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Is it finally time to change immigration detention?

Columnist for The Saturday Paper Paul Bongiorno on calls for more accountability in Australia’s hardline immigration regime.
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Over the past few years, Australia’s immigration detention policy, which was once the feature of political debates and elections, has stopped making front page news.

That’s until a recent high court decision deemed Australia’s indefinite detention policy unlawful, leading to the release of over 140 people who had been in indefinite immigration detention.

It’s a decision that has sparked a scramble among Labor to come up with an immigration policy that is legal.

Today, columnist for The Saturday Paper Paul Bongiorno on calls for more accountability in Australia’s hardline immigration regime. 


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Guest: Columnist for The Saturday Paper, Paul Bongiorno.

Read Transcript
[Theme Music Starts]
From Schwartz Media, I’m Ange McCormack. This is *7am*.
Over the past few years, Australia’s immigration policy - which was once the feature of political debates and elections - has stopped making front page news.
Until, that is, a recent High Court decision deemed Australia’s indefinite detention policy unlawful, leading to the release of over 140 people who had been indefinitely detained.
It’s a decision that has sparked a scramble among Labor to come up with a policy that is legal.
Today, columnist for *The Saturday Paper* Paul Bongiorno - on calls for more accountability in Australia’s hardline immigration regime. 
It’s Friday, December 1st. 
[Theme Music Ends]
Paul this week, there's been strong calls for a royal commission into Australia's immigration detention system. What's been happening?
Well, that's right, Ange. There’s a guy called Behrouz Boochani. He famously spent six years in detention on Manus Island at the hands of the Australian Government after fleeing Iran. He's fronting a push from a coalition of humanitarian advocates, faith groups and refugees to call for a royal commission into Australia's immigration detention system. 
Now he gave a press conference at Parliament House and said Labor and the Coalition are in quote, “a competition of cruelty when it comes to immigration policies”. He said “people of Australia have this right to know the truth. We refugees and the families who have been damaged have the right to be heard and we called for a royal commission because of truth, humanity and history.” 
Now the campaign is being backed by independent MPs. In fact, it's being led by Kylie Tink. But she has the support of most of the teals, in fact all of the teals on the crossbench. And she also has the support of the Greens. She said only a royal commission will tell the whole story. The Greens, as I say, are supporting the commission with their spokesperson, Senator Nick McKim, calling the whole immigration detention saga the darkest and bloodiest chapter of our history.
And Paul, immigration issues and stories haven't really been the focus of front pages for the last few years, but in the last few weeks there have been some really disturbing revelations about what's still going on in the system. What have we learned?
Well, we learned a lot. And you're right to note that there haven't been headline stories. And that's just the way both the major parties want it. They want everything they're doing in this area out of sight and out of mind. But we did see a series of stories in the nine newspapers, *The Age* and *Sydney Morning Herald* last week by Charlotte Grieve, and she revealed disturbing allegations about conditions inside detention centres and the contractors who run it on the Government's behalf.
[sounds of physical altercation]
##Audio excerpt – Unknown: 
“Hey! What are you guys doing!”
There were stories about violence, allegations of sexual assault and the use of spit hoods and other controversial restraints on detainees, and even drug trafficking inside immigration detention implicating the security contractors. Well, all of this led to the United Nations special rapporteur on torture, Alice Edwards, to say the situation was totally unacceptable and that Australia's entire immigration detention system needed a reset. And we are expecting her full report to be released soon.
And Paul, these stories are coming out coincidentally. At the same time, the High Court ruled that indefinite detention in Australia is unlawful. What exactly did the Court find and why did it reach that decision?
Well, the Court made a ruling that indefinite detention was not constitutionally sound and not the way to deal with people who aren't citizens or are in breach of visa conditions. 
And it all came about over the detention of a man identified only as NZYQ a 28 to 30 year old stateless Rohingya man. They decided he should be released because there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. And that's a quote from the High Court. “The man was guilty of a child sex offence and served a non-parole period of three years and four months before he was then put into immigration detention after serving his time.” 
But we only learned the exact reasons the court made that finding on Tuesday this week when their reasons were published. 
First of all, we found out it was a unanimous finding by the court, all seven judges. We also learned that the judges believed that, quote, the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end, and that detention could not simply go on indefinitely. 
But the judges warned that release from unlawful detention is not to be equated a right to remain in Australia. That those released didn't necessarily have visa or residency rights. Simply, they just couldn't be held any longer in detention. 
Now, this has left a huge legal void over Australia's immigration detention system, with detainees who have no prospect of being resettled elsewhere, needing to be released from detention but with no legal alternative to detention to manage them. 
So this whole decision has thrown the legal framework used by successive Australian governments, particularly over the last two decades, into question. And now the Government is on the clock urgently trying to create a better new system. But it's running out of parliamentary sitting days to get the legislation through Parliament. Although the relevant minister said Parliament will sit until they get the job done.
After the break - can the government come up with a new immigration detention policy in just a few days?
Paul, we've been talking about Australia's immigration detention system and the whole process exists under a cloud at the moment because of this High Court decision. So what has the Government been doing since the decision was made?
Mainly reacting to the attacks coming their way from the Dutton-led opposition. They have used the High Court's decision to burnish their credentials on border security, saying if they were in government they'd be doing it better and faster.
##Audio excerpt – James Patterson: 
“A little bit less than two, a little bit more than two hours ago, the High Court blew a hole in the Albanese Government's final excuse for their inaction to protect the Australian community.”  
Opposition home affairs spokesperson James Patterson said this week that child sex offenders, rapists, murderers and contract killers have been released into the community because of the High Court's decision. And he blamed the Government for allowing it to happen.
##Audio excerpt – James Patterson: 
“The community could have been protected from that danger and from that fear that has been instilled in them. When child sex offenders, rapists, murderers, contract killers and others have been released in the community.”
Well, over 140 people have been released since this decision. The minister said she had no options and that's her legal advice, so the government's first package of emergency legislation was actually introduced the week following the High Court ruling. It imposed electronic monitoring and curfews on those released and criminal penalties for breach of visa conditions. 
But as a result of opposition pressure, there were no distinctions between cases. They applied to hardened murderers as much as they did to people who simply didn't get their visa applications right or were found not to be refugees. The package was toughened in this way by the Coalition. But even that is already under legal challenge itself. 
And in fact, there are now two challenges that are going to the High Court. Home Affairs Minister Clare O'Neill says the Government is trying to urgently adapt to the High Court ruling.
##Audio excerpt – Clare O'Neill: 
“Speaker, The number one priority of our government is the safety of the Australian community and I want to credit the Minister for Immigration on the leadership that he has shown on leading us through what has been a difficult High Court decision.”
She says she wants all the detainees that have been released well put back into some form of detention and that it's the opposition that stymies its efforts for political gain. And that's the real threat to the community.
##Audio excerpt – Clare O'Neill: 
“Speaker, I want people to remember that as they listen to the debate over the coming days, because the truth is there is one side of politics here that is trying to do the right thing and adapt to the High Court change and do so in the interests of the community. Another side of politics that's being hypocritical and just trying to score political points.”
##Audio excerpt – Speaker: 
“Order! The minister’s time has concluded.”  
The opposition, in fact, after demanding haste on Monday this week, joined the Greens in voting down a further toughening of the conditions that the government had brought in. Although the Greens described this toughening as a quick fix because the haste of the previous week left a few big holes. I got to say it is an unedifying mess as we go.
So does that mean the government will want to pursue creating a whole new legal framework to allow for some kind of detention or monitoring of people so that they can do this legally?
Well, exactly. And that's what's on Clare O'Neill's agenda as we speak. 
##Audio excerpt – Clare O'Neill:  
“We are moving quickly to finalise a tough, preventative detention regime before Parliament rises. The safety of Australian citizens is our utmost priority…”
Now that we have the reasons from the High Court, the home affairs minister wants to introduce what she's described as a new, quote, tough preventative detention regime before Parliament rises at the end of next week. Now, preventative detention is currently only reserved for terrorists and terror suspects. But the High Court does leave open the door to have a preventative detention apply to some of these people who've been released. 
And I'm hearing that Claire O'Neill is in discussions with the opposition and will bring a bill that's been agreed on next week into the Parliament and hope to rush the whole thing through the Reps in the Senate in one day. But it will face challenges in the Senate. Greens Senator Nick McKim called it panicked, shoddy, xenophobic legislation on the way and accused the government of trying to legislate themselves out of a High Court decision.
##Audio excerpt – Nick McKim: 
“What we have seen is refugees having their human rights trampled once again being used as a political football with no thought at all about the impact that that is having on their lives…” 
Meanwhile the independent MP Kylea Tink, as we were saying earlier, well she introduced a private member's bill to stop the government from locking up people indefinitely. So Tink in the meantime, well, she welcomed the High Court ruling, which bans indefinite detention, but says since that decision, the propaganda has been coming on thick and fast. And she criticised the government's emergency legislation, saying that this ruling shouldn't be used by the Government or the Opposition as a pawn for political gain.
##Audio excerpt – Kylea Tink: 
“It is reprehensible that this ruling should be used as a pawn for political gain and the new laws developed in response to that political posturing are already being challenged in the High Court. Less than a week after they were rushed through Parliament.”
And we're also starting to hear more about the over 140 detainees who have been released. One man, Gus Custer, a permanent Australian resident who was born in Papua New Guinea, spoke to the ABC this week.
##Audio excerpt – News Reporter: 
“In 2011 and 2014. He was warned by Border Force that his visa might be cancelled if he continued offending something he said he didn't understand. Gus thought he was an Australian citizen…”
He was detained after breaching a domestic violence order but emphasised he didn't believe he should be detained indefinitely. 
##Audio excerpt – Gus Kuster: 
“The things that I've done, I admit to it. I'm not saying that that's not right. It's right. I've made these mistakes and I paid my dues for it. I've done my time.” 
And so, Paul, there isn't much time for the government as they speed towards the end of the parliamentary year to pass this legislation. But really new legislation that makes this legal doesn't address the bigger question of whether Australia should be doing this at all.
Well, that's right, although it has to be said that sovereign nations do have the right to control their borders, do have the right to say who's eligible to come in and stay and under what conditions. But that's where a royal commission comes in.
Are we safer with the system we've got? And are we getting value for money? I mean, the cost is simply extraordinary. It costs $421,673 per year to hold one person in detention. And in the nine years since July 2013, it's cost the Australian taxpayer $9.65 billion just to keep detainees on Nauru and Manus Island.
The likelihood that any incumbent government, Labor or Liberal, would agree to a royal commission that would let the antiseptic of sunlight look at what's been happening with this immigration detention scandal. Over the last two decades is not only highly unlikely or improbable, it's politically impossible. 
The way we're doing this has fallen into disrepute, if not disrepair.
Paul, thanks so much for your time today.
No, thank you. Bye. 
[Theme Music Starts]
Also in the news today,
Former US secretary of state Henry Kissinger has died aged 100.
While serving in the Nixon administration, Kissinger designed a secret bombing campaign of Cambodia – a country the US was not at war with – that is estimated to have killed between 150,000 and 500,000 civilians.
Despite this and other illegal bombing campaigns, his influence extended well beyond his time in office, and he was praised by both Barack Obama and Hillary Clinton for his advice on foreign policy.
Brittany Higgins has given further evidence in the defamation trial brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson. 
Under cross examination, Ms Higgins said she would donate the remaining $216,000 she could earn from a book deal she signed to charity, if she ever publishes the book. Lehrmann’s lawyers suggested the deal meant Ms Higgins had financial interest in maintaining her rape allegation, a suggestion which she denied.
Lehrmann continues to maintain his innocence. 
On Monday, *7am* will explore the defamation trial brought by Bruce Lehrmann, with Rick Morton. 
*7am* is a daily show from *The Monthly* and *The Saturday Paper*. 
It’s produced by Kara Jensen-Mackinnon, Zoltan Fecso and Cheyne Anderson.
Our senior producer is Chris Dengate. Our technical producer is Atticus Bastow. 
Our editor is Scott Mitchell. Sarah McVeigh is our head of audio.
Erik Jensen is our editor-in-chief. 
Mixing by Andy Elston, Travis Evans, and Atticus Bastow.
Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio. 
I’m Ange McCormack, this is *7am*. We’ll be back next week. 
[Theme Music Ends]

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