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Wednesday, 11 August 2004
Page: 26153


Senator BARTLETT (Leader of the Australian Democrats) (2:54 PM) —My question is to the immigration minister. I refer to the minister's answer to my question on Monday regarding the prospects now of people being indefinitely detained despite there being no prospect of their being removed from the country. In that answer she described the ministerial discretion that she has as a safety valve which is the `opportunity for people to be given relief and stay in Australia'. Minister, how can ministerial discretion be an adequate protection or safety valve when there is no way of requiring a minister—you as well as any future minister—to exercise that discretion regardless of the circumstances? Can the minister advise of any other modern democratic nations that enable the government to indefinitely detain a person without charge or trial when they present no threat to public safety?


Senator VANSTONE (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) —I thank the senator for the question. Senator, you raised this question, if not exactly then at least an indirect reference to it, in your question earlier in the week. I think the point that is missing from your question—to give those people who are not as interested in these issues as you are a fuller picture—is that you are dealing with people who have already been through processes of review. You look to the concept of ministerial discretion and say, `It is not good enough because you can't be forced to use it, or there isn't an appeal mechanism from it.' On that theory there would never be an end, a resolution, to any of these issues. Whereas ministerial discretion is there as the final chance. It is when you have had a primary decision, when you have been to the Refugee Review Tribunal or the Migration Review Tribunal, when you have accessed possibly the Federal Magistrates Court, the Federal Court, the full Federal Court, the High Court and then the High Court in its original jurisdiction. And when you have lost on all of those counts, and had every other appeal mechanism available, to then say, `I am sorry, there is no appeal or no way I can force the minister to make a decision,' does not seem to show an understanding of the processes that are available prior to that. It is meant to be the last port of call. It is never alleged to be anything other than that.

Senator, in my answer to you during the week I referred to a case as an example where someone alleges to be from one place, the department does not accept that they are from that place, and they therefore say that they are stateless but we cannot get them home. The particular case that I have in mind is worth putting as a hypothetical. You have someone who consistently gives you information, you check the information, and every time it turns out to be wrong. So you go back and you get another bout of information and you go and check that and that turns out to be wrong. This goes on for a period of time until you finally realise that this person is determined to stay in Australia come what may and will continue to give you incorrect information, so that in a game, if you like, of chicken—`How long will you keep me here?'—they hope you blink and give in.

If it is the Democrats' policy to give in and allow those people who choose to behave in this fashion to stay in Australia, then you should put that on your web site. It is not our policy. There are very few people in those circumstances who either claim to be stateless or have difficulties of return. I have given an undertaking that I will look at the High Court judgment; I cannot do more than that. I have given an undertaking that I will look at the cases individually on their merits. Bland generalisations such as those you offer might be helpful in a political sense but in a substantive sense, to get better policy, are no use at all.


Senator BARTLETT —Mr President, I ask a supplementary question. To follow up the minister's answer, can the minister now or subsequently provide the Senate with information on exactly how many people who are stateless are in Australian detention or are in the community but are now at risk of re-detention? In relation to her self-described safety valve of ministerial discretion, which I do not think was a bland generalisation but a specific statement, is it not the case that that safety valve has already failed in a number of instances when we have people in detention in Australia who have for many years said, `Please, deport me,' and are not able to be deported and who have been locked up for two to six years? Isn't that an example of that so-called safety valve having failed to provide the very relief that the minister says it is there to provide?


Senator VANSTONE (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) —I will step aside from what I do think are the bland generalisations at the end about a category of people you purport exist that fit those criteria, with no other relevant information to be added, where I would say there is other relevant information to be added. I do not have the specific figures with me—and they may be difficult to categorise because, as I said, in some cases there is a dispute as to whether someone is stateless or not. That is not necessarily an easy matter to resolve. In fact, that might be the very nub of the issue that is in disagreement, so which column you put that person in would be a subject of debate. I can say that I am looking at about 30 cases, although they are loosely described as long-term detention cases or people who are out now, not necessarily fitting into the stateless category nor, on their own behalf, alleging to be. So there are not many. (Time expired)


Senator Hill —Mr President, I ask that further questions be placed on the Notice Paper.