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Monday, 7 September 2009
Page: 5789


Senator BILYK (8:06 PM) —I rise to speak on the very important Migration Amendment (Abolishing Detention Debt) Bill 2009. Essentially, this bill seeks to amend the Migration Act 1958 by removing the need for detainees to repay the debt accrued from their time in detention, a debt that begins to accrue with the Commonwealth as soon as a noncitizen is placed in detention. The Rudd government is committed to the fair and equal treatment of all people, and this commitment extends to people who enter Australia illegally and are placed in detention. This bill is part of a broader reform of immigration detention being introduced by the Rudd Labor government. The Rudd government understands it must continue to have tight entry requirements to protect the security of the nation, but it also understands it must treat all people humanely, including noncitizens. That is what it intends to do.

Having fair and effective immigration detention policies and strong border security measures at the same time is not an incompatible situation, no matter what those opposite want people to believe. The two needs can be balanced. The Migration Amendment (Abolishing Detention Debt) Bill 2009 shows that such appropriate balance can be achieved, by abolishing an outmoded and ineffectual system that penalises detainees by lumping them with an enormous debt while at the same time ensuring that liability to detention costs remains a deterrent in relation to convicted illegal foreign fishers and people smugglers. These people, illegal foreign fishers and people smugglers, are operating for the sole purpose of making money and have no interest in moving to Australia and being active in our society. They will still be required to pay their debts as they have committed significant crime.

But it must be remembered that a large number of people who spend time in immigration detention are eventually given permission to remain in Australia. This nation willingly allows people to stay in Australia, even if they entered illegally, as long as they are found to be genuinely at risk if sent back to their homeland. By removing the need for them to repay their debt from their time in detention, the government is helping such people to move on and build a new life. We want these people to participate in Australian life to the best of their ability, and a large debt surely can forbid this. Not only does a large debt make it difficult to participate in the community; it also has a negative impact on the mental health of the individuals and families. Let’s face it: for those people who usually have close to nothing upon arrival in Australia it would be extremely hard to start a new life with a huge financial burden or debt hanging around their neck.

At an approximate cost of $125 a day—and this varies from one detention facility to another—debt accumulates pretty rapidly. After one month, detainees debt is close to $4,000 on average, and for those that have been detained for a year it is approximately $45,000. After five years in detention is could be as much as $225,000.

The Refugee Action Committee reported to the Joint Standing Committee on Migration, the committee which inquired into immigration detention in Australia and of which I am a member, one case of an accumulated debt for a family where the father, who had been held in a detention centre for six years and then lived as a refugee in Melbourne for a further three years, was advised by the Department of Immigration and Citizenship that he owed $200,000—the cost of keeping his wife, daughter and son locked up for three years. The Forum of Australian Services for Survivors of Torture and Trauma advised that one family was told their debt was more than $340,000. And there were many, many more such reports.

The Rudd government understands it has a responsibility to take into account the health and wellbeing of all detainees, and this includes their mental health. The Joint Standing Committee on Migration, while receiving evidence for its first report, heard from a range of people and organisations about the stress, anxiety and detrimental effects these debts have had on people’s mental health. Labor for Refugees New South Wales described the practice of applying charges to persons in detention as ‘intentionally punitive, unjust and inhumane’. The Office of Multicultural Interests Western Australia called for all existing debts to be waived and voiced strong concerns about the validity of such debts when contrasted with Australia’s international obligations. The Chief Executive Officer of the Refugee Council of Australia, Paul Power, described the debt as akin to the United Nations High Commissioner for Refugees charging refugees for the time they spend in refugee camps. Julian Burnside QC has commented that we are the only country in the world that charges innocent people for the cost of incarcerating them.

The practice of applying detention charges does not appear to contribute to offsetting the costs of detention, nor does it appear to provide any substantial revenue. In practice, at the moment the recovery of many people’s debts is not pursued and can be waived or written off. A waiver requires each case to be considered on its merit and, therefore, adds considerably to the administrative workload. Where the Commonwealth considers it has a moral, rather than a legal, obligation to extinguish a debt, a waiver is generally approved. The Minister for Finance and Deregulation is the only person authorised to waive a debt and has unfettered discretion to determine each request. A write-off means that a decision is made not to pursue recovery of the debt. However, at some time in the future the debts may be pursued, and the person with the debt does not really know whether that may happen and lives with the possibility hanging over their head of one day being told it has to be paid.

This form of debt relief has been granted on humanitarian and refugee visas, for people detained unlawfully or where DIAC is satisfied that the debts are not legally recoverable or are uneconomical to pursue. Over the years there have been considerable concerns raised regarding the lack of transparency in the debt waiver and write-off process. Organisations such as the Law Institute of Victoria, Liberty Victoria and the Justice Project point out that persons eventually granted a visa must either accept the liability or rely on debt write-off or debt waivers to escape liability. These practices operate quite arbitrarily without the procedural safeguards ordinarily afforded to persons by way of the rule of law. Although it must be acknowledged that a large percentage of the debt arising from the detention of illegal immigrants is never recovered, nevertheless the act provides the Commonwealth with specific powers to recover any outstanding debt. This may be by restraining dealings with property, attaching the debt to specific forms of income of the debtor, entering premises to seize and sell valuables of the debtor or preventing a financial institution or bank from processing any transactions in any account held by the debtor. It is true that a payment plan can negotiated between the Commonwealth and the ex-detainee, but some repayment plans have left detainees with repayments taking place over many decades. Therefore, it is not only costly and time consuming to pursue payment but a largely unsuccessful exercise.

For people deported from Australia there is no obligation to pay their detention debt to the Australian government once they are living offshore. However, having a debt may prevent people from being able to re-enter Australia should they wish to return lawfully. An accumulated debt may impede a person’s legitimate entry into Australia in the future, because DIAC is able to refuse to grant a visa to a person who holds a debt against the Commonwealth. If you are deported, the debt is registered against your name. This can lead to families being split and family breakdown.

In 2008, after nine years in detention, a man was removed to the United Kingdom. He was handed an account on leaving for $512,000. This will, of course, stop him from returning to Australia, so he will not be able to see his wife, her ailing parents or his children and grandchildren. This man had been living in Australia since 1982 and when last we heard was living in an abject state in the United Kingdom.

Since 2004-05 less than 2.5 per cent of the debt invoiced was recovered. In 2007-08, only $870,000 of $23 million of debt incurred was recovered. As I have stated, much of the outstanding debt has been waived or written off, but the idea of having a huge debt over their heads before they even begin their lives in Australia is obviously very stressful for most people. We do not charge citizens who are incarcerated for committing crimes, for their detention. If you are detained under a mental health act you are not charged for your keep or required to reimburse the Commonwealth. Neither do we charge people who are detained under the Quarantine Act. To put it simply, the detention debt policy just does not achieve what it was designed to do—that is, to limit the cost to the Australian taxpayer of supporting illegal immigrants. It is time to accept that the objective is not being achieved. It is necessary for those in the Liberal Party to accept that and to drop their opposition to this bill. Even the previous speaker spoke about the debt being waived or written off. Let us not have one at all. If we have to go down those administrative lines, let us not have it at all.

This bill extinguishes all debts for all current and former detainees, effective immediately. This has been done to permanently wipe these debts from the record. This bill moves to extinguish all debt owed to the Commonwealth at commencement time, including debts previously written off and those that are in the process of being paid. It is important to recognise that this bill does not require any debts paid in full or partially to be repaid by the government. Debts that have already been repaid were paid because there was a legal requirement at the time for the individual to pay. Therefore, the Commonwealth is not putting itself into debt by introducing these provisions. There is still a provision that allows for the recovery of money paid if it is determined the money was paid by someone who was detained unlawfully. People who are currently paying off debts will be notified by mail to their last recorded address and information will also be available on the department website. Community groups, many of whom support refugees, will also be notified of the changes.

The Rudd government is taking all possible steps to ensure that the community is aware of the changes. As stated, this bill has been introduced following a report from the Commonwealth Ombudsman and another report from the Joint Standing Committee on Migration. The Commonwealth Ombudsman, in a report published in April 2008, examined amongst other things DIAC’s administrative procedures in relation to debt policy in detention. The Ombudsman found that although the legislation was being adhered to there was room for improvement and that in particular the department could improve the information it provides to people, including the consistency and reasonableness of decisions on debt waiver and write-offs. There were also comments in regard to the burden of the detention debt, noting that complaints received by the Ombudsman’s office indicate that the size of some of the debts led to stress, anxiety and financial hardship to many people now living lawfully in the Australian community. The JSCM report, Immigration detention in Australia: A new beginning, was the first report of the inquiry into immigration detention in Australia and was released in December 2008. It determined, unanimously, the practice of charging a person for their detention was harsh and contrary to the value that immigration detention is not punitive.

But now the Liberals have decided that they do not support that report. This shows that those on the other side are not consistent in their policy—and we all know that consistency is important in a fair society. There is no reason for this change of view other than that those on the other side of the chamber are putting their own interests ahead of what is best for the nation as a whole. I am left bewildered as to why members from the opposite side signed off on the JSCM report if they do not believe in the recommendations. They are happy to support a policy where the costs of administration outweigh the debts recovered. I do not believe that is great economic management, no matter what spin the opposition use. For no apparent good reason they are digging in to not support a policy change that clearly makes sense.

The Rudd government is committed to a fair and just Australia. The Rudd government is committed to protecting its borders. The Rudd government will continue to ensure that people who enter the country illegally are dealt with appropriately in a humane and fair manner. The Rudd government acknowledges that we also have a responsibility to look after people who would be at risk if sent back to their homeland. It also must be remembered that many of these detainees will eventually be given permission to remain in Australia. It is obviously in the best interests of Australia to ensure that these people are prepared for life in Australia and that they do not start out in their new lives burdened with huge debt. This bill leads to important changes in the treatment of persons who have been subject to immigration detention. I strongly hope it will have the support of members, in particular those opposition members of the JSCM who were part of the unanimous recommendation that we abolish this system—those same opposition members who unanimously endorsed the enthusiasms of this legislation. I commend the bill to the Senate.