Mandatory detention (sort of) scrapped

It is wonderful to see the news that the federal government plans to finally scrap mandatory indefinite immigration detention and adopt the common sense (and much cheaper) approach that people should not be locked up for extended periods just because they are without a valid visa, unless there are compelling reasons to do so. 

Immigration Minister Chris Evans’ speech outlining the changes is available here.  It is worth reading in full. It is pleasing to see that he is developing changes in values as well as the legislation itself, and that he is doing so in conjunction with the Ombudsman and the Human Rights & Equal Opportunity Commission (HREOC) – a key shift from the previous government who barely bothered to hide its contempt for HREOC.

Chris Evans’ core point about the new system is that “The key determinant of the need to detain a person in an immigration detention centre will be risk to the community.” In other words, you can’t keep someone locked up unless you can show there is a good reason.

Quite rightly, this statement makes no reference to any impact on unauthorised arrivals or spurious links to ‘border protection’. That’s because mandatory indefinite detention never had any impact on such matters, despite all the misleading mythology to the contrary.

Whilst there have been some gradual improvements in recent years, the provisions for mandatory detention have remained in the law, and hundreds of people have still been in detention for a year or much longer.   One should always check the detail of what the actual legislative changes will be, as will as keep an eye on how they are administered, but there is no doubt Minister Chris Evans is genuine on this.

Chris Evans actually makes a point of emphasising that Labor remains committed to mandatory detention, which might seem strange seeing he is emphasising the importance of letting people out as quickly as possible. Partly this is political – the need for Labor to protect itself against claims that it’s gone ‘soft’ on ‘border security’.  If the new system is as he states, it will not be fully mandatory, in the sense that there will be a presumption towards people being released unless it can be demonstrated there is clear risk to the community in doing so.  But it is true that people without a valid visa will still be subjected to being detained initially.  The key difference will be the removal of the core problem, namely that that detention continued indefinitely, replaced by a new presumption towards people being free unless there is a good reason to do otherwise rather than the previous approach of people being automatically locked up as a matter of first resort.

The Department will be required to demonstrate every three months that continuing detention of a person on these grounds is justified. An important factor which is not yet clear is what sort of right people will have for review or appeal against an unfavourable decision. The lack of any accountability and scrutiny of the reasons for ongoing detention is a key reason why people ended up in detention for years and years, as well as how debacles like the Cornelia Rau incident occurred.

These changes are long overdue to a law which should never have been introduced in the first place. It was first introduced under the Labor government, and has been supported by both major parties since then. It is a classic case of politicians having too little courage, too little compassion and too little conviction to stand up for what they know is right –  instead hiding behind a mechanism which they know didn’t work but which was politically beneficial.

There has never been a single shred of evidence to back up the regular assertions that detention served as a deterrent to people trying to enter Australia without a visa, whether they were claiming asylum or otherwise.  All it was was a very expensive, immensely harmful mechanism for politicians to look like they were doing something about an issue and to look tough in the process. I’ve never been able to figure why it is seen as tough for powerful people to brutalise vulnerable people, but there’s no doubt that it works for some.

ELSEWHERE: Many of the comments left on the Courier-Mail’s report on this issue show there is still plenty of bigotry and determined ignorance around for any unscrupulous politicians to tap into and encourage, should they wish to. John Howard’s legacy of making it acceptable to be offensive and obnoxious clearly lives on. It also shows why Labor is still apprehensive about being politically burnt on this issue and thus are maintaining the terminiology of ‘mandatory’.


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  1. Finally!!!

    Thank you Mr Evans. Common sense and decency in immigration policy at last.

    It is upsetting to read the comments in the Courier Mail, but then it’s always upsetting to read the comments in the Courier Mail.

    Lets ignore the ignorant and celebrate a very welcome change in policy.


  2. Will Labor replace mandatory indefinite immigration detention with indefinite mandatory history lessons for Labor MPs? They should. For Senator Evans to describe the system he is reforming as the, “Howard government’s punitive policies,” he ignores the role his own party had in bringing the old system to being. It was the Keating Government that started mandatory detention and it was the Labor Opposition that offered little resistance to the Howard Government’s extenstion of the scheme.

    Better late than never but Labor should stop pretending they have a conscience.

  3. Hurrah!

    It’s high time that we got rid of the idea that locking up someone that
    (a) was not dangerous and
    (b) had not been found guilty of any crime
    was a good idea. This policy – supported also by Labor – has long been a stain on Australia’s reputation for being a caring nation.

  4. “Many of the comments left on the Courier-Mail’s report on this issue show there is still plenty of bigotry and determined ignorance around for any unscrupulous politicians to tap into and encourage, should they wish to. John Howard’s legacy of making it acceptable to be offensive and obnoxious clearly lives on.”
    Well, well Andrew John Howard’s legacy clearly lives on but not Paul Keating’s? And as for Andrew Bartlett’s legacy, who knows? Hopefully when I wake up tomorrow you would have directed me to a definitive site that will tell be that mandatory detention has had no impact on illegal immigration.
    Good night

  5. Good night indeed.

    I don’t know why you keep acting as though there is some contention about the simple documented fact that both boat arrivals (who are not illegal immigrants) and visa overstayers (who could fit that description in some circumstances) rose throughout the 1990s, after the introduction of mandatory detention. It therefore did not work as a deterrent.

    The Immigration Department site has plenty of statistics on boat arrivals and overstayers – go < href="">here and have a look. The overall trend throughout the 1990s was up. And even the former federal government did not officially say detention was about deterrence, but rather about the alleged need to stop asylum seekers ‘disappearing’ in the community – which was another myth anyway, as the evidence shows they did not disappear once released – why would they, when they were hoping to receive a positive refugee assessment?

    As for Paul Keating, I know he used some aggressive language from time to time, but he was hardly a leader in that. As far as I know he never participated in and supported being openly offensive and obnoxious towards asylum seekers, which John Howard certainly did.

  6. Andrew: You say “” I don’t know why you keep acting as though there is some contention that … boat arrivals and visa overstayers … rose throughout the 1990s, after the introduction of mandatory detention. It therefore did not work as a deterrent”

    You sound like a politician with an argument as thin as that. Any other possible reasons that there might be more arrivals & overstayers other than what you believe to be the ineffectiveness of mandatory detention as the said deterrent?

    “the evidence shows they did not disappear once released – why would they, when they were hoping to receive a positive refugee assessment?”

    Selective use of evidence requested above, though not yet at hand (the hour is late), but you’d have to be referring to the legal rather than the illegal immigrants (whom I presume would have been the real targets of mandatory detention), wouldn’t you?

    “As for Paul Keating .. .he never participated in and supported being openly offensive and obnoxious towards asylum seekers, which John Howard certainly did”

    Without predjudice, you clearly are discrimminating against all who were slagged by Keating (or Howard) who are not asylum seekers, or to put it more clearly, you endorse a legacy of making it acceptable to be offensive and obnoxious, as long as one doesn’t mention alleged illegal immigrants.

    Good night!

  7. evidence “not yet at hand”!? The data is crystal clear, and for that matter never disputed by the former government (not surprisingly since its their data). If you don’t want to look at the data, or refuse to acknowledge it, that’s fine. But don’t pretend it doesn’t exist or hasn’t been provided.

    It is very simple – mandatory detention was introduced, numbers of boat arrivals and numbers of overstayers both increased. If someone wants to argue that either or both of those numbers would have increased by even more without mandatory detention, I think the onus is on them to provide some proof. Continuous insistence on demanding proof of a negative is a standard political trick, but it is also just a way of avoiding the evidence.

    Simple incontrovertable facts:
    – Detaining people is far more expensive than having them in the community – this is easy to show, because we have been doing both.
    – Prolonged detention causes significant harm to many people, especially when it is indefinite and not linked to the commission of any crime or some form of conviction through due process. This also creates extra expense in ongoing treatment for the damaged person once they are finally released into the communty, as has occured in the majority of cases.
    – Both boat arrivals and overstayers increased after mandatory detention was introduced. Not even the Howard government tried to show that detention had a dampening effect on either of these.

    In regards to overstayers – who are the only ones who might in some circumstances be reasonably described as ‘illegal immigrants’ – the threat of indefinite jail is not likely to encourage them to come forward to regularise their status. If people have a visa problem and think that coming forward will just lead to them being automatically locked up regardless of the circumstances – and charged for the costs – it is more likely they will try to stay hidden rather than come forward. Not good for them, and not good for the community

  8. I think we should also acknowledge two courageous Liberal MPs such as Petro Georgiou and Judy Moylan who took the very difficult path of dissenting from Howard’s xenophobic strategies, creating some angst amongst some of their colleagues (viz. Sophie Mirabella describing Georgiou a ‘political terrorist’.

  9. The Readers Comments section of the Courier-Mail on the mandatory detention issue resulted in a great many comments being made by ordinary Australians strongly averse to the changes being proposed.

    It was very disappointing and saddening to see Andrew Bartlett arbitrarily dismiss the comments and concerns of ordinary Australians as a product of “bigotry and determined ignorance” and an “offensive and obnoxious” legacy of John Howard.

    The people who took the trouble to comment had the right as much as anyone to air their views and opinions without such denigrating and disparaging labels being arbitrarily applied. They may in some cases and instances have expressed themselves somewhat clumsily, perhaps not have had the benefit of the higher education that Andrew Bartlett has had, but that was no reason for him to dismiss their views and concerns out of hand as “bigotry and determined ignorance”.

    There is a very disturbing tendency of Andrew Bartlett and his ilk to arbitrarily dismiss those who have views alternate to theirs on such issues as asylum seekers, mandatory detention, immigration and islam as being racism, bigotry and vilification. This unfortunately results in at best hesitancy and at worst avoidance by ordinary Australians to discuss the issues and concerns on their minds.

    Perhaps the demise of the Democrats can be partially explained by its gradual decline into a party unwilling to listen to the views, concerns and opinions of ordinary Australians and to be unable to treat those opinions and concerns with respect and courtesy, as clearly illustrated by Andrew Bartlett’s disturbing comments.

  10. “that was no reason for him to dismiss their views and
    concerns out of hand as “bigotry and determined ignorance”.”

    There is a very good reason, Franklin – namely that many of the comments were quite clearly bigoted, and also displayed a level of ignorance so complete that it is hard to see it as anything other than wilful. There was absolutely nothing “arbitrary” about my use of such language – it is very specifically applied as direct response to specific comment which are accurately described by the words I used.

    For someone requesting “respect and courtesy”, you seem very happy to defend a range of comments which were anything but. I do not respect bigotry, and our nation should not either.

    I have never been a big fan of political correctness, and I don’t see why views which are bigoted should be exempted from being described for what they are. That in no way stops from people from expressing their opinion, or from disagreeing with my view. I haven’t noticed any hesitancy at all from people who want to express such views – if anything many of themare quite aggressive about it.

    I will not sit back and let bigotry flourish uncountered, or to let apologists for it hide behind political correctness. I have seen the human and social cost of that, the long-term damage it has caused to our country and the huge impediment it places on our nation realising it full potential.

  11. Congratulations Andrew,

    I know you will be very humble but you were the strongest voice in the Australian Parliament on this matter. I’m sure your work contributed to this change in policy somehow. Yes Labor has downplayed it but people like you made this a moral issue and made sure Labor was forced to at least improve our immigration systems way of handling illegal migrants.

    So good work, now go write a PHD or whatever former senators do. LOL

  12. Andrew: The “evidence not yet at hand” was in relation to Blair Bartholomew’s request above, (asking for definitive proof that mandatory detention made no impact on illegal immigration).

    I’m not claiming superior knowledge on the matter, simply unable to see that in isolation, the introduction of mandatory detention followed by an increase in illegal immigrants establishes cause & effect. You may well have further information connecting what are apparently two matters of fact, and if so, I daresay it will be easy enough to point us in the right direction.

    Personally, I’m not experienced in the use of standard or non-standard political tricks, but I would not think that seeking a causal link was in any way, trickery as a means to “avoid the evidence“!

    The next logical question is to ask if detention did not stop illegal immigration, did it in fact promote it? Assuming a negative response, what then did cause the increase?

    I agree with most of your listed drawbacks however.

  13. I agree with all the comments from Andrew and others, who also welcome the changes to the immigration laws.While it’s true that Labor introduced mandatory detention,the fact is, that Howard used it for grotty reasons-to get re-elected in 2001 and also used Dr Haneef last yr to achieve the same result.
    FRANKLIN-A good book to read is Dark Victory,(David Marr)which starts prior to the Tampa and extends past the election.Only last year I read of navy personnel (used by Howard during and after Tampa) who were still suffering from the trauma they saw and were forced to exacerbate – a 1st for this country!Racism and bigotry are not to be misplaced for freedom of speech-they’re evil,stupid,illogical and destructive,and should be acknowledged as such?I reject them completely!
    ‘FROM NOTHING TO ZERO’ is a book by children who were asylum seekers.For anyone to attempt to justify the locking up of children is despicable.Aust has again(a yr or so ago)ratified the Declaration on the Rights of the Child-Howard stomped all over them!Ruddock even referred to a little 4 yr old boy as “it”.Says it all really!
    At any time there’s at least 40,000 over stayers,but rarely are those people(mostly from Britain/Europe)placed in detention when detected-they’re allowed to remain in the community until decision is made,unlike those from Middle East or Asia(brown/black people)who were thrown in the slammer!
    Up to 200 people could have been wrongly deported from this country,apart from those Andrew mentioned.I’ve just started to read ‘Deported’ Glenn Nicholls(2007) that describes the trauma of forced deportations over last 100 yrs.
    What type of policy dictates,that women be under police guard while giving birth,or caesarians done without a woman’s consent-husbands not allowed to be present,and then mother/baby under police guard for 10 mnths-without access to other children?It was barbaric!
    Christmas Island’s ‘Guantanamo’ type detention centre must be closed.It’s a shameful disgrace!

  14. Mike Steketee’s article in The Australian has some good figures regarding the numbers of asylum seekers arriving, and the number assessed as legitimate refugees.,25197,24103306-5013457,00.html

    GZG – I don’t think Andrew is trying to say mandatory detention resulted in an increase in illegal arrivals, merely that the statistics as recorded do not show a decrease in illegal arrivals following the introduction of mandatory detention. Therefore, the statistics do not support the proposition that mandatory detention acted as a deterrent.

    If there are statistics available showing that the number of illegal arrivals would have been greater without mandatory detention, then this would prove a deterrent effect. However you are right to say these figures cannot be used in isolation. The circumstances causing “boat people” to flee their homes’ are not constant.

    With regard to describing Courier Mail comments as bigoted and ignorant we should remember there is great difference between expressing a reasoned opinion, and vocalising prejudices formed without consideration of facts and evidence.

  15. I agree with Andrew’s views. A naked pitch to bigotry and fear was behind the Howard border security construct. As someone who was involved with the implementation of the Pacific Solution I was alarmed by the tawdry misuses of official aid and by a political strategy made up on the run by bureaucrats doing their level best to engineer ‘immigration’ outcomes from bad political motives. The perfunctory official approaches adopted toward self-harming detainees were another disturbing aspect.

    As the Party that put in place the legislative framework (in particular ‘mandatory detention’) within which Howard evolved his refugee ‘house of horrors’, it is appropriate that Labor put Australia’s human rights compliance at the top of the international agenda and put our domestic ‘house’ back in order.”

  16. FRANKLIN-I’ve just read the review as you noted.There’s some flaws in it in fact,and I’ve also watched the documentary from Captain Rinnan of the Tampa’s perspective.Father Frank Brennan’s ‘Tampering with Asylum’ Heather Tyler(journalist)Seeking Asylum?From Nothing to Zero;Following Them Home(about certain asylum seekers after they were deported).I have every 4Corners,Current affairs and many news items on tape since the Tampa travesty,and of course there’s SIEV X and the deaths of 353 asylum seekers with a myriad of questions unanswered. David Marr,co author of ‘Dark Victory’ has spoken to survivors, and told Richard Glover ABC 702,that many survivors heard and saw at least 1 plane and ship.
    Unlike the review you mentioned,the HREOC Report called, ‘A Last Resort’ asserted that 92% of children from Iran and 98% of children from Iraq were found to be refugees during the years covered by their inquiries-it follows their parents were too. Also, to claim that Indonesia was a ‘safe haven’ and therefore to travel on to Australia was a “secondary movement’ omits to mention the fact, that Indonesia is not a member of the International body protecting refugees, and people were thrown in jail or cruelly treated while in that country-hardly a safe haven?The author of the mentioned review scathingly asserts that asylum seekers are even “entitled to illegal entry or even the use of forged documents” – I recall people being recognised as heroes for doing just that in order to remove thousands of Jews from the clutches of the Nazis-and they were!
    It’s disingenuous to accuse Saddam Hussein of being a monster(he was) to justify an illegal invasion, but not to acknowledge the desperation of those who were able to flee, or too terrorized to remain. Those who helped them were also heroes in my book -not criminals?The use of words like “queue jumpers’ is in the same mould – I don’t recall hearing of any ‘queues’ in Iraq – outside Saddam’s palace perhaps, in the town square?

  17. I’ve seen some claim that the introduction of mandatory detention actually led to the tragic deaths on the ‘leaky wooden boats’. Their argument is that the beginnings of Australia’s move away from the International Law we had signed up to (i.e. the end of the hope that the men could get here first, be accepted as legitimate asylum seekers and then send for their hapless wives and children, mothers and sisters) led directly to the families then setting out in little boats, in despration, since they could not stay where they were if their menfolk were not able to go out into the commuity and send back money to support them, and then, ultimately, rejoin the family.

    I don’t know enough about the figures and legal manoevreings of the time to have an informed opinon … will we ever know the truth? I doubt it. One day, maybe, we will know the extent of our national shame. Shayan Badraie, Viliami Tanginoa, Vivian Solon, Peter Qasim … many unknown people locked away in Woomera, Port Hedland, Curtin, Baxter, Manus Island and Nauru. In the meantime, we hear of rumblings that this change will not get through the Senate. May it not happen that once again our nation will be dipped in the sewer of the rancid xenophobic fears of those who apparently have forgotten out national origins.

    I am the descendant of Jews who left Europe in the late 1840s to escape war and economic hardship, and of Scots who did the same thing 20 years later, of an Irish Potato Famine Girl, of an Irishman who left racial oppression and religious intolerance for a better life here in the 1890s, and someone who appears to have changed his identity so thoroughly in the 1830s that we have no idea of who he really was, but he was almost certainly ‘undocumented”, “unauthorised” and possibly from an alien country ( maybe Sweden). All of those fought in various ways for a better life for themselves and their kids … and for the rule of law in their new homeland. When will that fight end?


    Article 74 of the Protocol additional to the Geneva Convention of 12 August 1949, and relating to the protection of Victims of International Armed Conflicts (Protocol I) – adopted on June 1977 states:

    “The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organisations engaged in this task in accordance with the provisions and of this Protocol..

    UNIVERSAL DECLARATION OF HUMAN RIGHTS (adopted and proclaimed by the UN):

    Article 1; ‘All human beings are born free and equal in dignity and rights.
    Article 2: “Everyone is entitled to all rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national and social origin, property, birth or other status”
    Article 9: ” No one shall be subjected to arbitrary arrest, detention or exile”
    Article 10: ” Everyone is entitled in full equality to a fair, public hearing by an independent and impartial tribunal, in the determination of his rights and obligations..”
    Article 13: (1) Everyone has the right to freedom of movement and residence within the borders of each state.
    Article 14: “Everyone has the right to seek and enjoy in other countries asylum for protection”
    Article 23: Everyone has a right to work

    Principle I: The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever shall be entitled to these rights
    Principle 7: “The child is entitled to receive education, which shall be free..he shall be given an education which will promotehis general culture… and shall have full oportunity for play and recreation..`

    Could you tell me which of the above have not been violated by the Genghis Khan Howard? Anti- whale hunting laws?

  19. Zen: Please excuse the simplicity of my question, but isn’t it generally the case that the detainee is unable to establish their credentials as refugees or “Victims of International Armed Conflicts”?

    And rather than responding on an article by article basis, just one:

    #9 ” No one shall be subjected to arbitrary arrest, detention or exile”

    It would depend on one’s definition of arbitrary. I’d figure that if people were randomly arrested as they exited “passport control”, then that would be arbitrary. However, a boat full of people without visas claiming refugee status seems worth a closer look.

    I do recognise that legitimate victims may well be ill-equipped to prove their case, but expect any nation to exercise some form of border protection.

    It could be useful to read up a little on the life and times of Genghis Khan before bandying the name around so indiscriminately. I know who I’d rather have around for a dinner party with the wife & children.

    The article by Alexander Cassela is hardly a reliable resource material. First of all, is out of date. Deaths and suicides in detention centres came later as much as Cornelia Rau, Vivien Alvarez, and many other mistaken identity cases.
    Howard did employ some bureaucrats not necessary on their merit.

    Cassela makes following mistakes:
    He expresses total disrespect to internationa laws Australia is signatory to.
    and total disrespect to the Australian public expressing their concern.
    He states in one paragraph that asylum seekers are ‘entitled to illegal entry’ but ‘Australian law provides for automatic ( thus, arbitrary) detention for anyone entering the country illegally.”
    Australia is NOT the country which accepts the highest intake of refugees
    The Australia processing claims never found 95% of claims to be bogus. Quite the opposite.
    The right to flee persecution DOES entitle to choose his country of asylum
    There have never been in Australia ‘hundreds of thousands of illegal immigrants who are intercepted every year’.
    The term ‘illegal immigrant’ is a silly misnomer. “Immigrant’ is a legal status thus, cannot be ‘illegal’.
    There is no ‘inshore visa’ category.
    The argument that ‘people fleeing war are not in danger of persecution and hence in need of asylum’ is beyond belief.
    The author has never heard about a ‘non-refoulement’ policy. Howard pretended that none exists.
    Probably due to his poor English, the author wants us to believe that ‘ALL ( a farmer and a shopkeeper’s son) had to pay more than $2mln.”

    (FRANKLIN, Are you aware that to bring both of ones’ parents to Australia one has to pay about seventy thousand dollars to the government? )

    What Casella fails to understand is that any applicant for a protection visa has the same right to apply as anybody else without being labeled ‘a terrorist’ in the process.

  21. Franklin, why do you keep bobbing up everywhere with your ill informed drivel?

    There is not such thing as an illegal arrival in Australia and you have had the reference given to you about a million times by now.

    There is an ugliness in the assumption that people might be pulling a swifty so lets quote Guy Goodwin Gill on refugee law.

    “genuine refugees simply have no way to travel “legally”, it would be the death of them if they tried.

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