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 provisions introduced by the Migration Amendment (Duration of Detention) Act 2003 which prevents and limits courts from ordering the release of somebody from immigration detention whilst an appeal seeking their release is before the courts. This legislation was prompted by several cases where such release has been ordered by the Federal Court, the most notable example being the Al Masri case.

The effect of this provision means that any person whom the courts believe should be released from migration detention is now required to stay in detention whilst the government appealed it through every possible avenue. This is particularly ironic given that the Government is particularly vocal about the volume of cases before the courts and introduced further legislation to further restrict asylum seekers appeal rights.

We must recognise that it is not acceptable for people to be stuck in situations where they are left languishing in detention centres without any charge being brought against them, let alone being convicted of any crime. That can occur because of the legal fiction that detention is for administrative purposes, necessary for processing their claim and resolving their status as an unlawful non-citizen. It has also been held that detention is not punitive, despite the frequent statements by government Ministers that it serves as a deterrent, and the ample evidence of major harm that is done to people subjected to long-term detention.

The Democrats oppose provisions which take authority and jurisdiction away from the courts in determining whether or not people should be locked up and for how long.

We believe that any removal of the jurisdiction of the courts to determine whether or not people should be imprisoned for prolonged periods is inappropriate. The ‘legality’ of mandatory detention under international law has been widely canvassed.

It has been argued that mandatory detention is contrary to the prohibition on unnecessarily restricting the movement of and/or penalising bona fide asylum seekers in the Convention Relating to the Status of Refugees (Refugee Convention Article 31).

Also it has been argued that it is contrary to the prohibitions on cruel, inhuman and degrading punishment in the International Covenant on Civil and Political Rights (ICCPR Article 7) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT—Article 16).

I take issue with the inherent problems with any piece of legislation that seeks to interfere with the jurisdiction of the courts to determine whether or not people should be free.

We cannot continue to treat asylum seekers like criminals and lock them up indefinitely. We cannot approach this punitively and seek to punish those who were not afforded possible channels of obtaining a visa into Australia because of the fact that they were fleeing persecution, have faced unquestionable trauma, or have lost their wives, husbands and children.

The Democrats are fundamentally opposed to indefinite detention and commend this bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.