Additional comments by Senator Sarah Hanson-Young
Introduction
1.2
On 29 July 2008, Immigration Minister, Senator Chris Evans announced
seven key immigration detention values to “drive new detention policy and
practice into the future.”[1]
1.3
The Migration Amendment (Immigration Detention Reform) Bill 2009
essentially legislates for these principles, although it should be noted that not
all of the values articulated in the New Directions in Detention policy are
contained within this legislation.
1.4
While the Greens recognise that the legislation introduces a number of
very significant measures that go some way in ensuring Australia’s immigration
detention system is more humane and purposeful, we remain concerned that the
Bill, in its current form, does not explicitly enshrine safeguards against
further human rights violations, as per our commitment under International Law.
Regulatory reforms
1.5
One of the key concerns raised during the course of the inquiry, was the
frustration that the supporting regulations, detailing the practical impacts of
what this piece of legislation sets out to achieve, have yet to be drafted –
heightening concern over how much consultation will be involved when framing
these essential legislative instruments.
1.6
To date, and following on from the evidence provide by the Department of
Immigration, no further detail has been released as to when these significant
regulatory reforms will be drafted, let alone circulated.
1.7
During evidence presented to the Committee, the Immigration Advice and
Rights Centre argued in response to questioning about the impending regulations
that
“that there needs to be sufficient consultation in relation
to the regulations and the guidelines and policies. My understanding is that at
the moment the proposal is that a lot of that will be set out in the
regulations or just within departmental policy, which we consider would be of
concern because it is subject to change and not subject to review in the same
way as legislative change is.”[2]
Recommendation 1
1.8
Given the associated regulations and guidelines have not as yet been
publicly released, the Greens recommend that as a priority the draft
regulations be released for public comment and consultation, before the Bill
formally proceeds.
Mandatory detention vs detention as
a last resort
1.9
The Committee also heard evidence suggesting that the Government’s
strong commitment to maintain mandatory detention was in direct conflict with
their commitment to ensure that “detention is only to be used as a last resort
and for the shortest practicable time.”
1.10
The Human Rights Law Resource Centre highlighted this concern arguing
“Part of the problem is that the values set out by the
government in its policy are internally inconsistent. On the one hand the
government supports the maintenance of mandatory detention, whilst on the other
hand the government supports the policy which says that detention should be
used as a last resort and for the shortest practicable time. We say that
mandatory detention of all unauthorised arrivals—the management of health,
identity and security risks—is not consistent with a policy of detention truly
being a last resort and for shortest period of time.”[3]
1.11
Given unauthorised arrivals, particularly asylum seekers, will be
detained in an IDC as a matter of first resort, not last resort, it is clear
that the principle to detain as a last resort will be breached as soon as it is
legislated.
1.12
The Greens have long held the view that mandatory detention should not
be part of any effective and humane immigration policy, but acknowledge that
where detention is necessary, it must be subject to proper judicial oversight
with specific timeframes explicitly outlined within the legislation to ensure
that those people are not held indefinitely.[4]
1.13
Article 9(4) of the ICCPR
also provides that detained people should be entitled to appeal to the courts
to decide whether their detention is ‘lawful.’ This right is available to
detainees but the lawfulness of detention is determined by their citizenship or
visa status not whether the detention is reasonable.[5]
Recommendation 2
1.14
Given the retention of mandatory detention is inconsistent with our
international obligations to avoid arbitrary detention, the Greens recommend
that the policy of mandatory detention should be abolished.
Recommendation 3
1.15
If mandatory detention is to remain, the Greens recommend, that this
Bill should be amended to ensure the following:
-
a) 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
on the criteria specified for detention;
-
b) 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.”[6]
Children in detention
1.16
Greens remain committed to the principle that no minor or their family
will be held in a detention centre or secure facility.
1.17
We believe that this must be codified within the Migration Act 1958, and
extended to include all detention facilities, to prevent the return to
prevent the return of detaining children in remote desert camps in appalling
conditions.
1.18
Immigration residential housing and transit accommodation are still
detention facilities. They are closed, secure environments where detainees are
closely monitored by guards and are not allowed to freely come and go.
1.19
Many submissions to the inquiry highlighted continued concerns that
while children were generally no longer held in Immigration Detention Centres,
the fact that no independent guardian is appointed for unaccompanied children
must be rectified within this Bill, if the welfare of children is to be
paramount.
Recommendation 4
1.20
Section 4AA of the Migration Act 1958 must be amended to explicitly
state “... a minor must not be detained in any detention centres or facilities
with similar conditions to detention centres under any circumstances”.
Recommendation 5
1.21
An independent child guardian is appointed for unaccompanied children
(as per the Committee recommendation).
Recommendation 6
1.22
To ensure that the welfare of children is paramount, to any immigration
detention policy, the Greens further recommend that a Commonwealth Commissioner
for Children be established to among other things; specifically oversee the
treatment of children in immigration detention. In establishing such a
commissioner, the rights of children will be appropriately protected, and the
treatment of children adequately scrutinised.
Excision policy
1.23
The remoteness and isolation of the Christmas Island detention
facilities from mainland Australia, has heightened the limit in access to
sufficient health facilities, the lack of resources for both island residents
and detainees, and provided minimal access to torture and trauma counselling.
1.24
A Just Australia’s submission argues that the continued committed to the
excision policy means that “the most vulnerable people within the detention
regime (boat asylum seekers) are the ones will be detained the longest under
the worst conditions.”[7]
1.25
As David Manne rightly articulated during the Inquiry process
“we are stuck with the position in this bill where the new
directions policy would be part implemented in law for people, if you like, who
are not subject to the excision laws but not for those subject to the excision
laws. Really for those people, for example, subject to excision laws held on
Christmas Island, the best that one could hope for and it is clearly inadequate
is that the policy is applied to their situation as a matter of discretion. The
distinction is whether the new detention policy is implemented or enforceable
by law or is merely applied as a matter of policy.”[8]
1.26
The Greens share the concerns of many witnesses who presented to the
Committee, that the proposed amendments contained within this Bill in relation
to detention, do not actually apply to persons outside the migration zone under
189(2) – 189(5).
1.27
Given ‘unlawful non-citizens’, including offshore entry persons, in
excised territories will continue to be subjected to the existing detention and
visa arrangements of the current excision policy, the Greens do not think that
those asylum seekers who are held in these territories are not afforded the
same rights and protections as those on the mainland.
Recommendation 7
1.28
Given Australia’s commitment to continuing with the excised territories
of Christmas Island, Cocos Islands and Ashmore Reef, the Greens recommend that
the Migration Amendment (Excision from Migration Zone) Act 2001 be repealed in
its entirety.
Recommendation 8
1.29
The Government must ensure that all asylum seekers on both mainland
detention centres and those outside the migration zone are afforded the same
rights as those identified under s189 of this Bill.
Recommendation 9
1.30
The Greens further recommend that all Immigration Detention Centre’s be
located in urban areas to allow for proper service delivery and oversight and
transparency.
Concern with section 4AAA(1)
1.31
One of the major concerns that came out of the Committee process was in
relation to the proposed new section 4AAA of the Bill. The Greens agree that
the way in which the principles have been inserted into section 4AAA is not the
same as inserting them as objects or purposes of the act. As the Human Rights
Law Centre stated during their presentation to the inquiry
“if we are serious about those values being inserted into the
legislation then they should be inserted as objects or purposes of the act, but
they should also be reflected in the substantive operational provisions of the
bill.”[9]
1.32
As per evidence provided by the Refugee Council of Australia, we remain
concerned that there seems to be no mention
“that conditions of detention must ensure the inherent
dignity of the human person, nor that detainees’ treatment must be fair and
reasonable within the law, nor that detention that is indefinite or otherwise
arbitrary is not acceptable.”[10]
1.33
While we acknowledge that the use of detention may be used for removal
purposes (one of the three forms of status resolution), the Greens do not
believe that the definition of status resolution as a purpose of immigration
detention, be included as a principle under the Bill.
1.34
Our concern is that this definition seems to suggest that immigration
detention might be imposed for the duration of time that it takes for a person
to have their status resolved.
Recommendation 10
1.35
Given the requirements to detain or to continue detaining in order to
manage the risk of a person absconding, are readily incorporated within the
existing subsection 4AAA(1)(a), the Greens recommend that subsection 4AAA(1)(b)
be removed.
Determining ‘unacceptable risk’ to
the Australian community
1.36
Many witnesses to the inquiry, including the Law Council of Australia,
and the Law Institute of Victoria outlined their concerns with sub-paragraph
(d) of section 189 which relates to circumstances prescribed by the
regulations. Given the Committee has yet to see these regulations; the Greens
remain concerned that the definition ‘unacceptable risk to the Australian
community’ can be amended or added to by regulation.
1.37
The Law Institute of Victoria argued, within their submission, that they
do not support the introduction of the unacceptable risk test, which will “affect
individual liberty, by way of regulation.”[11]
Recommendation 11
1.38
The Greens recommend that the term ‘unacceptable risk’ be clearly
defined and inserted into the Migration Act, and not subjected to change by
subordinate legislation.
Recommendation 12
1.39
The Greens further recommend that each person’s detention must be
subjected to a proper individualised assessment of risk, where the
characteristics of the person and their particular situation is taken into
account, rather than a broad discretionary approach that is currently proposed.
Temporary Community Access
Permission:
1.40
While the Greens applaud the Committee’s recommendation around the new
alternative of the Temporary Community Access Permission, we believe it needs
to be expanded and the purpose explicitly clarified.
1.41
The Human Rights Law Council (HRLC), like many witnesses, highlighted
that while the proposed new section 194 is a welcome inclusion, there remains
some ambiguity around the way in which it will operate in practice.
Specifically the HRLC stated that given an “authorised officer is not bound to
consider whether to grant a temporary community access permission...this means
that even where it would only involve a minimal risk to the Australian
community for a detainee to be living in the community, that detainee can be
held in detention simply because an authorised officer fails to consider that
person’s circumstances.”[12]
Recommendation 13
1.42
The Greens therefore recommend that the Bill should be amended to
require an authorised officer to consider and determine whether or not to grant
a temporary community access permission.
Recommendation 14
1.43
We further recommend that the Bill include scope for a review of any
decision of the authorised officer on whether or not to grant the temporary
community access permission.
Privatisation of detention
services:
1.44
The Public Interest Law Clearing House (PILCH), highlighted concerns
over having private contactors operate detention centres. Their submission
specifically outlined that
“In contrast to Australia, Sweden has removed the authority
for operating detention centres from police and private contractors and has
given that authority to the Immigration Department....the Swedish Parliament
transferred the responsibility for detention centres to the Immigration
Department, in order to create a more civil, culturally sensitive and open
detention policy.”[13]
1.45
As identified in the Greens dissenting report to the Joint Standing
Committee’s final report into Immigration Detention, we remain concerned that
the new five-year contract for immigration detention services with GSL, and
Serco is strikingly at odds with the Government’s pre-election promises.
1.46
Outsourcing is not an appropriate way of handling the claims and care of
these vulnerable people seeking our assistance and protection, particularly
when some of the detention facilities are so remote from the Australian
mainland.
Recommendation 15
1.47
The Greens recommend that the Government return all immigration
detention services to public control, opening up a direct line of
responsibility between the Department, the Minister and the immigration
processes and services available, that occur in these detention facilities.
Recommendation 16
1.48
If private management of immigration detention centres continues, the
contracts must emphasise the need to put welfare outcomes ahead of security and
compliance to ensure that no private operator with only a prison services
background is awarded the contract.
Conclusion
1.49
While the Greens welcome the Minister’s commitment to enshrining many of
the detention values into legislation, we remain concerned that in failing to
provide the Committee with the supporting regulations, where much of the detail
is to be inserted, any public consultation on the impact that these will have
on the legislation, will be limited, if any.
1.50
Given the importance of this legislation, in reforming Australia’s
immigration detention system, the Greens remain committed to ensuring that any
legislation that seeks to reform the way in which we treat asylum seekers is
treated with the highest importance.
1.51
We will therefore proposing changes to the legislation to remedy our
concerns contained within this report, and as such, reserve the right to our
final position on the Bill when it is brought before the Senate.
Sarah
Hanson-Young
Senator for South Australia
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