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New immigration solution needs legal backup

By George Williams - posted Friday, 8 August 2008

The reforms announced last week by Minister for Immigration and Citizenship Senator Chris Evans mark an historic shift in Australian immigration policy. They come on top of earlier decisions to scrap temporary protection visas and the Pacific Solution with its ''processing centres'' on Nauru and Manus Island.

The announcement is a mixture of good policy and practical politics. A clear break has been made from the Howard era despite the Rudd Government retaining, because of an election promise, a system of mandatory detention for asylum seekers and the excision of parts of Australia. Both are to be retained in name, but not in substance. Instead of depriving a person of their liberty as a first resort, and for a potentially indefinite time, detention will now only be permitted as a last resort, and for the shortest practicable time. This is exactly how the detention of any person against their will should be approached.

Evans's changes are not so much a step forward, as a welcome return to the past. They put behind us a bleak period of immigration policy that extended over both the Howard and Keating governments. Before 1992 the minister could decide on a case-by-case basis whether people arriving in Australia without a visa should be detained. Mandatory detention was introduced by the Keating government as a response to the arrival of Vietnamese, Cambodian and Chinese asylum seekers between November 1989 and January 1992. It was said that this would assist with the processing of refugee claims and save on the costs of locating people in the community.


The law provided that all unlawful arrivals could be detained for up to 273 days. In 1994, this time limit was removed, leaving no upper limit on the period of detention. A person could only be released after the grant of a visa or because they were to be deported from Australia.

After the Tampa ''crisis'' of 2001, the Howard government developed the Pacific solution in which areas such as Christmas Island were excised from Australia's migration zone. The Australian Defence Force was used to intercept vessels containing asylum seekers, who were then transferred to offshore processing centres while their applications were determined. A 2007 report found that the policy cost taxpayers more than $1 billion.

Public pressure led Howard to soften aspects of the policy in 2005. He promised that long-term detainees would be released and agreed to stop the detention of children. The latter followed a damning report by the Human Rights and Equal Opportunity Commission which found that children in detention were suffering from clinical depression, post-traumatic stress and anxiety disorders, and exhibited symptoms which included bed wetting, sleep-walking and night terrors. Some children even became mute, refused to eat and drink, attempted suicide and physically harmed themselves.

In an earlier study, 19 out of 20 children in detention were diagnosed with a major depressive disorder and half were diagnosed with post- traumatic stress disorder. Despite this evidence, the government tried, unsuccessfully, to return children to detention in 2006 with a law that would have sent all unauthorised people arriving by sea to offshore detention centres.

Labor's reforms are based on seven values, one of which is that children must not be held in an immigration detention centre. Another value does, however, recognise that the mandatory detention of adults is ''an essential component of strong border control''. Fortunately, the basis of this detention will be entirely different from that of the previous government. Howard's approach was based on deterrence.

The system provided for the often harsh detention of unauthorised arrivals, up to 80 per cent of whom were found to be legitimate refugees. It was argued this would act as a disincentive to future arrivals and also to the people-smugglers who transport them. Even though people had not been found guilty of any crime and were often fleeing persecution, they were subjected to what can only be described as a punishment-based system. The fact this was applied even to unaccompanied children indicated the extent and severity of the regime.


By contrast, the new policy of mandatory detention is not based on deterrence. It is founded on holding unauthorised arrivals only for so long as is necessary to determine their identity and to protect the security and health of the Australian community. It makes sense to hold a person until, for example, it can be confirmed that they are not a criminal fleeing justice. A person who poses no danger will be released into the community until their visa status has been resolved.

This risk-based approach is more compassionate and more consistent with international human rights. It will ensure that people who have arrived in Australia without a visa are not detained for many years even where they pose no threat.

While it makes sense to keep mandatory detention, albeit in a radically different form, there is no sound policy reason to continue to excise parts of Australia. This legal fiction was introduced to deprive people arriving by boat of the normal protections of the law and to enable them to be removed to places such as Nauru.

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First published in The Canberra Times on August 2, 2008.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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