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Thursday, 12 December 2002
Page: 10403


Mr RUDDOCK (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) (10:04 PM) —in reply—Firstly, let me thank the members who have contributed to this debate on the Migration Legislation Amendment Bill (No. 1) 2002. Obviously, I do not agree with all of the comments that have been made. I will not try to canvass them all, although I do acknowledge my friend the member for Chifley, and I will certainly try to clarify the issues in relation to Perth. It is the case that we have been endeavouring to provide accommodation for family groups separate to others. Perth has always been a challenge, not only because of the nature and size of the detention centre itself but also because of the states. Your state colleagues—and you might like to talk to them about these matters—are insisting that criminal deportees now be held in immigration detention. In Western Australia, they do not even acknowledge that there might be exceptional circumstances to be taken into account in whether that should happen.

I must say that I find it strange—I note that there is no press here, so I suppose this will not be reported—that premiers will sometimes write to me and they will even go to the press and argue very strongly that criminal deportation ought to be used in particular cases where there is a heinous crime. Yet perforce of the way in which detention centres have developed over a long period—and I do not say critically that detention policy is easy, because when your colleagues were in office, only two new detention facilities were built, as I recall: one at Port Hedland, and that is a facility about which your committee has complained at least in part, and the other at Curtin, which was very much a makeshift detention facility—governments have not planned over that long period and built purpose designed facilities. I might say that, when we seek to do that, as I have sought to do in Brisbane, I find I get fairly vocal opposition. The NIMBY set is very much alive, and nobody is terribly keen to have a detention centre in their district.

Forgive me, I am spending time on the member for Chifley because he was here and I am here. I heard most of his comments. I apologise to members whose comments I have not heard, but I will try to pick up some of the points that have been made during the debate. I really want to focus on thanking those who participated. I hope the bill will ultimately pass. I noticed the threat in the comments of the shadow minister—a novel approach.


Ms Gillard —It was a promise.


Mr RUDDOCK —It was a threat.


Ms Gillard —It was a promise.


Mr RUDDOCK —Please forgive me, but I see it as a threat. Quite frankly, in my view it is better to work to be elected than to think you are a government in exile. We were elected to make decisions, administer policy and maintain effective administration. Holding the Migration Act in this country hostage to a political tactic is I think quite an inappropriate approach to take.

The Migration Legislation Amendment Bill (No. 1) 2002 does a number of important things. It clarifies the visa status of non-citizen children born in Australia. It clarifies that security can be taken before a visa is granted to ensure compliance with conditions. That is fairly important in many cases, otherwise they might not get the outcome they might be seeking. It enables the cancellation of a special purpose visa where it is undesirable for the holder to travel to or remain in Australia, with cancellation taking effect from the time of the minister's declaration. Special purpose visas are of a unique character; they are issued in extraordinary circumstances, and there ought to be a capacity to cancel them. The bill creates a deputy principal member position for the Migration Review Tribunal. Given the workload required for the proper management of the issues, this is also an important matter. The bill ensures that certain offence provisions operate as they did prior to the application of the Criminal Code. I foreshadowed that I would be moving amendments in the committee stage to give effect to recommendations of the Senate Legal and Constitutional Committee. I hope that the opposition will accede to those amendments, as they were party to them.

This debate has been designed to address one issue: whether the opposition, if it were in government, would be better able than the government to handle detention policy, particularly as it relates to family groups. I notice that the shadow minister wants to claim he originated some unique developments that have occurred in relation to detention policy in Australia. I have to say that the Leader of the Opposition's speech on Australia Day 2002 had nothing to do with the alternative detention model that was implemented in August 2001. The fact is that this government was thinking constructively about the way we deal with issues relating to women and children in detention. You probably know of the young man by the name of Mitchell, I think it was, from Hotham—


Ms Gillard —His name was Grant Mitchell.


Mr RUDDOCK —Yes; Grant Mitchell, from the Hotham Mission. I give him credit because he raised, at a public meeting I addressed in Melbourne, issues in relation to the way detention is dealt with in Sweden. In cases where it was seen as appropriate to detain people there were arrangements for women and children—not whole family groups; women and children—to be detained in an alternative way. My view was that we should look at whether that would work in Australia. With the department, we developed the alternative detention model.

The reason we did it in the way we did was quite clear: we wanted to ensure the detention policy was not undermined. You could release whole family groups, but there would be a greater likelihood of total family groups living in low-security facilities adjacent to the camp than there would be if one member of the family remained detained. That system has worked. The opposition thinks you can deduce from the fact that the trial has worked the view that releasing whole families would be equally effective. Whether it is or it is not, my greater concern is the impression that would be left with those likely to engage people smugglers. I think they see very vocal change in relation to important aspects of policy as an unwinding of policy in Australia, and see that as a signal that maybe their operations can be picked up and run again. So I am unwilling, for reasons I include in the letter to the Leader of the Opposition, to entertain the amendments proposed by the Labor Party.

The reason is very simple. It arises from the experience I have referred to before, when the opposition was in office and Gerry Hand was the minister. It related to setting arbitrary time limits for processing. The import of that was that, once you put in place provisions that impose certain obligations upon government that could be manipulated by detainees and their advisers—particularly with the level of cooperation they might give to processing—people could simply wait out the time and then expect to be released. That is what happened in Western Australia. People waited out the time, there was some ambiguity about the time, they sued, and the Australian taxpayer was left to pay quite large damages claims for false imprisonment. So I regard an important aspect of the issue to be the introduction into the act of obligations expressed with so little room to move in appropriate circumstances—in other words, they become mandatory in themselves—that you have the potential for litigation over the way they are applied.

In relation to implementing mandatory detention, the present legislation as drafted by the Labor Party provides very little scope for litigation over the circumstances in which people are held. The legislation was deliberate because of the nature of the litigation. You are proposing administrative complexities that would give rise to the prospect of increased litigation. Where do I think that might happen? When people come here without birth certificates, the only information you have as to their age is what they themselves tell you. Do you have scope for people wanting to dispute age? We have already had litigation over the methods by which you try to determine whether or not someone is cheating you, and in relation to people who have been prosecuted for smuggling and whether or not they are minors. We have had litigation over measuring their risk and whether the scientific techniques are sufficiently sound to enable very clear evidence to be given in relation to those matters.

There is a range of other issues that could arise. Reference has been made to an eight-year-old who was, for a time, in detention. The circumstances were that the child was initially in foster arrangements in Woomera, with families there. They were released on temporary protection visas, and assessments had to be made as to whether the child could be released with them. In the case of one of the families with whom the child had the prospect of being released, there was an adverse assessment of the proposed parent by the relevant state authority. It certainly took time for that issue to be addressed. I will not say it was an inordinately long time, but looking at the notes before me it took, I think, five months from the time that the child arrived at Woomera until the child was in fact released into foster care arranged by the South Australian authorities. Under the arrangements that we have in place, the eight-year-old was ultimately released and is now on a temporary protection visa. There was consultation with the relevant state authorities. I cannot imagine that that would have taken any longer than if people had litigated over those issues—if they wanted to use the sort of statutory provision that you have in mind.

The basis proposed for releasing family groups does not have regard to the sorts of factors that were mentioned in the miscellaneous series of instructions that I have given to the department on the way this issue is to be dealt with. Certainly, health and security clearances are important, but there is a range of other issues that are also important in relation to the management of people. There is also the question of the availability of accommodation. It is interesting that comment has been made about the availability of accommodation at Baxter. I have certainly foreshadowed in discussions I have had with the state government from very early this year that at Baxter we wanted to have children in local schools, where appropriate, as well as an alternative detention model operating. The state government are saying—and fairly late on the scene—that the only way in which they are going to be a party to these issues is with consultation.

However, when there had been very extensive consultation between the local school community and the school principals, when children were preparing to enrol in the local school, and I had told the mayor which school and when we were going to undertake their enrolment—and had indicated to her that that was under way and there had been consultations—what happened? The Premier of South Australia, the day he headed off on a three-week overseas trip, called off the participation of the children in the school. He has said that some other form of consultation now has to take place. Here is the Labor Party parading its virtues in this area, but the Labor Party is more than the Labor Party here; it is the Labor Party in all of its manifestations. All I can say is that the sort of cooperation I would have expected—with a reasonable amount of goodwill—has not been forthcoming.

I have made it clear that I think you do need to have some capacity to make judgments about what is going to happen in an alternative detention system where there is minimum security. It is not a matter of having light beams and some detention officers living around the corner so you can say you have a high security facility, as the opposition seems to suggest would be appropriate; it is a matter of having regard to a whole range of issues. There are a lot of dynamics that you have to take into account with human beings, and some judgments have to be made. The instructions that I have given enable those judgments to be made in relation to women and children. They are quite precise but they recognise some of the administrative problems. The opposition is proposing a rigidity that would pay no regard to those sorts of factors. In that sense, we cannot accede to the amendments proposed, but I ask the opposition to see the importance of giving passage to the legislation and giving the measures that I have sought to implement an opportunity to operate and to make sensible judgments on them.

Question agreed to.

Bill read a second time.