Kerry Murphy, mandatory detention, asylum seekers, refugees


 

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Existing comments

Yes, a very unhappy birthday. Unfortunately when Chief Justice Brennan declared that, "Misuse of power flourishes in the dark; it cannot survive the glare of publicity", he was over-optimistic. Successive Australian Immigration Ministers have proven him wrong many times over. This historical review by Kerry Murphy should be required reading for those who plan and manage the Palm Sunday marches in support of asylum seekers. Both last year and this year, I noted that all the speakers only attacked the Coalition Government for the inhumanity of the current policies and practice of off-shore detention, as if the Labor Opposition had a different attitude. As Murphy stated, mandatory detention started under Keating and was further hardened under Gillard. Yes, Ruddock, Morrison and now Dutton have added their particular turns of the screw, but to suggest at public rallies supported by large numbers of Australian citizens that cruel, effectively indefinite detention of asylum seekers is the fault only of Coalition Governments is political chicanery. While I continue to support ASRC (Asylum Seeker Resource Centre), I won't attend any further Palm Sunday marches until speakers start apportioning their blame across both sides of Parliament.
Ian Fraser | 04 May 2017


Thank you for such a comprehensive and insightful article. I'll send my pollies a birthday card and acknowledge your work.
Mary Stack | 04 May 2017


Mandatory detention is a justifed moral quarantine. If you allow claimants into the community, they will bear children who will grow up estranged from the land and culture with which their parents have a cultural ease, unless you wish to become a fascist state and take measures which stop them from the human right of bearing children. The hardship on Australianised children of being migrated to an alien environment will be used, on grounds of compassion, to evade the migration law. That the authorities kicked own goals by offshoring mandatory detention, putting Australia into debt to foreign nations, and allowing the facilities to be mismanaged, putting Australia into moral debt to the very people who should have been in moral debt to Australia, doesn’t affect the need for mandatory detention. Consider how birthright citizenship in the US is creating a privileged class of illegal immigrant. Opponents of detention assume that it is easy to verify claims for refugee status. It’s not. The glare of publicity has strengthened public support for mandatory detention. The public regrets its need but there is no other way to preserve our borders.
Roy Chen Yee | 04 May 2017


Roy Chen Yee, mandatory detention isn't the only way to safeguard our borders, and, in fact it doesn't do so. Illegal immigrants usually come to Australia by plane, with valid visas. That's a fact. Our situation is very different from that of the US, which has a land border with Mexico. Also, we do know how difficult it is for an asylum seeker to prove s/he is a refugee. There's a long and exhausting process to be endured. All the more reason, then, why those detainees who have been accepted as genuine refugees - i.e. most of them - should not be held in punitive and immoral detention. Instead, put the border protection resources into identifying and dealing with those who enter legally, remain illegally, and have no intention of applying for refugee status. Real illegal immigrants.
Joan Seymour | 04 May 2017


Thank you Kerry for this overview of Mandatory Detention which plagues us as a nation. Both major parties stand accused of cruelty, each increasing with their turn in office. The arrival of Border Force thugs brought it all to a new level. For those of us visiting each week brings new ways to diminish and destroy the souls behind the locked gates. The constant exhaustive room searches, the intrusive body searches with those cruel fingers under bras and onto groins destroying any sense of dignity, the handcuffs and shackle belts as people are escorted through shopping centres to opticians or public hospital outpatients feeling like criminals eyes cast down to avoid the stares and each time chipping away at any sense of hope or self. Oh detention is now a fine art in the destruction of the human spirit. One day an apology may be made in our parliament but it cannot quell the shame in our hearts or regret at the harm done to people who asked for help. Nothing excuses this deliberate cruelty- nothing.
Pamela | 04 May 2017


"Justified moral quarantine"? Surely Roy you aren't passing judgement on the morality of refugees. Or is it the morality of Australia's largely bipartisan offshore internment camps? There is no morality in the political aim to keep refugees invisible - out of sight, out of mind - and deny them access to Australia's legal system even when their refugee status has been confirmed. It's all about politics and appeasing and appealing to the worst fears about the unknown and different. Morality has nothing to do with it.
Brett | 05 May 2017


Brett, if morality had something to do with the refugee regime, anyone with the relevant fear would be allowed to catch a bus to the embassy of their choice in their capital city and be admitted to safety. Except for Ecuador and the recent case of Julian Assange, when have we heard of this happening? If you won’t save an asylum seeker right where he lives without making him get onto an unseaworthy boat, you’ve no right to be prattling on about morality. The whole out-of-the-country requirement is based on pragmatism, on managing a trickle so it doesn’t turn into a flood. And that is because when the chips are down, no country can deal with a flood of refugees. Germany has learnt this. If Australia can’t deal with a flood of refugees, it certainly can’t deal with a flood of maybe refugees. Abbott’s barricade and mandatory detention is a pragmatic response to an impossible moral situation. In reply to Joan Seymour: 1. Airplane travellers have at least given the Australian government the chance to check their bona fides; 2. Asians and Africans are coming across the US land border, so their problem is the same as ours.
Roy Chen Yee | 05 May 2017


Yes, RoyChenChee, you could certainly argue for the morality of mandatory detention based on the interests of the state - but it's certainly not a morality inspired by a divine being who puts the value and dignity of the human person above all else. Even a morality of atheistic humanism puts people before bureaucracy. If we were living in a peaceful world, there would be no refugees. Have you read the news about Syria and other parts of the world recently?
AURELIUS | 08 May 2017


Roy, you are the one who started "prattling on about morality". I'm simply saying there is no morality in our Parliament's bipartisan position. All you've done is try to justify why the Government is doing what it is doing. It may be pragmatic but that is not the same thing.
Brett | 08 May 2017


One more thing Roy. Australia has not had a flood of refugees. Nothing like it and nothing compared with the numbers in Europe. It's an exaggeration designed to support mandatory offshore detention.
Brett | 08 May 2017


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