Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

We have not been given a grey sheet for these amendments, so I will just have to step through piece by piece. I wish to move the first set of amendments that relate to children in detention. The amendments to schedule (1)—

Concetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | Link to this | Hansard source

Senator Hanson-Young, are you going to deal with amendments (1), (2) and (3)? On sheet 7791, you have amendments (1), (2), (3), (4) and (5). Are you going to deal with them in that order? I understand that Senator Carr's amendment is to Greens' amendment (4).

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

That is correct. Given the nature of these bills, I will follow the pattern I have in recent times—that is, I will speak to all of these amendments so that we do not have to get up and down. The position will not change. It is unlikely to persuade anyone of anything on this matter. So I think we will just state our position.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to start with my amendments in relation to releasing children from detention. My understanding from sheet 7791 is that the first two amendments deal with 3A section 4AA and 3B subsection 5(1). Can I get clarification that we are all on the same page?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, are you seeking leave?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I am seeking leave to speak to the amendments as circulated.

The TEMPORARY CHAIRMAN: Senator Hanson-Young, are you seeking leave to move amendments (1), (2) and (5) together?

Yes, please.

Leave granted.

I move Greens' amendments (1), (2) and (5) on sheet 7791:

(1) Schedule 3, page 11 (before line 4), before item 3, insert:

3A Section 4AA

  Repeal the section, substitute:

     The Parliament affirms as a principle that no minor is to be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a minor must be in conformity with the law and must only be used as a measure of last resort and for the shortest appropriate period of time.

(2) Schedule 3, page 11 (after line 11), after item 3, insert:

3B Subsection 5(1) (definition of residence determination )

  Omit "subsection 197AB(1)", substitute "subsections 197AAA(1), (2), (3) and 197AB(1)".

(5) Schedule 3, page 12 (after line 22), after item 10, insert:

10A Application—subsection 197AAA(1) of the Migration Act 1958

(1) This item applies if:

  (a) a person is in detention under section 189 of the Migration Act on or after the commencement of this item; and

  (b) the person is a person to whom Subdivision B of Division 7 of Part 2 of that Act applies; and

  (c) before the commencement of this item the person was identified as a minor.

  Residence determination for minor

(2) The Minister must, as soon as practicable, but in any case within [14 days] of commencement make a determination under subsection 197AAA(1) of the Migration Act, as inserted by this Part, in relation to the minor.

  Residence determination for member of minor ' s family unit

(3) If:

  (a) the Minister makes a determination in accordance with subitem (2) in relation to the minor; and

  (b) another person to whom Subdivision B of Division 7 of Part 2 of the Migration Act 1958 applies is a member of the family unit of the minor;

  the Minister must make a determination under subsection 197AAA(2) of that Act in relation to the other person as soon as practicable, but in any case within [14 days] of making the determination in accordance with subitem (2).

  Residence determination for minor ' s carer or guardian

(4) If:

  (a) the Minister makes a determination in accordance with subitem (2) in relation to the minor; and

  (b) another person to whom Subdivision B of Division 7 of Part 2 of the Migration Act 1958 applies has not been identified as a member of the family unit of the minor; and

  (c) the minor, at commencement, is, or has been, in the care of another person (a guardian) to whom that Subdivision applies;

  the Minister must make a determination under subsection 197AAA(3) in relation to the guardian as soon as practicable, but in any case within [14 days] of making the determination in accordance with subitem (2).

As I outlined in my speech in the second reading debate, these amendments go to releasing children from detention. We know from the statistics released by the department on 30 October that there are 112 children held in immigration detention here in Australia. We have heard over and over again from the experts, medical professionals and practitioners, that the detention of children is extremely harmful. Only last month the medical community, including doctors, nurses and the Australian Medical Association, called on our parliament to act swiftly to remove children from indefinite detention.

Some would be watching this debate this morning and wondering why on earth we are still debating this issue, when 12 months ago there was a very similar discussion about releasing children from Australian facilities. Sadly, there are still over 100—the latest statistics showing 112—children detained in Australian facilities. These amendments would release these children by Christmas and they would ensure that families are kept together. I understand that there are a number of amendments to the Greens' amendments that the Labor Party wish to move to ensure security and safety of the community as well as the families involved, and I welcome those amendments as put forwarded by Labor's spokesperson, Senator Carr, in this place.

It is time. Some of these children have been in detention for years and years. They are incredibly damaged as a result. Children are not developing as they should and young babies have not been able to grow at the normal rate because of the negative physiological, emotional and social impact of their detention. One of the doctors at the Melbourne Children's Hospital described one of these children as 'the youngest depressed person' the doctor had ever seen—and it was a six-month-old baby. No-one in this place should be advocating—and I do not believe does advocate—directly for the detention of children. These children currently held have been there for way too long. It is a national shame that we have kept them locked up; that we have effectively stolen this amount of time from their childhoods. It is time that we right this wrong and release this children once and for all.

There is one little girl in detention who is now seven years old. She has been in detention for 2½ years. She suffers significant post-traumatic stress disorder. At the age of five or six, she attempted to swallow razor blades. She cannot sleep. She has nightmares. Her parents complain of her wetting the bed. The trauma that she has endured from being locked in these facilities is not something that we can pretend we do not know about. We know that the damage to children from detention is significant. We knew it last time children were detained, under the Howard government. We have seen it over and over again in independent reports and inquiries, but most importantly in the medical reports that are written about these children by their doctors, their paediatricians and their expert psychiatrists and clinical teams.

In years to come we will be asked what we in this place did to ensure the protection of these children—when we knew that the detention of them was harmful. I urge all members in this place to act today to support an amendment which requests the minister to remove these children from detention and to house them securely and safely in the Australian community, where they can start to get better, where they can integrate into their communities and where their parents can start being mums and dads properly again. These children deserve us as a parliament today to stand for them and to act for them. We are only speaking about 112 children—and some would say, '112 children out of how many others?' We have the power today to remove those children from detention, to stop any further suffering and to ensure that they are no longer put in harm's way.

If indeed there is a reason that they must remain in detention, we should have that argument put before a court and ensure that the minister has to justify their continued detention. I find it hard to see how anyone can justify the detention of a six-year-old, or a six-month-old, or a 16-year-old—a little boy or a little girl who has done nothing wrong apart from being a victim of the world they have been born into and the circumstances they have endured. These children deserve a voice in this place, and we today can give them a voice and give them the protection that so far has been denied to them. I urge all of my colleagues in this place to move to release the children currently in detention here in Australia immediately and to ensure that they can be living in the community free from harm by Christmas.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I raise a question. The matters we had before us go to children in detention. Senator Hanson-Young has moved amendments (1) and (2). Is it her intention to move amendment (5) separately? Should it not be dealt with in this same category? The reason I ask that is that we will be opposing amendment (3) and seeking to amend amendment (4). I am concerned that, because there is no running sheet here, it is difficult to assess the subject matter. My reading of those amendments, though, is that they all go to the same issue—that is, children in detention. I am wondering why amendment (5) has not been moved at this point and whether that is the intention of Senator Hanson-Young.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, is it your intention to move just amendments (1) and (2) together and the others individually?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

On the advice that I have been given, amendment (5) should have been included originally when I sought leave to move amendments (1), (2) and (5) together.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I will indicate the opposition will be supporting amendments (1), (2) and (5). The principle that should apply here is that children should only be in detention for as long as is necessary to complete health, identity and security checks. We also take the view that families should be kept together wherever possible. I think it is possible to reconcile those two principles. We would say, though, that if one or more parents, or a guardian, of a child has received an adverse security assessment by ASIO, the minister should not be required to make a determination. In such a case, a child should be able to choose whether or not to remain in detention with the parent or guardian. Further, when a child is moved, the minister must be satisfied that a child's new living conditions will be better than their existing circumstances. Therefore we are seeking to have amendments made, which we will do when it comes to consideration of amendment (4), according to those principles I have outlined.

Concetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | Link to this | Hansard source

Clearly, everyone does want children out of detention, but I will say a couple of things. One is that we have had circumstances where people have had an adverse security assessment and, when it has been put to the families or the guardian to take the child out of detention, the decision has been made to keep the child in detention. That is a matter for the guardian or the parent. We cannot forcibly move children out if their guardian or parent wants to keep them in detention. I think that we need to be cognisant in this debate that, as a Commonwealth or as a government, we cannot just take the children out if their guardian or parent does not wish them to be removed from them.

I go back to the point I originally made. I would remind Senator Hanson-Young that under the ALP-Green coalition, you supported Labor's policies. When Labor were in government, there were over 10,000 people in detention including almost 2,000 children. So let us put those figures again on the record. Under the coalition government, the number of children in detention has been reduced to about 100. I also remind the Senate that the Migration Act already contains a provision which states that a minor should only be detained as a measure of last resort. Therefore, these provisions already exist. If the Greens want children out of detention, the facts show that under our policies there have been fewer children in detention. The government opposes amendments(1), (2) and (5).

Also, we believe this amendment is unnecessary. There are already processes in place to mitigate any risk of non-citizen detention, including children, becoming unlawful or arbitrary through internal administrative review process, judicial review, Commonwealth Ombudsman inquiry processes, reporting and parliamentary tabling, and ultimately the possible use of the minister's personal intervention powers to grant a visa or to make a resident determination with the minister considers it is in the public interest.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I wish to draw the attention of the Senate to the level of community support for these amendments to be removing children from detention. Just this morning, I had a meeting with five members of the Grandmothers Against Detention of Refugee Children telling me about the work they are doing in their communities, listening to their communities and expressing the concerns of the community about the fact that we have ongoing detention of children here in Australia and on Nauru because the harm being done to these children is unnecessary. There is no place for children to be in detention.

This afternoon I will be presenting a petition from the Wills branch of the Grandmothers Against Detention of Refugee Children which has 2,550 signatures on it. The women I met with today told me that Grandmothers Against Detention of Refugee Children is growing. They have 1,200 members in Victoria. They are spreading across Australia and they are hearing a level of concern in the community about children being jailed, being harmed and being damaged. Passing these amendments today will mean, if enacted, that children will be removed from detention. There would be a great level of support across the community because people know it is unacceptable to have this ongoing harm being done to innocent children.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Sorry to be out of place. This is a further problem with not having a running sheet here. Our support for these amendments is in fact conditional on the fourth one, which is now the fourth item, being dealt with and amended, which I understand is acceptable to the mover—the amendments we are proposing. Although this may be technically tricky, I might suggest to Senator Hanson-Young that she seek agreement of the Senate to move amendment (4) before the other amendments are dealt with, to allow us to process that matter.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, is it your intention to seek leave to postpone amendments (1), (2) and (5) and to bring forward now amendment four?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

That is indeed my intention.

Leave granted.

I move:

(4) Schedule 3, page 12 (after line 10), after proposed item 8A, insert:

8B After section 197AA

  Insert:

197AAA Minister must determine that minor is to reside at a specified place rather than being held in detention facility

Residence determination for minor

(1) If a person to whom this Subdivision applies is identified as a minor, the Minister must:

  (a) make a determination (a residence determination) to the effect that the person is to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1); and

  (b) do so as soon as practicable, but in any case within 30 days, after the person is identified as a minor.

Residence determination for member of minor ' s family unit

(2) If:

  (a) a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

  (b) a person to whom this Subdivision applies is a member of the family unit of the minor;

the Minister must, as soon as practicable, make a determination (a residence determination) to the effect that the person is to reside with the minor at the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Residence determination for minor ' s guardian or carer

(3) If:

  (a) a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

  (b) a person to whom this Subdivision applies has not been identified as a member of the family unity of the minor; and

  (c) the minor is, or has been, in the care of another person (a guardian) to whom this Subdivision applies;

the Minister must, as soon as practicable, make a determination (a residence determination) to the effect that the guardian is to reside with the minor at the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Minister may refuse to make determination if in best interests of a minor

(4) Despite subsections (2) and (3), the Minister may refuse to make a determination under either of those subsections if the Minister is satisfied that it is in the best interests of the minor to do so.

Note: Section 4AA sets out principles relevant to making a determination under this subsection.

Residence determination must specify names and conditions

(5) A residence determination must:

  (a) specify the person or persons covered by the determination by name, not by description of a class of persons; and

  (b) specify the conditions to be complied with by the person or persons covered by the determination.

Residence determination must be in writing

(6) A residence determination under subsection (1), (2) or (3) must be made by notice in writing to the person or persons covered by the determination.

Regulations

(7) Regulations made for the purposes of this section must prescribe:

  (a) a method for a person to whom this Subdivision applies to apply for recognition of:

     (i) his or her relationship to a minor for the purposes of subsection (2); or

     (ii) his or her care of a minor for the purposes of subsection (3); and

(b) that the application must be determined within 30 days of the application being made.

Review

(8) Application may be made to the Administrative Appeals Tribunal for review of a decision under this section.

8C Subsection 197AD(2)

  Omit "subsections 197AB(1) and (2)", insert "subsections 197AAA(1), (2), (3) and (5) and 197AB(1) and (2)".

8D Section 197AF

  Repeal the section, substitute:

197AF Power to make etc. residence determination

Who can make residence determinations

(1) The power to make a residence determination under subsection 197AAA(1), (2) or (3) may only be exercised by:

  (a) the Minister personally; or

  (b) the Secretary; or

  (c) an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

(2) The power to make a residence determination under subsection 197AB(1) may only be exercised by the Minister personally.

Who can vary or revoke residence determinations

(3) The power to vary or revoke a residence determination made under subsection 197AAA(1), (2) or (3) may only be exercised by:

  (a) the Minister personally; or

  (b) the Secretary; or

  (c) an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

(4) The power to vary or revoke a residence determination made under subsection 197AB(1) may only be exercised by the Minister personally.

8E At the end of Division 7 of Part 2

  Add:

Subdivision C—Miscellaneous

197AH Definitions

     In this Subdivision:

  designated person means:

  (a) an authorised officer; and

  (b) a person appointed or employed by, or for the performance of services for:

     (i) the Commonwealth, a State or a Territory; or

     (ii) an authority of the Commonwealth, a State or a Territory; and

  (c) a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.

  immigration detention facility means:

  (a) a detention centre established under this Act; or

  (b) a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1); or

(c) a place or facility in a regional processing country where restraint is exercised over the liberty of a person who is taken to that country under section 198AD.

  journalist has the same meaning as in the Evidence Act 1995.

  official employment means:

  (a) appointment or employment by, or the performance of services for:

     (i) the Commonwealth, a State or a Territory; or

     (ii) an authority of the Commonwealth, a State or a Territory; or

  (b) employment by a person or body contracted by the Commonwealth or an authority of the Commonwealth to perform services in relation to an immigration detention facility.

  protected immigration detention facility information means information or a document that:

  (a) was obtained by a person in the course of official employment; and

  (b) relates to an immigration detention facility.

  quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

  relevant authority means:

  (a) in any case—the Department and the Australian Federal Police; and

  (b) if:

     (i) the victim of an alleged reportable assault is a child; and

     (ii) the alleged assault occurs in a State or Territory;

     a relevant authority of the State or Territory that has functions relating to child safety; and

  (c) if:

     (i) the victim of an alleged reportable assault is a child; and

     (ii) the alleged assault occurs in a foreign country;

     a police force of the foreign country.

  reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:

  (a) unlawful sexual contact;

  (b) sexual harassment;

  (c) unreasonable use of force;

  (d) any other assault.

197AI Mandatory reporting of reportable assaults

(1) If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:

  (a) the alleged assault; and

  (b) the grounds on which the person has formed the belief that the alleged assault occurred.

Offence

(2) A person commits an offence if:

  (a) the person is required to make a notification under subsection (1); and

  (b) the person fails to comply with the requirement.

Penalty:   60 penalty units.

Geographical jurisdiction

(3) Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).

This amendment goes to releasing children from detention, ensuring the minister uses the power he already has to allow families to be given a residence determination—that is, where it is safe to do so, where it is able to happen, children and their families can be moved from detention facilities into the community securely and safely. It is the practical element to ensuring that children can be released from detention.

This amendment also goes to the issue of mandatory reporting. I spoke about this in my speech in the second reading debate. This is to ensure that where there is criminal activity or a child has been abused, where abuse has been witnessed, whoever is working in the facility is required by law to report that abuse. It is the same standard that we set in our schools and in our hospitals and of professionals working in other public institutions. If we are serious about ensuring that children are safe in immigration detention facilities or in any government institution, then wherever abuse is witnessed or known of, it should be reported to the police. There should be no hiding for the perpetrators of abuse. We know what happens when perpetrators get to hide: their abuse festers and the people who suffer are the children. It is important that we have a very clear understanding: if you are in a facility and you see abuse, you are required not to stay silent, not to let the abuser get away with it, but instead you are required to act in the best interests of the child to ensure they are protected from the perpetrator.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition would support these amendments if we are able to amend it in the terms that I will move at this point.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Carr, are you seeking leave to move two amendments on sheet 7808?

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

That is correct.

The TEMPORARY CHAIRMAN: To amend amendment (4) on 7791, which has been moved by Senator Hanson-Young?

That is right—in regard to matters that relate to public interest, public disclosure and residence criteria.

The TEMPORARY CHAIRMAN: So you are seeking leave to make those two amendments?

I am.

Leave granted.

I move:

(1) Amendment (4), item 8B, omit subsection 197AAA(4), substitute:

Minister must have regard to matters of public interest

  (3A) When making a residence determination under subsection (1), (2) or (3) the Minister must have regard to the public interest.

Minister must not make a residence determination in certain circumstances

  (3B) Despite subsections (1), (2) and (3), the Minister must not make a residence determination under any of those subsections in relation to a person if the Minister has been given an adverse security assessment in respect of the person by the Organisation.

  (3C) Despite subsections (1), (2) and (3), the Minister must not make a residence determination under any of those subsections that a person reside at a specified place unless the Minister is satisfied, on reasonable grounds, that the living conditions at that place are of a higher standard than a place covered by the definition of immigration detention in subsection 5(1) where the person would otherwise be detained.

Minister may refuse to make determination in certain circumstances

(4) Despite subsections (1), (2) and (3), the Minister may refuse to make a determination under one or more of those subsections if:

  (a) the Minister is satisfied that it is in the best interests of the minor to do so; or

  (b) the Minister is satisfied that it is in the public interest to do so;

  (c) if subsection (2) applies—both:

     (i) the Minister has been given an adverse security assessment in respect of a member of the family unit of the minor mentioned in paragraph (2)(b) by the Organisation; and

     (ii) the family unit notifies the Minister that the family unit does not want to be separated; or

  (d) if subsection (3) applies—both:

     (i) the Minister has been given an adverse security assessment in respect of the guardian mentioned in paragraph (3)(c) by the Organisation; and

     (ii) the guardian notifies the Minister that the guardian and minor do not want to be separated.

Note: Section 4AA sets out principles relevant to making a determination under this subsection.

(2) Amendment (4), item 8B, at the end of section 197AAA, add:

Definitions

(9) In this section:

  adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

  Organisation means the Australian Security Intelligence Organisation.

The proposals that Senator Hanson-Young has outlined here are, in general terms, worthy of the support of this chamber. When the bill creating the Australian Border Force was before the parliament, Labor maintained that the legislation did not prevent staff and contractors in detention facilities from speaking publicly on conditions in the centre. We are still confident that that is the legal position. There is no intention, as far as we are concerned, for the suppression of potential whistleblowers, because staff and contractors continue to be protected by the Public Interest Disclosure Act. The disclosure restrictions of the Border Force Act relate to criminal investigation, national security and other sensitive matters; they do not concern comments that might be made about the treatment and the living conditions of detainees. Nonetheless, Labor supports these amendments because they will make it absolutely clear that disclosures in the public interest are lawful and protected, and I understand that this was a position that we carried through the Senate inquiry on that matter.

The second issue goes to the issue of media access. Labor has always opposed the excessive secrecy with which this government has chosen to cloak the administration of the offshore detention facilities. I know there are now extraordinary costs being imposed by other governments that nonetheless I cannot believe have been put in place without consultation with the Australian government.

Asylum seekers are human beings whose rights must be respected. This includes being housed in a place of safety with access to adequate health care, social services and educational opportunities. Equally important is the right of the Australian people to know what is being done in their name and at great expense. They are entitled to know how Australian funded facilities are being operated. That is why we support this amendment which will ensure that reasonable requests for media access to a detention facility will be granted, and that any refusal must be tabled by the minister. There must be public disclosure and accountability. I have noted in regard to the amendment on media access that Labor has consistently condemned the government's mismanagement of offshore processing.

The government places detainees in living conditions that lead to all forms of abuse. Nearly two years after their arrival, asylum seekers in the Nauru detention facility were still living in tents. Increased sexual abuse and assaults were an inevitable consequence of having to live in that environment. That is why Labor instigated a Senate inquiry into the reports of sexual abuse on the Nauru facility. Labor would establish an independent oversight of the detention facilities to ensure transparency and the protection against abuse. The member for Corio has introduced in the other place a private member's bill on mandatory reporting of offences against children. Therefore, we support the amendment on those grounds as well, which makes it absolutely clear that assaults and abusive conduct are not acceptable in Australian funded facilities. This amendment will mandate the reporting to relevant authorities of any assault, just in case there is any question about those matters—and failure to report such matters would be an offence.

The question of discretion then arises. It strikes me that while we need the proposition that Senator Hanson-Young has moved here, it does require a clearer statement that the minister has a responsibility to show common sense when it comes to the question of these administrative arrangements. There needs to be ministerial discretion and there needs to be accountability. These two things go together—that is why this parliament has such an important role in ensuring transparency in the operation of these facilities. So the amendment I am moving allows ministerial discretion when it comes to the minister being satisfied that refusal to make a determination on one or more of the various subsections is in the best interests of the minor, and that it is in the public interest to do so. The amendment I am moving also allows that, where the minister has been given an adverse security assessment in regard to a member of a family unit, they are still able to be treated in a proper way according to law.

Concetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | Link to this | Hansard source

I will respond to both Senator Hanson-Young's amendment and to Senator Carr's amendment. I can make the general comment that the government opposes these amendments and that they go beyond the scope of the policy intention of this bill. This amendment includes reference to detention facilities in regional processing countries which cannot be supported under the Migration Act. The Australian government does not detain people offshore—this is a matter for overseas governments.

I will now go specifically to residence determination for minors. The minister already has a level of discretion available under section 197AB to make a residence determination, and will continue to use that discretion as appropriate and in the public interest for a person who is detained. Also, section 4AA already provides that the parliament affirms as a principle that a minor shall only be detained as a measure of last resort. In relation to mandatory reporting of assaults, reporting of incidents is already comprehensively provided for in the onshore immigration detention environment. Serco must inform the department of incidents in accordance with the incident management reporting requirements as set out in the contract. Reportable assaults include assault of a client under 18, minor assault, serious assault, sexual assault. Each of these is well defined and has a minimum time frame within the incident must reported by Serco to the department. Departmental officers must, under current operating arrangements, report alleged criminal activities, including assault, to the relevant law enforcement authorities.

In relation to disclosure of information related to detention facilities, this bill does not propose changes in relation to information related to immigration detention facilities or access to these facilities. It proposes amendments to ensure that confidential information that is relevant to the exercise of a section 501BA or 501CA power in the context of court proceedings receives the same level of protection from disclosure as confidential information relevant to the other character powers. This is a legitimate measure to protect the information in the context of court proceedings and it is a legitimate community protection measure.

Disclosure of information in the public interest is already separately provided for in the Public Service. The Public Interest Disclosure Act is the Commonwealth's statutory regime for disclosure of information in the public interest. Any disclosure under the Public Interest Disclosure Act would give immunity from criminal liability under section 42 of the Australian Border Force Act. There is nothing in the bills before the Senate preventing disclosure that is inconsistent with the Public Interest Disclosure Act.

I turn now to reasonable access for journalists. There are a number of oversight mechanisms for the monitoring of immigration detention facilities, including the Australian Human Rights Commission, the Commonwealth Ombudsman, the United Nations High Commissioner for Refugees and the Australian Red Cross. Detainees have the right to provide feedback about their treatment in immigration detention without adverse consequences. Their feedback will be followed up quickly and fairly and can be submitted to the detention service provider or departmental staff at the facility, the Commonwealth Ombudsman, the police, state and territory child welfare agencies and other agencies such as the Human Rights Commission.

The government opposes the amendments moved by Senator Carr. The government considers the amendment as unnecessary. As I have indicated, section 4AA of the Migration Act makes it clear that the government and the parliament affirms, as a principle, that a minor should only be detained as a last resort. There are already processes in place to ensure that detention of children is a last resort and decisions relating to children place importance on the best interests of the child.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 7808 be agreed to.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (4) on sheet 7791, as amended, be agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to bring forward again amendments (1), (2) and (5)—they too relate to releasing children from detention—based on the provisions that have now been voted on in this place. It makes sense to move on those substantial amendments.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The Labor Party will be supporting all of those amendments. Are they being moved as one?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

As one.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

As one—so the Labor Party will be voting in favour of all of those.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (1), (2) and (5) on sheet 7791 be agreed to.

Question agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

My understanding of the sheet is that we only have amendment (3) remaining. May I just have a clarification from the Clerk?

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Yes, that is correct, Senator Hanson-Young.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I move amendment (3) on sheet 7791:

(3) Schedule 3, page 12 (after line 10), after item 8, insert:

8A After section 189

  Insert:

189A Certain unlawful non -citizens to be detained in separate immigration detention facilities

(1) This section applies if:

  (a) a person is detained as an unlawful non-citizen under section 189; and

  (b) the person was an unlawful non-citizen because:

     (i) the Minister refused, under subsection 501(1), to grant the person a visa because the person did not satisfy the Minister that the person passes the character test; or

     (ii) the Minister cancelled, under subsection 501(2), a visa that had been granted to the person because the person did not satisfy the Minister that the person passes the character test; and

(c) the person is being held in an immigration detention facility.

(2) The person must be held in a facility that only holds other unlawful non-citizens of a kind referred to in paragraph (1)(b).

(3) In this section:

  character test has the meaning given by section 501.

  immigration detention facility means:

  (a) a detention centre established under this Act; or

  (b) a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1); or

(c) a place or facility in a regional processing country where restraint is exercised over the liberty of a person who is taken to that country under section 198AD.

This amendment relates to the need to keep the different groups of asylum seekers who are detained in our facilities separate—to keep those who have committed crimes, people who are criminals, separate from those who have sought asylum in our country. I spoke about this at length during the second reading debate, so I do not propose to go into great detail now. Suffice it to say that many experts have suggested for a long time now that keeping those different groups separate is important for the safety of all involved, including the good order of our facilities.

We know just from recent weeks, after the riots on Christmas Island, that the people who suffered the intimidation and threats while that riot was going on were those who had committed no crime but were seeking Australia's protection as refugees. This amendment bans the government from keeping those two groups of people locked up together and instead ensures that groups are kept separate. It is a simple amendment. It makes sense, and we should just get on and ensure that it happens.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

If I might indicate the Labor Party's position, the best advice that we have available is that it is already standard operating practice for the Department of Immigration and Border Protection to make a risk assessment when placing people in detention centres. I am advised that the detainees are assessed for risks that they pose either to others or to themselves, and therefore Labor will not be supporting this amendment. For a similar reason, we opposed a similar proposition that was advanced in earlier legislation by Senator Madigan. The amendment would merely place an unnecessary legislative restriction on the department and the Australian Border Force, which we believe is a matter left to the discretion of relevant officers, and they have to be held accountable for the decisions that they take, through the normal parliamentary and legal processes.

Concetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | Link to this | Hansard source

The government opposes this amendment. We consider this amendment unnecessary. The government has a range of accommodation options available to manage people in immigration detention. Superintendents have a specific focus on security and safety of immigration detention facilities and use intelligence to determine programs that ensure the good order of each facility and the protection of people housed in the facility. This bill does not purport to change how the government currently manages people in immigration detention. The department has a process for triaging and placement of detainees into appropriate accommodation. Placement decisions are made as part of a national risk-based approach to the placement of detainees within the network. The detainees' risk assessment and the risk rating of a facility are considered to minimise risks to other detainees, service providers, visitors and staff. Individual detainee needs are considered in line with the department's duty of care to all detainees. Non-citizens who have had their visa cancelled because they have been convicted of serious crimes will be in immigration detention or serve their sentence in prison, depending on their individual circumstances.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (3) on sheet 7791 be agreed.

Bill, as amended, agreed to.

Bill reported.