Indefinite Detention in Australia as ‘Enemy Crimmigration’

Guest post by Professor Leanne Weber, Professor Alison Gerard and Rebecca Powell are from the University of Canberra Law School and are members of the Australian Research Council Discovery Project, Analysing interactions within the criminal deportation system . This post is part of a series by members of the Australian and New Zealand Society of Criminology's thematic group on Crimmigration and Border Control, covering the latest High Court of Australia's decision that indefinite immigration detention is unlawful. You can see other projects being undertaken by group members on the ANZSOC_Borders webpage which is now included on the Border Criminologies website. 

In the days following the announcement that the High Court in Australia had ruled indefinite detention to be unlawful, politicians launched an alarmist bipartisan narrative about the exceptional threat posed by the 92 non-citizens in line for release. Calls for community protection dominated emergency parliamentary debates in which this entire cohort were described repeatedly as ‘dangerous’, ‘hardcore’ and the ‘worst of the worst’, whose impending liberty constituted ‘one of the most significant domestic issues in recent times’.

So how did we arrive at a situation where this disparate group, some of whom had been administratively detained for more than a decade, could be considered such an imminent threat to Australians as to justify unending incarceration?

The invention of social enemies  

In 1992 Feeley and Simon coined the term ‘new penology’ to describe the relentless focus on dangerousness and containment that had led to increased surveillance and the preventive use of prison. A decade later, in a post 9/11 environment, Krasmann equated this preoccupation with future risk with ‘enemy penology’ in which ‘social enemies are to be “combated, excluded if not extinguished”’ since they are ‘non-persons’ whose risk to community safety cannot be constrained by the criminal law. These illiberal developments were collapsing the boundary between community safety and national security and sharply delineating a threatening enemy from populations who required, and deserved, government protection – seemingly at all costs.

While this critical scholarship was developed with the ‘incorrigible’ repeat offender in mind, these trends in the governance of security soon intersected with the merger of criminal justice and crime control known as ‘crimmigration’, and the increasing emphasis on non-citizen offenders. Various categories of ‘crimmigrant others’ came to embody what were widely perceived as existential risks that could only be contained through exceptional measures reserved for non-members such as indefinite administrative detention and the ‘exporting of risk’ through deportation. We have referred elsewhere to this hybridisation of the crimmigration and enemy penology theses as ‘enemy crimmigration’.

In Australia, since the numbers of ‘unlawful maritime arrivals’ have been reduced through interdiction at sea, their place as the primary public enemy has been taken by a new category of more literal crimmigrant, namely the criminally suspect, or already convicted, non-citizen.

Expanding classifications of risk in legislation and policy and impacts on non-citizens

There has been a steady increase in the risk-based response towards non-citizens perceived to be of bad character in association with the evolution of crimmigration trends in Australia’s criminal deportation legislation and policy. The most recent legislative and policy amendments to Section 501 of the Migration Act 1958 Cth – visa cancellation or refusal on character grounds – in December 2014, introduced mandatory visa cancellation provisions with retrospective enforcement and additional executive power to cancel the visas of non-citizens suspected of association with a criminal group. The legislative developments have expanded the grounds for character-based visa cancellation, and therefore which non-citizens are considered a risk to the Australian community. At the same time, a new iteration of Ministerial Directions (No. 65) that guide s501 executive and administrative decision making were introduced, elevating considerations associated with upholding community safety from risky non-citizens.

Statistics show that following these legislative and policy amendments the number of non-citizens who have had their visa cancelled under s501 significantly increased and continues to remain steady. In association with the increase in visa cancellations the number of voluntary and involuntary monitored departures following s501 visa cancellation has also increased (see graph below).

The discrepancy in the number of s501 visa cancellations and monitored departures following them can be explained by the following: from a subsequent decision by the Department to revoke the visa cancellation or successful merits review in the AAT to set aside a visa cancellation; allowing applicants to return to the Australian community; or for those who remain in detention while they appeal an AAT affirm decision through higher court challenges. And then there are the indefinitely detained cohort who have recently been the subject of the High Court decision. Department of Home Affairs statistics show that by July 31, 2023, of the 907 people held in Australia’s immigration detention network, 696 had their visa cancelled under s501. We know that of the 93 persons affected by the decision, 83 had their visa cancelled under s501.

The differential treatment of non-citizens in Australia

The Government’s response to the High Court’s decision on indefinite detention has intensified enemy crimmigration in Australia. Rushed through Parliament, the Migration Amendment (Bridging Visas Conditions) Act 2023 (C’th) introduces new visa conditions for non-citizens and criminal penalties for breaching them, including mandatory minimum sentences of one-year imprisonment. The Government claim the new laws allow them ‘to do things that no government has ever been able to do before’.

The quasi-parole like conditions attached to the Bridging (Removal Pending) visas are onerous and indefinite. Mandatory conditions include requiring pre-approval for certain work and travel and notifying the government of changes in accommodation/household, membership of any club/association and association with any individual or group ‘known or reported to be engaged in criminal or illegal activities’. Monitoring conditions may include the wearing of electronic devices and curfews. These visa conditions establish new and unique forms of surveillance applicable only to non-citizens.

The characterisation of non-citizens as a perpetual threat requiring exceptional measures is vividly invoked in a recent case that reveals enemy crimmigration practices operating within the criminal justice system and their enhancement under these new laws. In this case, a victim of sexual assault was advised by the prosecution that the offender would go into indefinite detention and would never be released in Australia. This non-citizen was deemed eligible for parole and was taken into immigration detention pending removal. At this point the victim was informed that the non-citizen ‘would never be free in Australia’, yet after almost three years in detention they were released into the community following the High Court’s decision. The prosecution are depicted as relying upon visa cancellation and removal to reassure victims and to demonstrate effective risk management beyond ordinarily applicable criminal law. 

The differential treatment of the non-citizen in this case is clear in that the offender was already assessed as eligible for parole by a Parole Board - a multidisciplinary panel of legal, law enforcement, medical and community members. Parole Board’s have as their highest priority the ‘safety of the community’. Yet non-citizens are subject to additional risk assessments as occurred here, who ultimately came to a different conclusion on the question of risk than a Parole Board comprising experts on reintegration and risk of reoffending. Finally, a breach of parole may simply require an explanation or can result in arrest and a return to prison. For non-citizens, a breach of these visa conditions results in a minimum one-year jail term, and even fines.

The slide towards a ‘preventive state’?

Ultimately the greatest threat posed by this cohort may be to the rule of law. This is reflected in the rush to instigate exceptional legislative measures previously confined to dealing with terror threats, and the evidence this provides of a slide towards a ‘preventive state’.

In case this appears to be a distant or even fanciful prospect, the words of the Minister for Home Affairs uttered on the floor of parliament tell a different, and chilling, story: ‘I don't mind telling the parliament that, if it were up to me, none of those people would have been released from immigration detention  …  I would put some of these people in jail and throw away the key forever’.

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