Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move:

That the Senate take note of the document.

There are three documents that are related. The first is a statement by the Minister for Immigration and Multicultural Affairs, Minister Vanstone, in response to two statements made by the Ombudsman, which are the next two documents. This follows the tabling yesterday of about 12 cases from the Ombudsman, which I have not had an opportunity to speak to yet. You can look forward to that tomorrow afternoon, perhaps.

The two cases tabled today relate to people whose identity was not able to be established. The minister’s response—and indeed the position and media statements that she released earlier today—indicates that the government has recognised the criticisms made by the Ombudsman about the poor investigations undertaken by the department and has taken some actions in an administrative sense to try to remedy those failings. That is, of course, a good thing, and any improvement should be acknowledged.

It is also important to note that, however good your administrative processes are, the simple fact is that the law remains that the department and government officials within that department have the power to lock somebody up indefinitely without charge or trial or, necessarily, independent review by an outside body. That is completely unacceptable. It seems to me, even from the minister’s statement, that it is still not recognised just how serious it is to deprive somebody of their liberty. To do that and to be able to do that for an indefinite period of time without charge or trial or any independent review being automatically triggered inevitably creates the prospect of significant injustices and wrongful detentions occurring again in the future and inevitably creates a culture and a mindset where those sorts of things can happen.

If you are given a power under law, and are appointed to have that power, to just lock somebody up on suspicion and then keep them there indefinitely then it is not surprising that you might think it is appropriate to use that power in that way. The culture that then develops around having that quite extraordinary power is one that is almost inevitably going to mean that at times it is applied unwisely or inappropriately.

I use the example, which is outlined further in the later statements, of a man in his thirties who was found wandering the streets of Sydney in November 2001 and was believed to be homeless. He was in detention from around that time, late 2001, and he was not released until quite recently. The issue was that his identity was not clear. He appeared to possibly be from a South-East Asian country. What transpired was basically a lack of interest from DIMIA. After initial attempts to find out who he was, very little was done, according to the Ombudsman, between mid-2002 and April 2005. Basically, they had somebody, were not sure who he was, locked him up and thought: ‘Oh well, we don’t know who that guy is. One day we might find out. Until then he can stay here.’ I have to say that, according to the Ombudsman’s report, this person, for whatever reason, did not seem to hugely mind that. He seemed to be quite comfortable with being locked up. But I do not think that should be sufficient to allow that to continue to happen.

It is simply time, once again, to recognise that whatever administrative improvements made by the minister are contained in this statement, you cannot properly fully change a culture—a culture that has been shown to be problematic—if you retain the law as it stands, allowing somebody to be locked up indefinitely. We have to change the act and change government policy before we can truly change the culture and prevent future injustices. That is the simple fact. One of those things has to involve removing the very offensive concept of automatic mandatory detention for as long as it takes, for anybody who is suspected of being an unlawful noncitizen.

Question agreed to.