Senate debates

Thursday, 9 August 2007


Legal and Constitutional Affairs Committee; Reference

12:32 pm

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I am talking about the entire crossbench. Whether a Democrat, a Green or, indeed, Mr Andren from the lower house—he is seeking to get into the upper house—I am sure we would all have backed that recommendation, were we on the committee, because it sounds eminently sensible. When committees look at these things and make recommendations and the government still ignores them, those are the sorts of things that help build public suspicion and undermine things.

If this committee inquiry were to go ahead—and we have all heard reasons why it is not appropriate at this time, which I concur with—the core issue is to look at the legislation that undermines it. In my view, the core issue in respect of problematic legislation is in the migration area. I have had legislation before the Senate since last year. The two bills mentioned in my motion are private member’s bills of mine that go to the character provisions in the Migration Act and to one aspect of the detention issues in the Migration Act. The components of that bill that I have put forward would remove the prohibition on people seeking an injunction through the courts to be released from ongoing detention in certain circumstances—a power that did exist for a while and was also quashed by government legislation passed through this Senate.

There has been a lot of understandable criticism of the Minister for Immigration and Citizenship—and we have heard some more criticism put forward very eloquently, as always, by Senator Ray today. But my view, which I have publicly stated a couple of times, is that, whatever the criticisms of Minister Andrews might be, you cannot expect to have a law that gives any minister—whether it be Minister Ruddock, former Minister Vanstone, Minister Andrews or any future minister—such absolute and all-encompassing power to cancel somebody’s visa using the character provisions, on the basis of having a suspicion that they have an association with somebody else, without defining or limiting what ‘association’ means, and then act surprised when they occasionally use that power in a capricious or political way, particularly in an election year. You cannot give open-ended powers and then express surprise when they are used in a way that creates injustice—it is simply inevitable.

The Haneef case has had a lot of attention, for very appropriate reasons, but there have been literally hundreds of people who have been subjected to this part of the Migration Act at great personal cost. Many of them are longstanding members of the Australian community who have been here longer than Dr Haneef. Many of them have been here for decades, and some of them have been here virtually their entire life. They now live the reality of, in effect, having had passed on them by the minister of the day a sentence of permanent exile from what is, in effect, their homeland—permanent exile from their family, their friends and the community, potentially for life. They will never get a visa to get back into Australia. They are having their visas cancelled, for all intents and purposes, without any meaningful opportunity for that decision to be independently reviewed in any meaningful sense of the word.

That is the reality that exists now under law, and it existed, I might say, long before terrorism was put on the agenda. It was put through this place by both major parties back in 1998. It was put through this place at the time because the minister of the day got annoyed because a court had overturned one of his decisions to cancel someone’s visa. He said, ‘I’m not going to have that happening again. We’re going to push for laws that give me almost absolute power.’ And, as we all know, if you give someone absolute power, then inevitably, over time, it will be misused and gross injustices will occur. So my key point is to simply emphasise that in any inquiry that happens—whether it is this one or any other inquiry into anything to do with the Haneef matter—in my view, as a matter of absolute necessity, we need to look at the underlying laws, not just the actions of particular people, whether it is the minister, the police or anybody else.

To me, the most extreme breaches of basic freedoms are not under our antiterror laws, as problematic as some of them might be; they are under our Migration Act, in both the character provisions and the detention provisions. Let us not forget that, even under our antiterror laws, when Dr Haneef was a terror suspect and had charges laid against him, he still had the right to apply for bail through a court and have that considered by a magistrate. That is what occurred, of course. I was in the court in Brisbane when that decision was handed down. It was clearly a reasonable judgement, having weighed up all the evidence. His visa was cancelled. Even when he had no charges against him and there was no suspicion of any credible sense of being any sort of security or safety risk to the community, he was suddenly locked up, potentially indefinitely, and had no right to go to a court. That is perverse and something that we need to reconsider. That is still the reality of mandatory detention.

I will not comment specifically on the case before the court, although I am sure that the judge that is hearing it would not be swayed if I did comment at length on the case before the court at the moment. Nonetheless I shall not do so, beyond noting the reports in the papers today about Justice Spender’s own comments where he queried how broad the definition of ‘association’ could be and raised the situation where people, who are absolutely and totally innocent, nonetheless—under the literal meaning of the word ‘association’—can be deemed to have an association with someone else. Obviously you have an association with your relative, whether you like it or not. You have an association as a taxi driver by virtue of picking someone up. Those are the sorts of things that were talked about in the debate in this place back in 1998. It is just open-ended. We will see the decision that the judge comes down with.

As people would know, I was quite active in trying to ensure fair process for Dr Haneef. I have spoken to his relatives and wife. Clearly, I am associated with them. Under the broadest interpretation of the provision in the Migration Act, that would pull me under the character test, except for the fact that, of course, I am an Australian citizen, so I cannot have my visa cancelled. But that shows just how broad the definition could be and how much of an inhibition can be applied to the actions of anybody who is a noncitizen in this country. Let me remind the Senate that that includes literally hundreds of thousands of people. I believe there are over a million people in this country who are permanent residents and eligible to be citizens but have not taken out citizenship for all sorts of reasons. Many of those residents have been here for years and years. All of them could potentially, at any time, come under the totally open-ended provision regarding association.

Hundreds of thousands of others here each year, such as Dr Haneef, help our country in meeting skills shortages and filling jobs. They are all at risk of these unfair laws, and that is why they need to be examined—not just because they might end up being subjected to unfairness but also because, in the interests of Australia as a nation and of Australian citizens, it is certainly not in our interests to have people living amongst us who are fearful about who they talk to, who they are seen to associate with and what sorts of ways they might fall foul of extreme and unfair laws. That does not do us as a society any good; it does not do our economy, our community or anything any good. I believe it is very important that we re-examine those provisions in the Migration Act. It certainly will not happen through this particular motion, but I would continue to urge the Senate to look for opportunities to do that. I think both the character provisions and the detention provisions of our Migration Act need reform. They are totally open-ended and are therefore able to be applied in extremely unjust cases.

I make a final point with regard to this, because this is the main opportunity we have had to debate the Haneef issue. According to reports in the papers today, we have had yet another mistake in what was put to the courts yesterday in the hearing. It was about the notorious SIM card of Dr Haneef. There has been confusion over when it actually expired. Information was put to the court that it had expired towards the time of the recent attacks. It was clarified that, indeed, Dr Haneef’s notorious SIM card had actually expired back in August last year—some 10 months before the recent terrorist activities—and was then renewed by somebody else. The fact that that piece of information about something that seemed so critical in this—the SIM card—was still not right when it appeared before a court, from what was put forward by government or Commonwealth officials, really does have to be cause for concern.

I would like to make another point. It links to the other big debate we have been having in this chamber this week, and we will be having it again next week. There is all the talk about putting the situation for Indigenous people front and centre and trying to find extra police from all around the country—10 police from each state being lent to assist the situation in the Northern Territory. I am certainly not criticising the benefits of having more police to assist Indigenous communities, as long as those police are appropriately trained.

From various reports that I have seen on the Haneef case, there have been at least 300 police. One report I saw said there have been 500. I find that hard to believe, but obviously hundreds of Federal Police were involved in investigating the Haneef case. If we have hundreds of police looking at this one person and desperately trying to find something more than a long-expired SIM card to pin on him—and, reportedly, an investigation is going to continue for as long as it takes to find something on this guy—where are our priorities in the use of police? If we are really saying that there is a genuine situation in the Northern Territory that needs urgent strong support and we need more police there—and I do not dispute that, as long as they are appropriately trained and doing appropriate things—perhaps a few of those hundreds from the federal level could be added to assisting Indigenous people in the Territory, and maybe even elsewhere as well where they are calling for that sort of extra help.


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