Few matters have been more fiercely debated in the Australian Parliament or more unsparingly ventilated in the media than the recent and ongoing treatment of asylum seekers arriving by boat.
To understand what motivates a democratic government in peace-time to implement policies that imprison indefinitely thousands of men, women and children who have not been charged with or convicted of any crime we must turn to historical, social and political attitudes.
Though countries around the world guard their sovereign powers jealously to determine who may enter, the treatment of asylum seekers in Australia has been particularly high profile and divisive. This article seeks to understand why.
The White Australia Policy
Immigration has been contentious in Australia since the early days of European settlement. It was an issue during the establishment of the Federal Parliament in 1901 when two early bills underpinned what became known as the White Australia Policy.
The Pacific Islanders Act prohibited islanders from entering Australia and the Immigration Restriction Act imposed an English language test, effectively barring entry for most non-English speaking people. One Member of Parliament said: “No matter what measures are necessary, Australia must be kept pure for the British race who have begun to inhabit it.”
Between 1945 and 1955 one million immigrants came to Australia. Even after the Menzies government signed up to the 1951 UN Convention, refugees continued to be selected according to the colour of their skin.
It took another seven years for the controversial English language test to be abolished by the passage of The Migration Act 1958, and over a decade before skilled Asian immigrants had the same rights as Europeans to settle in Australia.
In 1972, newly elected Labor Prime Minister Gough Whitlam took the final legal steps to dismantle the White Australia Policy, although he had shown little sympathy for Indo-Chinese refugees. As waves of Indo-Chinese refugees arrived, concerns grew about porous borders.
Following the double dissolution that ended Whitlam’s prime ministership and led to fresh national elections, the incoming prime minister, Malcolm Fraser, was determined that Indo-Chinese refugees would not be incarcerated long term in camps. For the next decade, regional cooperation between prospective host countries with Malaysia, Thailand and Vietnam saw these refugees resettled in the USA, Canada and Australia.
The government and the Labor opposition forged bi-partisan cooperation on a non-racial immigration and multicultural policy. That cooperation evaporated when the Labor party expressed hostility to large intakes of Indo-Chinese, colloquially referred to as boat people during the 1977 election campaign.
The debate foreshadowed views expressed 25 years later that boat people were avoiding the proper channels, that they were merely economic migrants, and that they needed to be deterred by harsh policies. Nevertheless, mature leadership ensured that at this time Indo-Chinese boat people were sympathetically received by the public as "genuine" refugees.
Asylum seekers arriving by boat were not in locked detention centres although they were held in a facility where they had to attend roll call each day and which they could not leave until their case was resolved. They were processed by the Immigration Department and provided permanent residence without delay.
The Evolution of Punitive Detention
Six years after the Hawke Labor government was elected in 1983, in the face of mounting arrivals from Cambodia, parliament toughened its stand against boat people, passing the Migration Legislation Amendment Act 1989 with strong bipartisan support.
This act was notable for the power which allowed officers to arrest and detain anyone suspected of being an "illegal entrant". Although detention remained discretionary until 1992, this Act essentially introduced a policy of "administrative detention" for all people entering Australia without a valid visa.
Such was the resurgence of onshore arrivals that by 1991 a disused mining camp in Port Hedland, Western Australia became Australia's first remote detention centre. Some Cambodians, after two years incarceration, made an application to the Federal Court to be released on the basis that their detention was unlawful.
Goaded by High Court criticisms of its treatment of asylum seekers and anxious to allay public disquiet over the resurgence of boat arrivals, the Keating government rushed The Migration Amendment Act 1992 through the Parliament two days before the Cambodians' case was to be heard. The bill authorised mandatory detention making it clear that the government was determined to send a clear signal that migration could not be achieved by simply arriving in this country.
This tough approach to detaining unauthorised boat arrivals was in contrast to the treatment of visa over-stayers. The differential treatment still applies today.
Echoes of White Australia
As far back as 1988, Coalition opposition leader John Howard echoed the criticisms of immigration and multiculturalism published by conservative historian Geoffrey Blainey.
In his One Australia policy Howard expressed concern about the pace of Asian immigration suggesting that "it would be in our immediate-term interest and supporting of social cohesion if it were slowed down a little, so that the capacity of the community to absorb would be greater."
In the ensuing public furore the government brought on a debate seeking reaffirmation of the previously bipartisan policy that prohibited race being a factor in the selection of migrants. Howard declared "I don't believe it is wrong, racist or immoral for a country to say we will decide what the cultural identity and the cultural destiny of this country will be."
Three members of his party crossed the floor against their leader. One MP argued: "The simple fact is that opinion is easily led on racial issues. It is now time to unite the community on the race issue before it flares into an ugly reproach to us all."
In 1989, John Howard lost the leadership and did not regain it until 1995 by which time he had retreated from his previous views. With Howard at the helm again, the Coalition was swept to power in 1996.
That same year witnessed the rise of far-right politician Pauline Hanson, a disendorsed Liberal candidate, who as an independent won the federal seat of Oxley, on an anti-Asian immigration platform. In her first speech in Parliament she declared, "I and most Australians want our immigration policy radically reviewed and that of multiculturalism abolished. I believe we are in danger of being swamped by Asians."
Hanson unsuccessfully attempted to regain her seat in 1998. She remained an influential voice in public debate on immigration. Boat arrivals remained steady until a precipitate increase beginning in 1998. That year a poll showed the average Australian overestimated by 70 times the number of boat people arriving each year in the country.
By 1999 asylum seekers arriving by boat, began to surge. "Politicians across the spectrum joined in persistent, low level abuse of boat people as 'queue jumpers' for not waiting in foreign camps and 'illegals' for arriving without proper papers," wrote David Marr and Marion Wilkinson.
Processing slowed and with six, now overcrowded, detention centres on the Australian mainland the government introduced three-year Temporary Protection Visas (TPVs), releasing some detainees to live in the community.
The government fed the public perception that the nation was besieged by an avalanche of boat people who had to be stopped. A line had to be drawn. Detention centres became increasingly privatised and remote. They were progressively fortified until many resembled maximum-security prisons shocking some MPs during a visit in 2001.
"Excision" of Australian Territories and the "Pacific Solution"
On 26 August 2001 a rescue call was received from the Palapa 1, a dilapidated 20-metre Indonesian fishing boat with 433 passengers on board. The vessel was lost and struggling to stay afloat. Australian authorities complied with humanitarian principles and called for ships to locate and rescue the ailing vessel.
The Norwegian freighter the Tampa came to the rescue. Its captain gave as much assistance as the cramped deck would allow. He asked permission from the Australian government to convey the asylum seekers to Christmas Island. It was refused and the government threatened to charge the captain of the Tampa with people smuggling if the ship landed them on Christmas Island.
Determined to prevent asylum seekers from reaching Australian shores, the government orchestrated a ship-to-ship transfer. At the same time it rushed legislation through Parliament so as to avoid giving asylum seekers any right to legal processes in Australia and to force the Tampa (or any other boat carrying asylum seekers) back out to sea, providing immunity to the government, its officers and agents from civil or criminal prosecution for such action.
Although the Opposition was generally supportive of the government resolve to "stop the boats", they refused to support this legislation labelling it "ill-considered, draconian and unconstitutional" and only agreed to support the bill if it was specific to the Tampa.
The government responded by offering to introduce a six-month sunset clause and the Opposition eventually supported the legislation. More than eight days after the rescue, the Royal Australian Navy intercepted the Tampa. Special Air Service personnel forcibly removed asylum seekers onto the HMAS Manoora.
The Indonesian government refused to take those who had been rescued, leaving the Australian government to cast about for a solution. The asylum seekers were eventually transferred from the HMAS Manoora directly to offshore detention centres in Nauru and Manus Island in the Pacific Ocean.
Two pieces of legislation were passed with bipartisan support to give effect to offshore processing or the "Pacific Solution": the Migration Amendment (Excision from Migration Zone) Bill 2001 and Migration Amendment (Excision from Migration Zone (Consequential Provisions) Bills 2001.
The Tampa crisis generated fevered controversy in Australia in the lead up to the 2001 election, as did the "Children Overboard" affair in October 2001. Following an encounter with the Royal Australian Navy frigate the Adelaide, the Olong, a wooden-hulled boat carrying 223 asylum seekers, experienced engine failure.
Amidst the panic on board some asylum seekers abandoned the boat leading to claims, which persisted throughout the 2001 election campaign, that asylum seekers were throwing their children overboard. As these events unfolded, the Prime Minister proclaimed: "We will decide who comes to this country and the circumstances in which they come."
A 2002 Inquiry into a Certain Maritime Incident found that no children had been thrown overboard and that the government had known that prior to the 2001 election. Government Senators labelled the inquiry "an undignified sideshow" and produced a dissenting report. The Howard government was re-elected in 2001 and again in 2004.
In 2006 it introduced a bill to extend "excision" of the migration zone to the mainland. Although it did not mean Australia had entirely abdicated all of its obligations under the UN Convention, its purpose was to stop boat arrivals from reaching the mainland and applying for asylum, with all the domestic legal and administrative protections that offered.
The bill was opposed by a small group of Liberal backbenchers. Despite the revolt, the bill gained passage through the House of Representatives. It was only withdrawn when Liberal Senator Judith Troeth threatened to cross the floor, which would have ensured its defeat in the Senate. "Out of sight, out of mind" was elevated to a principle of policy.
Asylum seekers in offshore facilities did not have rights to legal or administrative review of their claims and Nauru was not a signatory to the UN Convention at that time. Author Peter Mares wrote that "The detention deals Australia struck with Nauru and Papua New Guinea appeared to violate fundamental laws in both countries."
Access to asylum seekers by human rights lawyers and others was limited by both regulation and by the island state's remoteness. A Parliamentary Committee visiting Nauru found conditions to be unacceptable; there were claims of violence both among and against detainees, isolation and handcuffing, unsanitary conditions, hunger strikes and trauma.
Amnesty International reported that "conditions were harsh" and Greg Roberts of the Sydney Morning Herald, made an undercover visit to Manus Island in 2002, reporting that "diseases such as malaria, typhoid and tuberculosis were widespread".
As federal Labor MP Carmen Lawrence put it: "[T]he lack of hope and the brutality, both physical and psychological, produces devastating consequences on human beings."
The government ridiculed critics of mandatory detention and the "Pacific Solution" rejecting adverse criticism and almost all recommendations for improvements. Critics were cast as naive and "do-gooders" who lacked life experience. When asylum seekers went on a hunger strike on Nauru, immigration minister Amanda Vanstone said: "it's not in Australian territory: it's on Nauru and being run by other people. If someone doesn't want to be there, they can go home".
By 2004 indefinite mandatory detention was entrenched, with the High Court accepting that aliens had fewer rights than citizens. It accepted that detainees had the power to end their incarceration by voluntary repatriation. The Court also upheld by a slim margin (4-3) the validity of indefinite detention, providing that the immigration minister retained the intention of eventually deporting an individual.
Minority judges dissented, submitting the argument that "aliens" power must be subject to the limitations imposed by other parts of the Australian constitution. Justice Michael Kirby observed that while Australia has no equivalent of the US Fifth Amendment the requirement in our constitution that only courts can impose punishment had a similar effect: "[T]he common thread that runs through all these cases is that judges of our tradition incline to treat unlimited executive detention as incompatible with contemporary notions of the rule of law."
Public perception of a "crisis" in border protection persisted, encouraged by anti-refugee rhetoric of politicians and popular media.
In the late 1970s, 60 per cent of Australians wanted to let people arriving by boat stay. An analysis by sociologist Katherine Betts in 2001 revealed that in 1993, 44 per cent wanted to send "boat people" back without assessing their claims and 46 per cent approved of holding them in detention while their claims were assessed. In 2001, 77 per cent of Australians supported the Coalition government's decision to refuse entry to the Tampa and 71 per cent believed boat arrivals should be detained.
This is the first in a two-part series about the history of Australian border policy. Read the second part here.
New Matilda national affairs correspondant Ben Eltham is on leave. NM has invited a range of former politicians and commentators to write in his absence.
This article was originally written for the Prison Service Journal in the UK and published in January 2013. It has been updated for New Matilda.
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