Liberal senators' minority report
1.1
Liberal senators disagree with several of the fundamental tenets of the
Bill. They are concerned at the proposed delegation of the power of the
Minister for Immigration and Citizenship in respect of housing determinations
and the proposal to give additional power to the Minister to regulate. Liberal
senators are also concerned about the insertion of a discretion (as distinct
from an obligation) to detain suspected unlawful non-citizens, and the proposal
to allow unlawful non-citizens free and unescorted access to the community.
Taken together, the proposals contained in the Bill would significantly weaken
Australia's border security and lead to an increase in unauthorised arrivals.
Discretion to detain
1.2
The Bill would allow immigration officials a discretion to release a
known or suspected unlawful non-citizen into the community. While the Bill
prescribes certain circumstances in which such a person must not be released, Liberal
senators worry that too many potentially problematic non-citizens would not be
caught by the proposed provisions.
1.3
Furthermore, Liberal senators note that proposed provisions 189(1)(b)(i)
and 189(1A)(d) provide for the Minister to prescribe circumstances constituting
'unacceptable risk' a finding of which will preclude a person being released
from detention. This could be interpreted as an acknowledgement that the
provisions in proposed subsections 189(1) and 189(1A) fail to capture the kinds
of unlawful non-citizens for whom detention is the only safe solution.
Temporary Community Access
Permissions
1.4
The Bill would allow for an officer to permit a person in detention to
go into the community for a specified period and for a specified purpose where
they consider the risk to the community would be minimal.
1.5
Liberal senators consider that any power to allow unlawful non-citizens
unescorted access to the community should only be exercised with great care. It
is often the case that little health, identity and security information is
known about unlawful non-citizens while they are in detention, and it is often
the absence of such intelligence that delays resolution of a detainee's
immigration status.
1.6
It is the view of Liberal senators that this initiative, if agreed to,
could well lead to many more unlawful non-citizens 'disappearing' into the community.
Delegation of power to make housing
determinations
1.7
The Bill would allow the Minister to delegate to senior departmental
officers the power, under section 197AB of the Migration Act, to allow an
unlawful non-citizen to reside in the community if it is in the public interest
to do so. Liberal senators consider that such an important power should be
exercised only by the Minister, on the grounds that the provision would
diminish accountability and transparency to the Australian people and lead to a
considerable increase in refugee litigation.
Overuse of regulations
1.8
At the time of writing relevant regulations had yet to be drafted by the
Department, much less released for public examination and comment. Liberal
senators oppose the extensive use of regulations in respect of such important
matters as those covered by the Bill, which in the case of 189(1) and 189(1A)
directly impact on a person's liberty.
1.9
While Liberal senators note the provision of some detail of the proposed
regulations by the Department in its submission, anything short of a draft of
the proposed regulations is inadequate. Liberal senators concur with the view
of several submitters that the devolution from primary legislation to
regulation is to be discouraged on grounds of diminished transparency and
accountability[1],
and place on record their intention to consider moving to disallow the
regulations when they come before the Senate.
Trends in unauthorised arrivals and
detention
1.10
It is clear that the number of people in detention has increased
dramatically in recent months, from about 400 to nearly 1000. Indeed numbers in
detention have not been this high since May 2005. [2]
This trend is not encouraging. The committee learned that:
-
Only 2 per cent of detainees have been held for less than a week;
-
Nearly 70 per cent of detainees have been held for between one
week and six months;
-
About 4 per cent, or 21 people, have been held for more than 2
years;
-
One person has been held for over 3000 days, nearly 9 years.[3]
1.11
The Government clearly anticipates a rise in numbers, in light of the
testimony by departmental officials at the committee's hearing and answers to
questions on notice concerning strategies to grow capacity in detention centres
and other detention facilities. A departmental officer informed the committee
that moves are afoot to increase capacity and that if fruitful, 'several
hundred additional beds' would become available on Christmas Island over
'something like a three to six month horizon'.[4]
1.12
Liberal senators assume that such dramatic and expensive expansion would
not be authorised were the Government not expecting the increased capacity to
be utilised in the future.
Conclusion
1.13
Liberal senators are concerned that some of the measures proposed in
this Bill may well send a signal to people considering travelling to Australia
and arriving unauthorised, and at the number of would-be travellers who would
be sufficiently encouraged by them to proceed, making an already dramatically
deteriorating situation even worse.
1.14
Liberal senators take the view that many of the measures contained in
the Bill are likely to serve to undermine the integrity of Australia's border
security regime. In light of this danger, Liberal senators are not persuaded
that a compelling case for reform has been made.
Recommendation
1.15
Liberal Senators recommend that the Bill be amended to address the above
concerns, or failing that, rejected.
Senator Guy Barnett
Deputy Chair
Senator Mary Jo Fisher
Senator
Russell Trood
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