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Thursday, 23 June 2005
Page: 45

Senator IAN MACDONALD (Minister for Fisheries, Forestry and Conservation) (11:27 AM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

On 17 June the Prime Minister announced a number of changes the Government is making to migration law and the handling of people in immigration detention.

The broad framework of the Government’s approach is unaltered. It is essential that we continue to have an orderly and well managed migration and visa system. The government remains committed to its existing policy of mandatory detention, our strong position on border protection, including excision, the maintenance of offshore processing and in the unlikely event of it being needed in the future—the policy of turning boats around.

These changes also represent the responsiveness of this Government in taking opportunities to see that our existing detention policy is administered with greater flexibility, greater fairness and in a more timely manner. The Government is committed to ensuring that the impact of detention on individuals is, where possible, softened.

These changes build on the reforms to immigration detention arrangements that the Government has introduced in the past several years. For example, the introduction of residential housing projects has provided more home-like living conditions for mothers and children. Some children have been accommodated in the community with the assistance of community organisations and State welfare authorities. The new Removal Pending Bridging visa allows for the release, with support benefits, of detainees where the Minister believes it not reasonably practicable to achieve removal in the short term, and the detainee is likely to cooperate with removal from Australia, once that becomes practicable.

These new changes do not alter the broad framework of immigration detention, but will allow greater flexibility, fairness and timeliness in the administration of matters affecting persons in immigration detention and provide for greater scrutiny by the Ombudsman of the operation of the detention powers.

The Migration Amendment (Detention Arrangements) Bill 2005 implements the most pressing of these changes, which will enable greater flexibility in how families with minor children can be detained, and also enable the release of persons from detention by the grant of a visa, such as the Removal Pending Bridging Visa. The amendments in the bill will:

  • Incorporate into the Migration Act a statement that ‘the Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.’ This principle relates to the holding of children in detention centres. Where detention of a minor is required under the Act, it should, when and wherever possible, take place in the community, under a residence determination.
  • Provide an additional non-compellable power for the Minster to specify alternative arrangements for a person’s detention and conditions to apply to that person. This will enable the detention of families with children, in particular, to take place in the community with conditions being set to meet their individual circumstances.
  • Provide an additional non-compellable power for the Minister to grant a visa to a person who is in immigration detention, including a Removal Pending Bridging visa.
  • Require the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to report to the Commonwealth Ombudsman when a person has been detained for two years or more, or for periods that total at least two years, and every six months thereafter that the person is in detention. The Ombudsman will then assess the appropriateness of the person’s detention arrangements and make any recommendations the Ombudsman considers appropriate to the Minister.

The Prime Minister also announced that in future all primary protection visa applications will be decided by DIMIA within three months of the receipt of the application. This emphasis on timely decisions does not mean that the quality of the decisions being made by DIMIA will be compromised. On the contrary, DIMIA officers will continue to be obliged to make fair decisions in a manner that does not entail a great deal of uncertainty for asylum seekers.

Likewise, reviews by the Refugee Review Tribunal (RRT) will occur within three months of the Tribunal receiving an application. Periodic reports of cases where these time limits have not been met will be made to the Minister, who will table these reports in the Parliament. This will provide additional assurance that applications for review are dealt with in a timely manner.

These time limits will be included in amendments to be brought forward during the forthcoming Spring Sittings. In the meantime, instructions have been given to both DIMIA and the RRT to administratively implement these time limits immediately and provide periodic reports to the Minister.

It is noted in this regard that elements of processing time are not within DIMIA’s or the RRT’s control, for example security checking processes, provision of information from the applicant and the timeliness of information from other governments. That information will need to be addressed in any reports that are provided to the Minister. Failure to meet time limits will give rise to a report to the Minister but will not give rise to a right to the issuing of a visa or release from detention. To the extent required, priority for processing will be given to those in detention.

The Minister’s new non-compellable powers will allow families with minor children who are currently in immigration detention centres and Residential Housing Projects to be placed in community detention arrangements. Generally this will occur where primary processing has been completed and where removal from Australia is not underway. It should be recognised that before community detention can start, suitable arrangements will need to be made for the families currently in detention. Depending on the circumstances, this could take four to six weeks.

The amendments empower the Minister to make a determination, termed “a residence determination”, if the Minister considers this is in the public interest. The residence determination has the effect of allowing one or more specified persons to reside at a specified place without that person being required to be in the company of and restrained by an officer or authorised person, or being held by, or on behalf of, an officer in secured arrangements. Under these arrangements, detainees would be free to move about in the community without being accompanied or restrained by an officer under the Act. The only restraint on a person to whom the Minister’s determination applies would be that he or she complies with the conditions specified in that determination.

The ‘specified place’ would be a predetermined residential address. Accommodation could include (but is not limited to) a residence provided by a non-government organisation, the home of a supporter, a hospital or clinic, or the family's current community address. The purpose of this amendment is to enable the detention of families with children to take place in the community under conditions that can meet their individual circumstances. It is envisaged that the specified premises would have minimal direct supervision, unless the Minister believes that the conditions should provide otherwise.

Conditions appropriate to each family’s individual circumstances would need to be considered and appropriate arrangements made for detention in the community in each case. Making these arrangements could take some time during which the family will be in traditional forms of detention. Where this occurs families, including fathers, would be placed, wherever possible, in a Residential Housing Project nearest the city of their prior residence, rather than in a detention centre. Where the Minister makes a determination for alternative detention, arrangements would be made for a family to be placed in the community as quickly as possible.

The Government’s intention is that these amendments will be used to ensure that the best interests of minor children are taken into account and that any alternatives to detaining these children in detention centres are carefully considered in administering the relevant provisions of the Act. Where detention of a minor is required under the Act, it is the Government’s intention that detention should be under the new alternative arrangements wherever and as soon as possible, rather than in detention centres.

The Government intends that where primary assessment of visa applications is being completed, or community detention conditions have been breached and a residence determination has been revoked, or removal of the person is imminent, families, including fathers, will be housed, wherever possible in a Residential Housing Project rather than an immigration detention centre.

Instructions to DIMIA staff regarding the detention of families, and guidelines related to the exercise to the Minister’s new powers, are being prepared as a matter of urgency. These instructions and guidelines will be publicly available and will be consistent with the principles that I have just outlined.

Immigration matters are already subject to considerable scrutiny, including by the Commonwealth Ombudsman. The Ombudsman maintains close oversight of DIMIA operations, including by quarterly report to DIMIA and periodic visits to detention facilities. The Ombudsman’s Annual Report notes that the Ombudsman finalised 908 complaints about DIMIA in 2003-04, identifying 76 instances of defective administration; significantly more investigations did not identify any defect and over 500 complaint issues did not lead to investigation by the Ombudsman. The defect rate—8.4% of all complaints—is a rate that compares reasonably with most other Australian Government agencies.

This bill gives the Commonwealth Ombudsman a specific role in reviewing the cases of persons who have been in immigration detention for two years or more, or for periods that total at least two years. This role is consistent with the Ombudsman’s existing powers, but is to be formalised in a new Part 8C of the Migration Act. These changes will ensure regular reporting of long term detention cases to the Ombudsman by DIMIA and the tabling in Parliament of the Ombudsman’s statements related to the Ombudsman’s assessments of, and recommendations related to, the appropriateness of the detention arrangements of persons covered by DIMIA reports. The Ombudsman’s recommendations could include, but are not limited to, recommending the continued detention of the person, recommending another form of detention that is more appropriate to the person—such as a residence determination, or recommending the release of the person into the community on a visa.

No recommendation by the Ombudsman will in any way bind the Minister.

In summary, the amendments made by this bill allow greater flexibility in tailoring detention arrangements that are appropriate to individual circumstances, or where appropriate, allowing release from detention. They also provide for formal independent monitoring of long term detainees by the Commonwealth Ombudsman. These changes represent a significant milestone in the development of migration law in Australia.

I commend the bill to the Senate.