Mr MURPHY (12:47 PM) —Before I make my contribution, which I hope is a positive one, to this debate on the Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001, I want to make a brief comment on the issues that the member for Oxley has just raised in respect of his electorate. The people of Australia will have the opportunity on Saturday, 17 November, when they go to the polls, to express their view about it. I am sure the member for Oxley will increase his margin in that seat, as I hope to do in my electorate in spite of the disgraceful attempts by the government to fix the aircraft noise problem by selling Sydney airport before the federal election. I am not here to talk about that, but I should make that point.

The purpose of this bill is to make amendments to the Migration Act so that a regime is created that enables strip searching of immigration detainees without a warrant. The issue of strip searching without a warrant is a highly contentious issue. I am advised by my friend and colleague the shadow minister for immigration, the Hon. Con Sciacca, that the government has acceded to the four amendments put by the opposition in respect of this bill. For the purpose of debate, it is worth restating those amendments briefly. Firstly, strip searches are to be conducted only after an objective assessment of intent is proven; that is, following the conduct of conventional searches. Secondly, authorisation for strip search must be given by a DIMA SES officer of at least acting deputy secretary level. Thirdly, the detainee will be provided with the option of having another person, acceptable to the detainee, present to act as a witness during the conduct of the strip search. Fourthly, in the case of a minor over 10 years of age being strip searched, the request for a search must comply with the provisions of the Crimes Act 1914.

It is important for these provisions to be understood for what they are. To gain an understanding of these provisions, it is worth making some observations. Firstly, this bill represents an attempt by the minister to meet a delicate balance between his competing public duty to ensure border protection on the one hand and, on the other, to preserve the dignity of detainees. That is why it is so important that this bill ensures that there are effective safeguards against such abuse. There is an argument consistently put by this government that an unlawful arrival should be mandatorily detained. This policy is shared by the opposition. From this policy comes an increasing array of administrative powers, rules and practices that require careful examination when compared with Australian law.

This legislation attempts to ensure that a human being, irrespective of whether he or she is an illegal arrival, is treated as a human being. The moral basis upon which I view every human being is found in Genesis, chapter 1, verses 26 and 27, which reads:

From this simple but profound quote flows the fundamental cornerstone of universal jurisprudence from which I speak. This quote is the foundation of the greatest legislative instruments ever written, from the Magna Carta to our system of jurisprudence. I raise this point because this parliament is to vote on a bill this afternoon that seeks to make laws for detainees which need careful comparison with the laws relating to the strip searching of Australian citizens. Let me briefly review the law of strip searching as it applies to Australian citizens. The Bills Digest No. 131 of 2000-01, on the Migration Legislation Amendment (Immigration Detainees) Bill 2001, notes that if you are an Australian citizen:

The Bills Digest goes on to note:

Under the Customs Act 1901, Customs officers are provided with powers of personal search. The relevant words in the quotation are `lawful custody'. Detention is not arrest. For an arrest, the person has their rights read, they are made aware of a charge and statutory rights are conferred on the prisoner: a right to bail: the application of the Magistrates Rules, access to a lawyer, one phone call and so on.

I bring to the attention of the House, as I have done so on many other occasions, the fact that the federal electorate of Lowe is one of the most ethnically diverse electorates in Australia, boasting some 21 ethnically distinct communities. As a consequence of this, my electorate office has increasingly become involved in detention cases, with my electorate office needing to make an increasing number of representations on detention cases requesting ministerial intervention. During the last year, it has become increasingly apparent that the necessity to address detention matters is rising rapidly, with more cases and more desperate political and social situations occurring abroad.

Many people are escaping what are called `relativist regimes'—that is, the law in those countries treats them differently and adversely compared to others. They are discriminated by reason of their race or religious or political beliefs. Fortunately, in Australia we have laws that outlaw such discrimination. What is `relativism'? It means, simply, that there are rules for some and not for others—or, to put it another way, the law says a law will apply depending on who or what you are. A recent example of this is the law in Afghanistan which would consider the death penalty for those found guilty of the heinous crime of preaching Christianity.

So what is the current circumstance with this bill before the House this afternoon? Here we have a law that applies to a detainee. So what is a detainee? A detainee obviously means one who is detained. It is critically important to distinguish detention from imprisonment. This House must bear in mind that the critical difference between a detainee and a prisoner in jail is that the prisoner knows how long they are going to be imprisoned. If you commit an indictable offence, you are given a sentence of imprisonment by a court of law. You are told that your sentence will be, for example, six months imprisonment and, further, that you have certain appellate rights to plea bargain, reduce the sentence or have that sentence mitigated or waived altogether. Such a situation does not exist with the detainee. The reason an immigration detainee is being detained is that that detainee has breached Australian migration law. Once that breach has occurred, the person ceases to be within the purview of Australian criminal jurisdiction and instead falls within the administrative jurisdiction of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock.

The difference between the administrative justice within the judiciary and the administrative justice within the executive is significant. At first instance, it must be said that a minister, particularly the Minister for Immigration and Multicultural Affairs, is not immune to the law and the judiciary, one of the three arms of government—although it must be said in passing that this government has done everything within its power to attempt to balance the judiciary's powers with the powers of the Minister for Immigration and Multicultural Affairs—for it is the original jurisdiction of the High Court of Australia which is the paramount issue here. The original jurisdiction of the High Court demonstrates the living legacy of our common law jurisprudence—a jurisprudence borne out of our Christian heritage that seeks to ensure that each man and woman, whether citizen or not, counts as one person.

I commend Philip Ruddock and the government for accepting the opposition's four amendments as noted above. In doing so, the minister has accepted the most pressing concerns I hold personally and on my behalf of my constituents. However, this brings to light the second issue about detention—that is, detention is further distinguished from imprisonment in that detention is not supposed to be a punitive measure. Detention is not a punishment in violation of a criminal act, and we must be mindful that such legislation never creeps over the line so that it becomes so. However, the minister is faced with the difficult pressure of ensuring that his officers have sufficient powers to perform their duties in an environment of increasing border violation by unlawful entrants.

That being said, I observe that indeterminate detention is worse than imprisonment. I ask each member of this House today to imagine, if they can, being detained at a detention centre, never knowing when or if you are likely to be released. A prisoner in jail knows when their sentence expires, even if that sentence is for 20 years or more. The period of detention plays on the detainee's mind. It is a serious blight on the detainee. Psychiatric disorders amongst detainees can be permanent and the longer term effects can be even worse. I know that from my first-hand experience in dealing with some of these cases through my office. That is why it is important that these provisions made by the minister ensure fairness in meeting the human rights of the detainee whilst maintaining sufficient powers in the hands of the detention centre officers. I believe this bill achieves that balance.

There is a possible simple solution to the issue of indeterminate detention. The magistrates rules apply in Australia to ensure that a person arrested on a suspected felony is brought before a duty magistrate within a prescribed period. No citizen in Australia can be under arrest beyond a reasonable time, and a person must be charged or released unconditionally or conditionally—that is, on bail.

The department of immigration does make every effort to expeditiously deal with requests for ministerial intervention and also to make decisions to ensure that people remain in detention for the least amount of time possible. I understand that something in the order of 35,000 requests for intervention are received by the minister each year. So Philip Ruddock has a pretty difficult task. I commend the professionalism with which the ministerial intervention unit and case officers have dealt with such difficult and complex cases in a spirit of fairness and impartiality.

It is important that our detention laws and powers conferred on officers reflect the jurisprudence that is equivalent to that enjoyed by any other person. The rules governing strip searches must reflect a system whereby fairness and equity prevail, balancing the rights of the detainee with the onerous responsibility of the minister in his administration of duty. So what are the comparable rights enjoyed by an Australian citizen in being strip searched? I note that the relevant Bills Digest for this bill is No. 14 of 2001-02. However, a prior and more substantive Bills Digest identifies the comparable rights of Australian citizens under Commonwealth law. First, it is important to note that the power to strip search is held by a number of Commonwealth agencies, including agencies such as the Australian Customs Service and Australasian Correctional Services Pty Ltd. I note that the ACS is a subsidiary of the US Wackenhut Corrections Corporation, which in turn raises questions of what ethical relationship a private company—and a foreign private company at that—can have with the public interest factors, including human rights.

I bring it to the attention of this House today that the Villawood Detention Centre is managed on a day-to-day basis by Australasian Correctional Management Pty Ltd, which is subcontracted by ACS and which is the operational arm of its parent. The responsibility of those officers at the Villawood Detention Centre is truly a daunting task. My electorate staff is complimentary of the excellent work these officers perform. They have a difficult task. These officers make every effort to treat the detainees with courtesy and respect.

The power of strip searching without warrant is a difficult power to justify unless one understands the immediate issue. The absence of warrant is the critical factor in the overall justice of this bill. The bill is set up in a way to ensure that there are sufficient checks and balances in the administration of such power without the power being abused and thus depriving a person of their human rights. This policy must be supported by ensuring the speedy and expeditious administration of detention cases, which I know the minister and his staff are making every effort to address. Without this policy, the prospect of detainees being driven to escape will increase.

The minister for immigration will be well aware of his ministerial guidelines for those seeking intervention on decisions from the Refugee Review Tribunal pursuant to section 417 of the Migration Act and decisions of the Migration Review Tribunal pursuant to section 351 of the Migration Act. A major factor in the public interest to be triggered for the intervention of the minister is whether there was an unintended or unforeseen consequence of the legislation. It is my observation that detention was never designed to be a punitive provision. However, detention must be expeditiously treated and some degree of certainty and timing ensured.

The fundamental of this bill and detention law in Australia is therefore pitted against two serious and competing policy objectives. On the one hand there are the human rights of the detainee; on the other hand there are the pressing needs of Australia's border protection. I say all this in the hope that our laws reflect the universalist jurisprudence which preserves human dignity whilst fulfilling the onerous public responsibility of the Minister for Immigration and Multicultural Affairs. For these reasons, I support the attempt by the minister in this legislation. As one member of this parliament who is becoming increasingly engaged in detention cases, I seek to work with the minister in ensuring that justice and fairness prevail in fulfilling the dual policy objectives of maintaining Australia's border protection whilst not violating the human rights of the detainee.

I commend this bill to the House. I further commend the minister for the efforts he has made to ensure the safety, peace and security of detainees who long for protection, justice and acceptance in Australia, a country which they hold to be a land of beauty, fairness and safety. If the minister can achieve this delicate balance, then Australia will be known as the country of the fair go, a country where we can all be proud to call ourselves Australians because we will be respected as a society if we meet this balance.