Jun 26, 2003

Migration Amendment (Duration of Dentention) Bill 2003: Second Reading


26 June 2003

Mr ALBANESE (Grayndler) (5.41 p.m.) —I rise to support the second reading amendment, which I have seconded and which was moved by my colleague the member for Lalor. In the event this amendment is not carried I oppose the Migration Amendment (Duration of Detention) Bill 2003 which has been placed before this House in such extreme haste. This legislative change seeks to further strengthen the government’s arbitrary power to detain, for an indefinite period, a person who does not have a valid visa, who can be removed or deported.

One has to be suspicious of the motives of a government which chooses to introduce such legislation, further restricting, as it does, a court’s ability to intervene and secure a person’s liberty without providing the members of this House, the legal fraternity, or the wider community, with adequate opportunity to discern its intent and consider its implications. One can only conclude that the bill has been hastily brought before us as a cynical attempt to distract attention from the very serious issue of the granting of permanent residency visas following some fairly hefty donations to the Liberal Party, and in particular to the campaign accounts of the Minister for Immigration and Multicultural and Indigenous Affairs. Despite the haste with which this bill has been brought on let me assure members that it has not escaped close scrutiny from this side of the House.

I want to deal now with the provisions of this bill. Presently the Migration Act provides that a person who does not have a valid visa to be in Australia must be kept in immigration detention unless he or she is removed or deported from Australia or is granted a visa. To date, however, this provision has not prevented the courts from making orders for the release of persons from immigration detention in certain circumstances—as an interim order, when a detainee has initiated judicial review proceedings which are yet to be determined and it is held that there is a serious question to be tried in those proceedings and the balance of convenience is in favour of the detainee’s release. An example of such circumstances is where a serious issue as to the validity of the department’s action in cancelling or refusing a visa is raised for determination, or where it is clear that a person is being detained as a result of an administrative error. A further example is an interim or final order when it is considered by the court that the continued detention of the detainee has become unlawful because he or she is unable to be removed or deported and that situation is unlikely to change in the foreseeable future. The court’s attitude in these circumstances was made clear in a case involving Mr Al Masri, a Palestinian detained in immigration detention, who wished to return home but was unable to be removed because of the political situation in the Middle East. In his case the full bench of the Federal Court determined:

… it seems to us that if the question is asked directly, the short answer may well be that in the absence of any real likelihood or prospect of removal being effected in the reasonably foreseeable future, the connection between the purpose of removing aliens and their detention becomes so tenuous, if indeed it still exists, as to change the character of the detention so that it becomes essentially punitive in nature.

In other words, a failure to effect the removal or deportation of a detainee within a reasonably foreseeable time may result in a court deciding that the detention was no longer for administrative purposes but for punitive purposes and was therefore unlawful.

The proposed bill seeks to prevent outright the release of a person from immigration detention as an interim measure whilst that person awaits a court’s final determination as to his or her entitlement to a valid visa or as to the lawfulness of his or her detention. This is despite any argument of merit that there is no real likelihood of the person being removed or detained in the reasonably foreseeable future or that a visa decision relating to the person’s detention may be unlawful.

The injustice of this bill cannot be overstated. The court, in its usual reasoning process, is well equipped to consider at the initial stages of an application whether an issue to be determined is one of merit and a matter in which an applicant detainee has reasonable prospects of success. In those circumstances, it is desirable that a detainee be released into the community whilst he or she awaits the court’s final decision. The decision on whether or not to grant interim orders for release should be a matter for the court in any particular case.

A clear example in which interim release was found to be justifiable is the recent case of VFAD. In this case the Department of Immigration and Multicultural and Indigenous Affairs had prepared and dated a decision record which determined that the applicant detainee should be granted a visa subject to the receipt of an appropriate security clearance. The security clearance was received while the department’s decision maker was on leave. Subsequently the department suspended the processing of visa applications for applicants from that detainee’s home country, and the applicant therefore remained in detention without the grant of a visa. Just think about that. Someone was kept in detention because a departmental staff member went on leave—they stayed jailed as if they were a criminal because someone from the department went on leave.

This bill is all about circumventing what happened next. When the applicant realised that a decision had been made by the department in his favour, an application was made for his release pending the court’s final determination as to whether the decision record and security clearance constituted, to all intents and purposes, a visa grant. After hearing argument that there was a serious issue to be tried and the balance of convenience favoured his release, the court ordered his release pending its final decision. If this draconian bill becomes law, the court will no longer have the discretion to consider such an order for the interim release of a detainee in these or in similar justifiable circumstances.

I believe that Australians with any commonsense would regard the circumstances in the case of VFAD as simply unacceptable, as the court did. In his second reading speech before this House last Wednesday, 18 June, the Minister for Immigration and Multicultural and Indigenous Affairs stated:

Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court’s final determination of the person’s judicial review application.

Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court’s final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.

But the minister neglected, as always, to articulate the other side of the argument. For this minister it is all politics; it is all about wedge politics. It is all about creating division, mistrust and suspicion towards people who, as our national anthem states, come to this land for a better life and to escape the persecution they allege they have endured in their country of origin, regardless of the merits of each case. This is a minister who is prepared to incarcerate people in order to gain political advantage.

If this bill becomes law, a person in detention will not be able to make a valid application to the courts for interim release and will, without exception, remain in detention for the weeks, months or possibly years the final determination may take. In the event that the court finally determines that the applicant is in fact the holder of a valid visa or that his or her detention has been from some point unlawful, the person concerned will have been required to endure a potentially lengthy period of detention in one of Australia’s immigration detention centres for no lawful purpose.

In my view, this is simply untenable. The Minister for Immigration and Multicultural and Indigenous Affairs is obsessed with bringing absolute clarity to the workings of the Migration Act. He speaks of making `parliament’s intentions unmistakably clear’ and `preventing the integrity of the act from being compromised’. His actions are the antithesis of integrity. It is part of a process of dehumanising people in which this minister is engaged—and his physical deterioration can be seen as a result. That is why people are referred to as numbers rather than as people. That is why we have seen a preparedness to say anything and do anything in order to reinforce prejudice, highlighted perhaps most damningly by the `children overboard’ affair.

Labor believes, however, that, where the fundamental issue of personal liberty is concerned, it is essential to good law that any legislation imports an element of flexibility so as to allow a decision to be made as to what is reasonable in any particular case. This is our common law heritage. It is our common law heritage which this government seeks to tear down. As was stated in the Al Masri case:

… when the demands of certainty and liberty come into conflict, the tradition of the common law is to lean towards liberty.

This is as it should be. This is a compassionate approach, involving as it does the safeguarding of a fundamental human right. This is what this government finds objectionable. For let us not forget that when we are talking of immigration detention in Australia, we are talking of a current regime that detains men, women and children, the young and the elderly, the healthy and the sick. We are talking of a current regime that arguably contravenes the Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. We are talking of a current regime which appears content with a system of indefinite detention for many failed asylum seekers and their children. As Amnesty International Australia states:

Currently populations of those in detention are remaining incarcerated indefinitely because Australia does not have diplomatic contact with their country of origin and thus cannot send them back. In other situations countries refuse to accept returning “failed asylum seekers.” Thus these people remain in detention, refused permission to stay in Australia, unable to be returned to their home country. They are never charged and no court reviews the length of their detention. They have become forgotten detainees.

Of most urgent concern—and Labor’s amendment goes to the heart of this—must be the current situation in relation to the detention of children. In this regard, Amnesty states:

Amnesty International has grave concerns for children currently held in Immigration Detention Centres. Considerable evidence has shown detention centre environments are inadequate to meet the special needs of any child, let alone children who have suffered human rights abuses and the trauma of fleeing their home.

As at November 2002, 139 children were held in immigration centres in Australia and 100 of those children were school age. There is no legal limit on the length of their detention. Amnesty states:

Young children have witnessed their parents abused and ill-treated which is particularly traumatic. Child detainees have witnessed traumatic events such as detainees rioting and sewing their lips together in protest. Children have also suffered when guards have responded with tear gas or late night spot checks.

The minister shows his arrogance by wearing an Amnesty International badge in his lapel. How offensive! In May 2002 the Women Barristers Association, in its submission to the Human Rights and Equal Opportunity Commission in relation to its national inquiry into children in immigration detention, said:

The experiences recorded demonstrate that most if not all children in detention are suffering; some are treated poorly; some are denied proper health, education, recreation; some are forcibly separated from their families; some are exposed to violence and self harm; some are witnesses to their families’ psychological and physical distress; some are subject to arbitrary and harsh punishments; and most are experiencing unabated and unrelieved trauma and grief.

The deleterious effects of indefinite detention on the health and wellbeing of children cannot be overstated. Dr Louise Newman, Chair of the Faculty of Child and Adolescent Psychiatry, Royal Australian and New Zealand College of Psychiatrists, states:

Children currently held in detention centres have been exposed to serious psychological distress in adults and adult self-harming behaviours, and have experienced cultural dislocation and community trauma. In these circumstances it is likely that many will develop Post Traumatic Stress Disorder and that this may become chronic with effects on development.

What sort of government ignores those reports? The most telling report is that provided to the Medical Journal of Australia jointly by a former Villawood detention centre detainee, Dr Aamer Sultan, and by a former visiting clinical psychologist to Villawood, Kevin O’Sullivan. To prepare the report, data was collected from a survey of 33 detainees who had been held for over nine months. Their observations suggested some common themes in the psychological reaction patterns of detainees over time. They describe four stages of psychological disability: the non-symptomatic stage during the early months of detention and the primary, then secondary, then tertiary depressive stages. Most disturbingly, in children they observed a wide range of psychological disturbances, including separation anxiety, disruptive conduct, sleep disturbances, nightmares and night terrors, sleepwalking and impaired cognitive development. At the most severe end of the spectrum, a number of children displayed profound symptoms of psychological distress, including mutism, stereotypic behaviours and refusal to eat or drink. Rather than use its considerable resources to find effective solutions to this, the government has reacted to criticisms of its immigration policy by seeking to further strengthen its powers of long-term and indefinite detention.

In the face of so much opinion to the contrary, this government is determined to maintain its rigid and inflexible approach to asylum seekers and their children, and in its typical defensive fashion, further restrict the ability of the country’s judiciary to scrutinise and review its decisions. Chris Sidoti, National Spokesperson of the Human Rights Council of Australia, states:

What is not acceptable is extending mandatory detention indefinitely, denying individual assessment of the need to detain and prohibiting judicial review of detention beyond the initial period.

The amendment goes to the Prime Minister’s statements that contact with fathers is vital for children. We see exclusives given to Sunday newspapers about how important the family unit is, according to this Prime Minister, who probably feels a bit guilty about the amount of time that he has been able to spend—as politicians are, given our unfair sitting hours—with our own children. We all find it difficult.

At the same time, we have the situation involving two children of the Samaki family—a classic example of the inhumanity of this government—whose mother was killed in the Bali bombing, an issue which all of us feel very passionately about. This is an opportunity to show some compassion, as well as passion, and to allow the children to visit their father. What sort of humanity in 2003 will not allow two children, whose mother has been killed by a terrorist action, to visit their father in detention? I condemn the Howard government—every single member—for not allowing that to happen. It exposes the hypocrisy that this government is on about. I am concerned for a society that is prepared to deprive people of their liberty indefinitely without an opportunity for court intervention, and that is why this amendment should be supported. (Time expired)

Debate (on motion by Mr Organ) adjourned.