THE FEDERAL Government has announced that it will make several changes to Australia’s immigration detention regime.
At the heart of the reforms is the notion that detention will be used only as “a last resort” and for “the shortest practicable time”, said the Minister for Immigration and Citizenship, Senator Chris Evans, in a statement last week.
Announcing the reforms at the Australian National University in Canberra, Evans said that the burden of proof for immigration detention would be shifted. “The presumption will be that persons will remain in the community while their immigration status is being resolved,” he said. “The department will have to justify a decision to detain — not presume detention.”
This proposed change has been welcomed by Christian Carney, a principle solicitor at the Refugee Advice and Casework Service. “At the moment, with mandatory detention, the only way you’d be released is if you were granted a visa or if you were so psychologically damaged that the board recommended that you be released. Even then that’s a rare thing …” he said.
The Government will, however, maintain detention under three scenarios: for all unauthorised arrivals (to manage health, identity and security risks); for unlawful non-citizens who present “unacceptable risks to the community”; and for unlawful non-citizens “who have repeatedly refused to comply with their visa conditions”. He also announced he would seek to have the Ombudsman review all detainees’ cases much earlier than current practice— after six months of detention, as opposed to two years. In Carney’s view this is an “absolutely” positive step — at least, he says, as a starting point.
“It should be three months, actually. Surely the department, or ASIO, or whoever, could determine someone’s security risk in three months,” he said. “I mean, if you’re the person sitting there, six months is still a long time.”
In addition, the Government has responded to heavy criticism of the treatment of people held in offshore detention centres by announcing reforms to the processing systems.
Under the proposed new system, such persons will be given free legal assistance to put together applications for protection, and will have a limited ability to appeal an unfavourable decision — rights they haven’t previously had.
While Carney believes this is, again, a step in the right direction, he has still has concerns — particularly in relation to the appeal system.
While full details haven’t been confirmed, according to Carney it appears that people held in offshore detention still won’t have access the Refugee Review Tribunal or the formal court system to appeal decisions that go against them. Instead, an independent consultant will be appointed to review the decision.
“That’s a real issue. It’s better than what it was — but it’s still a second-class justice system for these people,”he said.
In fact, Carney believes that the system of holding people on excised islands that are considered to be outside of the migration zone is still one of the biggest flaws of the immigration regime. While the Government announced earlier this year it would abolish the “Pacific Solution” — a decision Carney applauds — it has confirmed that the Christmas Island facility will remain and will be “essential to responding to any major increase in unauthorised arrivals”.
“I suppose they’re faced with this conundrum that all this money has been spent, they’ve set up for years, so [they wonder] what to do with it,” Carney said.
“It’s ridiculous to have this system of excising islands and saying: ‘If you’re arriving here you’re not really arriving in Australia, and we’re going to take you to this $200 million facility on Christmas Island’.”
While Carney thinks the proposed reforms are, in general, a positive step in the right direction, he believes there are still remaining uncertainties that the government will need to address.
“One of the things that the minister didn’t mention is what they’re going to do with people who are released into the communities.
“We don’t really know what status they’ll be given [and] whether the people will be given permission to work or access to Medicare,” he said. “The new minister hasn’t really entered into that issue — but that’s the next thing.”
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