Cabinet papers 1992-93: immigration minister Gerry Hand orders ‘boat people’ be detained

Immigration minister Gerry Hand introduced the mandatory detention of unauthorised boat arrivals in 1992.

The 438 Vietnamese, Cambodian and Chinese “boatpeople” who arrived on nine vessels between November 1989 and January 1992 pale in comparison with the 25,173 asylum-seekers who arrived by boat in the 2012-13 financial year, but the influx was enough to persuade Keating government immigration minister Gerry Hand to introduce mandatory detention of unauthorised boat arrivals.

The cabinet papers show that “as a matter of urgency”, cabinet agreed in April 1992 to amend the migration act to require mandatory detention of “persons who have arrived in Australia by boat since 20 November, 1989, or who arrive in Australia before 1 November, 1992, and who have not been processed to enter Australia”.

The move meant that the 438 who had already arrived, some of whom were living in the community, were to be taken into detention and held “for a defined period” until their claims could be resolved.

Initially there was a nine-month, or 273-day, limit on detention but this was later made indefinite and extended to all unlawful non-citizens by Hand’s successor as immigration minister, Nick Bolkus.

Hand’s 1992 legislation also prevented any judicial review of the mandatory detention by stipulating that “a court is not to order the release from custody of a designated person”.

At the time, litigation arguing for the release from custody of 37 people already detained under existing provisions was imminent.

April 29 cabinet papers note that the government expected this would “undoubtedly lead to similar action by all other detainees”.

Hand said although cabinet expected support for the proposal within the general Australian community, the scheme was likely to generate criticism from “churches, the Refugee Council of Australia and other human rights organisations, legal aid commissions, certain ethnic communities and the media”.

“I have consistently argued that any softening of approach by the government in relation to unauthorised arrivals in this country, including their custody, will be an invitation to persons without genuine claims to pursue the same route,” Hand wrote in his submission to the April 29 meeting.

The Department of Prime Minister and Cabinet expressed concern that the legislation was “designed to deprive a person of a right to challenge the legality of his or her continued detention” and advised it should be “a measure of last resort and only used in circumstances that can be justified on clear public policy grounds”.

“While the department is sympathetic to the minister’s situation, it is clear that any government action motivated by a desire to facilitate the proper processes will be the subject of intense public scrutiny and criticism,” it said.