So now you’d better stop and rebuild all your ruins… Understanding immigration detention

Discussion about asylum seeker policy is irreparably bad.  All of the key voices in the discussion are horrible, and journos don’t have the necessary skills and knowledge to improve the discussion.  There are too many vested interests and too much complexity.  Worse, the general public just doesn’t seem to care.  Advocates have alienated ordinary voters, and political parties have no incentives to engage in good faith.

I think the most disappointing aspect of the public discussion is that a lot of really good voices aren’t being heard.  People who could make a difference have seen the way that policy experts are treated in the public square, and have no desire to participate in that kind of crap.  You either get racists telling you that you’re a bleeding heart supporter of terrorists, or you get advocates telling you that you’re secretly trying to bring about a new White Australia policy.

So when the outrage engine kicked up again this week about whether or not there were kids in detention, I knew it wasn’t going to be a great week.

This is a debate with a long history.

What is immigration detention?  Section 5 of the Migration Act gives us a very broad definition:

“immigration detention ” means:

                     (a)  being in the company of, and restrained by:

                              (i)  an officer; or

                             (ii)  in relation to a particular detainee–another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or

                     (b)  being held by, or on behalf of, an officer:

                              (i)  in a detention centre established under this Act; or

                             (ii)  in a prison or remand centre of the Commonwealth, a State or a Territory; or

                            (iii)  in a police station or watch house; or

                            (iv)  in relation to a non-citizen who is prevented, under section 249, from leaving a vessel–on that vessel; or

                             (v)  in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

So there are lots of ways that a person can be in detention.  The most well-known — and the way that is most commonly meant by the word detention — is (b)(i): in a detention centre established by the Act (under s 273).   Another way of being detained is in ‘community detention’ (known as a ‘residence determination’ under s 197AB).

The Act makes it mandatory to hold unlawful non-citizens in detention (s 189).

So when the Minister said this week that there were no more children in detention, it’s obvious that he means in a detention centre established by the Act (s 273).  Indeed, there’s no way that he means in ‘immigration detention’ more broadly, because that would mean he gave visas to all the children (which is possible, but obviously not what happened).  Some journos picked up on this (the ABC did a good job here), but lots missed it.

The Guardian made the allegation (based on a departmental leak) that the minister had somehow reclassified people in detention as not being in detention.  The above shows why that’s not true: the definition has always been broad.  A more charitable reading of The Guardian article is that the immigration centre was somehow reclassified as being community detention, but s 197AB wouldn’t allow that to occur ordinarily (because a residence determination is, by definition, outside of a centre established by s 273).  Villawood IDC has been undergoing a refurbishment but I haven’t seen anything that suggested that the refurbishment would also include creating alternative places of detention which would be outside of the IDC.  That would be a way of putting somebody in community detention without being in an immigration centre while remaining at Villawood.  But unless something like that is happening, it’s not possible for The Guardian article to be correct.

Fairfax also made the allegation (based on comments by Marion Le) that the claim was false because at least one child was put into an immigration detention centre who was being deported.  Again, it makes no sense to say that the Minister could have meant this in his comments, because it’s obviously absurd if it’s the correct interpretation.

And this really gets us to the crux of the problem.  The Minister was stupid for making the comments in the first place because it’s only technically true and was bound to be misinterpreted.  It’s also not a helpful piece of rhetoric.  As others have pointed out, removing children from IDCs suggests that IDCs are fine for adults when they might not be.  Perhaps most importantly, the rhetoric is designed to suggest various policies in place at the moment — turnbacks and offshore processing — are good because it’s resulted in some particular outcome (the removal of children from immigration detention).  We need to focus more on the process by which we got to an outcome rather than necessarily the outcome itself.

It was a deliberately polarising comment, and the media was ill-equipped to engage with it.

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