Statement:

Petro Georgiou MP (LIB)
Senator Dr Alan Eggleston (LIB)
Senator Sarah Hanson-Young (GRN)

Authors of a dissenting report to the Joint Standing Committee on Migration’s Report, Immigration detention in Australia: A new beginning

“Immigration detention decisions should be subject to prompt independent review”

The Joint Standing Committee on Migration’s report, Immigration detention in Australia: A new beginning, makes a number of very important recommendations to improve the fairness and transparency of Australia’s immigration detention policy.

They include the recommendation to stop charging former detainees the cost of their detention. The sums can be very substantial and well beyond the means of people to repay and cause great stress. This is a fair and sensible recommendation and we encourage the Government to implement it as soon as possible.

The Committee’s recommendations relating to reviews by the Immigration Department and the Ombudsman will improve the current framework.

However, significant weaknesses remain. The proposed changes fall well short of ensuring rigorous and timely assessment of whether detention is necessary in accordance with the new policy.

For instance, there is no mechanism to ensure that departmental reviews are conducted in a timely manner - people may remain in detention simply because their cases have not been examined as required by departmental standards.

On account of these continuing inadequacies, we believe it is vital that immigration detention decisions are subject to prompt and effective independent review.

The Committee received strong evidence that the lack of available merits and judicial review for people detained in immigration detention has resulted in people being held wrongfully, unlawfully and for a period of years on the basis of contested departmental decisions.

Despite this evidence, the Committee’s report suggests that people in detention should not be entitled to seek to have the merits of the decision to detain them examined by a tribunal or a court until they have been held for 12 months.

We believe that this is a grossly excessive period.

Public servants should not have unfettered power to detain for 12 months without independent external scrutiny which can ensure the release of people whose detention is unreasonable and unnecessary.

As the Committee heard in evidence provided by Julian Burnside QC, in other circumstances when a person is deprived of their liberty, their situation is reviewed at regular, short intervals and judicial oversight is available at all times. The immigration detention regime is an exception to this general rule.

Detention can be a very damaging experience for people, particularly asylum seekers who have suffered torture and trauma, well before 12 months have elapsed.

Psychologists with substantial experience in the area advised the Committee that some asylum seekers have very adverse reactions within the first months of detention.

Moreover, imposing a 12 month bar before detained people can take proceedings to have their cases heard by a tribunal or court may well be contrary to our international human rights obligations.

We believe that the denial of the right to seek prompt, independent and effective review of detention decisions will not ensure public confidence is restored in Australia’s immigration detention system.

The government should consider a less draconian approach that would be far more in accord with the evidence the Committee received and Australia’s human rights obligations. In particular, we recommend that:

(i) A person who is detained should be entitled to appeal immediately to a court for an order that he or she be released because there are no reasonable grounds to consider that their detention is justified on the criteria specified for detention;

(ii) A person may not be detained for a period exceeding 30 days unless on an application by the Department of Immigration and Citizenship a court makes an order that it is necessary to detain the person on a specified ground and there are no effective alternatives to detention.