The human effects of this 25 year-old stopgap policy have been massive. So many have suffered terrible indignities, but it was never meant to be like this
Twenty-five years ago, 5 May 1992, seemed to be just another day at the office. I was working at a community legal centre in Melbourne. Our office was a windowless cubbyhole in a Migrant Resource Centre in a back street of Prahran a space shared with another community legal centre, social workers, English as a second language teachers and countless community groups, their religious gatherings and their (mostly) delicious cooking smells.
On a modest budget, and armed with state of the art equipment including one computer, a typewriter that miraculously memorises the previous line so you could make corrections before it was committed to paper, and a mobile phone the size of a brick, we assisted as many asylum-seekers as we could manage.
As part of this work, we represented 119 Cambodian boat people. Their arrival along with 270 others over the preceding few years triggered a public hysteria encapsulated in an uncompromising unwelcome from then prime minister Bob Hawke. Hawke trotted out the old, tired and highly contestable queue-jumping chestnut: Were not going to allow people just to jump that queue by saying well jump into a boat, here we are, bugger the people whove been around the world.
I was in the office preparing a case. Thirty of our Cambodian clients had appealed to the federal court against decisions rejecting their refugee claims. The immigration minister, Gerry Hand, had admitted they were denied natural justice. Their claims would be reassessed. But our clients had been detained for more than two years. Already depressed and anxious, this was going to prolong their detention even more. So, we applied to the court for their release. The hearing was on 7 May.
It was late in the day, a little before 6pm. The phone rang. It was a colleague in Sydney. The call left me speechless. Around 4pm, legislation designed to stymie our clients case was introduced into parliament. With bipartisan support, it was rushed through the lower house. That evening, following a short debate in the senate stretched out by a spirited but powerless minority it became law.
The law provided that (a) boat people must be detained and (b) a court was not to order their release. These measures were, the Act said, in the national interest; a political claim, apparently requiring no elaboration, and long considered impenetrable by the courts.
Introducing the legislation, Hand acknowledged its extraordinary nature. But he reassured the parliament that it was only intended to be an interim measure. A quarter of a century later, mandatory detention is seemingly immovable government policy.
The human effects of this extraordinary interim measure have been massive. Today, more than 2,000 refugees and asylum-seekers languish on Nauru and Manus Island, many since 2013. As at 28 February 2017, more than 1,300 individuals were mandatorily detained in Australia, 786 for between six months and in excess of four years.
Over the last 25 years many thousands more have suffered the multifarious indignities of mandatory detention in Australia, on Nauru, Manus and even in naval operations on the high seas. This includes almost 25,000 boat people living on temporary bridging visas in the Australian community, released into a fragile liberty courtesy of a non-compellable ministerial discretion that can be withdrawn at any time.
Introducing mandatory detention, Hand claimed no wish on the part of the government to keep people in custody indefinitely. Indeed, he said he could not expect parliament to support such a suggestion. He said custody would be for a limited period 273 days (or about 9 months). This limit applied a complex formula whose Kafkaesque implications were not immediately obvious, but which meant that custody could (and did) extend far beyond its supposed limit.
In December 1992, the high court decided mandatory detention was lawful partly because of the limit. Almost simultaneously, the limit disappeared. By December, the indefinite detention that Hand could not expect parliament to support in May had become law. Some years later, the high court would uphold mandatory detention with not even the pretence of an upper limit, acknowledging the possibility of detention for life.
One of the most striking aspects of mandatory detention is that it is triggered by operation of law. There is no actual decision to detain. In the business of government, courts review decisions. Because mandatory detention is decision-less, courts have nothing to review. Although release is now possible, it is at the absolute discretion of the minister.
The authoritarian breadth of such powers has been described as arbitrary, naked and uninhibited and capable of the gravest abuse.
These are not the words of the growing body of authoritative domestic and international commentary and analysis that has condemned mandatory detention and its offshore offspring. They are attributable to Sir Alexander (Alec) Downer a mid-century conservative politician deeply uncomfortable about powers he held as immigration minister. In an overhaul of migration law in 1958, Downer father of the coalition minister of the same name introduced important checks on his own authority.
These included time limits on, and independent scrutiny of, detention decisions. Broadly, a person arrested had to appear in court within 48 hours. Their ongoing detention had to be independently reviewed after seven days. Although the framework had shortcomings, decisions were at least individualised.
In substance, these checks remained in place until 1992. Introducing them, Downer drew on personal experience as a prisoner-of-war of the Japanese for three years. He described this as a situation comparable to that of the immigration detainee. Gaols, he said, were depressing places, especially when you are not in any true sense an offender. In other words, he put himself in the shoes of those over whom he was legally authorised to wield naked and uninhibited power. Downer was not immune to fear or prejudice; but nor did empathy allow it to devour him.
The human cost of twenty-five years of mandatory detention is a sobering reminder to beware political promises of the interim and the exceptional. And the voice of Sir Alexander Downer reminds us that some simple safeguards would be a rediscovery, not a new discovery.
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