DISSENTING REPORT BY SENATOR HANSON-YOUNG

1.1        The purpose of the Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010 is to fundamentally reform the immigration detention system in Australia. From abolishing the presumption of mandatory detention as the first and only resort, and repealing the excision policy, to implementing 30­day time limits on immigration detention, and providing a system of judicial review; this Bill would dramatically change the way in which immigration detention operates in this country.

1.2        While immigration detention is not prohibited by international law, several international treaties to which Australia is a party impose limitations on the scope of acceptable immigration detention arrangements. This Bill ensures that our obligations as signatories to the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights (ICCPR), Convention Relating the Status of Refugees, and the Convention against Torture (CAT) are upheld and reflected within our domestic law.

1.3        The Australian Greens have long held the view that reform of our immigration detention system is urgently required. Over the past eighteen months, we have seen an immigration detention system become increasingly more fragile, with protests, indefinite and long-term detention, and frequent self-harm attempts dominating the headlines.  

1.4        While the Labor Government promised to overhaul the immigration system when they came into office in 2007, cheap political fixes and point-scoring has overshadowed any real attempt to address the fundamental problems that exist. The increased tensions across the detention network provided the Government with the opportunity to follow through with their promise to truly reform the system. Instead they chose to follow a path of freezing refugee protection claims for people from Afghanistan and Sri Lanka; introducing unnecessary additional penalties for asylum seekers who fail the Character Test; and expelling asylum seekers who arrive by boat to a third country. All of these policy ‘quick fixes’ have punished those seeking our protection, and have done nothing to address the tensions that continue to exist on Christmas Island and the mainland.

Concerns with the Bill:

Detention as a last resort:

1.5        While supportive of the main provisions contained within the Bill, a number of submissions outlined the need to provide further detail on the criteria to be applied when a DIAC officer makes a determination to detain an asylum seeker.[1] While the intention of the Bill is to ensure that asylum seekers are only detained as a last resort, the Australian Greens accept that further clarity is needed, to ensure that officers making decisions have appropriate guidance.

Recommendation 1:

1.6        Section 189, and 195(1) of the Bill be amended to ensure that where detention of asylum seekers is deemed necessary, it is only used where there is believed to be a serious health or security risk.

Detention beyond 30 days:

1.7        During the course of the Inquiry, the committee heard overwhelming evidence of the psychological trauma associated with long-term and indefinite detention. In their submission to the inquiry, the Refugee Council of Australia argues that:

The ongoing mental health issues experienced by many former detainees hamper their successful settlement and increase their need for post-arrival support and rehabilitation. Through working with former detainees, the settlement sector has observed a drastic difference between the settlement experiences of persons who have spent shorter periods of time in detention and persons who have spent extended periods in detention. Those detained for shorter periods of time moved quickly into employment, accommodation and many even joined recreational and social clubs.[2]

1.8        With more than 6000 people currently held in immigration detention, it is clear that placing time limits on immigration detention is urgently required. The Greens recognise however, that while this Bill places time limits on detention, and inserts much need judicial oversight over any order for continued detention, it does not prescribe any ultimate limits on the period a person can be detained under Section 189. This was not the intention of the Bill, and the Greens agree that further clarity and guidance is required.

Recommendation 2:

1.9        The Australian Greens recommend that section 195C be amended to prescribe that a maximum period of 60 days for continued detention is set, with a provision to require that a new application is to be made at the expiry of this period.

1.10      Concern was also raised during the course of the inquiry around what type of visa an asylum seeker released into the community would be placed on. The Greens would envisage that a bridging visa or form of residence determination would be applied.

Recommendation 3:

1.11      The Australian Greens recommend that appropriate levels of support for asylum seekers, courts and the Department of Immigration is provided, to ensure that unnecessary delays and large case loads are avoided.

Change of policy:

1.12      During their evidence to the inquiry, over the ‘constitutionality’ of this Bill, the Department of Immigration argued that 'These proposed amendments may infringe the constitutional separation of powers doctrine by purporting to empower the court to exercise an administrative power.'[3]

1.13      While the Bill does indeed allow the Magistrate to grant a visa, appropriate restrictions would be placed on the types of visas that could be granted. As mentioned previously, the Greens would envisage that a form of bridging visa would apply, and be outlined through regulation.

Recommendation 4:

1.14      The Australian Greens recommend that consultation with legal experts and the Department around the type of bridging visa that could be granted by the court, (pending an application for protection to the Minister) occur, to avoid any unnecessary conflict.

Recommendation 5:

1.15      The Australian Greens recommend that this Bill, with amendments, immediately pass.

 

Senator Sarah Hanson-Young
Australian Greens Spokesperson on Immigration

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