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Tuesday, 10 August 2004
Page: 26054


Senator BARTLETT (Leader of the Australian Democrats) (7:36 PM) —I speak tonight on one of the foundations of our democracy and one of the key parts that led in many respects to the evolution of parliamentary democracy around the world—that is, the basic right of people to be able to ensure that they are free from arbitrary detention at the hands of a government or an executive. That need to ensure that people cannot be arbitrarily imprisoned without charge, without being accused of a particular crime by a governing body and without any judicial oversight is one of the most fundamental human rights that we have and one of the most fundamental freedoms. It is a freedom that far too many people around the world do not have. It is one that should be very jealously and very vigilantly guarded.

It is for that reason that I and the Democrats have been so concerned about the potential consequences and the underlying precedent that has now been established as a result of the High Court decisions last Friday. Those decisions related to immigration detention, which has been an issue of great controversy in our country over a long period. We have had mandatory detention of all unauthorised arrivals—people who arrive without a valid visa—for over 12 years. It has been a very contentious issue. Indeed, it is an issue that has been subjected to many court appeals over quite a period of time. A range of High Court decisions have indicated the lawfulness of mandatory administrative detention. That has been disputed. Almost all those High Court decisions have been split decisions, so there have clearly been differing bodies of opinion about the lawfulness of mandatory administrative detention.

The mandatory detention of all people who arrive in a country, who are in a country for administrative purposes under migration law, is a policy—or a law, rather—that is unprecedented in the democratic world. The United States, European countries, Hong Kong and Canada have various forms and mechanisms for dealing with people who arrive unauthorised or without authorisation of a valid visa but none of them involve mandatory, automatic detention or the ability for automatic detention by the government of the day without any reference to circumstances.

That was a serious enough situation but we now have the decision from last Friday—it was a very close decision of 4-3, but it is nonetheless clear-cut—that it is lawful for people to be detained indefinitely even when they have indicated a wish to be deported and the Australian government has tried every avenue to deport them but has not been able to find a country that is willing to take them. Even in those circumstances, according to the High Court, it is lawful for those people to be kept locked up, regardless of the circumstances—regardless of whether they are young or old, whether it has been one week or six years, whether they are gravely ill or in perfect health, whether they have children or are children, or whether they have family outside in the community. Regardless of any of those circumstances, it is automatic—there is no scope for legal review—for those people to be able to be locked up indefinitely.

This is an extremely serious situation because it is a significant expansion of government power. It now means that, in our country, the minister has the power to keep somebody locked up or to deny a person their freedom indefinitely if they do not have a valid visa in Australia, even if no other country is prepared to take them. It has been suggested that all of these people have no right to be in Australia so therefore they have no right to freedom. The fact is, they have no right, in that very narrow sense of the word, to be in any country. Because they are in that very unfortunate situation of being stateless they should not also have the added burden of having no freedom at all. But that is the situation that people are now in.

The minister said yesterday in question time that there is a safety valve, to use her words, of ministerial discretion. The minister can decide to free them if they think the circumstances warrant it. Firstly, that discretion cannot be compelled. There is no requirement on the minister to use it. There is no ability for anybody to undertake any legal process to force the minister to even look at the matter, let alone make a favourable decision. There is no set of criteria legally enforceable by which they have to judge that situation. There is no need to consider any concept of fairness or justice. It is totally up to the minister's discretion. That is not a safety valve and it is certainly not a guarantee of the upholding of basic freedoms, because there is no guarantee that a person can be freed. That is not a specific reflection on the current minister. Perhaps the current minister will always do the right and appropriate thing but there is no guarantee that a future minister would do the same thing.

Clearly, it cannot be an adequate safety valve because we have people already in this country who are in precisely that situation: who do not have a valid visa, who have been found to not be a refugee and who have said, `I want to be deported,' but cannot be and so are in detention—in one case, for over four years. There is one person who has been in detention for close to six years in total. A six-year-and-counting jail sentence as a consequence of being stateless does not strike me as just. It certainly does not strike me as an indication that the law has adequate protections and adequate safety valves, to use the minister's expression, to make sure that people are not unreasonably punished or unreasonably imprisoned. Denying a person their freedom is about as fundamental as it gets. I do not think we should ignore that situation.

It is important to emphasise this also because of the precedent established. We all know that, in this parliament, governments repeatedly come along with laws and say, `This is okay because it's been done previously and has been found to be lawful and acceptable, so we'll now apply it to another group in the community.' It is quite clearly now feasible for a government to pass a law that, if the parliament agrees, will enable a minister to keep somebody detained indefinitely—and that could mean for years—without charge, let alone a trial, as long as they can frame it as being an administrative detention for purposes for which the government has a head of power under the Constitution. They have a head of power for migration issues and they clearly have a head of power for security and defence issues. The obvious danger area is the so-called antiterrorism legislation and the potential for a government to say that it needs to have this power to lock up people on the grounds of public safety without judicial oversight; there will be no protection or ability to ensure the basic freedoms guaranteed by the law.

Nobody can seriously suggest that you can have an adequate guarantee of people's freedoms being protected by relying on the basic decency, humanity or competence of a minister of the day. The minister can change, governments can change and political circumstances can change, and to allow somebody's freedom to be dependent on always having a minister who will always do the right thing, without any legal protection or oversight or independent examination of the situation, is simply unacceptable. We cannot allow this situation to remain under the migration law for one minute longer, because every minute that it remains is an extra minute that precedent can be pointed to for the misuse of that power and for that loss of a fundamental freedom to be expanded into other areas of law, particularly in an atmosphere where fear of terrorism is so high. I remind the Senate of a report released just today by Human Rights Watch which pointed to a range of countries as diverse as Egypt, Uzbekistan, Morocco, Malaysia and Sweden significantly violating human rights under the rationale of combating terrorism. You cannot fight terrorism by undermining the very freedoms we are trying to protect in that battle against terrorism. (Time expired)