Hon Judi Moylan

MIGRATION AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2005 Second Reading

MIGRATION AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2005 Second Reading Speech Mrs MOYLAN (Pearce) (12.12 p.m.)—I am particularly grateful for the opportunity to speak on the Migration and Ombudsman Legislation Amendment Bill 2005, as it gives effect to the commitment of the Prime Minister, the Hon. John Howard, to improve the refugee detention policy so that it can be administered with, in the Prime Minister’s own words, ‘greater flexibility, fairness and, above all, in a more timely manner’. And I thank my colleagues for the quality of the debate in this place today. The Prime Minister played a key role in ensuring that the concerns raised by me, the member for Kooyong, the member for Cook and the member for McMillan were addressed in a most substantive way. We are now seeing the benefits of the new measures in operation. This bill further gives effect to those decisions. All children are now living with their families in the community in community housing. I have had calls from many members of the community who have supported families in the past and who tell me that it has gone very smoothly. I would like to also thank members of the department, some of whom I think are here today, because the transition has taken place in a very smooth way. It is a wonderful result. I say unashamedly that, when I saw that report on national television of those children and their families being released from detention centres, I wept. I think it was a terrible thing to have held children in detention centres for so long. Amendments to the removal-pending visas mean that long-term detainees whose applications have been refused at both the primary and the review stages, and whose removal is not practicable for the time being, are being released into the community. Again, I welcome this. With regard to that matter, I have had word from those who have been assisting one of our longest detainees, Peter Qasim, who has now been released into the community. They tell me that Peter is doing exceptionally well, that he is working very hard and that he is trying to put his life back together. Peter’s case was very sad because there was a dispute over his citizenship, and he had no country willing to take him back. So he languished here in a detention centre for five years. I would again like to place on record in this place my thanks to those very many Australians who have shown great compassion and understanding and who have personally taken care of many refugees, often in their own homes—Australians who supported these changes. I have been aware of Jewish and Christian families caring for Muslims. I think one of the most touching stories was of a young Muslim man who on release from detention was met by a Jewish family and taken to their home. He stayed in their home until such time as he could find his own accommodation. Now, several years on, they are all very good friends; they have a wonderful relationship and great bonds have developed between them. I have seen Muslims and Christians and all manner of people come together helping each other, putting aside their religious differences and looking at the human side of their relationship. It is a great example to all Australians. Many individuals have volunteered. I have been to St John’s Church in Western Australia, where retirees, students and young married women volunteered and gave their time to teach English to refugees coming out of detention centres and help them to re-engage with the community. It is a great inspiration. I also want to recognise the many not-for-profit organisations and churches which have played critical roles in helping these people both while they have been in detention and since their release. They are marvellous people. I make no apology in this place—sometimes I am criticised for being too emotional—for saying that if we take the emotion out of what we are doing in this place we might as well not be here. And if we cannot inject humanity into our policies in this place then we are the poorer for that. So I think it is important that we look at some of the human issues in how this policy and its administration have impacted on people’s lives. I deeply welcome the changes. I think it has been very touching to witness first-hand some of the generosity and kindnesses that have been extended to those who fled their homes in fear of their lives and arrived in our country with very few resources. It is easy to make sweeping statements about these people, but there are many different circumstances. It is regrettable that, in the discussions to bring about these changes, we did not achieve a move to give permanent residency to people who had been on temporary protection visas provided there were no militating circumstances against such a decision. The reason I say that is during the debate on detention issues I received the most amazing, heartfelt letters from people. There were thousands of them but one that stood out was from a businessman from Victoria. I will not reveal the details, but I have the letter. He said that he and his wife had taken in a man from Afghanistan who had been attacked by the Taliban and seriously injured, leaving him with terrible injuries that he will carry for the rest of his life. They gave him part-time work in their business in Victoria and he works part time for another business in that town. He had a temporary protection visa and he could not get permanent residency even though he had been on a temporary protection visa for several years. When this man and his family were split up during the war in Afghanistan, through no fault of his own, his wife and the five children fled to Pakistan—where they still are. The children have no access to education because they are noncitizens. This Victorian businessman and his wife now pay for the education of the five children in Pakistan as well as supporting this man—the refugee—by giving him a job and caring for him in many other ways. This businessman wrote to me and said that every day the pain of the separation of this man from his family and his children is palpable. Because Australia has a policy of issuing temporary protection visas this man cannot leave the country without losing his opportunity to stay here permanently, and he cannot bring his wife and children here, even for a visit, under the circumstances that he was in at the time. That is why I asked for consideration to be given to providing temporary protection visa holders who had a good record, who had done the right thing, who had not entered into any criminal activities and who were not a security risk to be given permanent residency at the end of that period. There are many other stories. Like my colleague from Chisholm, I am also perplexed at times about the way in which decisions are made either to allow people out on the basis of giving them work rights or to allow them out where they are totally dependent on charity. Again, I have met a number of these people. It is very difficult. It is something we need to look at a little more closely. As a result of these changes, rapid assessments have taken place of almost all of the outstanding permanent protection visa applications from temporary protection visa holders. Again, I thank the agencies, particularly DIMIA—Dr Shergold has been responsible for making sure that the policy changes were properly implemented—for facilitating this process. It was an enormous workload and they are to be commended and congratulated for achieving that. Also, the Refugee Review Tribunal has had to do a considerable amount of this work—a very large caseload of assessments has been completed. According to advice from the minister’s office, the department have been able to all but complete the processing by overhauling the interviewing and assessment processes; streamlining decision records, especially for straightforward approvals; streamlining the process for character checks; working with other agencies and governments to identify and deal with potential bottlenecks in resolution of key criteria and for visa decisions; working with the RRT to ensure the speedy transfer of information and relevant case files between the department and the tribunal; and increasing management reporting to ensure the close oversight of the progression of applications through the protection visa process. The RRT has also implemented a range of administrative and operational measures aimed at achieving the completion of the RRT review within 90 days. We are awaiting an update on applications which were to be finished by 31 October, the date we were given for completion. We are reassured that the majority of the cases which could have been decided within that time have been decided and that there are few outstanding cases that give rise to concern. One has to be practical in these matters and recognise that there will be issues that are not so easily resolved and that there will be some delays in those cases. This bill also establishes time limits for processing primary protection visa decisions by DIMIA and the review of the Refugee Review Tribunal. The legislation applies a time limit of 90 days, during which the minister is required to decide applications for protection visas and the RRT to decide applications for review of protection visa decisions by the minister. DIMIA will be required to report a failure to meet the time limits to the minister, who will be required to regularly table such reports in both houses of parliament. We welcome this level of scrutiny. If review applications take longer than 90 days, then the department must report to the minister in four-monthly cycles and reasons must be furnished as to why the application took longer than 90 days to decide. The government established a high-level immigration interdepartmental committee, as I said before, chaired by Dr Shergold, the Secretary to the Department of the Prime Minister and Cabinet. We have been meeting with Dr Shergold about every two weeks to hear the progress being made by the department. We have been very pleased with the way those meetings have gone and the progress that has been made over that time. DIMIA will be required to report every six months to the Commonwealth Ombudsman on the status and case management of any person in immigration detention for two years or longer. This addresses the kind of case we confronted with Mr Qasim. There are other cases as well. It is important to understand that very rarely are there cases of stateless people but that there are cases such as that of the man I met from Dubai. He was born in Dubai, his father was born in Dubai, his grandfather was born in Dubai, but he is a noncitizen because he does not come from the right ethnic group. During the first Gulf War, he and his family fled to a neighbouring Gulf State. Subsequently, he made his way to Australia. Again, his wife and children remain in a Gulf State with no status; they are noncitizens. He cannot leave Australia to visit them and he cannot bring them here under the current arrangements. In our contemporary world, there are people caught between countries with no status anywhere. What concerns me deeply about these people is the impact on the children who, as I said, in some countries cannot even access schooling. I think that is a great tragedy. I am very pleased that these long-term cases are going to be addressed and that there will be a reporting mechanism to this House. If there are good reasons why people should be kept in detention for more than two years, this parliament has a right to know about it. We are the people out in the electorates to whom the community comes and seeks guidance and advice and answers as to why this practice is happening. We have a responsibility to properly inform our constituents why it is taking place. I greatly welcome a more open and accountable system. I will skip a few of the technicalities of the changes and just say that this bill specifically amends the Ombudsman Act 1976 so as to allow the Ombudsman to use the title ‘Immigration Ombudsman’ when performing functions in relation to immigration and detention. It explicitly allows the Ombudsman to perform functions and exercise powers under other Commonwealth or ACT legislation. It allows an agency or person to provide information to the Ombudsman despite any law that would otherwise prevent them from doing so, and it clarifies the actions of contractors and subcontractors who may exercise powers or perform functions for or on behalf of Australian government agencies. These amendments attempt to avoid some of the situations so succinctly outlined in both the Palmer and the Comrie reports. My good colleague the member for Cook has given us much more information on that this morning, so I will not repeat all of it. The Palmer report was an inquiry into the circumstances of the immigration detention of Cornelia Rau and was extended to incorporate the Alvarez case and other matters. The report did raise some key issues. One of the main findings was as follows: There is no automatic process of review sufficient to provide confidence to the Government, to the Secretary of DIMIA or to the public that the power to detain a person on reasonable suspicion of being an unlawful non-citizen under s189(1) of the Commonwealth’s Migration Act 1958 is being exercised lawfully, justifiably and with integrity. It further found that: ... many DIMIA officers who were interviewed and who used the detention powers under s189(1) of the Migration Act 1958 had little understanding of what, in legal terms, constitutes ‘reasonable suspicion’ when applying it to a factual situation ... The report went on to say: There did not appear to be—even at senior management level—an understanding of the distinction between the discretionary nature of the exercise of ‘reasonable suspicion’ and the mandatory nature of detention that must follow the forming of a ‘reasonable suspicion’. There is a lot more to say about the power of the Ombudsman but I do not have time to go into the detail; suffice it to say that I greatly welcome this legislation. It gives greater openness and accountability to both the parliament and the public regarding people who are held for a long time or people who have been detained unlawfully. The department of immigration has very wide powers to detain people and I welcome the ability of the Ombudsman to play a part in ensuring that the laws are administered as intended by this parliament. In conclusion, I go back to a speech which I used in a piece I wrote during the detention debate. It was a speech by the founding father of the Liberal Party, Sir Robert Menzies, when he led opposition to Labor’s wartime refugee removal bill in the House in February 1949. He warned that the refugee policy: ... in this area, must be applied by a sensible administration, neither rigid nor peremptory, but wise, exercising judgement on individual cases, always remembering the basic principle but always understanding that harsh administration never yet improved any law but only impaired it, and that notoriously harsh administration raises up to any law hostilities that may some day destroy it. The situation may have been very different all those years ago, but these wise words should echo in this place to remind us of the founding principles of democracy, free speech, the rule of law, democratically elected leaders accountable to parliament and the separation of powers. Above all, the work we do in this place should always pass the test of upholding human life and human dignity. These changes provided a way forward, so that the government could maintain the integrity of its migration policy. They provide a way through the border protection policy, while ensuring a ‘fairer, more flexible policy’. That is what the Prime Minister wanted. The changes have bridged a divide that had become evident in the community due to aspects of our detention policy and its administration. Personally, I am very grateful for the work of my colleagues the member for Cook and the member for Kooyong and all the others who helped us to bring about these changes. I am grateful for the release of children and their families from detention. I wholeheartedly support this bill and the further changes it facilitates. Debate (on motion by Mr Bowen) adjourned.