Pearls and Irritations

The use of immigration detention in Australia has expanded well beyond its original intended purpose. It has become a political tool, a convenient proxy for dealing with issues that should be dealt with in other parts of government and a vehicle for delivery of immense cruelty. There was a certain inevitability that the High Court would eventually stop governments from misusing it.

It really should not be a major surprise that the High Court has finally struck down use of immigration law to authorise indefinite detention.

Decades ago, immigration detention had a remarkably simple purpose – to briefly hold on to people who had overstayed their visas to prevent them from absconding and to facilitate their quick departure from Australia to their home country.

Governments have progressively made detention laws unbelievably harsher and used them to imprison ever larger numbers of people for longer periods. When the law has been used to detain people for periods well over 10 years, it is obvious that it is no longer realistically serving the purpose of removing them from the country. And the practical implication of its use is that those people could stay incarcerated forever.

Despite its narrow majority ruling in 2004 authorising indefinite detention, the High Court has now said that enough is enough.

How did we get here?

Reflecting the astonishingly decent and fair approach of a bygone era, until 1994 persons suspected of unlawful immigration status could be arrested and detained by immigration officials. However, they had to be brought before a magistrate within 72 hours and thereafter every 7 days until their status was determined.

Over time, the use of detention strayed well away from its original purpose and came to serve as a proxy for other agendas such as deterrence of maritime asylum seekers, incarceration of non-citizens with an adverse security assessment (including those deprived of their Australian citizenship on security grounds) and a so-called law enforcement agenda aimed at further punishment of non-citizens convicted of a serious crime in Australia. Huge sums of money were spent to do this. The devastating effect on individual inmates is widely documented. Putting people in immigration detention as an administrative decision or by operation of law was a soft option for governments and many agencies.

The first major shift to a hard-line approach occurred 1994 under the Keating government. The safeguards were eliminated, and immigration detention became automatic for anyone without a visa, until they either got one or were removed from Australia. Realistically, hardly anyone in detention could get a visa and many were not able to be removed from Australia. This “mandatory detention” approach set a time bomb leading to more people in detention and staying for longer periods.

The effects of the mandatory detention approach were particularly felt with the large influx of maritime asylum seekers during the Howard government. It led to very large numbers of asylum seekers being housed in detention centres around Australia, especially in remote locations such as Woomera in South Australia and Curtin in Western Australia. There were long stays in detention while applications were considered and much longer stays for those who were rejected. These populations controversially included many women and children.

The time bomb exploded for the Howard government when Liberal moderates staged a revolt against prolonged periods of detention and the limited avenues to release inmates. The government quickly introduced measures to cut down the detention populations including a special visa that allowed some long-term detainees to be released into the community whilst their departure from Australia was still being resolved and a broad personal Ministerial discretion to let anyone out of detention.

Following the election of the Rudd Labor government in 2007, Immigration Minister Chris Evans introduced reforms to allow the Department of Immigration to continue to pursue its legitimate immigration compliance role, but with much less use of detention. The scope for different forms of detention, including community detention outside of high security institutions was expanded. This approach reflected the fact that there was often no need in practice to hold people in detention to secure removal.

The detention population of asylum seekers progressively declined. However, in 2014 the Coalition government, pushing a populist “law and order” agenda, introduced automatic cancellation of visas under section 501 of the Migration Act for non-citizen serious offenders – leading to immigration detention before removal. Prior to this, serious offenders were considered on a case-by-case basis before their prison sentence was completed. If their visa was cancelled, they were often removed from Australia direct from prison without immigration detention. The harsh automatic cancellation approach created a whole new and expensive cohort of immigration detainees, many of whom were going to stay in immigration detention for years.

When the Coalition lost office in May 2022, there were 1402 people in immigration detention facilities. Ninety percent had a criminal record. 138 people had been in detention for over five years and an undisclosed number over 10 years. The long stayers were realistically stuck in detention forever. The largest single nationality was New Zealanders, causing a major irritant with New Zealand. Iranians, Sudanese, Afghans and stateless people were the longest stayers.

Following the High Court decision, completely over-the-top political rhetoric has focused on the extraordinary risks to the community because of people with a criminal record being released from detention as well as those with an adverse security assessment.

Bizarrely, there is rare mention of the fact that convicted criminals who are Australian citizens are quietly released into the community every day of the week, without any fuss, after having served time for the same kind of offences. We do not hear those well-known old sayings that “they have done their time” or “paid their debt to society.”

There are provisions in the criminal law for that subset of released prisoners who present a danger to the community. These are the provisions that should be used for non-citizens if removal from Australia is required, but not practicable, rather than locking up people indefinitely in facilities never intended for the purpose. If non-citizens who cannot be removed need to be incarcerated, or subject to restrictions, for community protection we should do it under judicial supervision using criminal law.

Some non-citizens end up being in immigration detention for indefinite periods because there is no country to which they can be sent and they have an adverse security assessment. The Australian Security Intelligence Organisation (ASIO) has good reasons for the limited number of adverse assessments it makes. Nevertheless, these assessments relate to a spectrum of issues of greater or lesser significance. Sometimes ASIO changes its mind, such as in well-publicised cases of some Sri Lankan women held in detention with their small children. One suspects that there would be less adverse assessments if those affected were to be held indefinitely in an ASIO funded and managed security prison. Alternatives to immigration detention need to be explored for this caseload.

Misguided and ineffectual use of deprivation of Australian citizenship of dual nationals as a weapon against extremists created another source of long-term detention cases.

The future

The legislation urgently passed last week to deal with people released by the High Court decision incorporates some of the same flaws as the existing system because of Coalition amendments creating “mandatory” penalties. It will likely have to be amended or it will face being struck down by the High Court.

Despite the difficulties it presents, the government should use the High Court’s landmark decision as a turning point to a better future.

When it has received the full decision of the High Court, it should commission a major external enquiry to look at new ways to deal with the full suite of issues presented by non-citizens without visas who cannot be returned to their country of origin. But without simply leaving them for year after year in immigration detention.

The enquiry could focus on limiting immigration detention once again to legitimate uses. These would primarily be time-limited stay to facilitate removal of people without visas, where it is practicable to do so, and short stay for identity, health and security checking for unauthorised arrivals.

More importantly the enquiry could be asked to produce a different regime for the intractable problem of people who simply cannot be returned home or sent to a third country.

Where there is any question of community protection because of a non-citizen’s criminal record, the enquiry could recommend ways of dealing with this using the criminal law applicable to Australian citizens.

For those who have an adverse security assessment, the enquiry could look at specialised arrangements, devised and managed by ASIO, proportionate to the risk involved.

Strategic change must occur because more of the same just will not work. The soft option is disappearing.

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