Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Migration, I present the report of the committee Immigration detention in Australia: a new beginning, together with the Hansard record of proceedings and submissions received by the committee and I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

On 29 May 2008, the Joint Standing Committee on Migration determined to inquire into immigration detention in Australia. After calling for submissions, of which 139 were received, the committee conducted seven hearings in Canberra, Sydney, Melbourne and Perth. The committee also visited detention facilities in Sydney, Melbourne, Perth, Darwin and Christmas Island. After this extensive examination of the current immigration detention system in Australia, I am pleased to be able to table the committee’s report today.

This is the first of three reports against the inquiry’s terms of reference. This report addresses the criteria that should be applied in determining how long a person should be held in immigration detention, the criteria that should be applied in determining when a person should be released from immigration detention following health and security checks, review mechanisms for ongoing detention, removal practices and detention debts. The second and third reports of this inquiry, to be tabled in 2009, will address alternatives to detention, financial costs, service provision and the infrastructure required to support the immigration detention framework for the future.

This comprehensive report makes 18 recommendations, all of which will help to inform the government and stakeholders in the forming of new legislation to be introduced next year which will give force to the change in the government’s detention policies. One of the key recommendations in the report is that the Department of Immigration and Citizenship establish time frames for various aspects of immigration, in particular to establish an expected time frame, such as five days, for the processing of health checks for unauthorised arrivals. The committee recognised that it was not practical to impose a definitive time frame on health checks but felt it important that the Department of Immigration and Citizenship had a clear directive from government and incentive to complete health checks quickly.

In another measure to reduce time in detention, the committee has recommended that, in line with a risk based approach and where a person’s identity is not conclusively established within 90 days, the Australian government develop mechanisms such as a particular class of bridging visa to enable a conditional release from detention. Conditions could include reporting requirements to ensure ongoing availability for immigration and/or security processes.

The committee spent much time hearing evidence from people who had been detained, from their advocates, from their lawyers and from the non-government organisations that support those people. The committee’s objective was to address the terrible effects of unnecessary long-term detention and to come up with recommendations to deal with that. The committee has recognised, though, that it is important to establish the identity of people coming into our country. However, we acknowledge that identity checking can be a slow and drawn-out process in some cases. The committee was very concerned that, if people had to wait for the conclusion of this process before they could be eligible for release, this criterion could potentially discriminate against asylum seekers who may have come from countries without secure identity systems or who may have had to leave their country quickly, without documents.

As we know, the Rudd government has already begun implementing changes to immigration detention based on new detention values approved by the cabinet earlier this year and announced on 29 July 2008 by the Minister for Immigration and Citizenship, Senator Evans. Those values are set out in detail in the report and they make a clear statement of a change in the principles underpinning immigration in this country and a change of direction by this government compared to the previous government.

While the government is still maintaining mandatory detention for those unlawful people who are not Australian citizens and who present an unacceptable risk to the community or who repeatedly refuse to comply with their visa conditions, the government’s objective is to ensure that people are moved out of the detention system as quickly as possible. Unauthorised boat arrivals will still be subject to mandatory detention for health, identity and security checks, but let me be clear that the government’s position is that we will only use detention centres as a last resort and for the shortest practicable time.

The government is committed to protecting our nation from the potential dangers posed by some unauthorised arrivals or unlawful noncitizens. We are also strongly committed to treating people with dignity. The findings in this first report of the committee into immigration detention will assist the government to achieve a balance between the protection of Australia and treating people with respect and dignity, people have come to this country seeking asylum and safe haven.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Joint Standing Committee on Migration’s report Immigration detention in Australia: a new beginning makes a number of very important recommendations to improve the fairness and transparency of Australia’s immigration detention policy. One of the recommendations in the majority report is the recommendation to stop charging former detainees for the cost of their detention. This is something that the Australian Greens have been calling for for a very, very long time. I am thankful that it has finally been picked up in this report as a recommendation. I urge the Minister for Immigration and Citizenship to act on it as soon as possible. I acknowledge that, throughout the year, the minister has indicated that he has been concerned with this as well, so I am hoping that, now we have a clear recommendation in this report, it can be picked up ASAP. The sums can be very substantial and well beyond the means of people to repay, and this can cause great stress. This is a fair and sensible recommendation and I encourage the government to act on it.

The committee’s recommendation relating to reviews by the Department of Immigration and Citizenship and the Ombudsman will improve the current framework, although I do believe there are significant weaknesses that will remain, which is why Liberal member of parliament Petro Georgiou, Senator Eggleston and I proudly joined forces to outline the areas of concern that we feel were overtly dismissed. In particular, we feel that the proposed changes fall short of ensuring rigorous and timely assessment of whether detention is necessary in accordance with the new policy. While I take the comments of the minister and the chair of the committee on board—that there is a desire to do things differently for the future and leave the dark days of the Howard immigration regime behind—we should not simply be relying on the goodwill of an individual minister. The idea of having judicial oversight and judicial review of detention is something that came out very, very strongly throughout the committee process. Much of the evidence that was presented said that this is clearly the one thing that we should be doing. Regardless of what policy we change, we need to ensure that it is strengthened and upheld by independent oversight. That of course would be the process of having a judicial mechanism to determine whether the detention of somebody is actually lawful or not.

The committee majority believe that, given factors such as the potential impact of lengthy detention on a person’s mental health and the legacy of maladministration, there is justification for access to independent merits and judicial review, but that this should only be available for people once they have been detained for 12 months. If it is okay and sensible to allow people to access a review through a judicial process after 12 months, why should it not start at the beginning of somebody’s detention? I do not buy the logic in this argument. It simply does not stand. If we think this is an important mechanism to have in place to ensure that people are not wrongfully detained, it should be accessible as soon as a person is detained and the department has made a decision that, in their opinion, the detention must take place.

We are concerned that under this framework DIAC officials will continue to have the power to decide whether it is necessary and reasonable to detain people for six months without any external scrutiny of their decision whatsoever. After six months, under the majority report recommendations, the Ombudsman will review the detention decision but can only offer advice. It is important to understand the role of the Ombudsman in all of this—he is simply there to review and to hand over reports with his advice. There is nothing in his role that gives him any type of authority. There is no element to compel the minister or the department to act on the advice they are given. That position simply lacks the teeth to ensure we are upholding the new policy framework that the minister so proudly speaks of.

We strongly disagree that public servants should have the power to detain for 12 months without independent external scrutiny which can ensure the release of people whose detention is assessed as being unnecessary with respect to the specified criteria. As I outlined just before, if it is seen as important and reasonable to review a department’s decision to detain somebody after 12 months, surely the same argument exists for reviewing the process once the initial decision is made. No-one should be detained without the ability to have a court review their case and determine whether their detention is lawful or not. A mechanism for judicial review must be available from the moment a department makes the decision to detain a person.

Just for interest’s sake, as of 21 November 2008, there were 22 children—that is, people aged under 18—in immigration detention. Eighteen were detained in the community under residence determinations, three were on Christmas Island in alternative temporary detention in the community, and one was in immigration residential housing. In total, as of 21 November, there were 322 people in immigration detention, including 48 in community detention.

As the committee heard in evidence provided by Julian Burnside QC, in other circumstances when a person is deprived of their liberty their situation is reviewed at regular, short intervals and judicial oversight is available at all times. Yet, for some reason, the committee majority and the government see that the immigration detention regime should somehow be immune from this general rule. The committee received strong evidence that the lack of available merits and judicial review for people detained in immigration detention has resulted in people being held wrongfully, unlawfully and for a period of years on the basis of contested departmental decisions.

I remind people that this is the department that has wrongfully detained 200-odd people and delivered us the cases of Vivian Solon and Cornelia Rau. If we had had an independent oversight mechanism where people could have a court determine whether or not their detention was lawful, perhaps we would not be facing the numbers of people unlawfully detained that we are now and the compensation cases that I believe will continue to be brought forward in courts of law because people have been detained unlawfully.

Detention can be a very damaging experience for people, particularly asylum seekers who have suffered trauma and torture, and this can happen well before 12 months have lapsed. Psychologists with substantial experience and expertise in the area advised the committee that some asylum seekers have very adverse reactions to detention within the first few months. Limiting the ability to access judicial review to people who have been detained for at least 12 months is simply illogical if the point is to try and eliminate suffering and trauma and to decrease the numbers of people who continue to be held unlawfully.

One of the first things I called for when I took my seat back in July was for the government, as part of their proposed immigration changes—and the minister and I have spoken about this on various occasions—to conduct a royal commission into the psychological impact that immigration detention has had on children and their families. While I understand that this was rejected by the Rudd government, the committee heard overwhelming evidence on the adverse affects of detention, suggesting that only allowing a detainee access to a court after 12 months has lapsed could continue trauma and the psychological impact of detention for many people, and let’s not forget the mental state of individuals that we know have been held in detention for upwards of seven years.

Many submissions strongly argued that the merit of detention decisions should be subject to independent oversight without indicating a view as to when that should be available or should occur as a matter of course. The inference of this evidence was that once a person is detained they should be able to access a review of whether or not their detention is lawful.

I know the Greens signing on to a dissenting report with two members of the Liberal Party might be a strange occurrence, but I must say I am very proud to have my name on that report.

Alan Eggleston (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Joint Standing Committee on Migration’s report, Immigration detention in Australia: a new beginning. My interest in this matter concerns the provision of external review of the status of and complaints by detainees, a review by a body other than the immigration department to deal with these issues. On this I have associated myself with remarks made by the member for Kooyong, Mr Georgiou, who proposed that detainees should be able to access external judicial review. As has been said, in the criminal legal system people can only be detained for limited periods of time after a review by a judicial officer. I feel the proposals in this report are a step forward. They retain the policy of mandatory detention of unauthorised arrivals while they are subject to checks of their identity and criminal history and checks as to security issues and health. The proposals retain that system while making the process more equitable and fair.

Question agreed to.