AJA's Opening Statements at the public hearing of the Senate Standing Committee on Legal and Constitutional Affairs' Inquiry into the Migration Amendment (Immigration Detention Reform) Bill 2009

AJA's Opening Statements at the public hearing of the Senate Standing Committee on Legal and Constitutional Affairs' Inquiry into the Migration Amendment (Immigration Detention Reform) Bill 2009 - 7 August 2009

Opening statement by Kate Gauthier (National Coordinator):

I would like to thank the Senate for holding this inquiry and for inviting A Just Australia to present today. There are two great contradictions in this proposed amendment. One is that these changes to detention will apply to Christmas Island, and my colleague will address that issue. The other is the inclusion of the principle that detention in an IDC will be a matter of last resort, but at the same time retaining the policy of mandatory detention. Unauthorised arrivals, particularly asylum seekers, will be detained in an IDC as a matter of first resort, not last resort. This is because there is not the infrastructure to house them all elsewhere, and currently there are no plans to build enough alternatives. This portion of the amendment will be breached as soon as it is legislated.

The specific policy changes in this amendment are, for the most part, positive. However, they are entirely discretionary, and at the drop of a hat we can easily return to the detention practices of the past. The coalition has indicated that this is possible under a returned coalition government. More importantly, there is absolutely no protection for the rights of individuals. Without time limits or an external review with an enforceable remedy there is no way to stop any form of detention conducted by the Department of Immigration and Citizenship that is in breach of the new detention principles except by direct intervention by the minister. This continues the principle of over-reliance on ministerial discretionary powers that this government has sought to wind back.

Let us not forget that this is the department that brought us the Cornelia Rau the Vivian Alvarez Solon cases. Are we really going to allow them continued unfettered powers on their promise that they have changed and will do better this time in determining who should or should not be detained? What we, as the advocacy community, are asking for is very simple and quite moderate: bring immigration detention back into the mainstream Australian legal systems. Other forms of detention in Australia have clear guidelines, external reviews and enforceable remedies when detention is either unlawful, or unjustifiable.

In the minister?s second reading speech, he states that ?detention that is indefinite or otherwise arbitrary is not acceptable?. However, the retention of mandatory detention itself recommits this government to arbitrary detention.? This amendment retains mandatory detention, and?make no mistake?mandatory detention in any form is a breach of international human rights instruments. If you vote yes to this amendment, you are voting to breach Australia?s responsibility under conventions which we are signatory to. I want everyone on this committee to make this decision with your eyes open. You have a responsibility to report back to the Senate to ensure that every other parliamentarian also makes an informed decision. I hope you would decide that the policy of mandatory detention is a blight on our country. It has created extraordinary suffering, and it is high time that we stopped compounding the policy errors of the past.

Opening statement by Zhi Yan (Acting National Coordinator):

We are disappointed that the migration amendment bill does not include any provision to abolish excision; rather, it retains and affirms it. There are 692 asylum seekers in immigration detention on Christmas Island according to the latest DIAC figures as of 17 July. As asylum seekers, these 692 people have the right to apply to the Australian government for asylum, the right to a fair and transparent assessment of their protection needs and the right to judicial review. We agreed to respect these rights when we ratified the refugee convention and other international treaties. But,
under excision, these 692 people, and any other asylum seekers who might arrive by boat, are denied these rights?even the right to lodge a protection visa application.

Why do we continue to discriminate against some asylum seekers purely on the basis of their mode of transport, which has no relation to the validity of their protection claims? They are not breaking any law when they arrive in Australia, unauthorised or not, with the intention of seeking asylum, and there is no evidence to suggest they are. So on what basis is the government denying these particular asylum seekers their legal rights?

DIAC has stated that maintaining excision and offshore processing is necessary to address the ?specific and additional risk to the Australian system relating to border control that derives from an offshore entry person?s mode of arrival in Australia and the additional risk at an individual level because the person has not undergone any pre-arrival screening?. But no asylum seeker in Australia has ever been shown to be a national security risk and the overwhelming majority of asylum seekers processed on Christmas Island have proven to have valid protection needs. There is also no evidence to suggest that the policy of excision or offshore processing has any effect as a deterrent. So we would argue that there is no defensible basis to maintain excision.

I understand that there is some ambiguity about whether or not the bill?s reforms will apply to Christmas Island. In our opinion, even if the government wished to implement the bill?s reforms on Christmas Island, they would not be able to due to practical limitations on the island, such as a lack of sufficient accommodation within the community.? At present there are 566 people incarcerated at the Christmas Island IDC. I very much doubt that all 566 people have been found to be a security or compliance risk; rather, they are there because there is nowhere else for them to go.

So whilst we acknowledge that the reforms in the bill are a positive step in the right direction, we?believe they fall far short of addressing fundamental breaches of human rights in our asylum policy, including mandatory detention, excision and offshore processing. Thank you