offered.32 The bill was opposed by a small group of
Liberal backbenchers. Despite the revolt, the bill gained
passage through the House of Representatives. It was
only withdrawn when Liberal Senator Judith Troeth
threatened to cross the floor, which would have ensured
its defeat in the Senate.
‘Out of sight, out of mind’ was elevated to a
principle of policy. 33 Asylum seekers in offshore
facilities did not have rights to legal or administrative
review of their claims and Nauru was not a signatory
to the UN Convention at that time. Author Peter
Mares wrote that ‘The detention deals Australia struck
with Nauru and Papua New Guinea appeared to
violate fundamental laws in both countries.’34 Access
to asylum seekers by human rights lawyers and others
was limited by both regulation and by the island
state’s remoteness. 35 A Parliamentary Committee
visiting Nauru in 2001 found conditions to be
unacceptable; there were claims of violence both
amongst and against detainees, isolation and
handcuffing, unsanitary conditions, hunger strikes
and trauma.36
Amnesty International reported that ‘conditions
were harsh’ and Greg Roberts of the Sydney Morning
Herald, made an undercover visit to Manus Island in
2002 reporting that ‘diseases such as malaria, typhoid
and tuberculosis were widespread’. As federal Labor
MP Carmen Lawrence put it: ‘[T]he lack of hope and
the brutality, both physical and psychological,
produces devastating consequences on human
beings.’37
The government ridiculed critics of mandatory
detention and the ‘Pacific Solution’ rejecting adverse
criticism and almost all recommendations for
improvements. Critics were cast as ‘naïve’ and ‘do
gooders’ who lacked life experience.38 When asylum
seekers went on a hunger strike on Nauru, Immigration
Minister Amanda Vanstone said: ‘it’s not in Australian
territory: it’s on Nauru and being run by other people. If
someone doesn’t want to be there, they can go home.’39
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
By 2004 indefinite mandatory detention was
entrenched, with the High Court accepting that aliens
had fewer rights than citizens. 40 It accepted that
detainees had the power to end their incarceration by
voluntary repatriation.41 The Court also upheld by a
slim margin (4-3) the validity of indefinite detention,
providing that the immigration minister retained the
intention of eventually deporting an individual.42
Minority judges dissented, submitting the
argument that ‘aliens’ power must be subject to the
limitations imposed by other parts of the Australian
constitution. Justice Michael Kirby observed that while
Australia has no equivalent of the US Fifth
Amendment the requirement in our constitution that
only courts can impose punishment had a similar
effect: ‘[T]he common thread that runs through all
these cases is that judges of our tradition incline to
treat unlimited executive detention as incompatible
with contemporary notions of the rule of law.’43
Public perception of a ‘crisis’ in border protection
persisted, encouraged by anti-refugee rhetoric of
politicians and popular media. In the late 1970s, 60
per cent of Australians wanted to let people arriving
by boat stay. An analysis by sociologist Katherine Betts
in 2001 revealed that in 1993, 44 per cent wanted to
send ‘boat people’ back without assessing their claims
and 46 per cent approved of holding them in
detention while their claims were assessed. In 2001,
77 per cent of Australians supported the Coalition
government’s decision to refuse entry to the Tampa
and 71 per cent believed boat arrivals should be
detained.44
The Gang of Four — Children Out of Detention
When Parliament resumed in 2005, four Liberal
Party Members of Parliament, Petro Georgiou, Russell
Broadbent, Bruce Baird and the author (Judi Moylan)
met to discuss concerns about indefinite mandatory
detention and the impact on children.45
Mary Crock and Laurie Berg, Immigration, Refugees and Forced Migration, Law, Policy and Practice in Australia. The Federation Press 2011.
Stanley Cohen elaborates on this concept in States of Denial: Knowing about atrocities and suffering, Cambridge Polity Press.
Peter Mares, Borderline p131, UNSW Press 2002.
It took Joint Committee a year to negotiate their visit in 2001.
Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights sub-committee, A Visit to Immigration Detention Centres,
June 2001.
Wendy Bacon, Our Nauru Amnesia, p5 of 11, http://newmatilda.com, July 25 2012.
The Hon Philip Ruddock, Minister for Immigration, June 19, 2001, Press Reports.
Editorial, Sydney Morning Herald, December 19, 2003.
Mary Crock and Laurie Berg Immigration Refugees and Forced Migration, Law, Policy and Practice in Australia, p 68, The Federation Press
2011.
Ibid. p69.
Peter Prince, The High Court and Indefinite Detention: Toward a national Bill of Rights? Executive summary, p2. Law and Bills Digest,
Parliament of Australia, November 16, 2004.
Ibid p7.
Janet Phillips and Harriet Spinks, Boat Arrivals in Australia Since 1976. p6, July 9, 2012 Australian Parliamentary Library, Parliament of
Australia.
Joint Select Committee, Australia’s Immigration Detention Network, p15. Paragraphs 2.13 and 2.14 Final Report, 2012, Parliament of
Australia.
Issue 205
Prison Service Journal
19
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