DISSENTING REPORT BY SENATOR HANSON-YOUNG
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
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.
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.
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:
as a last resort:
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.
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.
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.
beyond 30 days:
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:
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
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.
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.
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
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.
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.'
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.
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
Australian Greens recommend that this Bill, with amendments, immediately pass.
Greens Spokesperson on Immigration
Navigation: Previous Page | Contents | Next Page