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Wednesday, 24 June 2009
Page: 7000

Mrs D’ATH (12:45 PM) —I rise to speak in support of the Migration Amendment (Abolishing Detention Debt) Bill 2009. This bill amends the Migration Act 1958 to remove the liability for immigration detention and related costs for certain persons and liable third parties and extinguish all outstanding immigration detention debts. It was interesting listening to the member for Murray and shadow minister for immigration today. Recently the member for Murray erroneously suggested that the Joint Standing Committee on Migration’s second report recommended that asylum seekers move out of detention as quickly as possible before their security, health and identity checks were completed. I am sure others from the Joint Standing Committee on Migration can defend their own report, but looking at the committee’s second report as a member of that committee, nowhere are such recommendations made. I would also note that the chair of the committee, the member for Melbourne Ports, on 1 June 2009 commented that the shadow immigration minister twisted the committee’s recommendations beyond recognition.

Today we heard the member for Murray and shadow minister taking a different approach to the position taken by that member in the first report of the Joint Standing Committee on Migration. I note the member has left the chamber, but I certainly call on the member to have a look at the committee’s report and remind herself that, in fact, she did support the recommendations in the first report. I also refer the member for Murray back to the evidence and research that was relied on to support the recommendations of the committee. I will come to that evidence and research shortly.

I, on the other hand, continue to support the recommendations of the Joint Standing Committee on Migration in relation to detention charges. As a member of the Joint Standing Committee on Migration, I have been able to inform myself of the issues surrounding the detention debt and the history of the debt in this country and to compare Australia’s practices with countries around the globe. The committee, in its first report, Immigration detention in Australia: a new beginning, released in December 2008, raised the issue of detention debt in Australia. Chapter 5 of the report specifically deals with the evidence put before the committee in its inquiry and the committee’s recommendations in relation to removals and detention charges.

In the Migration Act 1958 there is an obligation to detain any unlawful noncitizen. Currently the act only provides three mechanisms for subsequent release from detention: the grant of a visa, either a substantive or a bridging visa; removal from Australia; or deportation from Australia. Under the Migration Act currently, a noncitizen who is detained is liable to pay the Commonwealth the cost of his or her immigration detention. An individual begins to accumulate debt with the Commonwealth as soon as they are placed in detention. As at June 2008 the charge for an individual to be held in immigration detention was $125.40 per day. This daily charge applies to immigration detention centres, residential centres and community detention. Spouses and dependent children are also liable for charges, with the parent or guardian being liable for the costs of a dependent child.

The costs accumulated by a person in immigration detention can be significant. Paragraph 5.55 of the committee’s report provides an example given by the Refugee Action Committee of an accumulated debt for a family held in detention:

After six years in a detention centre and another three years living as a refugee in Melbourne, Hossein (family name withheld), an Iranian refugee, has been advised by the Department of Immigration and Citizenship that he owes an amount of $200,000 which represents the cost of keeping his wife, daughter and son locked up in the Curtin Detention Centre in Western Australia for three years.

Paragraph 5.56 of the report notes that the Forum of Australian Services for Survivors of Torture and Trauma advised:

Detention debts can be very considerable. In the year ended 30 June 2007, one family was advised that their debt was more than $340,000.

The debt notification letter and invoice sent by the Department of Immigration and Citizenship to a former detainee is not merely an exercise on paper, with no real effect on the individuals served. The act provides the Commonwealth with specific powers to recover any outstanding debt. These powers include restraining dealings with property, preventing a bank or financial institution from processing any transactions in any account held by the debtor, attaching the debt to specific forms of income of the debtor and entering the premises in order to seize and sell valuables belonging to the debtor.

Evidence to the inquiry showed that, where debt recovery is pursued, a payment plan is commonly negotiated with the former detainee. However, as reasonable as this may sound, the Forum of Australian Services for Survivors of Torture and Trauma gave the example of one former detainee with a detention debt and repayment arrangement to the Commonwealth that would take him over 80 years to repay. This clearly would be seen by any reasonable person to be unacceptable.

The original objective of the detention debt policy in division 10 of part 2 of the Migration Act was to minimise the cost to the Australian community associated with the detention of unlawful noncitizens by ensuring that all unlawful noncitizens bear primary responsibility for the costs associated with their detention, deportation or removal. The second objective of the policy was to require former detainees to repay their debt to the Commonwealth, or make suitable arrangements for repayment, as a condition for the grant of a visa for re-entry to Australia. The inquiry held by the current Joint Standing Committee on Migration is not the first to review the issue of detention charges. In fact, there have been several reviews, with concerns raised as to the equity, recovery and cost-effectiveness of maintaining this policy.

In 2006 the Senate Standing Committee on Legal and Constitutional Affairs report Administration and operation of the Migration Act 1958 noted:

The evidence clearly indicates that the imposition of detention costs is an extremely harsh policy and one that is likely to cause significant hardship to a large number of people. The imposition of a blanket policy without regard to individual circumstances is inherently unreasonable and may be so punitive in some cases as to effectively amount to a fine. The Committee agrees that it is a serious injustice to charge people for the cost of detention.

The committee recommended that the imposition of detention debt be discontinued except in instances of abuse of process or where applicants acted in bad faith.

In July 2007 the Commonwealth Ombudsman initiated an ‘own motion’ investigation into whether the department’s administrative processes and procedures were appropriate and applied reasonably and consistently across the department. The Ombudsman’s reportDepartment of Immigration and Citizenship: administration of detention debt waiver and write-off was published in April 2008. The Ombudsman found that, while the department was administering the debt waiver and write-off of detention debt according to legislative and policy requirements, there was scope for improvement. Most recently, of course, has been the report issued by the current Joint Standing Committee on Migration, which I have already referred to.

The questions that need to be asked in relation to whether the detention debt procedures should be retained go to: firstly, whether the Commonwealth in fact has recovered the costs and, if so, minimised the costs to the Australian community associated with the detention of unlawful noncitizens; and, secondly, whether the detention debt has been a disincentive for unlawful noncitizens to attempt to come to Australia. The answer to both of these is no. In practice, recovery of many detention debts is not pursued, with debts waived or written off. When a debt is written off this means that a decision is made not to pursue recovery of the debt. However, at some time in the future the Commonwealth may choose to execute debt recovery. When a detention debt is waived the debt is extinguished.

In the financial year ending 2008 nearly $3.5 million of detention debt was waived for 142 former detainees. The hardship arises from the fact that write-offs were in fact much more commonly employed, leaving the individual or family to still live with the fact that the Commonwealth could choose to execute debt recovery at any time in the future. On the issue of deterrence, there was not evidence that such a debt against unlawful noncitizens willing to risk their lives to come to Australia in treacherous conditions made them less inclined to come because they may incur a debt.

There is one other reason that is more fundamentally important than the two that I have highlighted, and that is the basic human rights of individuals to seek refuge in this country and this country’s policy on detention debt compared to those of advanced countries around the world. The committee heard a range of criticisms about the practice of applying charges to persons in detention. There was consensus of opinion condemning the policy as punitive and discriminatory. Labor for Refugees NSW described it as ‘intentionally punitive, unjust and inhumane’. In his appearance before the committee, Julian Burnside QC stated:

We charge [people in detention] by the day for the cost of their own detention. In connection with a case which challenged the validity of that section [of the Act], the Department and I against them, carried out some research which showed that we are the only country in the world which charges innocent people the cost of incarcerating them. It is not a distinction that is deserving of much merit.

There is also no evidence of citizens and noncitizens who are detained as punishment for crimes in Australia being made liable for the cost of their detention. Other detainees subjected to ‘administrative detention’, such as individuals suffering from mental health issues who are detained pursuant to the Mental Health Act 1983, are not required to reimburse the Commonwealth for the cost of the deprivation of their liberty. Nor are detainees detained for quarantine reasons pursuant to the Quarantine Act 1908 required to pay for their segregation from the Australian community. Detention of noncitizens pursuant to the Migration Act 1958 remains the only form of detention in Australia that requires the detained to pay for their own detention. This is outlined by Azadeh Dastyari of the Castan Centre for Human Rights Law at paragraph 581 of the committee’s report.

Concerns were also raised with the committee regarding the impact of detention debt on ex-detainees, in particular the burden on mental wellbeing, the ability to repay the debt, and the restrictions a debt could place on options for returning to Australia on a substantive visa. The Refugee Action Committee in Canberra noted:

Policy [relating to detention charges] stands as a barrier towards refugees fully integrating into the community, and continues to put significant pressure—both emotionally and financially—on those people who have already experienced so much trauma and uncertainty in their lives.

The committee report also noted that a 2008 Commonwealth Ombudsman report into detention debt administration indicated that the added burden of having a large debt caused high levels of stress in people that had formerly spent a period of time in detention.

It is for all of these reasons and more that I support the bill before the House. I also believe that it is equally important that this bill not only removes the future charge of detention debt but also extinguishes the existing debts of individuals. To do so is to acknowledge that such harsh and inhumane treatment is no longer accepted in Australia.

It is important to note, however, that the Rudd Labor government, despite the claims of the member for Murray, remains strongly committed to border security and it is for such reasons that the bill will retain provisions in relation to convicted illegal foreign fishers and convicted people smugglers, ensuring that the legislation imposes a liability on those persons for detention and transport costs while in immigration detention. I wonder whether the member for Murray is aware of this retention provision, based on her speech today.

It is important that Australia has a strong migration policy and border control measures. It is equally important that those measures are targeted in the appropriate way and towards the appropriate people. People smuggling and illegal fishing need to be a key focus of the Australian government and will continue to be into the future with the tough stance that this government is taking on this issue and the continuing dialogue that this country is having with Indonesia and other countries to stop this illegal conduct. People’s lives are being put at risk by people smugglers and we need to ensure that those who are responsible for orchestrating the people smuggling are prosecuted to the full extent of Australian laws.

That is why I am pleased to commend the Rudd government’s announcement of a massive $1.3 billion package in this year’s budget to further strengthen Australia’s border protection and national security regime. Of this $1.3 billion, $654 million is specifically dedicated to a whole-of-government strategy to combat the people smuggling, something that I note the member for Murray failed to mention. This bill gets the balance right. It continues to ensure that Australia’s migration laws deter unlawful noncitizens, while at the same time ensuring that Australia complies with its international obligations to asylum seekers and refugees in a fair and humane way. I commend the bill to the House.