Senator Andrew Bartlett
Portfolio: Immigration and Multicultural Affairs
| Dated: 9 Aug 2004
Location: Parliament House - Canberra
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Senator Andrew Bartlett speaks to Matter of Urgency: Asylum Seekers - Court decision on indefinite detention |
MATTERS OF URGENCY: Immigration: Asylum Seekers
Senator BARTLETT (QueenslandLeader of the Australian Democrats) (3.50 p.m.) I move:
That, in the opinion of the Senate, the following is a matter of urgency:
The need to:
(a)acknowledge the finding of the High Court on 6 August 2004 that it is constitutional and lawful under the Migration Act to keep a person in detention indefinitely even where there is no real likelihood of that person being able to be deported from Australia in the reasonably foreseeable future; and
(b)act immediately to amend the Migration Act to make it unlawful for a minister to be able to keep a person detained indefinitely even where there is no real likelihood of that person being able to be deported in the reasonably foreseeable future.
This is, without doubt, an extraordinarily urgent matter and I think many Australiansand, I suspect, many in this parliamentdo not fully appreciate the seriousness of the situation. Following the 4-3 decision of the High Court it is now law in this countryand to be technical it was not law until Friday because previously there was a standing decision of the Federal Court to the contrarythat a person can be kept in migration detention indefinitely even when they have said that they want to be deported, even when the Australian government has tried for a prolonged period of time, without success, to deport them, and when there is no real likelihood of that person being able to be deported in the reasonably foreseeable future. Even in such circumstances that person can be kept locked up indefinitely. It is quite literally a life sentence or a potential life sentence for a person who has not been charged and who has not been triedwithout any scope for judicial oversight of that detention. That is obviously extremely serious and extremely distressing. To use the words of one of the High Court judges who ruled in favour of the government, it is a tragic situation for the people concernedand the person concerned in this case.
It is, I suggest, an extremely serious situation for the entire Australian community because we now have a situation where a government minister can deny freedom to a person, can lock them up for administrative purposes indefinitely, without recourse to the courts, without charge, as long as they can get an act through the parliament that gives them that power and that power relates to one of the heads of power in the Constitution. We have an act such as that today, which is the Migration Act, that gives the power to keep a person in administrative detention forever, even if they cannot be deported. That act gives that power to a government minister. It also means that it is now lawful if a government can get a law through this parliament in a whole range of other areas, and the obvious immediate potential is in the area of security and all the so-called antiterrorist legislation that is being passed, with a clear head of power for the government to act in that area. It would be lawful, if a relevant act empowered the government to do so, to detain someone indefinitely without charge on the grounds of security and public safety. I believe that is something that the vast majority of Australians would find extremely concerning and I believe it is not what the parliament could possibly have envisaged when it passed this particular section of the Migration Act back in 1992.
I should emphasise that the Democrats strongly oppose mandatory detention and we strongly oppose keeping people in detention any longer than is necessary, but under the act as it stands the purpose of detention is to keep people in detention whilst their claim for a visa is being assessed and to keep them available for deportation as soon as is practicable. The problem for the people involved in the cases before the High Courtand a range of other peopleis that it is not practicable at any stage in the foreseeable future for those people to be deported. So the purpose of keeping them in detention so they can be deported as soon as practicable, I would have thought, becomes void. I submit that that would have been the intention of the parliament when this piece of legislation was passed. But we never know, of course, and the fact is that the High Court has ruled otherwise, so my opinion of what the intention of the parliament might have been and my opinion about how the act should be interpreted does not matter. The High Court have spoken, as they have the power to do under the Constitution, and they have interpreted the law to allow the government of the day to keep a person in administrative detention indefinitely.
Today in question time the minister said, `We have got a safety valve because we have got ministerial discretion, so is not forever because the minister can let a person out.' They can, but they do not have to, and there is no legal avenue anyone can pursue to compel them to let that person out. There are people now in detention, from even before this decisionbecause the government was resisting the interpretation of the law as it previously stoodwho have been there for one, two, three or four years who have signed a piece of paper saying: `Deport me. I am willing to go. Send me back.' And the Australian government has not been successful in sending them anywhere, so they have been detained. There is a person in Baxter, Mr Kassim, who has been in detention since 1998. He has submitted to go back. He is originally from the disputed region of Kashmir but has not been able to obtain travel documents and has not been accepted by the government over there, so he is perpetually locked up. Can any of us imagine what it would be like to have to face that scenario? What would it be like to be a human being denied your freedom, caught in the ultimate bureaucratic catch-22 and imprisoned for the foreseeable future without any legal avenue to pursue?
This undermines one of the most fundamental principles that our country and our rule of law are built upon: the right to freedom. Freedom from arbitrary imprisonment by an executive government is one that is now clearly at risk. There is a wide range of issues that could flow on from this. The bill of rights debate needs to be explored again. But all this motion seeks to say is that this decision indicates an interpretation of the law that the Democrats believe goes far too far and that we should immediately reverse that and enable a person to be freed from detention if there is no prospect of them being deported in the foreseeable future. There are plenty of other things that we believe should happen, but that simple fact, that simple situation, that people should not be condemned to the prospect of perpetual detention without any recourse to a court, should be removed. (Time expired)
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