Additional comments from the Australian Greens
1.1
The scandalous
treatment of Cornelia Rau in the immigration detention system shocked the
Australian public. Then the discovery
that Vivian Solon had been unlawfully detained and deported raised serious
questions about the competence and humanity of Australia’s immigration
policy. The almost universal call for a
Royal Commission to investigate what looked like a Department ‘out of control’
and seriously damaging people, was ignored by the Government. Instead it instigated two private inquiries
with limited terms of reference.
1.2
Despite the
narrow scope of their investigation, the Palmer Inquiry and the Comrie Inquiry
reported damning findings that indicated ‘systemic failures’ and serious
‘cultural problems’ within the Department of Immigration.
1.3
The Senate called on the Government to establish a Royal Commission. The Government refused to heed this demand
and the Senate initiated this Senate Inquiry to investigate whether the serious
failures exposed by the Rau and Solon cases was widespread and endemic.
Submissions & Hearings
1.4
The submissions
received and the evidence given at public hearings presented the inquiry with a
consistent criticism of the administration of the Migration Act and remarkably
similar suggestions for reform.
1.5
The evidence
presented to the inquiry made it clear that the incompetent handling and
mistreatment meted out to Ms Rau and Ms Solon was not an isolated
incident. The widespread incidences of
such behaviour mostly went almost unnoticed and unreported in remote or
off-shore detention centres.
1.6
The evidence
indicated the Department of Immigration was failing to administer the Act to
afford fairness, justice and proper process, and more disturbingly it was
failing in its duty of care to people in its custody. Indeed there was compelling evidence that the
Department and the private companies administering detention centres were
administering the Act in a manner that was hostile to people and in some instances
contributed to their abuse.
1.7
The evidence also
indicated that parts of the Migration Act contribute to the failures of the
Department, particularly the failure of some sections of the Department to
ensure that its officials can use appropriate discretion and common sense. The
sections of Migration Act that most significantly contributed to this
occurrence were sections 189 and 196 of the Act relating to detention, section
501 relating to deportation, parts of the Act relating to Temporary Protection
Visas and the failure of the Act to properly provide complementary or
humanitarian protection.
1.8
The Senate
Committee inquiry visited Villawood Immigration Detention Centre (IDC),
considered by many commentators on Australia’s immigration detention centres to
be one of the better detention centres.
Two features of Villawood IDC were particularly disturbing. The first was the dorm style accommodation
located in Stage One – a room filled with about 60 bunk beds less than a metre
apart. This looked more like a prison in
a developing country than administrative detention in Australia. Indeed, one detainee shouted at the committee
members that Villawood was “worse than jail”. The second disturbing experience
was being inside the isolation unit. The
small cold bare walled cell with its heavy metal door and tiny window reminds
one of the cruelty of the silent prison at Port Arthur, colonial Tasmania. To think of Cornelia Rau with untreated
schizophrenia, or the many asylum seekers, spending endless days in an
isolation cell is a reminder of just how badly the policy of mandatory
detention has failed. During the course of the inquiry the Senate Legal and
Constitutional Committee was informed that an asylum seeker was held in the
Villawood IDC isolation unit for 76 days.
The Report
1.9
The Australian
Greens are happy to sign on to the main committee report with dissent our noted
for two recommendations. If the
recommendations of this report were adopted it would assist the Department of
Immigration in administering the Act in a fairer and more humane way. I commend the report to the Parliament and
urge the Government to put party politics aside and adopt the recommendations
of the main committee report in the interest of good governance, competent
administration of the Migration Act and respect for human rights.
1.10
Despite the broad
range of the inquiry, two themes consistently emerged throughout.
1.11
The first theme
relates to the cultural attitude within the Department of Immigration. The Secretary and Minister have admitted that
the department is in need of “cultural change”.
Witnesses told the inquiry that there was a culture of suspicion and
hostility toward asylum seekers. The
committee was told that departmental officials were ‘trying to catch them out’,
‘looking and probing for inconsistencies’, or ‘searching for a reason to
reject’. The result of this attitude,
one lawyer said, was “randomness all the way through” the protection visa
determination system.
1.12
It is clear that
the culture that led to Cornelia Rau being unlawfully incarcerated and
mistreated for 10 months and led to the deportation of a broken women to a
hospice in the Philippines, is widespread in the Department of Immigration and
as the Comrie Report found this culture is driven in the Department by a view
held by departmental officials that this is what is being asked them by the
government through government policy and directions.
1.13
The second theme
that consistently emerged during the inquiry was that the policy of mandatory
detention was seriously damaging people, particularly their mental health. What is meant to be detention for purely
administrative purposes had morphed into a system of punitive detention without
the same safeguards that are in place in the criminal justice system.
1.14
The power to
detain ‘unlawful non-citizens’ has meant that cultural hostility toward asylum
seekers has been manifested into cruel behaviour toward detainees behind the
razor wire.
1.15
A lawyer and
migration agent recently opined to me that the Department of Immigration was
misnamed. It should be re-named the “Department
of Compliance and Detention”. This gets
to the crux of the current problem.
Instead of the Department making impartial, unbiased and well considered
decisions and treating its ‘clients’ with dignity and respect, the policies of
this Government have led to the virtual criminalisation of asylum seekers.
1.16
The Australian
Greens lay the blame for the criminalisation of asylum seekers directly on this
Government. The Prime Minister, the
former Minister Ruddock and the current Minister Vanstone, all bare
responsibility for the current cultural and policy problems of the Department
of Immigration. The trails from Cornelia
Rau suffering untreated schizophrenia in the Baxter isolation cell, and the
trail from Vivian Solon enduring her injuries in a hospice in the Philippines
lead directly to the Prime Minister’s door.
1.17
The exploitation
of xenophobia by this Government and the demonisation of asylum seekers and
refugees has led to the culture of hostility that exists in the Department of
Immigration. Continual public comments,
some of which have been found to be untrue, from the Prime Minister and
Ministers about the ‘security threat’ posed by the boat people, the need to
‘repeal and deter’ asylum seekers and the discrediting of asylum seekers as
non-genuine or queue jumpers, have directly led to the culture problems evident
in the recent actions of the Department of Immigration.
1.18
It should be no
surprise that the bureaucracy has taken on the culture attitudes that have been
so vehemently expressed by government ministers and subsequently administered
the Act in a way that they thought the government wished. The political eagerness to exploit
xenophobia, particularly during the 2001 federal election, has meant that innocent
people seeking Australia’s protection have been turned into ‘undesirables’ that
the Department of Immigration felt compelled to repel and filter out.
1.19
The Australian Greens can not sign onto recommendation
45.
Although the spirit of this recommendation seeks to limit the extent and
use of immigration detention, the Australian Greens oppose mandatory detention
as a matter of policy. While we note
that this recommendation mitigates some of our concerns about mandatory
detention, we believe that mandatory detention is a fundamentally flawed policy
and should be abolished.
1.20
A policy that
incarcerates innocent people indefinitely breaks fundamental rights and the
norms of our legal system. Of particular
concern is the lack of discretion under Section 189 of the Act and the lack of
judicial oversight of the decision to detain people. The Australian Greens have moved amendments
in the Parliament to implement judicial oversight into the current detention
regime, but these were rejected by the Government and Opposition.
1.21
The Australian Greens dissent from recommendation 50 relating to temporary protection visas. The Australian Greens do not support the use
of temporary protection visas as a matter of policy. The Australian Greens agree with the United
Nations Protocol relating to Refugees that refugees should not be discriminate
against on the basis of the method by which they arrive.
Additional Recommendations:
1.22
The Australian
Greens recommend the following recommendations in addition to those contained
in the report:
-
In relation to
chapter three - reform of the Refugee Review Tribunal (RRT). The Australian
Greens support more fundamental reform than proposed in the Report. I recommend the removal of privative clause
from the Migration Act to allow comprehensive review of RRT decisions. Many submitters suggested abolishing the RRT
with the review function passing to another body, possibly the Federal
Magistrates Court or AAT. The Australian
Greens support such a position and recommend that the Australian Law Reform
Commission investigate a replacement body for the current RRT.
-
In relation to
chapter six, The use of detainee labour. The Australian Greens recommend:
- all work should
be voluntary and remuneration for work should be equivalent to established
employment and industrial laws and regulations of Australia."
- Current and past
detainees who have been employed via the
'merit system' should have a capacity to apply for appropriate compensation for
work completed within the immigration detention system.
-
In relation to
chapter six, The Australian Greens recommend the policy of mandatory detention
be abolished and that asylum seekers be housed in publicly owned and managed
open reception centres that are accountable pursuant to Commonwealth
legislation and where entry and exit are unrestricted and that, provided
medical and security checks are satisfied
or after 14 days has passed, whichever occurs first, they be granted a
bridging visa and assisted without delay to move into the community.
-
In relation to
chapter eight, The Australian Green recommend the Temporary Protection Visa be
abolished and all current Temporary Protection Visa holders be automatically
granted a Permanent Protection Visa.
Senator Kerry Nettle
Australian Greens Senator for NSW
Spokesperson on Immigration
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