Andrew Bartlett’s Speech on the Migration Amendment in 2005

This is Andrew Bartlett’s speech in the Senate upon the second reading of the Migration Amendment (Detention Arrangements) 2005 bill. The amendment itself is littered with the appearance of oversight and consistent process but none of it is compellable and the process can be hijacked at the Minister’s discretion. It effectively makes the whole process an adhoc one dominated by executive decision making rather than any consistent process that can be determined ahead of time. Since we have seen the legislation recently used to gazump the judicial process and expand a state of exception it is worth looking back at the concerns of the Australian Democrats when the bill was tabled.

A PDF of the speech can be viewed here. The entire Hansard for the 23rd of June, 2005 can be viewed here. There is a series of discourse between Andrew Bartlett and Amanda Vanstone that is worth a read too.

Andrew Bartlett’s speech:

I speak on behalf the Democrats on the Migration Amendment (Detention Arrangements) Bill 2005, which deals with detention arrangements and a few other matters. It comes out of an agreement between the Prime Minister and some Liberal Party backbenchers announced very late on Friday afternoon last week. For starters, I think it is very poor process that we are debating and proposing to pass legislation implementing that less than one week later, particularly in an area of law which has already been shown to be hugely dysfunctional.

Be that as it may, that is the situation we are in. It is particularly unfortunate that we were not even given the opportunity to have a very quick committee examination of this legislation and to question officials from DIMIA or the Department of the Prime Minister and Cabinet so they could answer the questions directly. Instead, in the committee stage of this debate we will have to ask questions of the minister, who will then no doubt turn to her left, ask the DIMIA officials sitting in the advisers box to answer them and then pass those answers on to usno doubt with the political filter in place. It is an unsatisfactory process in what is already an undesirable situation.

The Senate is placed in a situation with this legislation that is often described as being between a rock and a hard placeor perhaps, to use a similar cliche, between the devil and the deep blue sea. There certainly is a lot that is already devilish in the Migration Act. The Democrats have major concerns about aspects of what is contained in this legislation, particularly with regard to its further expansion of unfettered power for the minister to exercise her discretion at her discretion. There is no scope for appeal or any meaningful oversight of how that power is used and no transparency about when it is used, when it is not used, why it is used sometimes and not other times, and why certain aspects of decisions are made.

There have already been comprehensive Senate committee inquiries into the ministerial discretion power that exists in the Migration Act in a range of areas. It is now sprinkled liberally through a huge number of sections of the Migration Act that the minister has discretion, and this will be just one more discretion to add to the list, with no scope for any proper scrutiny of how it is used and no check at all on the use of that power.

Yesterday I circulated a second reading amendment to the motion before the chamber. As I said, we are between a rock and a hard place. I am concerned about the process contained in this legislation. I think the further expansion of ministerial discretion is unwise, particularly given that so many problems have been identified with it. I draw the Senates attention specifically to the report by the Senate Select Committee on Ministerial Discretion in Migration Matters, which highlighted many significant problems with how ministerial discretion now operates. That report is not just from the point of view of a single approach to dealing with migration issues and migration policy; it goes to a broader issue of public policy and good administration of laws in an era that we have moved into in recent decades of proper oversight of decisions made by ministers and administrative officers of the Commonwealth. That report was tabled over year ago and as far as I know it has not been responded to by the government, although I may be wrong on that front.

A report was tabled nearly five years ago by the Senate Legal and Constitutional Affairs Committee into the onshore determination process for refugees that had a lot of unanimous recommendations, including some that went to the issue of ministerial discretion. The governments response to most of those recommendations, including those in that area, was derisory, to put it politely. It is widely acknowledged that there are serious public policy and administration issues with how the power is used, even outside any view about immigration policy. This legislation gives yet another one of those discretionary powers to the minister, and I think that is undesirable. That is the rock.

The hard place of course is that, if we do hold this legislation up, the Senate will be accused of keeping people behind the razor wire and in detention centres longer than they otherwise would be, because the intentreasonably clearly stated in the Prime Ministers statement last Friday and also in the explanatory memorandum to this legislationis that this new power will be used to get people out of razor wire surrounded detention centres and into community detention or, in some cases, to give people a visa. I am certainly not going to be accused of getting in the way of people getting out of those detention situations. We are pretty much stuck either way, frankly. We can pass a law that implements a badly operating administrative principle or not pass it and be accused of keeping people in detention. Apparently this is the only pathway out for people, and I am certainly not going to stand in the way of them being able to take it.

I have circulated a second reading amendment on behalf of the Democrats to indicate our ongoing opposition to the principle still entrenched in the Migration Act: that people can be detained indefinitely without charge or trial until their visa determination is finished, and that whether they are let out is totally and only at the discretion of the minister, an untouchable discretion in a legal sense. That basic principle is one that I find offensive to our rule of law and to our democratic and legal system. It is one that I and the Democrats will continue to fight until it is removed, because it is objectionable at its core.

The Democrats second reading amendment indicates our opposition to temporary protection visas and our view that they should be abolished. They are clearly unsatisfactory, punitive and unnecessary. The amendment also indicates our view that people who are still detained on Nauru and Christmas Island should be brought to the Australian mainland. I note and welcome the news overnight that an extended family of nine people will be given visas to come to Australia from Nauru. I have met that family and I know they will be immensely relieved. It is appalling that they had to suffer for 3½ years to get a visa at the end. It is also appalling that they will get a temporary visa and will still have uncertainty about their future, will still be fearful and will be unable to rebuild their lives. But it is good that they will be out of there. I have also heard that, along with that family, two Iraqis have also been offered visas. If that is the case then that is also good.

It will bring the total number still detained on Nauru after 3½ years down to 34. I note the extra suffering of the smaller number of people left and the obvious absurdity of continuing to pay millions of dollars to keep this detention centre open to house such a small number of people. This legislation does not even touch the people on Nauru; neither did the Prime Ministers statement. Somehow they are in some legal shadow land outside our reach. I note that the Joint Standing Committee on Migration sought the concurrence of the minister to visit that facility, which Australia has funded for 3½ years at a cost of millions of dollars. The minister said, That is outside the powers of the Migration Act and outside your terms of reference. I do not believe that is true, because the committees terms of reference deal with annual reports and the departments annual report quite clearly sets out its activities in Nauru. So why it is outside the committees terms of reference to examine that facility, which is funded at great cost to the taxpayer, is beyond me.

That is another example of the total paranoia about any sort of proper scrutiny. This is a government controlled committee. It is not one of these Senate committees that are supposedly, according to the governments latest propaganda, terrible and policiticised. This is a government controlled committee, chaired I think by Don Randall, the member for Canning, who I do not think would be labelled as a bleeding heart, let them all out of detention type of guy. To so blithely brush aside a legitimate committee request to visit this facility and to continue the pretence that it is not a detention centre but a processing centre is an example of the contempt this government has for any sort of scrutiny.

This legislation introduces a few components. It introduces a noncompellable or discretionary power for the minister to specify alternative arrangements for a persons detention and to impose conditions to apply to that detention. In the committee stage of the debate I will ask the minister for more detail about what that will mean. The explanatory memorandum gives some outlines but I note that in this legislation there is yet another migration euphemism to add to all the rest. I have just mentioned how the detention centre on Nauru was called a processing centre and that the people there are not in detention but on special purpose visas that, until recently, required them to stay within the boundaries of the processing centre. The new noncompellable, untouchable power of the minister over a residence determination is also labelled in the explanatory memorandum as a community detention arrangement. This will be another one of those fabulous slippery terms that we have in the migration area. When the Prime Minister wants to sound hard line he will talk about maintaining mandatory detention and say that these people are still in detention under the act. When the government wants to sound soft it will talk about how these people have been let out into the community under a residence determination and that they are now free.

The fact is that the minister has untouchable and unfettered power to determine the conditions surrounding that persons detention in the community. The act already gives the minister the power to have people out in the community under detention. I have met with people who are out in the community under detention arrangements. The conditions attached vary enormously. There is the example of some Vietnamese people who came from Christmas Islandthe couple got publicity when they had a baby in detention a few weeks agoand were in community detention in Perth. It was basically house arrest. They had guards with them 24 hours a day, they were not allowed to go out and no-one was allowed to visit them. When I tried to visit them they had to be taken to the Perth detention centre and I had to visit them there.

The conditions can vary from what is basically house arrest all the way through to what is suggested in the explanatory memorandum. The types of conditions are expected to require the person to be present at the specified residence during specified hours and to report to Immigration officials at specified times. That may mean they only need to report in once a day, like a bail condition, or they may need to there 23½ hours a day. The types of conditions that could be included would not be limited. Detainees could be free to move about in the community without being accompanied or restrained by an officer under the act. That could allow them to have basically free movement in the community, apart from having to report in occasionally.

There is obviously a huge range and a clear expression of intent to go towards the softer end. But with that continual power hanging over you, you cooperate at all times. It is a totally unappealable and unlimited power to tighten restrictions or put you back behind the razor wire. Total power is maintained by the minister and the department, and there is a total lack of power for the person held in detention. That does pose ongoing issues in relation to peoples state of mind. It is not a visa. It does not give freedom in the community. It does not give work rights.

This bill, however, does give the minister new discretion to issue a visa to somebody in detentionany sort of visa. Again, it is a noncompellable power; she does not have to. She can if she wants to and she does not have to give reasons beyond a totally vague I believe it is in the public interest. That is obviously, to use another of those fabulous euphemisms, what would be called flexible. It gives the minister great flexibility: she can do what she wants whenever she wants, unless she does not want to, in which case she does not have to and nobody can do anything about it.

It should be pointed out that, whilst this sounds greatthe minister has the power to let anyone out of detentionthe fact is that the minister already had the power to get people out of detention. There are a whole range of circumstances under existing regulations where people have been let out of detention on bridging visas if certain situations to do with health and other things apply. The ministers powers are already sufficiently broad in my view to let her put people out in the community on a bridging visa if she feels like it. This just makes it even easier. You do not need to bother about suggesting they meet certain criteria; you just say, I want to give you a visa. Heres your visa. Its in the public interest. That is flexible, but look at that principle of public policy administration and the problems that are already apparent when you have a minister who can hand these out when she feels like it and refuse to when she does not. Clearly, there is very much a risk of being subjected to the political climate of the day and a risk of perceptions of inconsistencies and favouritism.

The ministerial discretion inquiry that I mentioned before was set up because of very serious accusations about former immigration Minister Ruddock in the so-called cash for visas affair. There were huge headlines about allegations that he handed out visas under this discretionary power in return for favours. That is the risk of this provision; it opens up that perception enormously. We all know that nobody who works in the community on a regular basis or with people in the migration or refugee area knows why a certain case gets a visa but another one does not.

The whole basis of the big Migration Reform Act back in, I think, 1989 was to codify this so it was clear whether or not people met visa conditions, so people knew what the rules were. Back then we supported maintaining a residual discretionary power for the occasional hard case that is unforeseen, but that power has expanded hugely since then to be a catch-all opportunity, under a wide range of different circumstances and sections of the act, for the minister to hand out visas when it is felt to be necessary, with nobody having a clear idea why they are given to some and not to others.

When I was part of that ministerial discretion inquiry, I found no evidence to back up those very serious claims against Minister Ruddock. I should say that the front-page headlines making the accusations turned into very small statements buried in the body of the newspapers when he was cleared by the Australian Federal Police and by a majority of that Senate committee. I suppose that is the way of the world. It does not make it any less unsatisfactory. But it highlights the problems with these discretionary powers. I will ask some questions about that in the committee stage of the debate.

This bill also adds a statement to the act:

    The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

That is good. I am not sure what effect that has in law. It cannot hurt, that is for sure. The fact is that we are already a signatory to and have ratified the Convention on the Rights of the Child, which says children should only be detained as a last resort. We had almost a 1,000-page report from the Human Rights Commissioner on children in detention which was called A last resort for that very reason. The governments response then was: Get stuffed. It paid no attention to the recommendations of the report and rejected them as it has rejected, time after time, the findings and views of the Human Rights and Equal Opportunity Commission about this governments breaches of conventions and thus our obligations under international law. The government said then: Well, it is a last resort. We dont accept that were breaching the Convention on the Rights of the Child. The government has consistently maintained that when it has detained children it has been as a last resort. That is farcicalwe all know it is farcicalbut that is what the government has maintained. So I am not sure what has changed by this statement going into the act. Nonetheless, it is a good thing.

The bill also provides scope for the Ombudsman to report automatically on the detention of anyone who is still there after two years. That is a good thing, but again it should be emphasised that the Ombudsman already has that power and has conducted many inquiries into immigration detention issues. This will make it automatic for every single person. It will catch all of the long-term detainees that are already in detention. But there is no compulsion, and I am not suggesting there should be, that the government follow the recommendations from the Ombudsman, and it should be emphasised that this has already happened a number of times in relation to immigration issues. This is a small step forward, with a very dubious principle attached. We are not going to oppose it. I do support the work of those Liberal Party members who have pushed this issue and I congratulate them, but anyone who thinks that this is the end of the issue and that it deals with all the problems is kidding themselves. I move the second reading amendment circulated earlier:

At the end of the motion add:

    but the Senate:

      (a) while acknowledging that this bill may result in the Minister for Immigration and Multicultural and Indigenous Affairs (Senator Vanstone) deciding to release some people from detention, maintains its opposition to the principle of indefinite detention without charge and trial which remains in the Migration Act 1958; and

      (b) believes that temporary protection visas should be abolished and that the detainees on Nauru and Christmas Island should be brought to Australia immediately.
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16 years ago

Commendable speech. Fat lot of good it did.