It was precisely at the peak of Chinese and Yugoslav immigration in 1991 that mandatory and irrevocable detention of asylum seekers arriving by boat without a visa was introduced. These significant numbers represented the only uncontrolled element in the immigration intake. Asylum seekers arriving by air without a valid visa were treated differently. Airline companies were liable to meet their return expenses, a penalty that goes back to the early steamship days. Arrivals by air with a refugee visa issued by Australian authorities overseas were allowed entry. Only refugees approved by the UNHCR were flown in at Australian expense, many of them from Africa. Other arrivals by air seeking asylum were normally given a bridging visa while they were being assessed as refugees.

The new policy, which was to become permanent in 1992, was a response to political events in Cambodia leading to the mass slaughter of civilians by the Pol Pot Khmer Rouge communists. This alerted Immigration Department officers to the possibility of yet another ‘flood gate’ being opened. They persuaded Labor minister Gerry Hand of the need for this serious restriction. In the light of anxiety among voters, the ALP endorsed the new policy and continued to do so for the next 25 years, with the active support of the Liberal/ National coalition and only brief modifications under prime ministers Bob Hawke and Kevin Rudd. This policy of ‘irrevocable, mandatory detention’ for unvisaed arrivals by boat, opened up the system of prison-like camps in remote areas and eventually outside Australia altogether in Nauru and Manus Island. Apart from deportation, this was the most oppressive policy adopted since 1945 (O'Neill 2008; Pickering 2005).

This new approach was not consistent with the terms of the United Nations Convention Relating to the Status of Refugees. One fundamental principle was ‘non-penalization’ and ‘being arbitrarily detained purely on the basis of seeking asylum’. Asylum seekers rights included ‘access to the courts (Article 16), to primary education and the provision for documentation’. There was also an expectation that ‘refugees lawfully in its territory’ have the right to choose their place of residence, to move freely in its territory, subject to any regulations applicable to aliens generally in the same circumstances’ (Article 26). This was clearly incompatible with detention in a remote centre from which there was no lawful escape.