Webdiary - Founded and Inspired by Margo Kingston

Webdiary columnist Jack H Smit runs ProjectSafeCom. His last piece for Webdiary was Siev X - still drowning in spin. See also Georgiou revives the liberal conscience in Parliament. For more on the Rebel 4 revolt on mandatory detention see Webdiary's May and June 2005 archive.

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When Petro Georgiou MP - the leader of the now famous backbenchers' revolt over Australia's permanent jailing policies of refugees - met with refugee advocates in several locations around Australia, including the Baxter detention centre, at the end of 2004 and at the beginning of 2005, it was reported that he countered the desperate voices and the mood of extreme urgency in the representations made to him in almost a mantra-like way - in his characteristically low and sombre voice inflection, repeating at nauseam with a "we'll get them out" ... "we'll get ALL of them out."

Petro has proven to be a man of his word. Regularly he and Judi Moylan MP meet with Dr Peter Shergold in the PM's office to get all the no-nonsense answers about progress made, planned and achieved in regards to the changes in regulations and changes resulting from the Migration and Ombudsman Legislation Amendment Bill 2005.

On Wednesday Mr Georgiou spoke on the Bill again in The House, partly to just tell folks in Parliament about this progress (he remains an example of openness and Parliamentary accountability, unlike some others in the coalition government...) and partly to bring down considerable pressure on Vanstone's latest dealings with an Indonesian family, who quietly sailed into the Australian territory just a few weeks ago. His speech reflects notes made by advocates and press releases issued also by us since the "DIMIA culture change" announcements were made when the pressure was on after the Palmer Report on Cornelia Rau was published and Neil Comrie presented his report on Vivian Alvarez.

Here is his speech. Petro remains one of my most revered 'colleagues' since his first speech on this matter in Parliament in February 2005.

Migration and Ombudsman Legislation Amendment Bill 2005

Second Reading
30 November 2005

Mr GEORGIOU (Kooyong) (10.21 a.m.)--I wish to speak in support of the Migration and Ombudsman Legislation Amendment Bill 2005. I welcome the support of the Labor Party and the member for Kingsford-Smith for the bill as a whole. In June this year the government resolved to implement a package of reforms for the immigration detention system. These reforms sought to achieve a very substantial improvement to the fairness, transparency and compassion in our immigration detention policy. They also sought to expedite decisions on protection visa applications. This bill is the second legislative component of these reforms. The first component was the Migration Amendment (Detention Arrangements) Act, which was enacted in June.

The policy of mandatory detention was introduced by the Labor government in 1992, fearing a flood of unauthorised refugees. Further stringent measures were subsequently adopted by the Howard government to deter people from entering Australia and from seeking asylum here. Thankfully, the atmosphere of crisis surrounding these measures has passed. A combination of factors has seen a sharp fall in the number of asylum seekers and refugees globally, and unauthorised boat arrivals have largely ceased-that is, until the start of this month no asylum seekers had been apprehended in Australian waters for over two years. I will say more about these most recent arrivals in a moment, but first I want to return to the impetus for the recent reforms.

There was compelling evidence of the pressing need for reform of the mandatory detention policy. Across the Australian community there were deep concerns that the system had become excessively rigid and harsh and had harmed vulnerable children, women and men. Reforms needed to ensure that, while we effectively protected our borders, we were humane and just to those affected by our policies. Prior to June this year there had been some amelioration of the policy by this government, but further reform is necessary to ensure that, while we protect our borders, we are humane and just to those affected by our policies and those who seek asylum here.

The latest package of reforms seeks to reconcile the government's wish to maintain mandatory detention with the belief that refugees and asylum seekers can and should be treated with greater fairness, humanity, compassion and transparency. The detention arrangements legislation passed in June dealt with two areas of particular concern: the detention of children and families and the indefinite detention of asylum seekers without external scrutiny.

In that legislation, the parliament affirmed the principle that a child shall only be detained as a matter of last resort. It introduced a process to allow all children and their families to live in the community, free to attend school, day care, playgrounds and so on without security supervision. In June there were 59 children in immigration detention centres. All of these children and their families were out by the end of July, and I understand that no more were held in a centre, at least until earlier this month.

However, seven West Timorese asylum seekers arrived by boat in north-western Australia on 5 November. They were detained originally and flown to Darwin, then to Christmas Island, where they were placed in a detention centre which had been empty, had been closed and was reopened. This raises a number of questions for me, one being: why Christmas Island rather than on the mainland, where they had been initially placed? But, more pertinently here, those asylum seekers include two infant children. I believe one is a one-year-old child and the other is a two-year-old child. I have been advised that the children and their parents have now been placed in a house in the community. On the information provided to me, placing the children and their families in an immigration detention centre, albeit for a brief period of time, was not consistent with the June reforms, and I have conveyed that view to the government.

The second achievement of the June amendments was that the cases of people who have been held in immigration detention for two or more years will be independently scrutinised. The Commonwealth Ombudsman is charged with reviewing the cases of these long-term detainees, and the Secretary to the Department of Immigration and Multicultural and Indigenous Affairs must report to the Ombudsman on the status and case management of these people. The Ombudsman, Professor John McMillan, was given extensive powers to facilitate these investigations and the power to make recommendations that he considers appropriate.

The conduct of the immigration detention regime has lacked openness for far too long. One need only reflect briefly on the report by Mick Palmer on the detention of Cornelia Rau or on Neil Comrie's investigation into the deportation of Vivian Alvarez to appreciate the incontrovertibility of this point. Mr Palmer found:

... a serious cultural problem within DIMIA's immigration compliance and detention areas ... a culture that is overly self-protective and defensive ... unwilling to challenge organisational norms or to engage in genuine self-criticism or analysis.

He found 'serious problems with the handling of immigration detention cases' stemming from 'deep-seated cultural and attitudinal problems within DIMIA'. In discussing the deportation of Vivian Alvarez, the Palmer report found:

... events, practices and actions in 2003 and 2004 ... which strongly corroborate and confirm the systemic nature of the problems identified in the Cornelia Rau inquiry. An initial analysis of other cases ... shows that many of the same causal factors seem to be present.

The strong possibility that the same factors have contributed to the inappropriate detention of a number of other people over an extended period should give rise to serious concern.

The Comrie inquiry similarly found:

... a flawed DIMIA culture-one that pays insufficient attention to detainees' welfare and care needs.

It found:

DIMIA failed to meet its duty of care obligations to Vivian and unlawfully removed her from Australia.

... The unlawful removal of Vivian was a consequence of systemic failures in DIMIA-

and that:

DIMIA's overall management of Vivian's case can only be described as catastrophic.

Further, it found:

The most disturbing feature of the culture is that senior officers in DIMIA who became aware that an Australian citizen had been unlawfully removed failed to take any action to redress the situation.

I welcome the steps being taken to change the department's culture, and I welcome the involvement of the Ombudsman in improving the transparency of the regime to the parliament and to the people of Australia.

A further important measure of the government's package of reforms is embodied in this bill-that is, to finalise expeditiously applications by people who are seeking permanent protection. In June, the government committed DIMIA and the Refugee Review Tribunal to completing the processing of around 4,000 then pending TPV applicants by 31 October.

As I have said previously, given the history of administrative difficulties in the area of mandatory detention, one has to be highly sensitive about issues of implementation. The progress of the implementation of the government's reform has been monitored. It has been assessed by the newly created immigration interdepartmental committee under the chairmanship of the Secretary of the Department of the Prime Minister and Cabinet. The committee has met regularly since June, once a fortnight, and will continue to have a role as these reforms continue to be implemented. I, and other interested members of the government-in particular, the members for Cook, Pearce and McMillan, and Senator Troeth-have also been monitoring this. As foreshadowed, we have been meeting regularly with the chairman of the immigration interdepartmental committee to ensure that the reforms are being implemented satisfactorily. Generally, I am encouraged by the progress that I am advised has been achieved in the months since these measures were agreed.

As I have mentioned, the government in June committed to having around 4,000 applications for permanent protection by people with temporary protection visas processed by 31 October. The minister for immigration earlier this month announced that, of the actual figure of 3,400 applications in this category, the department had finalised all those within its power to complete. Permanent protection visas have now been issued to 2,871 applicants-that is, over 90 per cent of decided cases. Security and certainty have finally been restored to these people and they can begin to plan for family reunion.

There are still some 264 applications that cannot be finalised until security assessments by an outside agency are completed. As I said before, all children formerly in immigration detention and their families are now living in the community. In June this year, 149 detainees had been detained for more than two years. As of 27 October, of these 149 people, 102 have been released from immigration detention centres whether on a permanent or temporary protection visa or pending a bridging visa. Another five are awaiting security or character checks and 30 cases are with the minister or being prepared for submission to the minister. There is no doubt that progress is being made. However, much more remains to be done. The mental health status of many of the remaining detainees at Baxter and Villawood continues to decline, as is confirmed by independent psychiatric assessment. This remains a major concern.

We know what long-term detention means. Members from both sides, including my colleague the member for Canning, have visited immigration detention facilities. We have witnessed the impact of the terrible stress of living in an agony of uncertainty behind razor wire. The process of resolving the future of those who are still held in long-term detention-fortunately a rapidly diminishing number-must continue and be accelerated. The review role of the Commonwealth Ombudsman is, I believe, critical in this process. At 27 October, the cases of 153 long-term detainees have been referred to the Ombudsman. This comprises 40 detainees who have reached the two-year mark since the end of June, as well as 113 of the detainees who already, at the end of June, had been in detention for two years or more.

The cases of all long-term detainees that existed at 17 June this year are to be referred to the Ombudsman before the end of the year. He has indicated that his office is prepared to consider appropriate information, including submissions from detainees' advocates and letters of support. The Ombudsman has set a maximum time frame of three months for providing an assessment of the case referred to by DIMIA but he does anticipate that most assessments will be finalised in much less than three months.

The government's reforms are very substantial and further time will be required to implement them in full. I appreciate the efforts by Dr Peter Shergold, the Secretary of the Department of the Prime Minister and Cabinet, and the immigration department's secretary, Mr Andrew Metcalfe, in particular. Tribute is due to the non-government organisations that have gone to great lengths in a short time to provide practical requirements for the reforms to be implemented, including the provision of accommodation in the wider community.

As was foreshadowed in June, this bill comprises the second major legislative element in the government's reform package. In addition to the reform measures, there are two further aspects of the bill. One deals with technical amendments. The second is more significant. It relates to an issue arising out of the Palmer report on the circumstances of the detention of Cornelia Rau-namely, the identification of people in immigration detention. Without going into that aspect of this bill in any detail, I will say that events have demonstrated the need for the Department of Immigration and Multicultural and Indigenous Affairs to take great care to confirm the identity of people it may subject to detention and to deportation.

This bill introduces time limits concerning decisions on protection visa applications at both the primary decision and at the Refugee Review Tribunal stages. Secondly, it contains measures that give effect to the Commonwealth Ombudsman's enhanced role as the Immigration Ombudsman. As a result of these amendments, the minister and the Refugee Review Tribunal will be required to make a decision or complete a review of a decision on a protection visa within 90 days. Any protection visa applications and review applications that take longer than the 90 days must be reported to the minister, and these reports on delayed decisions of reviews must state why the 90-day time limit has not been met. The explanatory memorandum gives examples of reasons why the time limit may not be met, including 'cooperation by the applicant, security-checking processes and the provision of information by other governments'. These reports must be tabled both in this place and in the Senate.

Since June, the number of primary protection visa applications on foot has been reduced from 983 to 564 as at the start of November. Of that number, 111 remain unresolved after more than 90 days, down from 402 in June. The number of cases awaiting review by the Refugee Review Tribunal has also declined. In short, progress has been made-significant progress, I believe-but more needs to be done to ensure that all the requirements of this bill are met. I have been advised that, since the government's reforms were announced, the department has already begun to expedite protection visa applications to ensure that they do not take longer than 90 days to decide. This has lessened long-term cases, particularly those applications by people in detention. Similarly, I have been advised that the Refugee Review Tribunal has already been seeking to operate within the 90-day limit.

The length of time taken to resolve the applications of people seeking protection in Australia not only prolongs the applicant's emotional and mental distress; it causes extra psychological concerns. One hopes these people get significant psychological relief from the knowledge that there is a limit on the time their application for a protection visa or a Refugee Review Tribunal review of their application will take to be decided and that, if the time is exceeded, their case will be open to external review.

The second element of the reform package contained in this bill is amendments to the Migration Act and to the Ombudsman Act that give effect to the Ombudsman's enhanced role as the Immigration Ombudsman. Together, these amendments, which have been outlined in the minister's second reading speech, will improve the Ombudsman's ability to review immigration and detention complaints and to conduct inquiries quickly and efficiently.

There are a number of other concerns about the fate of asylum seekers in Australia. A particular concern-which is arising more often-involves asylum seekers within the community who are denied access to both work rights and to Medicare or other health care support. Last week, the Minister for Health and Ageing announced a new Medicare item for comprehensive health checks for refugees and other humanitarian entrants within six months of arrival. I believe this is a commendable measure which goes some way towards recognising the particular health needs that asylum seekers and refugees have in addition to suffering the same health problems as the general population. The Australian Medical Association, to its great credit, has recently drawn attention to this. However, there do remain a significant number of asylum seekers living in the community who have no access to Medicare or to other health care supports and who need access to work rights.

Not all the measures that were originally proposed by us have been realised in the government's reforms, and I do appreciate the comments made by the member for Kingsford Smith about the role of some of us on the government's side. However, as I have described, substantial strides have been made in ensuring more flexible, humane, compassionate and accountable treatment for asylum seekers and others in the immigration system. The implementation of the reforms agreed by the Prime Minister has been commenced speedily and humanely. We look forward to the continuation and ultimate conclusion of these reforms in the near future. This bill continues the process of ensuring that immigration policies are administered with greater fairness, timeliness and transparency. I commend the bill to the House.