Senator KIRK (4:30 PM) —I also rise this afternoon to speak on the urgency motion presented to the Senate by the Leader of the Australian Democrats, Senator Bartlett. As speakers in this debate so far have said, we are here to acknowledge the finding of the High Court last Friday that it is in fact constitutional, and also lawful, under the Migration Act to keep a person in detention indefinitely even in circumstances where there is no real likelihood of that person being able to be deported from Australia in the reasonably foreseeable future. Senator Ludwig has moved an amendment to Senator Bartlett's motion to omit all paragraphs after (a) and insert new paragraphs (b) to (h). I will talk briefly about these points before turning to the substance of my remarks.

This amendment acknowledges that the High Court in its finding was dealing with the small number of cases who are regarded as stateless persons. We acknowledge that the finding of the High Court was a split 4-3 decision, with the Chief Justice, Justice Gleeson, in the minority. We think this reflects the very serious concern there is in the community over asylum seekers being detained for lengthy periods of time. We condemn the government for its failures in the asylum seeker area—in particular, the lengthy detention of asylum seekers without review and the detention of children for lengthy periods, which I have spoken about on many occasions in the Senate.

We also condemn the government's refusal—until recently—to contemplate graduations of detention. We note that Labor's policy approach requires graduations of detention and the ongoing monthly review of asylum seekers who are not finally assessed within 90 days of claiming asylum. We believe Labor's approach will ensure that the small number of failed asylum seekers who are stateless will not be left in legal limbo for lengthy periods of time. We believe that Labor's approach will ensure a case-by-case assessment of such cases, leading to settlement in a third-party nation state or the use in these cases of alternative forms of detention—including residential housing projects, supervision in the community or release into the Australian community on a temporary basis pursuant to the exercise of ministerial discretion. Finally, in our amendment we call on the minister to immediately review the two individuals concerned, with a view to deciding whether their continuing detention in the Baxter detention centre is appropriate and whether it is in the public interest, given their recent presence in the Australian community for 12 months on terms and conditions as laid down by the Federal Court.

As a number of speakers have indicated today, these High Court decisions delivered on Friday, 6 August are of extreme importance and great significance not only to the asylum seekers concerned but also to those who remain in detention and to members of the Australian community who look upon this government's policy in relation to asylum seekers as a national shame. As has been indicated, the finding was a 4-3 decision. I think that in itself is very significant. It highlights the importance of the issues that we are dealing with here, and also the significance of the issues in terms of trying to reach a decision which is both consistent with the law and yet enables some compassion to be shown.

In the time that I have left I wish to make some brief remarks about the judgments. My focus will be on the decisions of the three minority judges—namely, Chief Justice Gleeson and Justices Gummow and Kirby. I should say at the outset that I do not wish to make any criticism of the majority judges in this case because I think they were faced with a very difficult situation. It was a difficult case of statutory interpretation of the relevant provisions. On the basis of the existing law, in many ways they were left with very little option other than to make findings in the way that they did. I refer to the decisions of the minority justices in this case because I think they highlight that there was some scope, some opportunity, to inject into this area of the law some decency, some compassion and some integrity—which is so needed and on which so many individuals' lives depend.

In his judgment Chief Justice Gleeson recognised the difficulty in the case of statutory interpretation that was before him, but he was prepared to accept what had been accepted by the Federal Court of Australia when, in the case of Al Masri, it ordered the release of asylum seekers into the community in circumstances where—as these stateless persons are—stateless people cannot be returned either to their country of origin or to a third-party country. Chief Justice Gleeson was willing to accept, as the Federal Court did, that it is not inconsistent with the remedy of habeas corpus to make an order which permits a person to be released into the community and to impose conditions as part of a final order for release from detention for an individual. Chief Justice Gleeson was able, if you like, to get around the strictness of the existing law by accepting that it is within the power of the Federal Court of Australia—and, indeed, any chapter 3 court—to make a final order for release into the community on conditions.

I now move to the judgment of Justice Gummow, who took a similar approach to that of Chief Justice Gleeson. Like Chief Justice Gleeson, Justice Gummow was prepared to accept that it is certainly possible and within the discretion of the courts to make an order for the release of an individual into the community on conditions and in circumstances where it is quite clear there is no reasonable prospect of that person being deported from Australia and moved to another country willing to take them.

Finally, I would like to mention the judgment of Justice Kirby. Justice Kirby's judgment really does highlight, to me at least, the gravity of the issues at stake here. I think we should not read these judgments, as I and many others have done, and just look at the strict law. We need to think very seriously about the context in which these decisions are being made and the implications that this decision will have not only for those asylum seekers who remain in detention but for those who may come to this country in the future. In his dissenting judgment Justice Kirby said:

and he noted that this view:

Justice Kirby was prepared, in layman's terms, `to read between the lines'. He was prepared to look to the way in which this law operates at an international level and, where there is some ambiguity, to permit international law to shape the common law. He makes references to international law principles and believes that, in his view, it is not inconsistent with our Constitution for international law to shape our constitutional principles. At paragraph 175, Justice Kirby said:

We need to be aware that this was a difficult constitutional law case for the High Court, and it has decided as it saw fit. We have a majority judgment; yet three judges in the minority, including Chief Justice Gleeson, took a contrary view. As Senator Ludwig has indicated, Labor will take a different approach to these issues when in government and will introduce some compassion and integrity into the process, which I think have been sadly lacking from the Howard government.