Mr STEPHEN SMITH (4:45 PM) —Labor opposes the Migration Amendment (Duration of Detention) Bill 2004. The substance of this bill is the very same as legislation that was introduced last year by the former minister for immigration. On that occasion Labor pursued and successfully negotiated amendments with the government that ensured the integrity of our migration system but with a proper role for the courts. The measures which this bill seeks to re-present to the parliament are, in my view, excessive and obsessive and out of all proportion to the circumstances which the bill seeks to address.

The bill in its substantive form is quite narrow and deals exclusively with whether or not a court is entitled to award interim or interlocutory relief by way of release of an unlawful noncitizen who is detained in an immigration detention or processing centre. The explanatory memorandum succinctly and correctly outlines the substance of the bill, and I would like to refer to that for the record. The explanatory memorandum says:

The explanatory memorandum goes on to say:

All those references are found on page 2 of the explanatory memorandum. Page 4 of the explanatory memorandum says:

The explanatory memorandum goes on to say:

That paragraph is clearly a reference to the Al Masri case and an acknowledgment by the government and the minister, through the explanatory memorandum, that the Al Masri case correctly states the law insofar as those circumstances are concerned. So, whilst the issue in the bill is quite narrow, the history with regard to the capacity of a court to order interlocutory relief, interim release, of an unlawful noncitizen from detention rather than waiting until a final determination has been made in respect of an unlawful noncitizen's position, is longstanding and quite large.

The minister in his second reading speech, and the former minister in debate on the 2003 bill, said words to the effect that this bill is an important measure in `upholding the principle of mandatory detention for all unlawful noncitizens under the Migration Act'. The problem is that, if that is the case, we have all been doing that since the Msilanga case in 1992—one of the first cases on the mandatory detention regime introduced by the former Hawke-Keating government in 1992. In his second reading speech the minister went on to say:

So the effort was made in the legislation to essentially exclude the capacity of a court to order the removal of an unlawful noncitizen—that unlawful noncitizen only being able to be removed from detention with the granting of a visa or removal from Australia or deportation.

The difficulty that presented to the courts—and that which the Federal Court found in the Msilanga case in 1992—was that the Federal Court, under the Migration Act and the federal Judiciary Act, was able to order the release of a criminal deportee, someone whose visa was proposed to be cancelled for character purposes or an unlawful noncitizen. The Federal Court could order interlocutory relief and release on an interim basis such a person from detention if the court was of the view that that person was unlawfully detained. That has been the statement of the law since the Msilanga case in 1992.

More recently, in 2002 and 2003, we saw the full Federal Court uphold the interim release of an unlawful noncitizen on the basis, in the VFAD case, that that unlawful noncitizen was not an unlawful noncitizen and, in the Al Masri case, that the detention had become unlawful. We are looking at a very narrow point: can the Federal Court order the interim release of a detainee or must it wait until there has been a final determination of that detainee's case? The starting point is not the VFAD case or the Al Masri case, it is the Msilanga case in 1992.

The minister argues that there has been a spate of recent cases. On the basis of best advice made available to me by the department, I asked what information the department had about such applications made since 1992. The advice I received was that there was no corporate data of earlier circumstances, but the corporate knowledge was that there had been about four applications received from 1992 to 2002 and 48 applications received during the years 2002, 2003 and 2004, all of which have now been resolved. Of the resolved matters, the applicant was successful and the release ordered in respect of visa cancellation on character grounds in 15 cases. There were 16 cases described in the note I received from the department that were of persons challenging the lawfulness of continued detention based on the Al Masri argument and 16 matters where the applicant was not successful.

Putting 15 of those 48 cases to one side, given that the parliament last year closed off the capacity of a court to order interim release in respect of section 200 relating to criminal deportees or section 501 relating to character failures, we are dealing with 15 successful applications out of 48 cases during 2002, 2003 and 2004. On my calculation, in the financial year 2002-03, 126,000 people came to Australia as migrants; 12,500 people came on a humanitarian program; and 8,000 to 9,000 people came on temporary protection visas. These are not large numbers. But the issue was very important for the 15 people who successfully applied to a court to order their interim release. That issue was their freedom—whether they were to be detained or not detained.

It is my strong view that this parliament should move very slowly and cautiously to remove from courts the capacity to remove a person from detention using, essentially, its habeas corpus powers. At the opposition's suggestion last year, this parliament responded to this issue, or this concern—as it was expressed then by the former minister for immigration—by suggesting to the then minister and to the parliament that we should close off the capacity for interim release in respect of character cases or criminal deportees. That sounded to me then—post September 11—and it sounds to me now like an eminently sensible thing to do. In the end, the nation-state has to be cautious about the protection and security of its citizens. Closing off that capacity, in my view, was sensible, bearing in mind that that capacity had been open to the courts since the Msilanga case in 1992.

In respect of the court's relationship to the Migration Act and its view of this matter, whilst the Msilanga case was, if you like, the threshold case as far as detention was concerned in respect of the capacity of a court to grant interim or interlocutory release, the starting point is, in my view, the High Court's decision in Lim's case in 1992. In Lim's case, the High Court was asked to determine, essentially, the legality and constitutionality of mandatory detention for immigration purposes. It is worth while recapping what the High Court had to say in that case and referring to some of the reasons for judgment by the full Federal Court in the VFAD and Msilanga cases. They put into context, firstly, this parliament's legislative powers as far as immigration detention is concerned and, secondly, the issue of the capacity of a court to order interlocutory or interim release.

The High Court in Lim's case affirmed the constitutionality of administrative detention under the Migration Act where the detention was reasonably necessary for immigration processing. Justices Brennan, Deane and Dawson, in a joint judgment, held:

The capacity of this parliament to legislate in respect of immigration detention is limited. It is limited for the purposes of immigration. If it turned from being limited administratively for the purposes of immigration to being punitive in nature, the only institution in Australian society in accordance with the Constitution that can order punitive detention would be a court. This parliament has limited power in respect of immigration detention and that is why it needs to proceed, firstly, with caution and, secondly, with an eye to ensuring adequate and appropriate supervision by the courts of people who are in detention.

I move to the issue of the full Federal Court determining or viewing the question as to whether a court can order interim or interlocutory release. In the Msilanga case, the full Federal Court said:

So the test in the Msilanga case in 1992 was that, if a serious question arose as to the validity of the detention, a court was empowered prior to a final determination of a substantive claim to order interlocutory release. That has been the law since 1992. In the second reading speech the minister said:

If this is true, the parliament, the government and opposition have respectively turned a blind eye from 1992 to last year, when we closed down and narrowed that capacity and excluded the capacity of the courts to order interim release of those people of character concern or of criminal deportee status.

The two leading cases that we find in recent times are VFAD and the Al Masri case. I regard both the facts and the circumstances of those two cases as being exceptional if not unique. The VFAD case dealt with whether a person who was detained on the basis of being an unlawful noncitizen was in fact not an unlawful noncitizen. The Al Masri case involved an unlawful noncitizen who was being detained and who argued that his detention had become unlawful. In both of those cases the full Federal Court upheld decisions of single Federal Court justices acting alone that their capacity to order interim release by way of interlocutory orders prior to the determination of the substantive case was correct and consistent with the Msilanga case. In Al Masri in April 2003, the full court said:

That second limitation referred to there by the full court is also referred to in their conclusions in the appeal, at paragraphs 176 and 177 of the judgment of the full court. At paragraph 176 of the judgment they say:

There the full Federal Court made it crystal clear that the basis of the decision in Al Masri's case was not the length of detention. It was not a view as to the reasonableness of the length of detention in Al Masri's case. It went to whether there was a real likelihood or prospect of removal in the reasonably foreseeable future. They held that there was not that prospect but they made the point that this was not a judgment which would be taken lightly. When a court is deliberating over its interlocutory power to order release or to make interlocutory orders in advance of a final determination of the substantive issues, it always proceeds in a cautious manner. That is the message that the full Federal Court is sending in that case.

If, for some reason, the minister for immigration, current or former, has the concern that he or she does not want the courts ordering the interim release of unlawful noncitizens prior to a substantive determination of their case simply off the back of the length of detention or a view as to the reasonableness of the length of detention, they have nothing to fear. That is not the basis of the Msilanga case, it is not the basis of Lim's case, it is not the basis of VFAD and it is not the basis of the Al Masri case. In VFAD, the full Federal Court said:

The court there, in a sense, turns full circle, as it has been described by others, to the Msilanga case of 1992. So what is the mischief which the government seeks to close off by this piece of legislation? Does the legislation warrant or justify that mischief? Is there greater damage, or a greater concern or issue raised, by proceeding down the road which the government would seek to have the parliament follow? Firstly, what is the mischief? The mischief is that the government does not want a court, presumably the Federal Court, to be in a position to order the interim release of an unlawful noncitizen prior to the determination of the substantive issues related to that case, irrespective of whether there is a live issue as to whether that detention is in itself unlawful or whether the person being detained is an unlawful noncitizen.

On the basis of the rudimentary statistics able to be supplied to me by the department, over the period of more than a decade since the full Federal Court in the Msilanga case said that that was open to a court, we have seen 50-odd cases. Of the successful cases in the last two or three years, half have now been ruled out by the action of this parliament last year in refusing to allow a court to have that capacity of visa cancellation on character grounds under section 501 or for criminal deportees under section 200.

So, on the basis of information supplied to me by the department, over a 12-year period we have had 16 successful interim releases of unlawful noncitizens. I have not bothered to do the calculation as to what our refugee and humanitarian intake for that equivalent period was or what our migration intake for that equivalent period was; and there is no evidence in any of those cases where interim releases were ordered that any mischief contrary to the public interest occurred. But the government comes before this parliament and says that we should take away the right and capacity of a court to make those interim determinations, because of a handful of cases over more than a decade, when tests were applied and rigour was applied—by the High Court itself in Lim's case and by the full Federal Court in the cases of Msilanga, VFAD and Al Masri.

The government does not come here with clean hands. This is one of former immigration minister Ruddock's obsessions, and it will be as productive as his obsession with seeking to exclude judicial review by the courts through privative clauses if he embarks on or urges the government to continue to go down this path. Seeking to prevent a court from ordering the interim release of someone from detention—where the court has a live, serious and substantive issue as to whether, firstly, that person is indeed an unlawful noncitizen and, secondly, whether the detention itself is unlawful—is a grave harm to do to the individuals concerned. It pays no respect to the capacity of our courts to determine such things sensibly and adds nothing to the rigour of our migration system and the order that the community expects and warrants from our migration system.

The other issue that the bill raises in passing—I mentioned it when referring to Lim's case in the High Court—is that we do have before the courts at least one case that I am aware of where the constitutional basis of immigration detention has been raised. I am a strong supporter of mandatory detention. I think when people come here in an unauthorised way and we do not know who they are, we are entitled as a nation-state, and required as representatives of a nation-state, to detain those people for health, security, quarantine, character and identity checks. I have also made the point that you can have gradations of detention once you have done those initial assessments. Having inspected the residential housing project in Port Augusta, a short distance from the Baxter detention centre, that in my view is a very good model which can be used in appropriate circumstances, and the use of those facilities ought to be extended by the government.

But, as I said, we do have cases before the courts—at least one that I am aware of—where the very constitutional validity of immigration detention is being challenged, returning to the issue raised in 1992 by Lim's case. I would have thought that parliament's seeking to exclude the capacity of a court to order interlocutory relief for a person, where the court thought there was a live issue as to whether that person was in fact an unlawful noncitizen or whether that person's detention had become unlawful, would not necessarily help the argument that detention for immigration purposes was constitutional. I do not think the government or the parliament would want the High Court indicating that mandatory immigration detention was no longer constitutional, and seeking to exclude the court's capacity to order the release of people from detention might not encourage the courts to a sensible view of that issue.

So we oppose this measure. We opposed it in 2003, when the government brought it before the parliament. The government sensibly responded to our suggestion that, if there were an issue here, that issue was restricted and limited to section 200, which relates to criminal deportees, and to section 501, which relates to visa cancellation for character purposes. It seems like an eminently sensible approach to those cases, particularly post September 11. But in the area of unlawful noncitizens, where a serious or substantive issue goes to whether the person concerned is not an unlawful noncitizen, or indeed whether the detention itself has become unlawful and therefore unconstitutional, we should not close off the capacity of the Federal Court to conduct itself in this way. As I said, in the judgment for Al Masri's case the court said that such a decision was `one that will not be lightly reached'—one that will not be lightly taken.

On the basis of the statistics supplied to me by the department and on the basis of a lack of evidence as to any of these releases having caused any incident contrary to good government, good order or the public interest, there is absolutely no justification for seeking to exclude this capacity of the court which has been there since the Msilanga case in 1992. On that basis the opposition oppose the bill and will oppose it in the Senate.