Petro Georgiou (Kooyong, Liberal Party) Share this | Hansard source

I am pleased to speak about the first report of the inquiry into immigration detention by the Joint Standing Committee on Migration. The Australian immigration detention regime has been the subject of considerable contention, both domestically and internationally, since the introduction of mandatory detention by the Keating government in 1992 and, with that introduction, the introduction of charges for being detained. It was more than a decade before a combination of external and internal factors saw a significant amelioration of some of the harshest elements of the policy. Externally, the key factor was a major decrease in the number of asylum seekers arriving by boat without visas. Domestically, public attitudes shifted both because there was decreased anxiety about the flow of unauthorised arrivals and because there was growing dismay about the consequences of mandatory detention: the considerable length of time people were deprived of their liberty; the mental and physical harm suffered by vulnerable men, women and children; and the unlawful detention of Australian residents and, indeed, Australian citizens. Significant changes in law and policy were adopted in 2005, and, in July, the Minister for Immigration and Citizenship announced further welcome changes to the immigration detention regime. This inquiry by the joint standing committee provides an opportunity to maintain the momentum of reform. I believe that in this first report we have partially made good use of this opportunity.

The report makes a number of very important recommendations to improve the fairness and transparency of Australia’s detention regime policy. One particularly worthy of mention—and it has been mentioned by others—is the recommendation to stop charging former detainees the cost of their detention. I rarely use the word ‘outrageous’ because it is much overused by politicians, but this was outrageous. Detention debts can be huge and well beyond the means of people to repay them, and the Commonwealth Ombudsman and others told the committee of the great stress and financial hardship that debts can cause. I do hope the government will move rapidly to implement this, and other recommendations, as soon as possible.

There is one critical subject upon which members of the committee do differ, and differ strongly. This is the length of time a person is detained before the merits of the decision to detain them are subject to scrutiny by a tribunal or a court. As the law stands, the executive, immigration department officials and their minister have the unfettered power to indefinitely detain certain people, even if they pose absolutely no risk to the community. This was held to be so in the Federal Court in 2003, in the Al-Kateb case. The Federal Court judge in that case was John von Doussa, who was until recently President of the Australian Human Rights Commission. He has recently said this about the case:

As a judge, I was not asked to understand the emotional trauma of the detainees that appeared before the court. I did not know the conditions in which asylum seekers were detained—nor did I ask. Although international law prohibits inhumane and arbitrary detention, Australian law does not.

The results are troubling. As a judge, I felt the decision at which I arrived was both legally correct and morally reprehensible.

The new arrangements introduced by the minister in July do not, unfortunately, change the framework of this regime, and I think that, to speak frankly, it is fatuous to talk about paradigm changes while we detain people for up to a year without any external review. The changes have improved the processes of departmental review and of review by the Ombudsman, but they impose no new constraints on the executive’s power to detain. The committee’s recommendations relating to reviews by the immigration department and the Ombudsman will improve the framework. However, the committee in its majority report does recognise that these changes are, in themselves, not enough to create a viable system of review and accountability. The report states:

The Committee noted the strong evidence received that the lack of merits and judicial review for the decision to detain has in the past meant that people have been held wrongfully, unlawfully and for a period of years on the basis of a contested departmental decision.

The evidence pointed compellingly to the critical need for the Migration Act to be amended so that a tribunal or court could examine whether decisions to detain were reasonable and necessary in accordance with the new policy. The majority believed that there was no need for such independent oversight until a person had been detained for 12 months. Senator Eggleston, Senator Hanson-Young and I differed very strongly. Twelve months is a grossly excessive period for public servants to be able to make unfettered decisions involving the deprivation of liberty, given the potential harm such decisions may cause. The changes introduced by the minister and the changes recommended by the committee will not ensure rigorous and timely assessment of whether immigration detention is necessary and reasonable. Neither the principles of justice nor concern for the welfare of detainees suggests that 12 months is an acceptable period. It is certainly far in excess of the powers that public servants have with respect to the detention of people arrested for alleged criminal misconduct or detained because their mental illness endangers them or others.

When the Minister for Immigration and Citizenship announced a new immigration detention policy on 29 July, he pointedly mentioned that the United Nations Human Rights Committee had on a number of occasions found that our immigration detention system violated the prohibition on arbitrary detention under the International Covenant on Civil and Political Rights. The new policy, he said, honoured our international human rights obligation. This message is one that we have heard from other members of the Rudd government, not least from the Prime Minister today and, a couple of weeks ago, from the Attorney-General, when he told a conference that the government is ‘committed to introducing into Australian law the rights that are recognised and protected in the international instruments to which Australia is a party’. I hope this is a serious commitment, because, if it is, the government will have to move quickly to amend the Migration Act to comply with the prohibition on arbitrary detention.

One change that has to be made to the law is that a person cannot be placed into immigration detention unless it is necessary and reasonable on specified grounds. The second essential change is stated in straightforward terms in article 9(4) of the International Covenant on Civil and Political Rights:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

I emphasise that the article states that the court must be able to decide without delay whether the detention is lawful. This surely cannot mean that a detained person would be denied the right to take legal proceedings for 12 months, which is what the committee recommends. I hope that, the next time the Attorney-General makes a speech on the Australian government’s plans to bring Australian law into conformity, he gives prominence to the reform of the immigration detention regime.

To achieve such reform, the dissenting report proposes that a person who is detained should be entitled to appeal immediately to a court for an order that he or she be released because there are no reasonable grounds to consider that their detention is justified under the criteria specified for detention. If honourable members think that this is too quick or that it is not necessary, let me just quote a couple of cases from a report of the Ombudsman—and there are dozens of them. I have chosen a couple that are simple and not too long. The report says:

Mr M had been in Australia lawfully for three years. He had lodged a request for the Minister to intervene in his case and grant him a visa. While the Minister was considering this request, Mr M was granted a second bridging visa but this was not recorded on ICSE (The department database). On December 24 2003—

the Christmas season—

while waiting at Melbourne Airport for a friend, Mr M was detained and transferred to a detention facility. Even though a review of Mr M’s records could have readily clarified his status, he remained in detention for seven calendar days until DIAC officers returned from their Christmas/New Year break and reviewed his case.

Take another case:

Ms K had given an oral account of her lawful immigration status to DIAC officers both before the decision to detain and on the following day when she was interviewed. This information was consistent with that held on DIAC’s system, yet no checks were conducted to verify the information that Ms K had provided. Ms K’s solicitor contacted DIAC on the second day of her detention and advised that he could provide DIAC with a certified copy of Ms K’s passport, which he did. DIAC advised the solicitor that a certified copy was insufficient and that DIAC would need to sight the original. The solicitor, based in a separate city to where Ms K was being detained, was also told by DIAC that it would not be acceptable for him to take the passport to the office in his city as that office would not know the case and could not make an identity assessment. Ms K’s passport was subsequently viewed by DIAC after she had been detained for eight calendar days.

These are not people who have no right to be in Australia, which is where the argument is sometimes misunderstood; these are people with a legitimate right who we are locking up with no right to appeal to a court. I do not regard that as acceptable and I do not think any of us should. Paradigm shifts are difficult to achieve but you have to keep on pushing.

The dissenting report also proposes:

A person may not be detained for a period exceeding 30 days unless on an application by the Department of Immigration and Citizenship a court makes an order that it is necessary to detain the person on a specified ground and there are no effective alternatives to detention. This is consistent with the Minister’s commitment that under the new system ‘the department will have to justify a decision to detain—not presume detention’.

I commend the Minister for Immigration and Citizenship for requesting this review; I commend the many people who have given us an unparalleled amount of information, evidence and experience; and I commend the secretariat and my colleagues for their capacity to work together under sometimes difficult circumstances. I look forward to working with my committee colleagues to prepare the next two reports in this inquiry.

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