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Tuesday, 2 December 2008
Page: 42


Senator HANSON-YOUNG (4:41 PM) —The Joint Standing Committee on Migration’s report Immigration detention in Australia: a new beginning makes a number of very important recommendations to improve the fairness and transparency of Australia’s immigration detention policy. One of the recommendations in the majority report is the recommendation to stop charging former detainees for the cost of their detention. This is something that the Australian Greens have been calling for for a very, very long time. I am thankful that it has finally been picked up in this report as a recommendation. I urge the Minister for Immigration and Citizenship to act on it as soon as possible. I acknowledge that, throughout the year, the minister has indicated that he has been concerned with this as well, so I am hoping that, now we have a clear recommendation in this report, it can be picked up ASAP. The sums can be very substantial and well beyond the means of people to repay, and this can cause great stress. This is a fair and sensible recommendation and I encourage the government to act on it.

The committee’s recommendation relating to reviews by the Department of Immigration and Citizenship and the Ombudsman will improve the current framework, although I do believe there are significant weaknesses that will remain, which is why Liberal member of parliament Petro Georgiou, Senator Eggleston and I proudly joined forces to outline the areas of concern that we feel were overtly dismissed. In particular, we feel that the proposed changes fall short of ensuring rigorous and timely assessment of whether detention is necessary in accordance with the new policy. While I take the comments of the minister and the chair of the committee on board—that there is a desire to do things differently for the future and leave the dark days of the Howard immigration regime behind—we should not simply be relying on the goodwill of an individual minister. The idea of having judicial oversight and judicial review of detention is something that came out very, very strongly throughout the committee process. Much of the evidence that was presented said that this is clearly the one thing that we should be doing. Regardless of what policy we change, we need to ensure that it is strengthened and upheld by independent oversight. That of course would be the process of having a judicial mechanism to determine whether the detention of somebody is actually lawful or not.

The committee majority believe that, given factors such as the potential impact of lengthy detention on a person’s mental health and the legacy of maladministration, there is justification for access to independent merits and judicial review, but that this should only be available for people once they have been detained for 12 months. If it is okay and sensible to allow people to access a review through a judicial process after 12 months, why should it not start at the beginning of somebody’s detention? I do not buy the logic in this argument. It simply does not stand. If we think this is an important mechanism to have in place to ensure that people are not wrongfully detained, it should be accessible as soon as a person is detained and the department has made a decision that, in their opinion, the detention must take place.

We are concerned that under this framework DIAC officials will continue to have the power to decide whether it is necessary and reasonable to detain people for six months without any external scrutiny of their decision whatsoever. After six months, under the majority report recommendations, the Ombudsman will review the detention decision but can only offer advice. It is important to understand the role of the Ombudsman in all of this—he is simply there to review and to hand over reports with his advice. There is nothing in his role that gives him any type of authority. There is no element to compel the minister or the department to act on the advice they are given. That position simply lacks the teeth to ensure we are upholding the new policy framework that the minister so proudly speaks of.

We strongly disagree that public servants should have the power to detain for 12 months without independent external scrutiny which can ensure the release of people whose detention is assessed as being unnecessary with respect to the specified criteria. As I outlined just before, if it is seen as important and reasonable to review a department’s decision to detain somebody after 12 months, surely the same argument exists for reviewing the process once the initial decision is made. No-one should be detained without the ability to have a court review their case and determine whether their detention is lawful or not. A mechanism for judicial review must be available from the moment a department makes the decision to detain a person.

Just for interest’s sake, as of 21 November 2008, there were 22 children—that is, people aged under 18—in immigration detention. Eighteen were detained in the community under residence determinations, three were on Christmas Island in alternative temporary detention in the community, and one was in immigration residential housing. In total, as of 21 November, there were 322 people in immigration detention, including 48 in community detention.

As the committee heard in evidence provided by Julian Burnside QC, in other circumstances when a person is deprived of their liberty their situation is reviewed at regular, short intervals and judicial oversight is available at all times. Yet, for some reason, the committee majority and the government see that the immigration detention regime should somehow be immune from this general rule. The committee received strong evidence that the lack of available merits and judicial review for people detained in immigration detention has resulted in people being held wrongfully, unlawfully and for a period of years on the basis of contested departmental decisions.

I remind people that this is the department that has wrongfully detained 200-odd people and delivered us the cases of Vivian Solon and Cornelia Rau. If we had had an independent oversight mechanism where people could have a court determine whether or not their detention was lawful, perhaps we would not be facing the numbers of people unlawfully detained that we are now and the compensation cases that I believe will continue to be brought forward in courts of law because people have been detained unlawfully.

Detention can be a very damaging experience for people, particularly asylum seekers who have suffered trauma and torture, and this can happen well before 12 months have lapsed. Psychologists with substantial experience and expertise in the area advised the committee that some asylum seekers have very adverse reactions to detention within the first few months. Limiting the ability to access judicial review to people who have been detained for at least 12 months is simply illogical if the point is to try and eliminate suffering and trauma and to decrease the numbers of people who continue to be held unlawfully.

One of the first things I called for when I took my seat back in July was for the government, as part of their proposed immigration changes—and the minister and I have spoken about this on various occasions—to conduct a royal commission into the psychological impact that immigration detention has had on children and their families. While I understand that this was rejected by the Rudd government, the committee heard overwhelming evidence on the adverse affects of detention, suggesting that only allowing a detainee access to a court after 12 months has lapsed could continue trauma and the psychological impact of detention for many people, and let’s not forget the mental state of individuals that we know have been held in detention for upwards of seven years.

Many submissions strongly argued that the merit of detention decisions should be subject to independent oversight without indicating a view as to when that should be available or should occur as a matter of course. The inference of this evidence was that once a person is detained they should be able to access a review of whether or not their detention is lawful.

I know the Greens signing on to a dissenting report with two members of the Liberal Party might be a strange occurrence, but I must say I am very proud to have my name on that report.