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Tuesday, 16 April 1985
Page: 1058

Senator PUPLICK(5.48) —I move:

That the Senate take note of the paper.

This report of the Human Rights Commission raises a matter of principle which I think the Senate will eventually have to address. The report concerns a complaint regarding the situation in which two people and their child find themselves. The two people who were visiting Australia overstayed the time allowed by their visitors' visas and to all intents and purposes became classified as illegal migrants. They stayed in Australia for quite some time. During that period they gave birth to a son named Alvin. The then Minister for Immigration and Ethnic Affairs later determined that the parents, having overstayed the legal period for which they could remain in Australia, should be deported. The son was, by virtue of having been born here, an Australian citizen. The Minister had no power, and indeed has no power, under Australian legislation to deport an Australian citizen. However, the parents of the infant child were to be deported. Although the Minister could not deport the child, the child could not remain in Australia without being separated from his parents. Therefore, while the child as an Australian citizen could not actually be deported, the effect of the Minister's decision was to deport the child if he was to remain with his parents, who were being deported. The Human Rights Commission had a close look at this matter and made the following concluding comment in its report:

In this particular case it may well be that, as a matter of Australian domestic law, the Minister was entitled to deport Mr and Mrs Au Yeung, and ignore the rights of their son Alvin but, nevertheless, acted inconsistently with and contrary to human rights.

The human rights prejudiced in this case were, of course, the rights of the child. I believe that the report does no more than simply highlight a very difficult and extremely complex situation with which any Minister for Immigration and Ethnic Affairs will be faced from time to time. However, I think the report is useful in that it draws to the attention of the Senate that there is here a particularity of cases in which Australian citizens effectively are deported by Australian Ministers for immigration because the only alternative that is presented is for them to be separated from their parents, particularly at a time when, as in the case of very young infant children, that is not a viable option for any of the parties concerned. I think that the report of the Human Rights Commission on this occasion simply draws attention to an anomaly in the legislation which may well need to be fixed up. It also draws attention to some of the less satisfactory procedures which have been used in the resolution of this case.

Senator Peter Baume —Does it point out then what happens if aliens who are not allowed to migrate here stay long enough to have a child? Would that create a right for them to stay?

Senator PUPLICK —No. It makes it quite clear that although the child, being an Australian citizen, has rights, that confers rights upon nobody else. There are two conflicting sets of rights.

Senator Peter Baume —But would the remedy allow the parents to stay?

Senator PUPLICK —No. There is no remedy put forward in the Human Rights Commission's report. It simply draws attention to the fact that when migration and citizenship legislation is before the Parliament it is one of the additional very complex issues to be addressed.