How did we get here? A reflection on 25 years of Australian asylum seeker policy

By Savitri Taylor

I’ve been thinking and writing about Australia’s asylum seeker and refugee policy for 25 years. When I started back in 1991, Labor was in government federally. Between then and now, I’ve seen both Labor and Coalition governments come and go at the federal level. Over most of that period, both Labor and the Coalition have regarded being tough on border control as part of the formula for obtaining power or retaining it as the case may be. The problem is that by dragging the issue of border control into the political power struggle, they’ve locked themselves and the country in a downward spiral of increasingly draconian policies directed at those who seek to enter Australia without official permission.

Some of you may be wondering why I’m talking in historical terms, when the focus of this event is supposed to be on the current policies of the Coalition, Labor, and the Greens. The reason is simple: 25 years ago the refugee and asylum seeker policies now espoused by the major parties would have been inconceivable to most politicians on all sides – but here we are. And unless we understand how we got here well enough to avoid continuing down the same path, 25 years from now we will have policies which are just as inconceivable to us now as the policies of today were 25 years ago.

In her piece in New Matilda a few weeks back entitled ‘The Long Journey to Nauru’, [1] Julie Macken identifies the introduction of mandatory detention by the Labor government as, in her words, “the stone that began the avalanche”. Looking back over 25 years, I agree. What particularly struck me as I was reading her piece was a quote she included from Neal Blewett’s memoir, A Cabinet Diary. Neal Blewett, who was then Minister for Social Security, had a meeting on 30 March 1992 with Peter Staples, then the Minister for Aged, Family and Health Services, and Gerry Hand, then the Minister for Immigration. Here’s what Blewett had to say in his diary entry about the meeting:

A 9 pm meeting with Hand and Staples on the asylum-seeker’s benefit. Hand wanted nothing to do with any ameliorative stance. He was for interning all who sought refugee status in camps, mostly at Port Hedland, where they would be fed and looked after. This is a nonsensical proposal – politically unsellable to the liberal constituency, impossible in practice (if any significant number of refugees took up the option his department would collapse) and financially irresponsible – if it worked it would cost more than the other options. It was obviously [Hand’s] intention that if Staples provided an asylum-seeker benefit, or I the charity option or a modified asylum-seeker benefit, we would have to take responsibility for the measure. His left-wing mate Staples accused Hand of “abdicating responsibility for his own shit”. So Staples and I decided to call his bluff and accept his lead as Immigration Minister. It will be interesting to see the cabinet response to his proposals.

The rest as they say is history.

I remember the introduction of mandatory detention. What Julie Macken didn’t mention in her piece was that mandatory detention as we know it today wasn’t introduced all at once; it was introduced bit by bit. In late 1989, Australia started experiencing its second wave of boat arrivals (mostly Cambodian nationals). There were changes made to Migration Act in 1989 which allowed immigration officials to detain “illegal entrants” (as they were called at the time) until their immigration status was resolved and, as a matter of administrative policy, that’s what happened. The next step was the one foreshadowed by Gerry Hand in his meeting with Blewett and Staples. In May 1992, the Labor government, with the support of the Coalition, procured the passage of the Migration Amendment Act 1992. This legislation labelled the unauthorized boat arrivals as “designated persons” and provided for their mandatory detention. In his second reading speech, Gerry Hand said that the legislation was “only intended to be an interim measure” and was designed “to address only the pressing requirements of the current situation”. That original legislation also imposed a 273 day limit on the duration of detention (though as I recollect there were circumstances in which the clock would stop ticking). The most fateful step of all came with the passage of the Migration Reform Act 1992 in late 1992. The Act was passed with Coalition support and came into effect on 1 September 1994. It divided non-citizens into two categories: those with a visa (who were called “lawful”) and those without a visa (who were called “unlawful”). It then provided that “unlawful non-citizens” had to be detained until granted a visa or removed from the country. The 273 day time limit which applied to the previous version of mandatory detention was dropped. The legislation also introduced the bridging visa regime. Unlawful non-citizens who met certain criteria could be granted a bridging visa pending the granting of a substantive visa or departure from the country. The grant of a bridging visa made them lawful non-citizens and enabled their release from detention. The bridging visa criteria were such that if you had become unlawful by overstaying you could get one really easily but if you had entered the country without a visa it was almost impossible to get one. And that’s pretty much the regime that’s been in place ever since, though it was ameliorated a bit in 2005 when the then Coalition government introduced the so-called “community detention” option to appease members of its own backbench who had started rebelling against the harshness of mandatory detention.

If time permitted, I could tell you a similar story about how we ended up with all the other refugee and asylum seeker policies being discussed today. In every case, we didn’t get to where we are all at once but step by incremental step. Some of those steps were taken by Labor governments, others were taken by Coalition governments, but except for a period from 2004 to 2007 when the Coalition controlled both houses of parliament, the legislative steps at least could not have been taken without the support of non-government politicians. The most insidious thing about every step taken was that it became the new normal and brought the next step into the realm of conceivable. The upshot was that politicians in the major parties, who are after all neither angels nor devils but something in-between just like the rest of us, were able at every crucial point along the 25 year journey to rationalize taking just that one step more for the sake of winning or at least not losing the ongoing struggle for political power. I concede that when the Rudd Labor government took office in late 2007 it undid some of the steps taken by the previous Coalition government, but, in retrospect it seems to have done so only because it thought that boat arrivals were no longer a political problem. When boats started arriving again in late 2009, Labor turned around to embrace some Coalition policies it had formerly rejected and went further in some respects.

So where do the Australian Greens come into the picture I’m painting? Well the party only came into existence in 1992 and it wasn’t until the late 1990s that it started mattering politically.[2] The Greens have now replaced the Democrats as the closest thing we have to a third force in Australian federal politics but for the foreseeable future that’s the most they are going to be – a third force. And while I don’t at all doubt the sincerity of the Greens’ policy positions, it is easy to promise “rainbows and unicorns” when you know you won’t actually have to deliver. Bit like being an academic really. Having said that, the Greens still play an important role. It’s great that they stand for human rights and the rule of law and everything good because they may sometimes serve to keep the rest of the bastards somewhat honest – just like The Democrats back in the day. However, the Greens alone cannot prevent our society continuing its journey along the road to hell and the responsibility for doing so certainly does not lie only with them or other parliamentarians. The responsibility lies with every single one of us to fight for what is right in courts and classrooms, in pulpits and pubs, in work places and streets, using every means and every opportunity at our disposal until we find our way back to being a decent society.

This paper was presented by Dr Savitri Taylor at ‘Legally Defensible? A Legal Examination of Refugee Policies and Associated Implications’, which was hosted by La Trobe Law School and Australian Lawyers for Human Rights on 18 February 2016.

[1] Julie Macken, The Long Journey To Nauru, New Matilda, 12 January 2016, https://newmatilda.com/2016/01/12/the-long-journey-to-nauru/

[2] Scott Bennett, The rise of the Australian Greens: Australian Parliamentary Library Research Paper no. 8 2008–09 (2008) http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0809/09rp08

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