Yvette D'Ath (Petrie, Australian Labor Party) Share this | Hansard source

I rise to speak in support of this report as a member of this parliament and a member of the Joint Standing Committee on Migration. This is a report on the inquiry into immigration detention in Australia by the committee. This report is the first of three reports on the inquiry into immigration detention in Australia. This report addresses the criteria that should be applied in determining for how long a person should be held in immigration detention, the criteria that should be applied in determining when a person should be released from immigration detention following health and security checks, and a review mechanism for ongoing detention, removal practices and detention costs. The second and third reports, which are to be tabled in 2009, will address alternatives to detention, financial costs, service provision and the infrastructure required to support the immigration detention framework for the future.

This inquiry was long overdue. The Australian community was tired of the way that unauthorised persons were treated in this country. There is no doubt that Australians expect a government to ensure strong border protections. However, Australians also expect that this will be done in a fair and balanced way and in a way that supports the Universal Declaration of Human Rights. The Prime Minister has just spoken on the Universal Declaration of Human Rights in the chamber. The Prime Minister noted the focus of this Labor government on ensuring that the policies adopted by this government in dealing with unauthorised arrivals are applied in a humane way.

On 29 July 2008, the Minister for Immigration and Citizenship, Senator the Hon. Chris Evans, announced a series of values that would underpin Australia’s immigration detention policy. Those seven values are as follows. Mandatory detention is an essential component of strong border control. To support the integrity of Australia’s immigration program, three groups will be subject to mandatory detention: all unauthorised arrivals, for management of health, identity and security risks to the community; unlawful noncitizens who present unacceptable risks to the community; and unlawful noncitizens who have repeatedly refused to comply with their visa conditions. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre. Detention that is indefinite or otherwise arbitrary is not acceptable, and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time. People in detention will be treated fairly and reasonably within the law. Conditions of detention will ensure the inherent dignity of the human person.

Since this inquiry commenced, the Minister for Immigration and Citizenship announced changes to detention that fundamentally reintroduce basic human rights into the way that this country deals with people that are unauthorised arrivals in this country. The premise of the new changes was that unlawful arrivals should be held in detention for the least amount of time possible and only for certain reasons.

There is no doubt that not only were the policies and processes surrounding detention and unauthorised arrivals flawed but they did in fact, in some cases, cause distress to the persons detained. A recurring concern about the current immigration detention system has been the indefinite nature of detention, with little scope for information about the reasons or rationale for detention. This report tackles those uncertainties and sets out clear and definitive guidelines for detaining individuals.

This standing committee heard much evidence from organisations and individuals that clearly identified that serious flaws exist in the current programs and policies in the way detention occurs. Even though there were reports that indicated that the treatment of detainees and the processes have improved in recent times, much more work needs to be done. Within the short time I have to speak on this report, I would like to take this opportunity to provide a brief summary of the recommendations.

Recommendations 1 through to 5 outline the committee’s criteria for release relating to health, identity and security checks. The key element of these recommendations is that the Department of Immigration and Citizenship, DIAC, develop and publish criteria for each of the areas considered in relation to release—that is, health, identity and security. Also the criteria should be made explicit and public.

In relation to health, the criteria should draw on the treatment standards and detention provision that otherwise would apply to all visa applicants and to Australian citizens and residents who pose a potential public health risk. It is also recommended that there be a time frame for health checks, such as five days, and that this time frame be established in consultation with relevant stakeholders.

The committee recommends that a risk based approach be applied where a person’s identity is not conclusively established within 90 days. In such circumstances, it is recommended that mechanisms be developed that would allow a person whose identity has not been established to be released and that the release can be subject to conditions. The release should occur unless a demonstrated and specific risk exists or where there is clear evidence of a lack of cooperation or refusal to comply with reasonable requests. The same criteria should apply in relation to the security check after 90 days where there is little indication of a risk to the community, as advised by the Australian Security Intelligence Organisation, and the person has been cooperative or compliant with reasonable requests.

Importantly, to ensure that people who continue to be detained beyond 90 days as a result of a risk assessment are provided with ongoing review through an open and accountable process, a further assessment will occur after six months. The committee recommends that the Australian government empower the Inspector-General of Intelligence and Security to review the substance and procedure of the security assessment and the evidence on which it is based. The inspector-general should provide advice to the Commonwealth Ombudsman as to whether there is a legitimate basis for the delays in security assessments.

Recommendations 6 and 7 are that DIAC develop and publish the criteria for assessing whether a person in immigration detention poses an unacceptable risk to the community and that the criteria be applied equally against persons detained following a section 501 visa cancellation. Further in relation to section 501 detainees, DIAC should take into account other assessments and reporting requirements already undertaken in relation to the detainee by other authorities. Recommendation 8 once again outlines the need for open and accountable criteria in determining whether there is a need for detention due to repeated visa noncompliance.

Importantly, recommendation 9 ensures that territories excised from the migration zone are subject to the same risk based approach and values announced on 29 July 2008. Recommendation 10 addresses the call by many inquiry participants for an increased level of formal review. That is why the committee recommended that DIAC develop and publish details of the scope of the three-month detention review and that the review be provided to the person in immigration detention and any other persons they authorise to receive it, such as their legal representative or advocate. It is surprising that in the year 2008 such a recommendation has to be made and that such processes had not been in place previously. This, of course, is a basic right for any individual who has had a decision made against them, to have access to the grounds and reasons for such decision and the mechanism applied in reaching such a conclusion.

That is why recommendation 11 is such a substantial shift in the practices that have come before it but will provide comfort to those who have fought for so long to see a government that is open with and accountable for its detention practices. The recommendation states that the House of Representatives and/or Senate resolve that the Commonwealth Ombudsman’s six-month detention reviews be tabled in parliament and that the Minister for Immigration and Citizenship be required to respond within 15 sitting days. The minister’s response should address each of the Ombudsman’s recommendations and provide reasons why that recommendation is accepted, rejected or no longer applicable.

Importantly, the committee recommends at point 12 that the reforms announced by the minister in July be enshrined in legislation and that the Migration Regulations and guidelines are also amended to reflect these reforms. The committee has taken the step of recommending a maximum time frame of 12 months for detention for all persons other than in the circumstances that a person is determined to be a significant and ongoing unacceptable risk to the community. Such release could be subject to conditions. Recommendation 14 states that where a person continues to be detained it is appropriate that rights exist for the person to seek external review, firstly through an independent tribunal and subsequently through a judicial review. Recommendations 15 to 17 outline a process for removal to ensure adequate notice and important considerations are given to health and other issues, before that person is removed from Australia.

Last but not least, recommendation 18 notes that as a priority the Australian government should introduce legislation to repeal the liability of immigration detention costs. The committee further recommends that the Minister for Finance and Deregulation make the determination to waive existing detention debts for all current and former detainees, effective immediately, and that all reasonable efforts be made to advise existing debtors of this decision. The previous speaker, and it was you, Madam Deputy Speaker Vale, noted that there are no other forms of detention around this world that charge a fee, nor are there other forms of detention in our own country that apply a charge in such circumstances. These charges cannot be retained or justified.

As may have been noticed in taking the chamber through these recommendations, there is a common theme. That is that there needs to be a fundamental shift from an internal focus and process with little or no accountability to one that involves open and accountable processes in decisions made by detention facility operators and by the Department of Immigration and Citizenship. Those criteria should be developed with key stakeholders and they should be published. I appreciate and respect that other members of the committee may have differing views on the method of ensuring procedural fairness and accountability. These recommendations, however, in my view are a step in the right direction and are a positive step forward for Australia and its reputation internationally in ensuring that universal human rights are applied to all persons in the context of our national security obligations.

To finish up, I would like to record my thanks for and acknowledgement of the extensive and thorough work done by the chair, Michael Danby, and I would like to make special mention of the secretariat for all their work. I would also like to mention the wonderful work of the deputy chair, Danna Vale—who is now in the chair in this chamber—and I also wish to acknowledge the willingness of all of the committee members to contribute to the discussions in the development of this report. I look forward to speaking in much more detail, upon the tabling of the remaining two reports, on the evidence heard and read in relation to this inquiry.

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