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Tuesday, 30 March 2004
Page: 22329


Senator BARTLETT (Leader of the Australian Democrats) (8:35 PM) —by leave—I move Democrat amendments (1) to (4) on sheet 2857:

(1) Subsection 179D(1), after “possible”, insert “and not later than 14 weeks”.

(2) Omit subsection 197D(2), substitute:

(2) A decision to detain in accordance with subsection (1) is reviewable by the AAT.

(3) Subsection 197E(1), after “possible”, insert “and not later than 14 weeks”.

(4) Omit subsection 197E(2), substitute:

(2) A decision to detain in accordance with subsection (1) is reviewable by the AAT.

These amendments and Labor's amendments go to an important area, probably one of the areas of most concern to the community in relation to the whole area of treatment of asylum seekers in Australia—that is, the detention of children. Labor's amendments are welcome as far they go. Let me preface all my remarks by saying that the Democrats' view is that mandatory detention across the board is inappropriate. Initial detention in centres that are far less like jail than what we now have to assess people in terms of health and security is appropriate. Then, as soon as practicable, they should be allowed out into a community based arrangement. There are any number of variations and different options around the world that could be used as models but I will not go into them now. I have certainly spent a fair bit of time in a number of countries specifically looking at the matter of alternatives to the detention regime in Australia. The alternatives are there, and I think that is one of the first points that need to be made.

Part of the reason that some Australians believe that mandatory detention is necessary is that they do not believe there are any alternatives that work. There are other alternatives that work. Each approach has its own pluses and minuses, of course. The big minus in the Australian system is the impact of long-term detention on the people, particularly the children. Another impact is the cost, although that in itself should not be an excuse. If the human cost, though, is as bad as it is, then we need to have another approach. The Democrats have long advocated that.

In focusing on these amendments to do with children, I do not want it to be misinterpreted that we are only interested in children in detention. However, it is a movement forward in the Labor Party's policy in the last few years. Whilst criticising both Labor and Liberal in relation to their policies on asylum seekers, I have tried to take an approach that welcomes positive moves. This is a positive move.

The Democrat amendments seek to tighten slightly the amendments moved by the Labor Party, which say that as soon as possible after the commencement of detention a detained, unaccompanied child should be released out into the community into a foster family or, if it is a child with a family, released with their family members into immigration detention conditions similar to the current arrangements at Port Augusta. I would like to know why you could not have nicer detention conditions for everybody, frankly. But the real issue, even in relation to the versions put forward by the Labor Party, is that while the Port Augusta alternative detention arrangements for women and children are nicer conditions—there is no doubt about that—it is still detention and Labor's own amendments say that they are still immigration detention conditions. That point needs to be made. So while what Labor has put forward are far from the Democrats' preferred options, we would still support them as being some step forward and some recognition of the need to get children into a better environment as soon as possible.

What our amendments do is define `as soon as possible' a little bit more tightly and say `and not later than 14 weeks', because `as soon as possible' is a bit rubbery. We would like to have a specific time frame—an absolute maximum of 14 weeks—for detention of children. That is still quite a long time, frankly. For many countries, including in Europe, even those that have detention for a small length of time have an even smaller time for children. To detain children for more than a couple of days in many countries is seen as not acceptable unless there are specific circumstances. What we have also put forward here, therefore, is that if a decision to detain for more than 14 weeks is still believed to be necessary, it can be appealable to the tribunal. That is a basic principle and we would like to see that apply across the board.

The Democrats' policy is that, unless there are strong reasons—health or security reasons—to the contrary, all people should be out of detention as soon as possible. It would be a lot cheaper. In our view it would not significantly undermine what has come to be known as border protection and it would be far less damaging to the people involved. But the department can still have a circumstance where they believe health and security risks—or the flight risks, perhaps—are such that people should stay in detention. That is okay, but let us have those decisions reviewable by the tribunal. Otherwise you do get the circumstance, such as we have now, where people can be in detention indefinitely, for years and years. As I pointed out in this place last week, we have a young Afghani man in his 20s in Port Hedland who clocked up the five-year mark last week. That is just not acceptable for anybody who is not convicted of or, indeed, charged with any offence.

These amendments go specifically to children. I think I can anticipate what the minister is going to say to them, but I will let her say it. They do not go far enough, but they go somewhere in the right direction and acknowledge what is one of the major public concerns about mandatory detention—the impact on children. I have not visited the arrangements at Port Augusta, I have to say—I am hoping to do so soon—but I did go to look at the alternative detention arrangements at Woomera. There is no doubt that they are nicer environment. They are basically a house with a garden like any other house except that you have a guard in there, that you cannot leave except with a guard at specific times and that you cannot have visitors. It is a bit like house arrest. So you do still have that major problem of not having control over your life and not having freedom. That is still the circumstance.

My understanding about the children who are in that situation at Port Augusta—and I am sure I will be corrected if I am wrong—is that some of these children have started to go to school in Port Augusta, which is great, but when their school friends want to visit them they cannot. If the kids want to go out, they cannot—at will, anyway. Indeed, if people want to visit, my understanding is that they actually have to go back to Baxter detention centre properly and do visits there.

It is a move forward of sorts. The way it operates at the moment, of course, is that the women and children have to choose between going out into this better environment and leaving the father and husband behind or staying in Baxter. My understanding is that many of those who have chosen not to go out into the community based alternative detention arrangements in Port Augusta have done so because they do not want to be separated from the spouse and father. That is very understandable. It is a bit of a dilemma that they are in, quite frankly, and shows the problem underlying detention in general. Having said all that—and I am sure that the minister will make this point—it is still some small step forward. As I said before, I acknowledge Labor's positive steps forward and I acknowledge the government's step forward. The government has acted to an extent to respond to community concerns about the impact on children in detention, and I have no doubt that the minister will say that it is more than the Labor Party did when they were in government in relation to children in detention. But there is a lot more that needs to be done.

The evidence of harm to children from ongoing detention is overwhelming. The number of medical studies now is sufficient to demonstrate beyond doubt that significant major harm is caused to many children who are in detention. That is no surprise, of course. It is only as one would expect, but the extent perhaps is greater than one might think. The damage done to children—and especially to children reaching adolescence, even more so than younger ones—is very hard to reverse. A lot more needs to be done. I urge the government and the Labor Party to recognise that more needs to be done than what these amendments will do and than what the government is doing now.

There have been decisions by the department in recent times to allow some children out of detention altogether and to put them into community detention, for want of a better phrase, because of circumstances. In some cases those circumstances have been about the health situation. I guess it is good that the government acts; it is bad that the health situation is generated in the first place. It all comes back to the core problem, which is ongoing long-term detention. It is a bad thing for people. I do not believe it is necessary at all. But that goes further than what these amendments will do. Insofar as they go forward in a positive direction, we support them. I believe our amendments will strengthen them a little more to ensure that `as soon as possible' at least has a time limit on it. I commend our amendments to the Senate and indicate our support for the Labor Party amendments. As a broader statement I indicate that there is still more that needs to be done.

In closing, let us not forget about the processing centre that has the largest number of children still in it today, and that is the one that we cannot touch at all through this legislation, the one on Nauru. They do not have alternative arrangements. They do not have much hope at all at the moment. Something needs to be done there, but that is a debate for another time.