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

by leave—I move:

That the Senate take note of the documents.

I am taking note of these documents together because they relate to each other. One is a report from the Ombudsman as part of a series of reports into people in long-term immigration detention, and the other is the response to the Ombudsman’s report by the Minister for Immigration and Multicultural Affairs. This Ombudsman’s report only deals with two cases. I will not comment on the first. The second is an example of the sorts of serious problems that come from the inflexibility that is still in place in our Migration Act because of the presence of mandatory detention. That does not mean that there should be no detention ever. It means that mandatory detention runs a real risk of injustices occurring.

This particular report—statement 073 for this year—is actually a follow-up report from the Ombudsman. The Ombudsman previously had a report tabled in parliament on 29 March this year, and this report updates that material. It concerns a person who, at the time of this report, had been in immigration detention for three years and nine months—since October 2002. Unless he has been released since then, which I assume has not happened, because the minister’s statement made just this week made no mention of it, he has now been in immigration detention for four years.

When the first report was tabled, back in March this year, the minister indicated that a review was underway of all people who had had their visas cancelled under section 501 of the Migration Act—the character provisions of the act—subject to another Ombudsman’s report. All of the character cancellations of people’s visas—usually long-term residents who have been here for a decade or, in some cases, decades—are being reviewed. That is good but the problem is that, whilst that review is being undertaken, this guy has been stuck in detention all year; even though the minister has made it clear that nobody would be removed from Australia whilst this review of previous cancellation decisions was being done, he has spent his whole time in detention. That is a ludicrous scenario, particularly when he had already been there for three years and more.

This report goes into this man’s circumstances. He has children in Australia; his ex-wife has care of the children, and there are problems there. There is clinical evidence that suggests that there are issues of neglect. Clear information has been provided that it is in the interests of his children for him to be put in a circumstance where he could live with them. The minister’s statement says she is advised that this person was moved into alternative detention arrangements in September to enable him to live with his children. But they are still detention arrangements. That is certainly preferable to being in a detention centre; there is no doubt about that. When a person in immigration detention is able to live with his children, who are not in detention, it shows how much flexibility we have with language. Somehow or other, the law manages to maintain that sort of curious legal fiction.

The minister has also indicated that, subject to health and character checks, she is going to consider intervening and using her discretion under section 417 of the Migration Act. That is good, but we have to look at the reality, which is that it has taken four years and, for most of that time, the person has been in detention and there is clear evidence that his children have suffered—not solely, but in part—because of that circumstance.

In some ways this is a sign that the changes that were made some 12 months or so ago have borne some fruit—that the process of Ombudsman’s reports and inquiries into people in long-term detention sheds some light on the issue and puts some extra pressure on the minister to resolve situations. But it should not have to go through such a cumbersome and drawn-out process. These are people who have been locked up for years but have not committed a crime. Having a visa cancelled is not a crime. Now we are finding that cancellation is being reviewed a long time down the track. That highlights some of the problems that are still present not just with mandatory detention but with section 501 of the Migration Act. This report provides more evidence that there needs to be significant reform of parts of the Migration Act, including section 501 and mandatory detention. I seek leave to continue my remarks later.

Leave granted; debate adjourned.