Senator KIRK (1:33 PM) —I rise to speak on an issue of great concern to me, in my capacity as a South Australian senator and also as a compassionate member of the Australian community. I will say at the outset that a number of the comments I am going to make today are along the lines of the comments that Senator Nettle has just made in relation to children in detention. However, my focus is on one particular family whom she did refer to and that is the Bakhtiyari family.

As many senators are aware, the Bakhtiyari children's bid for freedom received another setback last month as a consequence of the negative outcome that they received following their appeal to the High Court of Australia. As a result of this decision in the High Court, the five children were set to be returned to the Baxter detention facility. As many people would be aware, the children have been in the Adelaide community for many months now being looked after by community members. As a consequence of this decision, the Bakhtiyari children, strictly speaking, should have been returned to the Baxter detention centre. However, aware of the public sympathy that there is out there in the community towards the Bakhtiyari children and, of course, with an election on the horizon, the Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, gave way to her political sensitivities in this instance, and designated the children's domestic residence as a community detention facility.

Initially, this placed the onerous task of ensuring that the children were supervised at all times onto the Catholic welfare agency, Centacare Family Services, and other providers of care to the children including their school teachers, their friends, their soccer coaches and other people who care for them in the community. This declaration, made while the children's case was still in the process of appeal, I might add, amounted to returning the children to immigration detention while a case to maintain their freedom was still before the courts. The Bakhtiyari children now benefit from the discretion of the minister not to compel Centacare to enforce the terms of community detention rules. The threat of being subjected to 24-hour-a-day supervision hangs over the heads of these children, however, because it could be the case that the minister could change her mind at any time.

More recently, as Senator Nettle referred to earlier, Minister Vanstone has allowed the children's mother and her infant child to join the children at their Adelaide residence. Mrs Bakhtiyari has been kept in a motel in Adelaide for eight to nine months, under security, and it was revealed yesterday that this has been at the cost of over $700,000 to the Australian taxpayer. As Senator Nettle said $700,000 was spent over the course of nine months, just to keep Mrs Bakhtiyari and her young child in detention in a motel. While those concerned for the welfare of the Bakhtiyari family—and there are many of those people in South Australia—can be pleased that finally the concerns of the children and their plight have won over the minister, my concern here today is about the minister's use of her discretionary power and her stubborn refusal to change the government's policy on the detention of children and their families.

The Bakhtiyari case is not an isolated incident. It is one that has caught the attention of the public and the media, but it is not an isolated case. Recent figures from the Department of Immigration and Multicultural and Indigenous Affairs indicate that children are being surreptitiously released from detention without any publicity. In recent weeks the government has been active in removing asylum-seeker children from immigration detention facilities, three of whom were unaccompanied children. Of course I welcome these efforts by Minister Vanstone in removing children from immigration detention. However, this should not be done through the back door, through the surreptitious granting of bridging visas and the use of ministerial discretion. The government and Minister Vanstone need to admit to their change of heart on the issue and, accordingly, change the legislation that governs these matters.

Last week the Bakhtiyari children received yet another negative judgment, this time from the Federal Court of Australia. The Federal Court refused their application to be granted an interim release from immigration detention, saying that the children's detention was not indefinite as there was a reasonable prospect that the family will be deported sometime in the future. If there is such a reasonable prospect, will the minister for immigration remove the uncertainty that remains the children's daily companion and tell them, the parliament and the Australian people when this will occur? How much longer must these children wonder about their future?

This issue is made even more frustrating by the fact that the whole appalling state of affairs could have been avoided had Minister Vanstone responded proactively and granted the children an interim visa in the first place. Such a visa would allow the children a degree of certainty and the opportunity to live securely within the South Australian community until a final decision about their future can be made. Of course, such reliance on the discretion of the minister would be circumvented were the government to adopt Labor's position—which, as I have said, it is starting to implement through the back door, without passing any legislation, as we have seen by the removal in recent times of asylum-seeker children and their families from immigration detention.

As a direct result of the minister for immigration's obstinate refusal to act on this matter, the children's legal team are now taking further legal action, this time in the United Kingdom. Senators may recall that in April 2002 two of the Bakhtiyari boys attempted to claim asylum at the British Embassy in Melbourne but their claim was rejected. The case, which will be heard by the British Court of Appeal next month, is based on the argument that the British Foreign Minister, Jack Straw, failed to properly assess the children's case and that by not granting the boys asylum, and thus forcing them back into the conditions that unfortunately still prevail two years later at Australian immigration detention centres, the British Foreign Minister and the British government breached Britain's domestic human rights laws. This action in the British court comes shortly after the findings of Australia's peak human rights organisation, the Human Rights and Equal Opportunity Commission, in its report entitled A last resort? National inquiry into children in immigration detention. We now face the prospect that a court in the United Kingdom will find that Australia's treatment of the Bakhtiyari children amounts to a breach of their fundamental human rights.

I would like to briefly comment on the Human Rights and Equal Opportunity Commission report A last resort? which I mentioned a moment ago. Many senators will be aware that the report made some very damning findings in relation to this government's treatment of children in detention. The report found that Australia's immigration detention laws, as administered by the Commonwealth and applied to unauthorised arrivals who are children, create a detention system that is fundamentally inconsistent with the Convention on the Rights of the Child. Based on this finding, the key recommendation of the HREOC report called for the release of all children in immigration detention by 10 June 2004—just last week. The report called for this to occur either through the transfer of the children into the community, the exercise of the discretion of the minister to grant humanitarian visas or the granting of bridging visas. That deadline has passed us by. We have to ask: what will it take for the minister to listen? If a 925-page report, which was two years in the making, by Australia's peak human rights body is not enough, what is?

The report's second recommendation was that Australia's immigration detention laws be amended to ensure that they comply with the Convention on the Rights of the Child. While the HREOC deadline has passed, it is still within the power of the minister to remove all children from immigration detention. Whether she sees fit to do so or not, I believe that this government must ensure that it treats all asylum seekers with the respect and dignity that comes with recognising their fundamental human rights.

The government should also move to end the arbitrary exercise of the minister's discretionary power in these matters. This government promised that it would decide who comes into this country and the circumstances in which they come. That was its mantra for the last election. It must now amend its policy to face the reality that recent decisions to remove children from immigration detention by the minister are being made outside of its own legislation and at the whim of a single member of the executive government. The government must immediately release all children from immigration detention in Australia and in Nauru and own up to its change of heart.