Pragmatism is not everyone’s cup of tea. Indeed, it should rarely be the only approach in a discussion, as it takes all sides of an argument to be canvassed to ultimately make a good decision on many issues. But on the matter of mandatory detention, I am an unapologetic pragmatist.

It is not because we currently have a long-standing bipartisan political commitment to mandatory detention, but because the interception of people at sea who are unauthorised should have a place to be cared for until we can implement identity, health and security checks. Strangely enough, this is exactly what mandatory detention should be under legislation in Australia, despite the fact that we could come up with a better term for it. The problem is not mandatory detention in and of itself, but the way it has been implemented in a long-term damaging form.

To paint the picture let’s look at Shiara’s circumstances when she was intercepted on a boat, with 63 others, near to Christmas Island. Relieved, but scared, Shiara was taken to the Christmas Island detention centre for initial processing. This circumstance is where the defence of mandatory detention within the context of Australia actually makes sense. For Shiara, she needs some clothes, a bath, food, water and sleep. For the Australian government, it needs to take Shiaria’s biometric data including fingerprinting and her photo, to try to establish her identity and ascertain any health issues she may have that cause a risk to her or to the community.

How long this should take and what the facility looks like that Shiara stays in as a centre, is the important question that will either uphold her human rights or undermine them. This is where the real argument begins on what mandatory detention is, or what it should or shouldn’t be.

In other countries not surrounded by sea, where people move unauthorised across borders, for example, smuggled in the back of a truck, it may mean no person is detected by border security personnel upon arrival. Rather, it takes a person’s own initiative to turn up to a reception centre to declare they wish to apply for asylum. This may not necessarily require a period of detention as such, but will involve some serious investigation of their health, identity and risk status to the broader community. After all, it is possible they have already been residing in the community for some time.

For Australia, as a country surrounded by sea, it actually makes sense to intercept a boat, move those who travelled on it to a centre, for the relevant health, identity and security checks and then determine where they should reside. However, as soon as we interpret mandatory detention as a model that removes freedom of movement and  must be in place for the entire length of time of the processing of a protection application that could take years, then we run into trouble.

There are now numerous independent research pieces that have established that long-term detention does not achieve what should be the ultimate aim of a comprehensive asylum processing system in any country. Those achievements should be either effective settlement, or for those who are established not to be refugees, ideally, voluntary return. For those who will become future citizens of Australia we have seen that after long-term detention they are less able to settle effectively and may be damaged for life.

According to recent research by the Yarra Institute, an ecumenical social policy institute, long-term detention is highly likely to actually cost the Australian health system far more in the long term for those who have spent extended periods of time in detention than the average Australian.  For those who may need to return because they have been proven not to be a refugee, we have damaged people through long-term detention beyond the state they originally arrived that they struggle to even contemplate returning.

If we are trying to establish an effective and productive asylum processing system in this country for those whom arrive to seek protection, then long-term detention is clearly not achieving that result.

However, there is a real logic for the Australian context in intercepting unauthorised arrivals by sea and placing them in a centre to determine health, security and identity. How long this takes is an important question, but ironically this is exactly what mandatory detention is. There is a real argument that mandatory detention should mean a short period of time in detention to establish some important processing requirements. Shortly afterward individuals who do not pose a risk to the community then enter into a transition program that places them into community care.

Such community care models could involve a reasonably high level of support for those who are very vulnerable such as community detention, or alternatively, that allows people to have independence and self financial empowerment through work rights while they are waiting for their asylum application to be fully determined.

If the government and the opposition want to call that mandatory detention, then as far as I am concerned they can, but long-term detention in remote centres and with documented mental and physical health demise was never meant to be the meaning of this term.  Indeed it should not be, given the damaging results.

As a pragmatist who is conscious of a tightly guarded bipartisan commitment to mandatory detention, I strongly believe we must define in legislation what we mean by mandatory detention with clear time limits. Ideally, we could change the term to “mandatory processing” or perhaps even reception for “unauthorised arrivals” but ultimately I am less worried about the name of the model than I am about the implementation of it.

As the current government now considers other forms of community care, mandatory detention is not necessarily a defunct part of a comprehensive model of reception of asylum seekers who arrive in an unauthorised manner, as long as we are clear about its limits and then legislate accordingly.

Whether Australia will ever negotiate offshore processing or not, an important principle for both sides of government is that those who arrive on our shores seeking asylum should not be damaged further than the condition in which they arrived, whatever the result of their asylum claim.

*Caz Coleman is a member of the Council for Immigration Services and Status Resolution advising the Minister for Immigration and a member of the Detention Health Advisory Group advising the Department of Immigration. Opinions expressed are her own.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW