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