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

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard and to table an explanatory memorandum relating to the bill.

Leave granted.

The speech read as follows—

This Private Senator’s Bill is one of a number of Migration Act Amendment Bills which I am tabling in the course of this year. This bill seeks to remove the unfair provisions which were imposed by the Migration Legislation Amendment Act (No. 2) 1998 (the Act) which prevented the Human Rights and Equal Opportunities Commission (HREOC), among others from giving legal advice or assistance to detainees unless a specific request is made.

The fundamental issue that the Democrats opposed when this measure was adopted was the basic principle of ensuring that people are able to access their legal rights and know what rights they actually have.

The genesis of the current legislative provisions was largely a response by the government to a decision of the Federal Court in the Human Rights and Equal Opportunity Commission (HREOC) v. Department of Immigration and Multicultural Affairs (DIMA) 1996.

I believe that these provisions in the existing law are a breach of Australia’s basic human rights obligations. It is preposterous to assume that newly arrived persons would have an intimate knowledge of how our legal system works and would automatically know to contact organisations like HREOC to seek legal advice.

Numerous refugee organisations who regularly work with newly arrived detainees have expressed concern about the ramifications of requiring people to specifically request legal advice from human rights bodies such as HREOC. What this has done is to deny some detainees access to the services, organisations and legal assistance altogether. This is because of the barriers most new arrivals face as a result of the inhumane practices they have experienced in their countries of origin and the fact that they often speak little or no English. A result of this has seen the detention of permanent resident Cornelia Rau whose mental health issues impacted on her ability to realise she had the right to request legal assistance.

There have also been numerous accounts of detainees who are only aware of the existence of legal organisations through word of mouth from other detainees. This is particularly problematic in cases such as a Burmese detainee in Villawood I met with who had limited command of English and there were no other Burmese people in detention who he was able to communicate with. Many detainees seeking refugee status would be unaware that the legal and human rights organisations exist at all, let alone be in a position to consider exercising their right to access these services.

It is important to emphasise that many people in this situation have been through considerable hardship and suffering already. They have endured in some cases extremely difficult personal situations where they have had to abandon their families, their homes and their country to escape from persecution or to escape the horrors of war. Most of them then endure a dangerous journey to get to this country and are then placed in detention which is most probably in a situation that they did not expect to be in.

What this legislation has done is to put an extra barrier in their way to finding out what their rights are. It is all the more reprehensible to make it harder for them to find out what their legal rights are and to access those legal rights. It is a curious and very dangerous principle. From the Democrats’ perspective, we do not see why a principle such as that should be applied in migration legislation or in legislation that impacts on people in detention in Australia and not on other people in the community—whether in Australia or throughout the world.

People have basic legal rights within Australia. That is something that, as a society and as a parliament, we try to ensure. As a country and as a society, we have signed on to, recognise and, I presume, support basic human rights principles and international legal obligations, not just through international covenants but through the understanding that, as a society, we support basic principles such as people having access to information about their legal rights.

This provision in the Migration Act is a fundamental breach of human rights which the Democrats are strongly opposed to.

I commend this bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.