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Thursday, 27 June 1996
Page: 2353


Senator ELLISON(11.26 a.m.) —The Migration Legislation Amendment Bill (No. 2) was before the Senate Legal and Constitutional Legislation Committee last night and evidence of a wide-ranging nature was put before the committee. The committee took evidence from not only the Attorney-General's Department and the Department of Immigration and Multicultural Affairs but also Mr Ross McDougall, from the Refugee Advice and Casework Service; Father Frank Brennan, from the Jesuit Social Justice Centre; Mr David Bitel, President of the Refugee Council of Australia; Mrs Marion Le, from the Independent Council for Refugee Advocacy Australia; the Human Rights and Equal Opportunity Commissioner, Mr Sidoti; and the Commonwealth Ombudsman, Ms Philippa Smith.

In the short time available the committee was able to take wide-ranging views and evidence on this matter. Indeed, during the course of the hearing the Human Rights and Equal Opportunity Commissioner, Mr Sidoti, and the Ombudsman, Ms Smith, made an offer to the government that they would pursue their duties as if the bill had been passed for a period leading up to 20 September this year. That offer was made, albeit genuinely, in an effort to have more time for consultation.

Regrettably the government could not take this offer up because the offer could not be guaranteed. In the view of the government members of the committee, the human rights commissioner and the Ombudsman in their public office could not resist an application of writ of mandamus by a third party forcing them to carry out their duties. So those who might say, `The government was offered a way out here'—that is, that the Ombudsman and the human rights commissioner would not pursue their duties in relation to this matter as if the bill had been passed so that the government could be offered that sanctuary, so to speak, until 20 September—really miss the point.

The government has not been given a guarantee. I believe that those two officers intended it to be genuine. Nonetheless, there was not the guarantee offered to the government. So the government had no choice but to pursue the passage of this bill on an urgent basis and for the reasons that Senator Short has outlined in detail; I will not go over them again.

During the course of evidence there were questions put as to whether this bill transgressed or cut across any existing litigation. There was no evidence that it did. The Scrutiny of Bills Committee report—this bill has also been before that committee, which is chaired by Senator Cooney—was put before the committee and that said that there was some limited aspect of retrospectivity and that there was some concern over the aspect of access to justice.

The departments that I mentioned were questioned on these two aspects and they did not see any great problem with either of those issues. Mr Henry Burmester, from the Attorney-General's department, who is counsel of note, said that he did not think that this bill transgressed Australia's international obligations. Indeed, article 9 of the International Covenant on Civil and Political Rights, referred to in Senator Spindler's dissenting report, states that anyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings before a court in order that the court may decide without delay on the lawfulness of the detention and order release if the detention be not lawful. Nothing in the bill deprives anyone of the right to take such action. As Senator Short outlined, there is nothing to stop an unauthorised person in detention from making an application for legal aid and bringing proceedings.

Due to the recent case brought by the Human Rights and Equal Opportunity Commission, the government has had to respond with this bill, which is rather narrow in its application. It will provide that no unsolicited legal advice is offered to detainees under the provisions of the ombudsman's legislation or the human rights and equal opportunity legislation. Those organisations have the ability, once a complaint has been made to them, to communicate with the complainant by means of a sealed envelope.

It was put to the committee by the departments that, firstly, this measure does not offend our international obligations; secondly, if this bill be not passed forthwith, there would be a hiatus in the administration of our immigration policy dealing with unauthorised entries and that betwixt now and the next sittings there could be all sorts of problems.

For those reasons, there is a degree of urgency with this matter. I commend the staff of the Legal and Constitutional Legislation Committee for the urgent attention they have given this matter. In particular, I refer to Neil Bessell, the secretary to the committee, and Catherine Hawkins, who both did a great job with such short notice.