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Wednesday, 8 August 2007
Page: 103


Senator BARTLETT (3:37 PM) —I move:

That this bill be now read a second time.

I table the explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This migration bill brings together five separate Private Senator’s Bills which currently stand in my name on the Senate Notice Paper. These five Bills are amongst fifteen individual Bills I introduced in 2006 which sought to remove and amend a range of different injustices, inefficiencies and inequities that have been introduced into the Migration Act 1958 over the last decade or so.

The injustices that result from these flaws in the law continue to occur.   The recent mistreatment of Dr Mohamed Haneef has made some of these flaws much more apparent.   This misuse of the law for political purposes by the Immigration Minister occurred in part because of the very limited checks on the extremely broad powers the Minister has under the character provisions and the detention provisions of the Act.

Laws seeking to restrict the rights of migrants and ensure political motives triumph over procedural fairness and independent oversight in migration procedures have been a regular feature of Australia since the earliest days of Federation in 1901. Official moves to end the White Australia policy started in the mid-1960s. Attempts followed to recognise the reality of our culturally diverse nation and embrace its benefits through policies of integration and multiculturalism.

However, in recent decades, the Migration Act has again been regularly amended to reduce the rights of non-citizens residing in Australia, making them more and more at risk of being harmed at the whim of politicians without the protections of judicial and administrative fairness.

The mantra of ‘protecting’ Australians was used to justify the introduction of mandatory detention in the early 1990s, restrictions on the rights of asylum seekers through the late 1990s, draconian ministerial powers regarding ‘character’ decisions in 1998 and the further removal of support to asylum seekers and refugees in 1999.

There is a stark catalogue of evidence showing that these restrictions created a large number of serious injustices and increased suffering experienced by innocent people and added greatly to the cost of administering the Migration Act, while doing nothing to reduce its misuse or increase the security of Australians.

The Tampa incident in 2001 was used as the catalyst to push sweeping reforms through the Senate designed to almost completely remove basic protections and rights of migrants and asylum seekers.

These laws further removed rights to appeal, ensured the legality of indefinite detention of men, women and children under inhumane and traumatising conditions, excised islands and further restricted the rights of refugees to be recognised.

The Australian Democrats were the largest, strongest and most consistent voice of opposition and concern in the Senate during that time, calling for common sense and fundamental rights to be upheld in the face of hysteria and extremism.

The case of Dr Haneef has shown once again a government seeking to build a climate of fear in the wake of the terrorist attacks, using extreme and unaccountable powers to smear migrants, branding them as terror suspects and increasing community apprehension, regardless of the (lack of) evidence.

This bill seeks to provide a pathway to redressing some of these injustices and to introduce fairness and justice back into our migration processes.

Schedules 1 and 2 of the bill seek to repeal the introduction of a privative clause mechanism which restricts access to Federal and High Court judicial review of administrative decisions made under the Migration Act.   It does so by repealing certain provisions of the Administrative Decisions (Judicial Review) Act 1977 and the Migration Act 1958 .

In practice these provisions sought to limit the availability of judicial review to a very limited class of errors of law. It applies not just to refugee determinations but to all decisions made under the Migration Act 1958.

The legislation unfairly stigmatises people who are simply aiming to pursue their basic legal rights. Furthermore, the whole premise on which the privative clause mechanism was based clearly implied that anyone who pursued their basic legal rights was doing so with the explicit intention of somehow rorting or frustrating the migration system.

The importance of protecting a basic safeguard such as the right to judicial scrutiny of a denial of procedural fairness is particularly acute when the decision is one affecting refugees.

In such cases, where the consequences of a wrongful decision can be extremely grave namely, being sent back to a situation of persecution—it is vital that sufficient safeguards are preserved.

However, there are also serious injustices which occur to many other migrants who have negative decisions made against them, such as visa cancellations. These decisions can have enormous long-term harmful consequences and should not be without adequate accountability.

Schedule 3 seeks to repeal the provisions introduced by the Migration Amendment (Duration of Detention) Act 2003 which prevents and limits courts from ordering the release of somebody from immigration detention whilst an appeal seeking their release is before the courts.   This legislation was prompted by several cases where such release has been ordered by the Federal Court, the most notable example being the Al Masri case.

The effect of this provision means that any person whom the courts believe should be released from migration detention is now required to stay in detention whilst the government appeals it through every possible avenue. This is particularly ironic given that the Government is particularly vocal about the volume of cases before the courts and introduced further legislation to further restrict asylum seekers appeal rights.

We must recognise that it is not acceptable for people to be stuck in situations where they are left languishing in detention centres without any charge being brought against them, let alone being convicted of any crime. That can occur because of the legal fiction that detention is for administrative purposes, necessary for processing their claim and resolving their status as an unlawful non-citizen. It has also been held that detention is not punitive, despite the frequent statements by government Ministers that it serves as a deterrent, and the ample evidence of major harm that is done to people subjected to long-term detention.

The Democrats oppose provisions which take authority and jurisdiction away from the courts in determining whether or not people should be locked up and for how long.

Schedule 4 seeks to repeal provisions of the Migration Act 1958 inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 , which excluded the common law rule of procedural fairness and attempted to make it explicit that the procedures set down in the statute are all that decision makers must comply with.

The code of procedure scheme which is established in the sections of the Migration Act does not wholly duplicate the existing common law principles. In fact the Minister’s second reading speech during debate on the 2002 bill also conceded that the code of procedure did not provide the full protection of the common law requirements of the natural justice hearing rule.

The problem with this is the flow-on effect that applicants will only be entitled to “second rate” natural justice. These concerns are even greater given the removal of an applicant’s right to judicial review also imposed by the Migration Legislation Amendment (Judicial Review) Act 2001 which was passed by the major parties in the Senate. We do not believe further restrictions are desirable or justified.

We believe that the provisions in the Migration Act has reduced the accountability of decision makers and led to poorer decisions. It has also led to less opportunity for flawed decisions to be overturned.

Schedule 5 seeks to repeal the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 which increased the Minister’s power to refuse or cancel visas on character grounds.   Experience has borne out concerns expressed at the time the amending bill of 1998 was passed that there are insufficient protections in place to prevent unjust or unfair outcomes

‘National Interest’ test for conclusive certificates

I have major reservations about the subjective nature of the term “national interest” on which basis the Minister is able to refuse or cancel a visa on character grounds under the Act, as there is no longer an avenue for access to an independent review process. Instead, people are now subjected to the whim of the government of the day determining what is in the national interest.   This deserves serious consideration because, the term “national interest” is so broad as to justify almost any issue of a certificate.

I am concerned at the potential dangers of major decisions regarding the future of individual human beings becoming more subject to immediate political pressures rather than broader, soundly based legal principles. This provision has been repealed in my bill to be replaced by a system allowing for internal review and allows for the Minister to issue a conclusive certificate under certain circumstances.

The ‘character test’ and refusal or cancellation of visa on character grounds

The provision in the Act which allows the Minister to refuse or cancel a visa on character grounds is one that has had strong objections with regards to the character test itself. The inclusion of certain levels of criminal sentences as an automatic indication of a person’s character is a particular problem and has led to many blatantly unjust visa cancellations. A mindless bovver-boy law and order mentality should not be able to applied unchecked to decisions which can have such serious consequences on people. Many decisions have been made to cancel the visa of people who have lived in Australia for decades; in some cases virtually all of their lives. The consequence of such decisions can be permanent exile from their effective homeland, and banishment to a country where a person has no family, no other support and sometimes does not even speak the language. This type of massive punishment should not be able to be meted out as if it is some sort of administrative decision which requires no form of independent merits review.

The provision formulating the character test does not take into account the fact that justice and criminality are defined very differently in various countries throughout the world with many people being jailed simply for voicing an opinion or holding an unpopular religious or political view.

I also have specific concerns about the way the character test is affecting people with psychiatric disabilities. The section in question contained in s.501 (7)(e) which states that a “person who has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution” has a substantial criminal record is out of step with Australia’s non-discriminatory policies in relation to people with disabilities.

As there is no clear distinction between criminal behaviour and psychiatric illness contained in the provision, it should be eliminated all together.

Minister’s personal powers

I have major reservations with any prospect whereby the Minister is given additional personal power. The changes to the Act regarding character made in 1998 gave the Minister almost absolute power to exclude or remove non-citizens who are determined not to be of good character. This included the ability to set aside decisions of the AAT and to refuse or cancel a visa where the Minister suspects that the person does not pass the character test and the refusal or cancellation is purportedly in the national interest.

While recognising that, from time to time, there may be a need to expedite the normal processes in order to address emergency cases involving non-citizens, I have specific concerns that the additional powers bestowed on the Minister may have the effect of undermining the rules of natural justice and will remove many of the safeguards against arbitrary and capricious decision making.

Schedule 6 seeks to eliminate the system of mandatory migration detention which was introduced by the Migration Reform Act 1992 and replace it with an alternative system which is more humane, less expensive, meets Australia’s obligations under international law and provides a more effective mechanism for prompt and efficient administration of Australian migration laws.

The Democrats are fundamentally opposed to the system of mandatory detention of asylum seekers and we opposed the legislation which put it in place, which was passed with the support of both major parties.

Practice over more than a decade has shown that it is nonsensical to suggest that mandatory detention is not a penalty, particularly when it is regularly cited as being a deterrent against people considering entering Australia unlawfully. Australia is the only Western nation that imposes this system of mandatory detention which has been directly responsible for enormous and in some cases irreparable mental and physical damage to men, women and children alike.

Mandatory detention of people without charge or trial, for an indefinite period of time at the whim of a Minister and with no scope to seek bail or to challenge the detention in an independent court or Tribunal is one of the most flagrant breaches of our basic democratic rights imaginable.   The recent treatment of Dr Haneef through the Migration Act demonstrated the extreme nature of mandatory detention. When Dr Haneef was facing charges under our anti-terror laws, he still had a right to apply for bail, yet when he became a person who was facing no charges but had simply had his visa cancelled, he was locked up indefinitely with no prospect for bail or appeal.

The Democrats have proposed alternative programs to mandatory detention for asylum seekers. These are based on those developed and put forward by many NGOs and community organisations over some time, and have been proven to work humanely, effectively and more cheaply, whilst also addressing security concerns:

  • All asylum seekers who enter Australian waters will be processed onshore;
  • Asylum seekers will initially be accommodated for a limited period of time in facilities monitored by NGO’s, to assess health, security and social service needs;
  • When this assessment is complete asylum seekers would be released into the community with financial and casework assistance whilst their application for protection is completed;
  • Case work assistance will continue for those whose applications for protection are unsuccessful, to ensure they are able to meet appeal deadlines or arrange return travel; and,
  • A short-term detention facility will still be required for visa over-stayers and criminal deportees who are about to depart the country. This should continue to be located in a major capital city.
  • The costs for a policy such as the above would not only be considerably less but would also be more humane, ensure that our international obligations are met and most of all guarantee that asylum seekers and refugees’ rights are not trampled on.

The Democrats are committed to fighting to repeal all refugee and migration laws and policies that are an abuse of human rights.

I commend this bill to the Senate.


Senator BARTLETT —I seek leave to continue my remarks later.

Leave granted; debate adjourned.