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Wednesday, 11 August 2004
Page: 26163


Senator BARTLETT (Leader of the Australian Democrats) (3:31 PM) —I move:

That the Senate take note of the answer given by the Minister for Immigration and Multicultural and Indigenous Affairs (Senator Vanstone) to a question without notice asked by Senator Bartlett today relating to detention of asylum seekers.

The question I asked Senator Vanstone today related to the law that stands in Australia now that allows the government to keep a person detained indefinitely, even when that person has indicated a willingness to be deported but where the Australian government has been unsuccessful in doing so and where there is no likelihood of their being able to be deported. People can, and indeed are, being detained for years, after they have indicated a willingness to be deported, because nowhere else will take them.

The context and the flavour of the minister's answer might cause people to forget what we are talking about here, so I remind the Senate that we are talking about people being denied their freedom. The right of people to be free—not to be arbitrarily locked up by a ruler, an executive or a government without recourse to some judicial process, to some independent oversight—is one of the fundamentals people fought for over many years that in many ways led to parliamentary democracy. Yet in Australia today there is a group of people who are lawfully able to be locked up for years at the discretion, and on the decision, of a government minister without any recourse to the courts—regardless of their circumstance, regardless of their age, regardless of the length of time, regardless of their health. It is totally in the hands of the minister. The minister may use her discretion to release them, but she does not have to. The minister has said, `It is okay. It doesn't matter. People won't be locked up for life because there is discretion. It is a safety valve'. But the fact is that the safety valve was already failing before we had the High Court decision which set in stone the power to indefinitely detain people.

It should be emphasised that this is not a criticism of the High Court. The High Court is charged with interpreting the law and the Constitution as it sees it. It was a 4-3 decision, so obviously there were varying views. But before that decision it was not lawful to detain people indefinitely. There were decisions in the Federal Court and the Full Federal Court that held that it was not lawful—it was against the law—as the courts interpreted it, to keep people locked up in administrative detention when there was no reasonable prospect of their being deported in the foreseeable future. That is now lawful as a result of the High Court's decision. The only way it can be made unlawful is for the law to be changed. That is what the Democrats commit to. We would draw the Senate's attention to a protest out the front of Parliament House earlier this afternoon involving hundreds of people expressing concern that Australia has now become a nation that indefinitely detains people without charge and without trial.

This is a major undermining of the rule of law. It is a precedent that cannot be allowed to stand. We all know that, once something stands as a precedent and a government has the power and the right to do something to people, it seeks to get that power in other areas. Every government does it. It is a natural tendency of governments, the longer they are in power, to seek to get more power for themselves. That is why it is absolutely essential to have the strongest possible Senate, as the only parliamentary counterbalance against the absolute power of the government of the day. It is also why we cannot allow this precedent to stand—a law that enables administrative detention without charge, without trial, for an indefinite period. It cannot be allowed to set a precedent.

So all of the minister's blandishments about a safety valve and about discretion providing an opportunity in certain circumstances are simply not good enough. It is great that the minister is looking at cases. The Democrats will certainly implore her to act to free people. But it is not good enough, and it is not right, to have a law that gives a minister that power, which the minister cannot be required to use. We must ensure that the basic right to freedom is not undermined in such a graphic and repugnant way. There are people now in detention who have been locked up for years. There are people from Afghanistan who for two years and more have said, `Send me back'. They have been stuck. Mr Qasim, in Baxter, said four years ago, `Send me back—anywhere, 80 different countries. Anyone take me—please!' He is still stuck. He has been in jail now for six years. (Time expired)

Question agreed to.