Mandatory Detention has become the name given to the policy of the recently reelected Coalition Government and its Labor predecessor with respect to people who arrive in Australia without having received permission to enter from the Australian authorities. If they seek refugee status, the Department of Immigration and Multicultural Affairs will detain them until it decides either that their claims are without possible merit, or to grant them refugee status then and there; those whose initial claim is denied and who wish to persevere may then apply to a Refugee Review Tribunal. Such appellants continue to be detained until a Tribunal deals with their applications. It appears that of all the countries subscribing to the U.N. Convention and Protocol Relating to the Status of Refugees, only Australia detains all applicants during this period.

Yet many Australians believe that Mandatory Detention, understood in this sense, is mistaken and unnecessary. It may be useful, therefore, to try to set it in its historical context, and to draw three lessons. I am emboldened to do so by a well informed activist having said that an earlier paper of mine had taught him things he didn't know about events from 1975 onwards; also by the fact that, going further back, some of Mandatory Detention's most powerful critics have rightly seen it as having similar sources to the old White Australia policy, but have suggested, wrongly I think, that that policy was based on utterly groundless fears.[1] To believe that is to be unfair to earlier Australians; and because no nation can break quickly and completely with its past, such a belief can undermine our confidence in our ability now to deal responsibly with would-be migrants of non-European ethnicity.

In the first history of the White Australia Policy, published in 1923,[2] Myra Willard made a mistake at the other extreme. She wrote that

in the formation of their policy the leaders of the people were not actuated by any idea of the inferiority of the mentality or physique of the excluded peoples.

Unfortunately, they were! In this centennial year of Federation, we have been reminded more than once that one of the first Acts passed by the new Commonwealth Parliament was an Immigration Restriction Act. It was one which no member opposed, while the speeches about it by Barton and Deakin, and on the Labor side Watson and Billy Hughes, show almost all speakers as regarding the peoples excluded as inferior. Other and less objectionable arguments were, however, also employed.

So let us go back, briefly, to the 1850s, 60s and 70s, before Australian opinion had come almost unanimously to favour the exclusion of non-whites, and before 1880 had seen the publication in Sydney of the first issue of The Bulletin, with its coarsely offensive motto :

"Australia for the White Man, and China for the Chows".

There had been some discussion of, and opposition to, the admission of non-white labourers as far back as the 1830s and 1840s. The question, however, received a lot more attention once large numbers of Chinese arrived during the Gold Rushes. The first rush was to Victoria where by June 1857 there were some 40,000 Chinese, almost all men, constituting about one-sixth of the male population[3] - excluding aborigines, of whom no account was taken in the statistics or in most other respects.

In Victoria, which had only just separated from New South Wales, there was a Legislative Council, elected on a property basis, as well as a Legislative Assembly for which all adult white males were entitled to vote. If racial difference had been ignored, those Chinese who wanted to stay and who gradually acquired enough property could have enrolled to vote for the Legislative Council, to the mutual advantage of themselves and the whites. But if the 40,000 Chinese, very few of whom knew any English, had been allowed to vote for the Legislative Assembly, many could have been ordered by the Chinese businessmen who had paid their passages and to whom they were often indentured, to vote in a way that was not necessarily in their own interests. One of the world's first experiments with a democratic lower house of parliament would have got off to a rocky start.

Of course, if the whites in Victoria had had a halfway decent attitude towards other races, they could before very long have brought the Chinese into the political process. It is, however, worth mentioning the political grounds for supporting a White Australia as well as the more frequently mentioned economic effects upon Victoria's unskilled whites, and even on some of its skilled whites, of the possible immigration of huge numbers of migrants with few marketable skills.

From a mixture of motives, Victoria acted in 1855 and soon got South Australia to join it in restricting the entry of Chinese. Of the measures employed, probably the most effective and certainly the least objectionable morally were entry taxes, and restrictions proportionate to a ship's tonnage on how many Chinese that particular ship would be allowed to land. Because of these measures, plus the movement of some Chinese to New South Wales (which also, however, in 1861 restricted entry), because most of the Chinese men had always intended to return home soon,[4] and because in the 1860s there was a big drop in the number of Chinese emigrating anywhere,[5] the number in Victoria fell quickly. In consequence, between 1861 and 1867 the three Australian colonies repealed their restrictive laws. It is unfair to suggest that their white inhabitants were panic stricken about imaginary contingencies. And it is worth noting that in each colony, when the imposition and later repeal of the restrictions were debated, while some of the politicians who opposed discriminatory restrictions may have stood to lose as employers or shipowners if Chinese were excluded, there were others who did so because they thought that discrimination was unethical.[6]

By the 1870s, Chinese emigration revived -- notably to Queensland, where the 17,000 Chinese north of Townsville were roughly equal in number to the white males in that region. Their admission came to be blocked, both to Queensland and again to the three south-eastern colonies, though not, however, to Western Australia, which up to the end of the 1870s encouraged the entry of non-white labour. Then, in the mid-1880s, mineable gold was discovered, a big influx of Chinese was feared, and their immigration was restricted.[7] Only in Tasmania, where the tin mines in which Chinese worked were more important until the 1880s than gold, were the Chinese not shut out. Eventually Tasmania came into line with the other colonies, but reluctantly, and only after the Intercolonial Conference of 1888 where its Premier, Philip Fysh, took a fine stand against exclusion, stressing

the importance of allowing free entry of wives so that Chinese residents could have a normal family life[8]

-- a theme to which we will return.

Yet in one respect many advocates of the colour bar were more far-sighted than some of its opponents who, like Waterhouse in the South Australian parliament or Darvall or William Forster in the New South Wales equivalent in Macquarie Street, might support their moral objections by arguing that the Chinese weren't coming, and weren't anxious to come, in large numbers. They may not have been allowing for the difference steamships would make, an understandable oversight since even as late as 1880, most passengers from Europe were still arriving under sail.[9] But contrast two periods in the history of the United States. In the years between 1820 and 1880, and although the State of California used such constitutional power as it had to keep the Chinese out, the Government in Washington DC placed no restrictions on migrants and about 10 million arrived, mostly from Europe. During the next 44 years, however, and even though in 1882 the United States prohibited Asian immigration, 26 million migrants had arrived until their entry was cut back drastically in 1924.[10]

Why did so many Europeans come? Often to escape persecution, with that motive eked out by the fact of living standards, in some parts of Europe especially, being so much lower than in America that for them as for other emigrants. the economic motive might have been sufficient. Even the poor could obtain finance in various ways to pay for their passages. And whatever the effects of that inflow on income per head within the United States - which is not the only relevant consideration - the competition of huge numbers of migrants with limited skills in a virtually unregulated labour market undoubtedly meant that many Americans, including many of the immigrants who'd arrived a little earlier, had to put up with even lower wages, even longer hours and even worse working conditions than they would have experienced anyway.

For several reasons Australia was less attractive than North America to poor emigrants from the European Continent, but if millions of Asians had poured in, they would have had a similar impact on wages, hours and working conditions. Ideally, not millions, please, but before long tens of thousands of Asians should have been admitted annually, as they are now. However, for that the Australians of the time were, of course, quite unready.

So let Lesson 1 to be drawn from our history be not to rest proposals or arguments on the assumption that huge numbers won't seek to come here from poorer countries, or that there may not be serious difficulties if too many come in any particular period.

Once the Australian colonies had federated and the Immigration Restriction Act was passed, most of the Pacific Islanders here were deported, but not Asians who had been born overseas and had arrived legally. Section 3 (n) of the Act provided for the readmission to Australia of persons who'd taken a trip abroad and who, though not born in Australia, had been domiciled here; while Section 3(m) gave exemption to wives accompanying husbands if the husbands were not prohibited immigrants, and to "all children apparently under the age of eighteen years accompanying their father and mother". (It was shrewd and sensible to include the word "apparently".) Yet after the clause had operated for a mere fifteen months and the 2080 Chinese returning to an Australian domicile had brought in only 88 family members, the Japanese only 12, the Indians only 12 and the Syrians 50, the non-whites were accused of taking improper advantage of the exemption provided, the clause was suspended and in 1905 repealed. Four Opposition Members of the Federal Parliament opposed repeal, three because of the hardship caused and because it offended "those principles of equity and justice which ought to prevail among all civilized nations", the fourth because he didn't want the Chinese "to marry our white women". "No", replied Deakin, "we want them to go back to China and marry there"[11] and - he might have added - not return.

When exclusion was given effect to, the Commonwealth used a method three of the colonies had employed previously, which was to require anyone not born in Australia and whom it was desired to exclude to pass a dictation test in some language they didn't know. Then, during the First World War, passports were introduced by Australia and other countries, and these could be used to keep out anyone whose immigration was not desired. Nothing much changed, therefore, when in 1958 the dictation test was abolished, nor did Australian law need to change when the White Australia policy was ended at last in January 1973. That could not have happened, however, if occasional early criticism had not been followed by a prolonged debate, erupting towards the end of the Second World War and intensifying from the middle 1950s onwards. The arguments for and against a change were widely canvassed all over the country, as widely as could be expected on any issue about which all political parties agreed, often with some passion, and which therefore for a long time was taboo in Parliament.

The discussion, however, was always of proposals which involved setting and enforcing limits to the number of Asian or other non-European migrants who would be admitted within any period. Likewise, the European migrants who were welcomed after the Second World War were only sought within numerical targets.

Friends of today's asylum seekers need to realise how sharply this situation contrasted with what could have developed at any time after December 1973, when Australia acceded to the Protocol to the United Nations Convention concerning Refugees. To the Convention itself Australia had acceded as far back as January 1954. But the Convention only applies to persons who became refugees "as a result of events occurring before 1 January 1951". The Protocol removes this restraint, thereby greatly widening the range of persons whom the Convention protects. It means that if anyone arrives in Australia, with or without a permit to enter, and can make good a claim to refugee status, they acquire a right not to be sent back to the country from which they have fled. By acceding to the Protocol, Australia acquired no legal obligation to give them the right of permanent or even temporary residence. But if it is not to do so, it needs to find a third country that is willing to accept them. If no such country can be found - and other countries are, as we know, likely to argue that Australia can accommodate all the refugee claimants who get here, and more - then Australia becomes obliged, legally as well as morally, to allow the genuine refugees to stay. In that sense its duty to unauthorised asylum seekers once assessed as genuine differs sharply from its morally but not legally binding duty to approve for admission some of the refugees overseas who also need desperately to be settled, safely and for as long as they want to stay, on some part of this planet.

1975 saw the coming to power of Communist governments in Vietnam, Cambodia and Laos. The result was to create a refugee problem to which all the Western democracies would eventually respond, and none more so, proportionately to its numbers, than Australia where by 1995 190,000 refugees and other migrants from what was formerly Indo-China had settled[12] - slightly over one per cent of our population. However, almost all had been accepted by the Australian government before entry. A mere 111 'boat people', as they came to be called, arrived without authority in 1976, then 876 the next year and 746 the year after. But this was enough to trigger off fears that many more might come. Indeed one reason why we accepted so many was the hope of persuading others not to come on, uninvited, from countries to our north - Malaysia, Thailand, the Philippines and Indonesia - where they had been given temporary residence. Another was the hope of alleviating the burden which these countries had shouldered, and of inducing their governments not to assist, and preferably to check, further unauthorised movement. So that by 1995 only around 4,000 'boat people' had arrived,[13] then 2000 in the four years to 30 June 1999, then 4175 in the following year, 4141 in 2000-2001 and according to Minister Ruddock, about 3000 in August, September and October of 2001.[14]

For the first time Australian policy had put no ceiling on the number of non-Europeans whom it would allow to immigrate, in the sense that uninvited entrants, if deemed to be refugees, would in practice come to settle here. And one product of that situation was a proposal put to the Labor Party's national conference in July 1979, that unauthorised entrants to Australia should be cared for on behalf of the United Nations until arrangements could be made for their final settlement in a number of countries, Australia included. The proposal didn't bind a future Labor government to hold them in a transit camp or camps, but that was certainly implied. So in view of the criticism a few well-meaning folk have levelled at the whole idea of detention centres, perhaps I have a duty to mention that the Sydney Morning Herald for July 9 in the same year contained an article endorsing this proposal "if necessary, but only as a last resort". It was by the late Phil Grouse, chairman of the Indo-China Refugee Association in New South Wales, and myself as chairman of the New South Wales Association for Immigration Reform, which had been one of the state Associations campaigning against the White Australia policy and had stayed in existence to help in the struggle on the refugees' behalf. Together we ventured some suggestions as to how transit camps could be set up and run humanely. As it happened, the numbers of arrivals entering without authority and claiming refugee status soon fell off and our ideas would very likely have been ignored anyway, but it should be put it on record that no one objected to an article entitled "Refugee Camps in Australia?", least of all anyone in either of our organisations.

Today detention centres for unauthorised entrants exist in a big way, and Australia's are widely known to have many unsatisfactory features. The great majority of detainees are held at Woomera in South Australia and at Port Hedland and Curtin in Western Australia, at a distance from capital cities which makes it very hard for their lawyers and friends to get access to them. If this was just a result of vacant military or other accommodation being available there, it might be hard to object. But holding all new arrivals in such places and making it hard to communicate with them is, alas, a deliberate policy, which the Government defends on what grounds? That it may deter other asylum seekers, most of whom have been through so much, from crossing the ocean at great risk in the hope of having a chance to apply and see whether they will be allowed to settle. Nor can even that excuse be offered for the staffing of the centres being entrusted to a private profit-making enterprise, an expedient which has still to prove itself as regards the detention of criminals, and which is totally inappropriate for the custody of men, women and children not one of whom is being held after conviction for a crime.

In combating the mandatory detention of these people, it must be said, however, that we have not been helped by some advice from the Office of the United Nations High Commissioner for Refugees. That body has done immense good, but like any organisation worth its salt, it occasionally says the wrong thing, and you may think it did so in 1986 when its Executive Committee made recommendations the substance of which can be found at its website in a statement announcing Revised Guidelines for the Detention of Asylum Seekers. These were issued in revised form as recently as February 1999.

In this document, almost all of it valuable, Guideline 3 "Exceptional Grounds for Detention" sets out four grounds to which no sensible person could object. It makes no mention, however, of the ground relevant to most unauthorised entrants, namely the fear that unless detained they may disappear rather than wait till their claims for asylum have been ruled upon - the fear that if they are released on a parole, they'll break it. And for the Executive Committee of the UNHCR not to name this as an acceptable ground for detention is, to speak plainly, an act of hypocrisy on the part of almost all the governments represented on that committee.

That the possibility of absconding should not be mentioned as a proper ground for detention obviously reflects the position of some countries in Europe which now contain many more unauthorised entrants, proportionately to population, than does Australia's, and which have wisely decided not to try to detain all of them. This situation of vulnerability can produce deeper fear and resentment than has been caused for many years by the presence of non-European entrants to this country. It is an asset to race relations here, not a hindrance, that Australia polices its seaboards. So do the United States and Canada despite having very permeable land borders.

It is not surprising that a number of important Australian organisations - including the Australian Council of Social Services and the Australian (now National) Council of Churches, as well as Amnesty International and the Refugee Council of Australia - have not completely followed UNHCR's lead in this matter. In 1994 these bodies issued a Charter of Minimum Requirements for Legislation Relating to the Detention of Asylum Seekers, followed in 1996 by an Alternative Detention Model, which the Human Rights and Equal Opportunity Commission drew on in a 1998 report entitled Those Who've Come Across the Seas: Detention of Unauthorised Arrivals.[15] The Model mentions as one acceptable ground for detaining an applicant for refugee status "a strong likelihood that the applicant will abscond".[16]

Very seldom, however, would a government be able to demonstrate that an asylum seeker, arriving without authority and perhaps without any documents, and about whom to begin with it may know almost nothing, that this unfortunate person, if set free on a parole, would be likely to abscond before a decision was reached on his or her application. We are told that the language used in the Alternative Detention Model was drawn from the New South Wales Bail Act. However, when you look at the conditions set out there on which bail should be granted to anyone,[17] Australian citizens included, it becomes clear that very few asylum seekers who enter Australia without permission would meet those conditions. The suggestion by the non-government organisations was a move in the right direction, but it didn't go far enough.

Discussions about revising the Alternative Detention Model are, I believe, under way. And meanwhile the President of the Human Rights and Equal Opportunity Commission, Alice Tay, an Emeritus Professor of Law from Sydney University, has offered a short alternative on this particular matter. In December of last year, she proposed that "individual assessments would be made on the risk of absconding".[18] This would be consistent with something being said in general terms as to which asylum seekers are so unlikely to abscond that they ought not to be held. Some families, especially if they include small children, or the frail aged, or persons with very visible disabilities are among the categories who should be released after giving a parole which they would be most unlikely to break. Discretion to deal with cases individually would allow many detainees to be released even if they were outside these categories.

Reaction to the Tampa incident only confirms what was clear much earlier, that unless opponents of Mandatory Detention are prepared to put up alternatives of that kind, we will never modify the present policy. Boat refugees are detected by expensive sea and air patrols or rounded up by land patrols. Given the scale of the deterrent effort and the current political climate, any Australian Minister or Shadow Minister for Immigration would face public and parliamentary ridicule if he or she were to argue that asylum seekers, except for those judged to present a threat to the nation's security, should always be left at large until the date when they are booked to appear before an appeal tribunal.

In an experiment in the United States in 1992, 2000 detained asylum applicants were interviewed, of whom 32 per cent were released on parole and of these about 95 per cent turned up in due course to have their claims considered.[19] This experiment has rightly been cited by critics of Mandatory Detention. But of course the experiment only gave such promising results because 68 per cent of the persons who had been considered for release continued to be detained.

Mass entry of unauthorised asylum seekers is a possibility anywhere, especially perhaps in Australia with its long readily accessible coastline and closeness to Asia. Any immigration policy for this or any other rich country must be framed and administered so as to take account of the fact that in the future as in the past, huge numbers from poorer and less tolerant parts of the world will want to immigrate, and that some are likely to seek to do so without permission. It is not inherently unreasonable to detain asylum seekers who, if they broke parole instead of awaiting decisions, might think they had a good chance of not being picked up -- provided the authorities realise that this is not true of all asylum seekers.[20]

So let Lesson 2 from history be to remember the novelty for Australians of the situation they let themselves in for by acceding to the Protocol, under which potentially unlimited numbers may enter and settle. And let us offer an alternative to Mandatory Detention that is, potentially, acceptable.

Which brings us to Lesson 3: don't let our treatment of unauthorised asylum seekers repeat one of the ugliest details of the old White Australia policy, and be even worse.

Even before Parliament passed seven Acts on the eve of the recent election, asylum seekers who had come to Australia without permission, and been granted refugee status, had been unable immediately to obtain the right of permanent settlement, only 3 year temporary residence permits which might or might not be renewed. The result has been that they, and any family they may have with them, have had to live in uncertainty as to whether they will be allowed to remain here after the three years are over. They have been denied some of the modest benefits available to other refugees: English language tuition, assistance in obtaining jobs, and Commonwealth-funded 'on arrival' accommodation. Their situation has made it very hard for them to obtain employment And perhaps worst of all, if their spouses and children are outside Australia, they have been unable to arrange, as permanent settlers can, to bring in these very close relatives, nor even to visit them overseas if that's practicable and then return alone to Australia.

The laws recently agreed to by the main political parties have many very objectionable features, but the one I want to put in historical context is that unauthorised asylum seekers - other than those who arrive in Australia direct from their country of origin, which is unusual - will now never be given the right of permanent residence, unless the Minister exercises a non-compellable discretion. Otherwise they will never be able to bring in their spouses and children, nor to visit them and then return.

These provisions are defended as discouraging asylum seekers from trying to come here. They are a cruel, roundabout, ineffective and most unpromising way of pursuing that aim. To try to force Asian or Middle Eastern men to leave Australia by refusing to let their families join them is to repeat the horrible mistake of 1905, and to do so in respect of refugees of proven genuineness who, unlike the Chinese at the earlier date, may never be able to go back to the countries from which they came.

This is almost certainly contrary to our obligations under several international agreements. But whether or not the High Court is free, and chooses, to disallow any of the recent measures, you may feel you should speak of that particular measure as perhaps the vilest in the immigration history of this country.

Notes

[1] Peter Mares, Borderline : Australia's treatment of refugees and asylum seekers (Sydney, UNSW Press, 2001) pp. 27-31; Marcus Einfeld, "Detention, Justice and Compassion" in Mary Crock (ed.) Protection or Punishment? The detention of asylum seekers in Australia (Sydney, Federation Press, 1993) p.47.

[2] Myra Willard, History of the White Australia Policy (Melbourne University Press, 1923) p.191.

[3] Charles A. Price, The Great White Walls Are Built: restrictive immigration to North America and Australasia (Canberra, Australian National University Press, 1974) p.71.

[4] Ibid., pp. 67-74.

[5] Ibid., pp. 126-7.

[6] Ibid., esp. pp. 71, 75-79, 84-89, 105-106, 117-118.

[7] Ibid., pp. 168, 182-183.

[8] Ibid., pp. 190-191.

[9] Geoffrey Blainey, The tyranny of distance ( Melbourne, Sun Books, revised ed., 1983) p.221.

[10] George J. Borjas, Heaven's Door: immigration policy and the American economy (Princeton N.J., Princeton University Press, 1999) p.7.

[11] A.T.Yarwood, Asian Migration to Australia: the background to exclusion 1896-1923 (Melbourne University Press, 1964) pp. 67-69, 77-79.

[12] Nancy Viviani, The Indochinese in Australia 1975-1995 (Melbourne, Oxford University Press, 1996) p.159.

[13] Ibid., p.28.

[14] Annual Reports of the Department of Immigration and Multicultural Affairs; Sydney Morning Herald, 7 November 2001.

[15] Sydney, Human Rights and Equal Opportunity Commission, 1998.

[16] Ibid., p.251.

[17] NSW Bail Act 1978 No. 161, Section 32 (1) (a), Section 37 (1) (a) (i).

[18] Alice Tay, "Treatment of refugees should come from the heart", Sydney Morning Herald, 19 December 2000.

[19] Arthur C. Helton, "Reforming Alien Detention Policy in the United States" in Crock, op.cit., pp. 103-115.

[20] The Refugee Council has kindly given me permission to defend this opinion on its website. See http:/ /www.refugeecouncil.org.au./Rivettmodel.htm

Kenneth Rivett is an Honorary Visiting Fellow in the Economics School of the University of New South Wales, where he was formerly an Associate Professor. He has been Chairman of the Australian Institute of Multicultural Affairs, the NSW Association for Immigration Reform and the Indo-China Refugee Association (NSW), and a member of the National Population Council. Currently he is a Trustee of the Australian Refugee Foundation. His publications include Immigration : Control or Colour Bar? (1962) and Australia and the Non-white Migrant (1975), books which he edited for the Immigration Reform Group.

Paper presented at the International Conference "The Refugee Convention, Where to from Here?" convened by the Centre for Refugee Research (Sydney, December 2001).

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