There has to be a better way

James Jupp, Australian National University

In the past few years in Australia there has been growing concern about the policy of mandatory detention of asylum seekers without visas, first introduced by former Labor minister Gerry Hand in 1991. Concern escalated after the opening of the Woomera Detention Centre in 1999, and became central to the last Federal election in 2001. The combination of the armed intervention on the Tampa cargo ship in August 2001 with the attack on New York and Washington on September 11 gave the Howard government an unprecedented opportunity to exploit ‘illegal migration’ as a political issue. Of course, as the government well knew, asylum seekers are not ‘illegal’ but ‘unlawful’. (To be unlawfully in Australia is to be without a valid visa; to be illegal is to have entered on false documents or using false statements. Asylum seekers are not illegal because they are allowed to enter without documents under the Convention and Protocol on the Status of Refugees. Someone unlawfully in Australia can seek to obtain a valid visa, while someone illegally in Australia can be arrested and deported, but can appeal this.)

Further, the government knew that no connection between asylum seekers and terrorism has ever been established either here or elsewhere. The whole public debate of the past year has been corrupted by official lies, evasions, and hysteria. While the major responsibility for this rests with elected Ministers—and especially Prime Minister Howard, Minister for Immigration Ruddock and former minister for defence Reith—public servants and military service officers have also been dragged in. Effective opposition has been hampered by the Labor opposition’s refusal to take a stand against a policy that they initially implemented. This leaves a gap that has been filled by a variety of individuals and groups, ranging from the Trotskyists to the Catholic Church.

Public debate on refugees has been corrupted by official lies, evasions, and hysteria.

Informed debate depends on compromise and reasoned and honest argument. Much of this has been lacking because the Commonwealth government makes no concessions at all, and demonises and denigrates its critics. Relying on their election victory and the endorsement of opinion polls, the Howard government simply rejects any criticism, however well intentioned or informed, and from whatever quarter.

Several major books and articles have already covered the mandatory detention system. Among these were Borderline by Peter Mares, Asylum Seekers by Don McMaster, and Refugees and the Myth of the Borderless World by William Maley, myself, and others at the Australian National University. None of these support the government’s policy and there are few well-informed publications (other than press releases from the government itself) which do. Indeed, Mares and McMaster wrote before the Tampa crisis, suggesting that many of the subsequent problems were already foreseeable.

This issue had spawned a fairly classic response between those who know what they are talking about—a minority—and those who support authority—the majority. The popular press and talkback radio back the government, as do the majority responding to public opinion polls. Yet few of these have deep knowledge of the issues raised or the situations from which asylum seekers have come. Those who support the government are seen as the ‘mainstream’ and those who do not as ‘bleeding hearts’.

It is a classic case of populist democracy, when those in the majority are presumed to have right on their side even if those in the minority actually know more about the issues. Because politicians need to maximise their support by appealing to the lowest common denominator, it is hardly surprising that the Howard government has reaped the greatest advantage. That does not make them right, but it does make them successful. It also influences the Labor opposition, whose criticism of current policy remains at the level of querying the costs and the detention of children.

Mandatory and irrevocable detention means that anyone ‘unlawfully’ in Australia must be detained until their status is determined. If accepted as refugees, they now get three-year temporary protection visas—whereas previously they were allowed to remain permanently. These visas do not allow them to be reunited with their families, to become permanent, or to have access to settlement services available to other humanitarian migrants. John Howard declared that those coming during and after the Tampa crisis would ‘never’ be allowed to be released on Australian territory. This threat was not effective, and by July 2002, a number had been released. Howard denied his previous statement.

Politicians need to maximise their support by appealing to the lowest common denominator.

Those ‘unlawfully’ in Australia include those who arrive without a visa, those who overstay their visa, and those who have attempted to enter Australia with fraudulent identification. Few deny that entrants without visas must initially be detained for identification and health and security clearances. Few deny that those awaiting deportation must be detained. To argue otherwise is quite dishonest, although it has been done. A problem group remains of those awaiting deportation who cannot return to their own country because it refuses to take them. There is no provision for their release. Another problem group is the women and children who accompany male asylum seekers but who must be processed for refugee status. It is sometimes the case that they are not granted the same status as their menfolk. The detention of children is specifically opposed by the United Nations High Commissioner for Refugees (UNHCR) and is the only aspect of the policy that has been slightly modified, with release into Woomera township under 24-hour supervision.

Mandatory detention means that nobody can be released until all avenues of appeal have been exhausted. There is no bail or supervised release—either someone becomes ‘lawful’ and enters Australia for three years, or not and is deported. The new dimension, introduced in response to the Tampa crisis, is that over 1,000 people were still detained outside Australian territory on Manus Island (PNG) or Nauru in August 2002. According to the Mr Ruddock, these people are not in detention centres but in ‘camps’. One wonders whether they appreciate this distinction, any more than his earlier claim that asylum seekers on the mainland are not in ‘prisons’ but in ‘detention centres’.

In recent years, the government has told so many lies and obscured so many truths that it is hard to assess their defence of current policy. Essentially they argue that:

  • migrants without visas must be detained or they would disappear into the general community

  • migrants without visas are not asylum seekers legally entitled to recognition as refugees under the terms of the 1951 Convention and the 1967 Protocol on the Status of Refugees, to which Australia subscribes

  • migrants without visas are brought by criminal ‘people smugglers’ and present a security or crime threat to Australia

  • future migrants without visas must be deterred by strong measures against those who have already come

  • asylum seekers without visas are jumping the orderly queue of 4,000 UNHCR refugees approved annually for admission to Australia

  • (more recently) Afghan asylum seekers who may have been refugees are no longer so because of the overthrow of the Taliban.

The government does not deny that most people arriving without visas come from dangerous situations.

With few exceptions, recent asylum seekers are from Afghanistan, Iraq, and Iran. Australia has been much more willing to accept Iraqis than the others. (In 2001, about 5,000 Iraqis were given refugee status, compared to about 800 Afghans. Moreover, Afghans are now being advised and assisted to return home; Iraqis are not). The legal definition of a refugee has also been tightened by recent legislation. The government does not deny that most people arriving without visas come from dangerous situations. The point is that in themselves such situations no longer entitle arrivals to refugee status. The government believes, contrary to much evidence, that Afghanistan is now a safe country for return and is prepared to pay Afghans to go back there. Several issues have dominated recent discussion:

  • is Australia meeting its obligations under the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights?

  • is it necessary to detain everyone who has not been finally cleared?

  • should women and children be detained?

  • are the detention centres being managed humanely?

  • how many of those detained are entitled to refugee status?

  • have we deterred further arrivals?

  • is there a better way?

  • are the monetary and human costs justified?

The answers to these questions are not always clear cut, although the government defends itself rigidly over all of them. Many Australian and international lawyers question our implementation of the Convention on the Status of Refugees, as does the UNHCR. No other democracy detains all people arriving without documents. Many release asylum seekers into the community awaiting clearance unless they believe that there is a serious risk of them absconding. Entitlement to refugee status was being extended to the majority of asylum seekers both by Australia and the UNHCR until the overthrow of the Taliban. Australia then withdrew recognition from nearly all Afghans—they were ‘refugees’ when they set out but not after months of internment. The detention of women and children is universally condemned and may breach other Conventions, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. This is currently being investigated by the Human Rights and Equal Opportunity Commission. The management of the centres, and especially Woomera, is subject to commercial-in-confidence considerations, to Departmental monitoring, and to the eventual granting or denial of contract renewal. Many argue that a private prison company is not suited to the task. Access by journalists is heavily restricted in a manner very similar to prisons.

No other democracy detains all people arriving without documents.

Many better ways have been suggested by myself and many others. The government has rejected all these, although Minister Ruddock did visit Sweden among other states to look at their highly praised model. The often-repeated fear of government is that if anyone is released they will ‘disappear into the community’. This has not worried other states, including those receiving far more asylum seekers than Australia. Nor did it worry Australia before 1991, when asylum seekers were usually housed in open reception centres as in other countries. It would certainly be feasible to require regular reporting to the police, as was done for all aliens before 1956 and is done for those out on bail. The basic question is one which government has been reluctant to discuss: is the huge expense, denial of human rights, unfavourable international publicity, and rigidity of the current policy worthwhile?

Few deny that there should be entry control and that initial detention and eventual deportation must be part of any immigration system. Few deny that the asylum system can be abused—as it is in Europe. There is little evidence of this in the Australian case, despite official attempts to identify Pakistanis among the Afghans. Few would deny that our refugee policy has moved from the compassion and common sense of twenty years ago to the rigidity and repression of today. Australia now makes it almost impossible for those seeking refuge to arrive and be settled as they were in the past. It takes only 4,000 refugees, which it selects itself, has done almost nothing to alleviate the Afghan refugee crisis, and has cut its contribution to the UNHCR. It acts as arresting officer, prison guard, judge, jury, and eventual deporter, usually for people who may not be technically refugees within a steadily tightened definition, but who, nevertheless, come from desperate situations requiring a humanitarian response.

The government now claims that the ‘Pacific solution’ of interning people outside Australian territory has been a ‘success’. Yet over 100 people have recently been allowed to settle in Australia from Nauru on temporary protection visas because no other country, apart from New Zealand, is prepared to take them and the deadline for remaining on Nauru has passed. Those allowed in are mainly Iraqi families with Australian connections. Afghans are still expected to return home and there is still no public indication of what will happen to the remaining 1,000 or so who are still on Nauru and Manus Island. At a cost of many hundreds of millions of dollars a result is being quietly achieved that could have been finalised months ago had not John Howard declared that post-Tampa arrivals would ‘never’ settle in Australia.

Refugee policy has moved from compassion and common sense to rigidity and repression.

The overall detention policy is also declared a success because no boats have arrived since the November 2001 election. There are many reasons for this, including better naval and aerial supervision, an agreement with Indonesia to deter departures, the sinking and loss of life of one boat, and the reduction in pressures from Afghanistan after the overthrow of the Taliban. It may well be that news of the Australian detention policy has reached intending asylum seekers. But the government does not believe that the solution is permanent, otherwise it would not be spending $250 million on new detention centres at Port Augusta and Christmas Island.

The events of the past year have been the most discreditable episode in Australian history since the end of the White Australia Policy. If, indeed, a large majority of Australians support current policy, it is a sad comment on their humanity. In their defence it must be added that the government has used every known means of propaganda, including lies, distortions, special pleading, demonisation, and denigration. It has also acted internationally to make life even more difficult for asylum seekers than it already is, lining up with some of the most reactionary forces in European politics to do so.


Mares, P. 2001, Borderline, University of New South Wales Press, Sydney.

McMaster, D. 2001, Asylum Seekers, Melbourne University Press, Melbourne.

Maley, W., Dupont, A. et al. 2002, Refugees and the Myth of the Borderless World, Research School of Social Sciences, Australian National University. [Online], Available: [2002, August].

Dr James Jupp is Director of the Centre for Immigration and Multicultural Studies at the Australian National University. He is editor of the encyclopaedia The Australian People (Cambridge University Press, 2001)and has just completed a book on Australian immigration policy, From White Australia to Woomera, to be published in September.