A Brief History of Mandatory Detention in Australia
Excerpt of Section 6.2, Chapter 6, HREOC report "A Last Resort?" of its National Inquiry into Children in Detention.
What is the history of mandatory detention in Australia?
Prior to 1992, Australian law permitted the detention of certain persons who were in Australia without a valid visa but did not require it. The introduction of mandatory detention laws in 1992 was a reaction to the arrival of 438 Vietnamese, Cambodian and Chinese 'boat people' to Australia's shores between November 1989 and January 1992. Concerns about another 'influx' spurred bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa.
The 1992 legislation both required mandatory detention of certain 'designated persons' and prevented any judicial review of detention by specifically providing that 'a Court is not to order the release from custody of a designated person'. However, the legislation did impose a 273-day time limit on detention.
Another increase in boat arrivals and asylum applications in 1993 and 1994 resulted in the Parliament broadening the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa.
The 1994 legislation also removed the 273-day time limit on detention and instead provided that an unlawful non-citizen could only be released from detention on the grant of a visa, removal or deportation from Australia. The 1994 amendments also introduced a non-compellable discretion in the Minister to issue bridging visas which would allow for the release of persons who were otherwise mandatorily detained. The limitations on judicial review of detention that were introduced in 1992 remained.
In 1999, the Australian Government introduced legislation that increased penalties for 'people smuggling' offences and that prevented this Commission from sending letters informing detainees of their right to legal assistance. However, that legislation did not alter the mandatory detention provisions regarding unlawful non-citizens.
The next major change to the mandatory detention policy occurred in September 2001 when a raft of amending legislation was enacted in reaction to what has become known as 'the Tampa crisis' and in pursuit of the so-called 'Pacific Solution'. Amongst the series of changes that were introduced by this legislation was the designation of Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as 'excised offshore places'. The legislation enables the transfer of persons who are intercepted at sea or who land on any of those excised offshore places, to processing centres on Nauru or Manus Island in Papua New Guinea. The legislation also prohibits those persons from making a protection visa application, other than at the discretion of the Minister. See further section 6.4.4 on the 'Pacific Solution'.