Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I present the final report of the Legal and Constitutional References Committee on the administration and operation of the Migration Act, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I rise to speak to the tabling of the Senate Legal and Constitutional References Committee report on the administration and operation of the Migration Act 1958. Australia’s immigration policy has been the subject of a good deal of analysis and commentary over the last few years, particularly issues related to the treatment of refugees and more recently the cases of Cornelia Rau and Vivian Solon. This has been accompanied by severe and justified criticism of the Department of Immigration and Multicultural Affairs and the failures of successive ministers.

The references committee was given the task of reviewing the Migration Act. However, it became obvious from the substantial evidence we received that there was public disquiet related to Australia’s humanitarian program, particularly aspects of the onshore refugee program such as ministerial discretion, temporary protection visas, detention and removal policies and practices, the cumbersome nature of the act and the culture of the department. Our report obviously focuses on the issues about which we received most evidence. In consequence, there is limited coverage in this report of the non-humanitarian aspects of the act, although issues related to student visas are the subject of a chapter in this report.

The inquiry was advertised nationally on 29 June 2005 and we received 234 submissions. Public hearings were held in Adelaide, Melbourne, Sydney and Canberra at which the committee heard from 93 witnesses. Members of the committee were also able to visit Villawood detention centre. I want to place on record the committee’s thanks to all those who took the time to provide considered submissions and who appeared as witnesses. I also want to acknowledge the assistance provided to us by officers of the department throughout the inquiry and with our visit to Villawood.

At this early stage of my presentation of this report I would like to thank the committee secretariat for its assistance with the inquiry and the report. In particular, I want to thank the committee secretary, Owen Walsh, who has recently left the Senate and has been replaced by Jonathan Curtis. I think that the work that Owen undertook needs to be particularly mentioned. The secretariat staff who have supported and assisted Owen and more recently Jonathan and the committee as a whole deserve a mention for their diligent and meticulous work in relation not only to the inquiry, which produced the report tabled today, but also in relation to the overall and ongoing work of the committee.

This comprehensive report makes 61 recommendations covering a wide range of regulatory, legislative, accountability and operational issues. Let us remember that this inquiry was initiated because of the gross mistreatment and significant failings of the department in the exposure of the treatment of two Australian citizens and the failure of this government to recognise that instead of having a thorough and efficient immigration system we have had a turnstile of incompetence under the last two ministers.

Let me start with a comment on the state of the Migration Act itself. The committee agrees with the evidence we received that the Migration Act has become a complex and unwieldy monster. Recommendation 7 says:

... that the Migration Act and Regulations be reviewed as a matter of priority, with a view to establishing an immigration regime that is fair, transparent and legally defensible as well as more concise and comprehensible.

We believe that this task should be undertaken by the Australian Law Reform Commission

There is no doubt that the majority of changes in the immigration system in recent years have occurred by changing regulations rather than legislation. This has led to a minister that is now at arms length from the responsibility of the operation of the department and this has provided a shield and an excuse for a succession of ministers that have maintained that any problems lie within the department when they should be stepping up to the plate and taking ministerial responsibility. The roles, powers and corresponding accountabilities of ministers in relation to their departments have changed considerably over the past decade. In the context of the Migration Act there seems to have been a simultaneous growth in ministerial discretion and a decline in ministerial responsibility for the actions and administration of either their staff or the department.

We acknowledge that the complexity of public administration and the wide-ranging scope of departmental decision making do impact on the minister’s role. Nevertheless, the committee considers it important that accountability measures keep pace with these developments and that not only the department but in particular the minister—especially the minister—be held to account for actions and decisions that are made. Therefore it is not appropriate that terms of reference for inquiries, such as those given to Mr Comrie, would exclude the minister and his or her staff. If they are excluded, effective parliamentary scrutiny of public administration is severely curtailed, and we saw that in the Comrie report, which did not have in its terms of reference the authority to inquire into the related matters in the minister’s office.

That is the rationale behind recommendation No. 1 in the report, which reads:

The committee recommends that the terms of reference for any future independent inquiries into the administration of the Migration Act provide the authority for the investigation to include both the Minister and the Minister’s office.

The report reviews mandatory detention from a policy perspective and examines the operation of that policy in practice. The committee has made 14 recommendations for specific changes to the current policy and practice of detention which we believe would greatly improve the present system.

While there have been some changes recently, particularly in relation to women and children, the law still permits indefinite detention. There is a significant body of evidence that prolonged indefinite detention causes detainees an unacceptable level of mental distress and, in some cases, permanent mental illness, and many witnesses provided that evidence to us. This violates one of the most fundamental rights of all human beings: to be treated with respect and to be protected from mental and physical violation.

One of our key recommendations is that the policy of indefinite mandatory detention should cease. We make this recommendation with the full awareness that it was an ALP government that introduced the mandatory detention policy. However the committee believes that circumstances have now changed. It is time this policy changed too. The committee fully understands that there is a need to detain an unlawful arrival while security and health checks are undertaken, but we believe that 90 days should be more than sufficient for that purpose. Any further deprivation of liberty should be subject to judicial supervision and only permitted on specific identifiable grounds such as where the person poses a danger to the community.

I also draw attention to the way in which Australia manages claims for asylum that go outside the definitions under the refugee convention. Australia has human rights obligations not to return a person to a country where there is a serious risk of a violation of human rights or substantial grounds for believing that the individual will be subject to torture. However, under the current system, the only way this protection is available is by a non-reviewable ministerial discretion to grant protection. This only happens after a person has pursued their claims for asylum under the refugee convention. This approach causes significant delays and results in unnecessary and lengthy periods of detention for people with legitimate protection claims who do not fall within the strict definition of the refugee convention. The discretionary approach to this issue also lacks the elements of transparency and accountability. Recommendation 33 therefore recommends that ‘complementary protection’ be put on a proper statutory footing so that all claims can be dealt with simultaneously.

A related issue is management of immigration detention centres. We received evidence on many aspects of the management of detention centres, but for me the bottom line is an abiding belief that there is a fundamental conflict in a private company, whose prime consideration is profit, managing such establishments. Recommendation 48 therefore suggests:

... that, as a fundamental overarching principle, direct responsibility for the management and provision of services at immigration detention centres in Australia should revert to the Commonwealth.

In concluding my comments, I say that it is only today that I have seen the dissenting report from the government members on this committee and I want to make a few comments very quickly. For the government members on this committee this has been a missed opportunity to provide some meaningful and practical changes to the management of the immigration system. There is only one witness who can actually defend the department, and if you look at the government senators’ contribution to their report you will see that DIMIA says, ‘Everything’s okay.’ So if you want to know that everything happening is all right in the immigration department, ask the department themselves. It is a classic case of Yes Minister. The government’s dissenting report fails to quote any of the 233 other witnesses that we heard from; they only quote from the department to defend their stance. It is unfortunate that most of the members of the committee missed the hearings in Adelaide and Sydney and, of course, the trip to Villawood. (Time expired)