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Additional Comments
Greens Senator Kerry Nettle
The Australian
Greens Senators acknowledge the committee's findings and are in agreement with
its recommendations. The Australian Greens also acknowledge the work of Mr
Palmer, Mr Comrie and the Commonwealth Ombudsman’s office and are in agreement
with their findings and recommendations, while noting the limited terms of
reference they were given by the government.
The Australian
Greens conclude that the unlawful detention and deportation of Ms Solon, her
treatment in the care of the Department of Immigration and the negligent lack
of response after the error had been discovered, are indicative of a Department
that is out-of-control and failing the Australian public.
The committee received
evidence about, and Mr Palmer uncovered a series of system failures. However,
the case of Vivian Solon indicates more than a series of system faults. It is
clear that the prime contributor to the unlawful detention and deportation of
Vivian Solon was the system of mandatory detention that sees people locked up
first and then somewhere down the track questions may be asked about their
detention later. The other significant contributing factor was the culture of
suspicion and lack of discretion and regard for human welfare within the
compliance branch of the Department of Immigration.
Mr Comrie summarised this culture,
concluding:
“It is difficult to form
any conclusion other than that the culture of DIMIA was so motivated by
imperatives associated with the removal of unlawful non-citizens that officers
failed to take into account the basic human rights obligations that
characterise a democratic society.” (page 31)
The Australian
Greens note that the Department of Immigration has agreed to implement the
recommendations of the Palmer and Comrie Reports and is attempting cultural
change. However, we believe the culture that produced the frightful case of
Vivian Solon, and numerous other scandals that have come to light, is the
result of Departmental officials wanting to implement the wishes of the Howard
Government, which is to be ‘tough on illegals’. Until the culture of the
Government and the policy of mandatory detention and related policies change,
the Australian Greens are not convinced that the attempt at cultural change
will be successful.
Until the culture of
the Government and the policy mandatory detention and related policies change,
the Australian Greens are not convinced that the attempt at cultural change
will be successful.
The Australian
Greens are in agreement with the recommendations of the committee’s report, but
believe that they do not go far enough. The Australian Greens recommend that
regulations and legislation should be altered to ensure proper independent
oversight of the decisions of departmental officials.
The powers of
arrest, detention and deportation vested in Department of Immigration officers
are equivalent of state police forces, yet the oversight of these powers is
virtually non-existent. State police officers must bring a detained person
before a court within hours to gain consent to continue to detain a person. The
validity of the decision to detain or deport by a Department of Immigration
official is not tested by an authority outside the Department of Immigration
and a detainee may be detained indefinitely under current legislation.
Various Crimes Acts
detail a series of minimum standards of treatment of prisoners and the rights
of prisoners that police must follow. The standard of treatment and rights of
detainees is not detailed in the Migration Act.
Additional Recommendations:
- That the
conclusion of paragraph 2.17 be upgraded to a formal recommendation: “The
committee recommends that the checks undertaken to determine a person's
identity, the evidence that they are an unlawful non-citizen, and other
necessary actions prior to removal must be carried out diligently and properly
documented, attached to the file and cross referenced with the removal
checklist above.”
- The
Australian Greens believe that the committee’s recommendation 3 should be
strengthened to ensure that the right to legal assistance (as well as other
basic rights) be legislated similar to the rights of people placed under arrest
by state police forces and the Federal Police are legislated under the relevant
Crimes Acts. Therefore the Greens propose to replace recommendation 3 in the
main committee report with: “The committee recommends that basic rights, such
as the right to legal assistance, be legislated similar to the rights
legislated by Part IC Division 3 Crime Act 1914 (Cth) “Obligations of
investigating officials’.
- In
relation to section 189 of the Migration Act, Mr Comrie noted that:
“properly
based exercise of discretion in the determination of ‘reasonable suspicion’
constitutes the only protection in the section against indefinite arbitrary
detention.”(page 65)
The Australian Greens believe that
Section 189 of the Migration Act must be amended to ensure that unlawful
detention can not happen again.
The Australian Greens recommend
that Section 189 of the Migration Act be amended to end the practice of
mandatory detention, we believe this would be the best way to ensure unlawful
detention does not occur again and to ensure that an element of humanity is
injected back into the immigration system.
Falling short of this solution, The
Australian Greens recommend that Section 189 of the Migration Act be amended to
compel the Department of Immigration to seek the consent of a court to continue
to detain before the expiration of a set time period. This form of judicial
review, which is similar to the requirements for state police forces and the
Federal Police, would ensure that the evidence on which the knowledge or
reasonable suspicion that a person is an unlawful non-citizen (and therefore must
be detained) is tested by transparent and fair methods and is found to be
proper.
The Australian Greens believe that
if the decision to detain Vivian Solon or Cornelia Rau had been brought before
a court, the evidence and basis of the Department’s suspicion would have been
found lacking.
- The Australian
Greens believe that detainees should be informed of the reasons for any medical
examination and that all medical examinations should be conducted with the
overt consent of the detainee. Any associated risks regarding early
notification can be accommodated by DIMIA. Avoiding such a risk is not a valid
reason for conducting non-consensual medical examinations or deceiving the
examinee. If a detainee does not consent then following medical advice, DIMIA
may still apply to a relevant authority for non-censual medical examination and
treatment.
- The
Australian Greens recommend that the explanation of rights regarding the
medical examination, including the right to refuse an examination and the right
to be informed of the reasons for an examination, be included in a relevant
checklist and in regulations as discussed in recommendation 4.
- The
callous disregard for Vivian Solon after she was deported from Australia is
perhaps the most shocking aspect of her story. The recent revelations about
long-term permanent residents having their visa cancelled under Section 501 of
the Migration Act and being detained and deported to countries they do not know
has also highlighted a disturbing practice. The case of Robert Jovicic raises
some parallel issues about the Department of Immigration’s disregard for human
welfare in executing deportations and the interaction of the Department of
Immigration with the Department of Foreign Affairs and Trade.
The Australian Greens are also
aware and are concerned about reports of cases of failed asylum seekers being
deported to the countries they have fled, or third countries, who have faced
renewed persecution and abuse on their return.
The Department of Immigration has
stated on record that it does not monitor people it has deported.
The Australian Greens recommend
that the Department of Immigration investigate the possibility of identifying
deportees at risk after deportation and instituting a system where the welfare
of these deportees is monitored – either directly by Australian Government
agencies or through third parties (such as the Red Cross).
- The
Australian Greens recommend that DFAT and DIMIA establish a protocol, including
notification and a division of responsibilities between departments, to deal
with DIMIA operations that involve the deportation or removal of people who are
or were Australian citizens, permanent residents or other persons facing
potential risk.
I met with Vivian on
her return to Australia. Her sad and yearning eyes showed the sadness and pain
of her experience. Her story should be a warning to us all that human rights
and human welfare should always be the priority. Conferring the title of
‘unlawful non-citizen’ on a person does not excuse any bureaucracy or
individual from their responsibility to respect other people’s human rights. When
the Parliament makes laws it must not infringe on the human rights and dignity
of Australian citizens.
Borders and
citizenship are an artificial construction. We must never forget we are all
human beings.
SENATOR KERRY NETTLE
AUSTRALIAN GREENS
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