Last updated: July 2008

Australia Detention Profile

History and Politics  

Early history. Although migration related detention in Australia has been a politically volatile issue in recent years because of the country’s controversial policies on offshore processing and detention of asylum seekers, much of the country's history is bound up with notorious immigration policies.

After James Cook mapped the East Coast of Australia in 1770, Great Britain began establishing penal colonies on what it then called New South Wales (Australia Bureau of Statistics 1998). During the late 1700s and early 1800s, some 160,000 criminal convicts were sent to Australia, which led to the decimation of the native population and the creation of a population of forced laborers who worked to build Australia into a nation (Hughes 1987).

 

Since the late 1700s, the British colonial administration, and later the Australian federal and state governments, placed immigration at the heart of public policy, recruiting, subsidizing, and encouraging immigrants to settle in Australia (Castles 1992; Hughes 1987). These policies historically focused on European immigrants, with most newcomers to Australia originating from Britain until the mid-1900s (de Lepervanche 1975 in Castles 1992). However, during the 1800s, small waves of non-European immigrants began arriving, including Pacific Islanders who were recruited to work on plantations and Chinese settlers who came during the 1850s gold rush. These Asian immigrants often faced harsh racism, especially during the period of growing nationalism that preceded the establishment of the Federal Australian Parliament in 1901 (MacQueen 1970 in Castles 1992). That same year, the government introduced the Immigration Restriction Act, more commonly known as the “white Australia Policy.” This blocked non-Europeans from immigrating to Australia (Castles 1992; Jupp 1995).

 

Post-World War II. Shortly after World War II, the government created the Department of Immigration, in part to help boost the Australian economy by encouraging the growth of the population, which at the time totaled just under 8 million. Immigrants have since accounted for approximately 40 percent of population growth. Immigration policy remained primarily oriented toward Britain, with the 1945 Immigration Minister, Calwell, declaring a balance sheet of “ten British immigrants for every ‘foreigner’” (Wilton & Bosworth 1984 in Castles 1992). When labor shortages demanded more than the British could supply, eastern European refugees were invited, resulting in 180,000 settling in Australia between 1947 and 1951. Germany, the Netherlands, and Scandinavia also boosted the figures in those years (Collins 1988 in Castles 1992; Jupp 1995).Southern European migrants were also invited to fill the labor demands, with recruitment agreements established with Italy, Greece, and Malta during the 1950s and 1960s. However, while British and northern European migrants were given assisted passages, could bring their families, and had full labor market and civil rights upon arrival, immigrants from eastern and southern Europe received less assistance, had no right to family reunion, and were shepherded into unwanted jobs (Collins 1988 in Castles 1992).

 

In 1958, with the country’s immigrant population steadily growing and diversifying, Australia introduced the Migration Act, which covers the entry into and presence in Australia of immigrants, the departure or deportation of immigrants and other persons from the country, and the grounds for holding persons in immigration detention (Migration Act 1958). The Act also gave recognition to the status of refugees. Four years earlier, in 1954, Australia signed the 1951 Convention Relating to the Status of Refugees. However, according to Amnesty International-Australia (2007), “The Refugee Convention is incorporated only by definition of the term 'refuge' in the Migration Act 1958 and not by specifically implementing obligations of the convention.”

 

The period following passage of the Act was characterized by flexible practices in both immigration and asylum. After the Vietnam War, for example, when more than 2,000 Vietnamese boat people arrived in Australia, the country adhered to the Refugee Convention’s principle of non-refoulement and accepted the refugees. As the European migrant well dried up in late 1960s, the White Australia Policy was slightly relaxed. Yugoslavia and Latin America became the new migrant targets (Castles 1992). During the global recession of the 1970s, the Australian Labor government abolished the White Australia Policy. In its place, entry criteria unrelated to race, ethnicity, religion, or national origin were introduced (Castles 1992). In the late 1970s, immigration reached approximately 100,000 per year (Collins 1988 in Castles 1992).

 

The 1970s and 1980s. As the numbers of asylum seekers settling in Australia continued to increase in the 1970s,the government sought to put a cap on the figures, hardening its position on the acceptance of asylum seekers. In 1977, the government endeavored to solidify its position on the debate between Australian National Sovereignty and International Refugee Law and Human Rights. It declared that Australia retained the right to decide whether to accept and grant entry to asylum seekers (Joint Standing Committee on Migration Regulations 1992, in Stevens 2002).The processing of refugees and asylum seekers was streamlined with the establishment of the Determination of Refugee Status Committee in 1978, an inter-departmental committee consisting of representatives of the Departments of Immigration and Ethnic Affairs, Foreign Affairs, Prime Minister and Cabinet, and the Attorney General (York 2003). Applicants who were not granted refugee status could appeal to the Federal Court.

 

Since the early 1980s, immigrants have primarily come from Asia despite steady streams of immigrants from Britain, New Zealand, and some Eastern European countries (Jupp 1995). The 1989 Migration Amendment Act, which clearly defined selection criteria for each visa category, restricted the court’s ability to overrule status determinations. Asylum seekers had to prove that they suffered from natural disasters or political upheavals, and the countries that could produce refugees had to be formally approved and published by the Minister for Immigration (Stevens 2002).

 

The 1958 Migration Act was codified in 1989 through the Migration Amendment Act, with the implementation of immigration restriction legislation, including administrative detention for all immigrants (excepting New Zealanders) who arrived without a valid visa. The judiciary was not permitted to over-turn administrative detention rulings, but could only review each case in order to determine instances of legal errors (Krongold 2007). Detainees were denied access to bail, and there was no limit to the length of their detention. When asylum was not granted, asylum seekers were removed by the carriers that brought them into Australia. When Chinese, Cambodian, and Vietnamese boat arrivals increased in the late 1980s, Australia placed them in unfenced migrant “hostels” located in major state capitals. Complex determination processing, linguistic barriers, and lack of legal expertise in rapidly evolving migration laws resulted in extensive periods of detention. The Western Australian Port Hedland processing centre was opened in 1991 in order to streamline migration processing (Stevens 2002).

 

Further amendments to the Migration Act in 1991 empowered the Minister for Immigration with the ability to individually deny asylum seekers a visa. Humanitarian claims were no longer recognized when asylum visas were applied for within Australia, reinforcing the offshore program. After the 1989 Tiananmen Square massacre, 20,000 People’s Republic of China short-term visa holders applied for asylum within Australia. While none were forced to return to China against their will, the government introduced a four-year Temporary Protection Visa (TPV), in place of permanent residency. TPV holders had access to the same support as permanent visa holders, but they could only apply for permanent residency if further protection was required at the end of the four-year period. In 1993, permanent residency was re-introduced for asylum seekers (Stevens 2002).

 

The Keating Government (1991-1996). The Labor government of Prime Minister Paul Keating (1991-1996) saw the introduction of a number of reforms that restricted the access of both immigrants and asylum seekers. Mandatory detention of “unlawful immigrants,” which remains the official policy of Australia (as of mid-2008), was introduced in 1992, with passage of the Migration Amendment Act, which received bipartisan support. The policy was the product of mounting concerns over the growing numbers of asylum seekers arriving in Australia during the previous two decades, which the government argued had undermined the country’s ability to protect its borders (Stevens 2002). The amendment made detention mandatory for all unauthorized boat arrivals. Migrants, including their children born in Australia, who arrived after November 19, 1989, and before December 1, 1992, were detained. The maximum length of detention was established at 273 days, and could be prolonged because of legal procedures and appeals (Stevens 2002). Additional immigration detention centres were established during the 1990s in remote areas of Australia, with heightened security (Einfeld 1993in Stevens 2002).

 

The Determination of Refugee Status Committee was replaced by the Refugee Review Tribunal (RRT) in July 1993 to cater for the increase in numbers of refugee applications and to foster the review of on-shore refugee applications. The single-member panels met with the detainees in private and ruled on the status of the applicants. The Minister for Immigration retained the right to override decisions made by the RRT (Stevens 2002).

 

In the early 1990s a number of Chinese nationals applied for and were granted refugee status based on the grounds of China’s one-child policy. The Federal Court found that refugee status can also be granted to members of such an affected group. The Government reacted strongly on 31 January 1995, introducing the Migration Legislation Amendment Bill (No 3) 1995, in an attempt to exclude government fertility control policies as grounds for refugee claims. The UNHCR presented a number of objections to the Bill, claiming that it is "a most unfortunate precedent, not only for Australia but for the world at large” and "a setback in the interpretation and application of the 1951 Convention" (UNHCR in Poynder 1995). Amidst much debate, Bill No 3 was abandoned and replaced by the Migration Legislation Amendment Bill No 4 1995, which was more implementation oriented than Bill No 3. The Government found that the Bill was essentially the same as the previous one and it was also disregarded (Poynder 1995, Australian Lawyers for Human Rights 2003a).

 

The Tampa case and the “Pacific Solution.” The Australian government received international criticism in August 2001 when it blocked the Norwegian MV Tampa freighter, which was carrying 438 mainly Afghan asylum seekers it had rescued at sea, from landing on the Australian territory of Christmas Island. Australia claimed that Norway (flag state) and Indonesia (state of embarkation) were responsible for the refugees, but Indonesia, which had not ratified the 1951 Convention on Refugees, refused to receive them. When the Tampa entered Australian waters without permission, the Australian military intervened. The UN High Commissioner for Refugees recommended burden-sharing, but Australia instead appealed to New Zealand, Nauru, and Papua New Guinea, who accepted the asylum seekers (Baillet 2003).

 

A month after the incident, in September 2001, the Australian government introduced the “Pacific Solution,” a set of legislative changes that allowed for the detention of unauthorized migrants on the island nations of Papua New Guinea and Nauru. The 1958 Migration Act was revised to exclude Ashmore Reef, Cartier Island, Christmas Island, Cocos (Keeling) Islands, and other external territories from Australian territory, creating excised offshore places. Thereafter, people who entered these territories were taken to detention and processing centres in Nauru or Papua New Guinea’s Manus Island. As the migrants had not officially entered Australia, they were denied access to Australian legal protection (Bailliet 2003). Although the government claimed that asylum seekers did have access to standard asylum procedures (DIAC 2007), the United Nations and human rights groups criticized the Pacific Solution for denying asylum seekers access to appeal their detention in Australian courts (Baillet 2003).

 

Amnesty International filed complaints against Australia with the UNHCR and the UN Committee against Torture, claiming that refugee’s rights to freedom and security were being jeopardized. The Australian public, meanwhile, largely supported the changes, re-electing the John Howard government, which had proclaimed victory over a foreign invasion, two months later (Baillet 2003). The media began associating ”illegal immigrants” with Afghans and terrorists (Nicolacopoulos and Vassilacopoulos 2002), and asylum seekers were described as illegal queue jumpers who were arriving in waves and stealing places from legitimate refugees. Fear of a foreign invasion grew, with policy justified through focusing on Australia’s inability to protect its’ borders. Journalists had restricted access to detention centres and primarily received information from official government documents or detention centre officers. Personal stories of the asylum seekers and details of detention conditions were limited (Leach and Mansouri 2004; Suter 2001).

 

In late 2007 and early 2008, international media reported the closure of the offshore Nauru and Papua New Guinea Immigration Detention Centres (BBC 2008; UNHCR 2008). The new Labor government, which had defeated the Howard government in the 2007 elections, accepted seven Burmese asylum seekers detained in Nauru (BBC 2008). The final day of operation of the Nauru Immigration Processing Centre was reported in February 2008, with the remaining 24 Sri Lankans granted asylum status visas, thereby ending the ‘Pacific Solution’ (UNHCR 2008).

 

However, despite termination of the “Pacific Solution,” the new Labor government continued to maintain a firm line on immigration. Responding to questions from the media that suggested the change in policy would relax Australia’s immigration policy, Chris Evans, the Immigration Minister, denied that ending the Pacific Solution would soften Australia’s border policy, and confirmed that boats would continue to be intercepted at sea (BBC 2007). The UNHCR’s regional representative, Richard Towle, while applauding the decision to close the offshore detention centres, expressed concern over the continued detention of refugees on Christmas Island, which remained outside Australia’s “immigration zone,” and appealed to the Australian government to ensure asylum seekers are given appropriate access to refugee determination processes within Australian, including independent appeal rights and speedy processing (UNHCR 2008). Despite calls by international organizations and local NGOs, including the Safecom Project, to close the Christmas Island facility, it remained open as of March 2008 (Project Safecom 2008).

 

On July 29, 2008, Immigration Minister Chris Evans proposed amendments to Australia’s immigration policy that would make mandatory detention of asylum seekers only a practice of last resort. The proposal, if passed by the Senate, would allow irregular non-citizens that don’t pose a security threat to be released into the community while their visa status is evaluated. Those found not to require protection and who do not meet immigration law entry criteria would be removed from Australia. Also under the proposed changes, the Christmas Island offshore detention centre would continue to be used for initial processing, health, and security checks of people intercepted offshore, but detainees would be granted access to legal assistance community while their visa status is evaluated or they await deportation (Senator Evans 2008).

 

Immigration today. Currently, Australia's Migration Program assesses applicants for admission based on criteria established by the Migration Act and Regulations, which can include relationship to an Australian permanent resident or citizen, skills, age, qualifications, capital and business skills, and health and character checks. The Migration Program includes three streams with set quotas each year: Skill, Family, and Special Eligibility. In addition, the Humanitarian Program offers resettlement to refugees and displaced persons who have faced violations of their human rights (DIAC  2008d).

 

A growth in temporary visas granted to international students for study in Australia has seen international education become Australia’s fourth largest export industry. International enrolments made up 15 percent of total revenues for Australian universities and 18 percent of total student enrolments in higher education in 2004 (DFAT 2005).

 

As of June 2005, nearly 25 percent of the estimated resident population of Australia was born overseas. Of those foreign-born residents, a third was born in northern or western Europe, 17 percent in southern and western Europe, and about 12 percent in South-East Asia. 132,000 settlers arrived in Australia between July 2005 and June 2006, originating from nearly 200 countries. The top five countries of origin were the United Kingdom (17.7percent), New Zealand (14.4percent), China (8.0 percent), India (8.6 percent) and the Philippines (3.9 percent) (DIAC Immigration Fact Sheet Two 2008). The multicultural debate re-emerged in Australia during 2006 after ethnic-related riots broke out on Cronulla beach, in Sydney (Soutphommasane 2006). Shortly afterwards, the conservative Howard government introduced a mandatory citizenship test designed to ensure immigrants meet an appropriate level of “Australian-ness” prior to becoming citizens. The Labor Party Rudd government, which succeeded the Howard government, announced it would review the test in order to make it more fair and relevant to migrants of all backgrounds (Sydney Morning Herald 2008).