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Thursday, 16 June 2005
Page: 3


Senator NETTLE (9:34 AM) —I move:

That these bill be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

MIGRATION AMENDMENT (ACT OF COMPASSION) BILL 2005

This bill is designed to stop the cruelty that the Howard Government, and the Labor Government before it, created by legislating inflexible and draconian provisions into the Migration Act. The combination of draconian legislation and a harsh attitude, from the government and the Department, has led to inhumane treatment of asylum seekers. This treatment of asylum seekers is something that much of the Australian public, and more than a few courageous Government backbenchers, find repulsive.

The recent revelations about the unlawful detention and mistreatment of Australian permanent resident, Cornelia Rau; and the unlawful deportation of Australian citizen, Vivian Alvarez-Solon, have exposed the kind of mistreatment that asylum seekers in detention receive every day. The never-ending stream of bungles and scandals is indicative of an immigration system and bureaucracy that is out-of-control.

The Secretary of the Department, Mr Bill Farmer made a statement to the recent Senate Estimates committee in which he said:

“We profoundly regret what has happened in some cases. We are intensely conscious that our day-to-day business affects people, affects their lives and it’s distressing and unacceptable that our actions have in respects fallen so short of what we would want and what we understand the Australian people expect. We are deeply sorry about that.”

Gerard Henderson of the Sydney Institute, usually a strong advocate for the Howard Government, writes that the Department of Immigration is “totally discredited”. He goes on to say that as the department is “completely deauthorised… all its existing decisions should be open to review by an independent source.” He suggests that these cases should be reviewed by someone not in need of “cultural change” that the Minister has admitted her Department needs. This bill provides the legislative framework for such an independent review.

This bill seeks to end the suffering of the innocent people currently detained in the immigration detention system. It seeks to institute independent review, by a current or former judge, of those people currently in detention, and allow the release of people who pose no risk to the community, nor pose a risk of absconding.

According to the latest figures provided by the Department of Immigration (25 February), 338 people have been in immigration detention for longer than one year. The longest serving detainee, Peter Qasim, is in his seventh year of detention.

Unfortunately, Mr Qasim is not an exceptional case. 82 people have been in immigration detention for over four years. 55 have been in detention for over three years but less than four. 61 people have been in detention for between two and three years, and 140 have been behind the razor wire for between one and two years.

Under the provisions of this bill, detainees who have been in immigration detention for over one year will have their case reviewed by a judicial assessor, with the aim of releasing all long-term detainees who do not meet exceptional criteria. That is, they will be released into the community so long as they are not judged to be at high risk of absconding, or of posing significant risk to the safety or welfare of the community.

I believe that virtually all long-term detainees should be released under this clause. Asylum seekers are looking for security, safety and permanent legal status. The last thing they want to do is abscond and be on the run from authorities, as this mirrors the conditions of insecurity from which they have fled. Most asylum seekers will not jeopardise their asylum application by absconding and the department should be able to institute reporting procedures that prevents and discourages absconding.

The second provision of this bill is to release all children and parents from immigration detention.

There are currently 63 children being held in immigration detention. The community outrage at the detention of three year old Naomi Leong, and other children is palpable.

The April 2004 report A Last Resort by the Human Rights and Equal Opportunity Commission recommended that children be released from immigration detention as it contravened Australia’s obligations under the Convention on the Rights of the Child. The Government has ignored the recommendations of this report and continues to violate the rights of children and fuel dissent within the Australian public by continuing to hold children in detention.

The Minister points to residential housing projects as a solution to the problem of children in detention. I have visited the residential housing project in Port Augusta, and it is simply a prison by another name. It is certainly not any kind of solution.

This bill provides a real solution to the problem of children in detention. It sets them free. Under the provisions of this bill most, if not all, children and their parents would be released from immigration detention.

Children and their parents will have their case reviewed by a judicial assessor, with the aim of releasing all long-term detainees who do not meet exceptional criteria—a high risk of absconding, or posing significant risk to the safety or welfare of the community.

I spoke earlier of Peter Qasim who has been held in detentionfor 2,472 days. He was initially locked up at age 24. He has spent most of his youth in detention, yet has committed nor been charged with any crime. He is being held because he is stateless. Although he is willing to return to India, from where he fled, India does not recognise him as a citizen. No third country is willing to take Mr Qasim. Under the current Migration Act, Mr Qasim could be held in immigration detention for the term of his natural life.

After so many years in detention Mr Qasim was recently moved to a psychiatric hospital for severe depression. Business man Mr Dick Smith said that Mr Qasim’s hospitalisation is “a shocking reflection on what we do to these people that they end up in a psychiatric hospital.”

This bill will free Mr Qasim and other stateless detainees. Under this bill any person, subject to an order for removal but who can not be removed within three years must be given a visa to remain permanently in Australia unless there are exceptional character or other grounds. If there are such grounds, the Minister must provide a written notice that sets out the decision and reasoning behind it. Such a decision could be appealed to the Administrative Appeals Tribunal.

Temporary protection visas were the dream of the xenophobic One Nation party and Pauline Hanson. Reacting to the idea of temporary protection in 1998, the former Minister for Immigration, Philip Ruddock, said:

“Can you imagine what temporary entry would mean for them? It would mean that people would never know whether they would be able to remain here. There would be uncertainly, particularly in terms of attention given to learning English, in addressing the torture and trauma so they healed from some of the tremendous physical and psychological wounds they have suffered. So I regard One Nation’s approach as being highly unconscionable in a way that most thinking people would clearly reject”

Temporary protection visas are granted to people who are found to be genuine refugees in need of Australia’s protection, but arrived here irregularly. They restrict access to basic services and family reunion and last for a set length of time.

Refugees, by definition, have already gone through trauma or difficult circumstances and need safety and certainty to heal. Temporary protection visas deny the certainty necessary to heal. Studies have found that people on temporary protection visas often experience depression, despair and deep uncertainty.

Unfortunately, both major parties currently support temporary protection visas.

This bill would end the suffering and uncertainty of those currently on temporary protection visas by obliging the Minister to grant all those currently on a temporary protection visa a visa permitting them to remain in Australia permanently.

This bill provides both major parties an opportunity to do the right thing and grant all refugees currently languishing on temporary protection visas the certainty they need to heal and become full members of the Australian community.

I commend this bill to the Senate.


MIGRATION AMENDMENT (MANDATORY DETENTION) BILL 2005

This bill abolishes temporary protection visas; ensures the detention of children is a last resort; brings immigration detention under judicial review; and limits the time that most asylum seekers will be detained.

This bill reforms the immigration system to be more compassionate, sensible, humane and inline with international conventions.

Judi Moylan, a Government supporter of this bill and the Act of Compassion Bill, said in a recent interview that the two bills,

“go to the heart of the preservation of human life and human dignity, and those matters include putting an end to indefinite detention, putting people in—locking people up for indefinite periods of time without any charges being laid. The other matter, serious matter that these bills address is the release of families with children from detention centres, and also, where we assess people as being genuine asylum seekers, genuine refugees, then they get temporary protection visas. We would like to see those converted to permanent residency, except in exceptional circumstances.”

Many thousands of Australians have been campaigning against the system of mandatory detention for many years. They have heard the horror stories from inside the detention centres. They have visited the people, damaged by long-term detention struggling to keep their mental health and losing all hope. They have been amazed that their government could lock up innocent children indefinitely behind the razor wire. They have been frustrated over the uncertainty and official discrimination temporary protection visa holders suffer. And they have been shocked by the incompetence and bureaucratic overzealousness with which the Department of Immigration, and the private companies that run the detention centres, treat asylum seekers and other people in the system.

The Prime Minister and the Minister for Immigration keep repeating the spurious claim that the policy of mandatory detention has been a success. It has not. They claim it was necessary for “border protection”. The truth is that asylum seekers do not present any threat to our borders or our society.

Only around 4,000 asylum seekers arrived by boat during the peak of the arrivals. This number is dwarfed by our annual immigration intake, which is set at 120,000 in 2004/05. Most of the asylum seekers who arrived by boat have been found to be genuine refugees. Indeed, most people rescued by the infamous merchant vessel Tampa have been found to be genuine refugees and many are now living in the Australian community.

The boat people threat was a manufactured threat designed for the electoral advantage the Liberal Party during the 2001 federal election. In the name of this phantom threat the Government continues to justify the abuse of human rights and dignity that occurs in mandatory detention. The majority of Australians no longer support such harsh measures and the Greens and others believe it is time to end mandatory detention.

The Minister for Immigration, Amanda Vanstone, often makes the argument that it is necessary to keep asylum seekers, including children, in detention to deter people smugglers and stop more boat people coming to Australia.

To punish innocent people, including children, in order to deter others is unconscionable. Any policy that resorts to imprisoning children behind razor wire for years is utterly inhumane. It is a deeply flawed policy—not the success the Howard Government claims.

The scandal of the detention of Cornelia Rau and the deportation of Vivian Alvarez-Solon, has revealed to the Australian people, what psychiatric experts and refugee advocates have known for years. Mandatory detention is not only inhumane, it is damaging people’s health.

Justice Finn, in a recent Federal Court judgement found the Department of Immigration had breached its duty of care in relation to the mental health of detainees, and, in one instance, Justice Finn concluded that the Commonwealth was guilty of “culpable neglect”.

It is the opinion of many psychiatrists, that no matter what level of mental health care is provided in detention, it will not suffice because it is the detention environment itself that is the primary cause of mental illness. The Australian Medical Association recently advised its members that it was ‘unethical’ to work as a psychiatrist to work for, or be employed by a provider of immigration detention.

According to the Constitution, only the courts can order punitive detention. Immigration detention is intended to be for administration purposes only. However, the detention denies people their liberty and closely resembles criminal punishment. Much of Cornelia Rau’s time in detention was spent in a state prison. High Court Justice Michael Kirby, concluded in the Behrooz decision, that it would be constitutionally invalid to submit an alien to punishment without a judicial order. Many argue that the conditions of immigration detention amount to punishment.

This bill is a step in the right direction toward abolishing mandatory detention. It offers the substantive policy shift and reform for a more compassionate and humane immigration system.

This bill abolishes temporary protection visas which discriminate against and cause uncertainty to asylum seekers found to be genuine refugees, by granting them only temporary protection because of their irregular arrival.

The bill would ensure that children are kept in detention only as a last resort.

A large part of why the Department of Immigration is being rocked by scandals and is widely seen as being “out-of-control” is the fact that it operates without judicial review of its decision to detain people. While the police are required to get judicial authority to continue to detain a person after a set period of time—often only a few hours—the Department of Immigration does not require any approval from any outside authority.

This bill provides for judicial overview of immigration detention. A detainee may apply to the Federal Court for an order that they be released because there are no reasonable grounds to consider detention as necessary.

This bill also provides a limit to the length of detention, set at 90 days. After that period a detainee must be released unless the Department of Immigration applies for the continuation of detention for exceptional circumstances.

This bill also provides for the Federal Court to impose conditions of release on detainees to ensure that they make themselves available for assessment and removal. A system similar to the bail mechanism in the criminal justice system is a far more compassionate and cost effective way of dealing with asylum seekers than mandatory detention. The risk of asylum seekers absconding is very low. Asylum seekers have a significant amount invested in the determination process and it is in their interest to remain lawful and adhere to any conditions set by the Department of Immigration or Federal Court.

The Australian Greens believe mandatory detention should be ended so we can return to a system of assessing asylum claims while applicants live in the community. These bills do not go that far but they are a big step in the right direction.

Mandatory Detention is an ethical concern. The Australian Greens urge all parliamentarians who are concerned about justice, human rights and ethics to support this bill.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.