Andrew Bartlett posted a link to the Migration Amendment which stemmed from the private member's bill of Petro Georgiou. Supposedly the final agreement for the amendment bill was hacked out with John Howard in a manner that was palatable to the Prime Minister, Cabinet and Backbenchers .

After reading the amendment, it is a white-wash. There is no compulsion for the Amanda Vanstone to act, in fact the amendment goes out of its way to ensure she does not have to. The Ombudsman criteria is also weak. This is a political solution designed to deflect negative popular opinion without the government having to do anything to stop indefinite detention.

Migration Amendment (Detention Arrangements) Bill 2005

The legislation that is being amended is the Migration Act of 1958 . The pdf containing the Migration Amendment (Detention Arrangements) Bill 2005 is approximately nineteen pages long. It is in two parts - the amendments and the application of the amendments.

As is consistent through this series of amendments, it is written with the purpose of giving the government lots of wriggle room. For example on minors;

4AA Detention of minors a last resort

(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.

It does not say, the government will not detain minors, nor that minors shall be detained no more than one month, nor that minors will not suffer the psychological damage of indefinite detention; instead it allows the government to continue what it is doing while having a cop out line of legislation that says last resort.

A constant word which pops up in these amendments in non-compellable . For instance;

See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.

The minister is also given the power to grant a person who is in detention a visa. This is arbitrary government, and an anti-thesis to the rule of law. If a person's legal status falls under the arbitrary and discretionary powers of an individual, as opposed to the legislatively defined steps in a process, we have fallen into tyranny. And the refugees in the detention centres are suffering for our tyrannical government.

It is guaranteed this non-compellable and discretionary power will be used for political purposes. If public opinion goes against the government, a couple more refugees will be given visas. This opens the whole process to the political abuse by the minister and government. Indefinite detention is a violation of an individuals freedom of association and movement, especially one who has committed no criminal act against society. The discretionary powers in this bill are a violation of a government which follows the rule of law. The legislation continues;

Minister not under duty to consider whether to exercise power

(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5) The power under subsection (2) may only be exercised by the Minister personally.

Arbitrary power is being collapsed into one individual, and one individual only. This is tyranny. We are a country of laws, not men (or women).

The minister also has the arbitrary power to remove a refugee from a detention centre, to a specified place. This is called a residence determination in the bill. There is no further language on this issue. So I am not sure what a specified place is. I assume it is to restrict the movements of the individual. The minister is also given the discretion to revoke a residence determination.

Like the granting of a visa, the residence determination authority is the ministers alone. The minister is also not compelled to grant a residence determination.

Accountability

If the minister does grant a visa under the circumstance of it being in the public interest, she must stand before parliament and explain why. For refugees that have been detained for more than two years, the minister must make six monthly reports to the Commonwealth Ombudsman. The Ombudsman can give an assessment which includes recommendations, which can include;

(a) a recommendation for the continued detention of a person;
(b) a recommendation that another form of detention would be more appropriate for a person (for example, residing at a place in accordance with a residence determination);
(c) a recommendation that a person be released into the community on a visa;
(d) general recommendations relating to the Department's handling of its detainee caseload.

Again, there is no compulsion to act upon the recommendations. ie;

(4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.

So in conclusion we have a bunch of non-compellable legislation, that increase the arbitrary power of the minister, while decreasing the amount of process that is supposed to be the hallmark of a rule of law nation. The accountability aspects of the legislation are also non-compellable.

Bet the Senators love seeing useless legislative waffle like this cross their desks. It addresses none of the problems of the immigration system.

• Problem - Detention is indefinite. If the individuals refugee status cannot be determined within six months then they get the benefit of the doubt and are allowed to enter Australian society.
• Problem - Immigration has no process to deal with stateless people. If after six-months the individual is determined to be stateless, they are given the benefit of the doubt and allowed to enter Australian society.
• Problem - Minors are being detained. No minor will be detained. Families with children will be given appropriate housing outside of a razor wired detention centre. Children will be given access to all aspects of the Australian system that Australian minors share, such as education and health.
• Problem - No accountability in the immigration department. A citizens committee will form through sortition and be able to use Senate facilities to determine the amount of incompetence in the immigration department. The committee will be able to compel anyone, including the Immigration Minister and Prime Minister, to appear as witnesses.
• Problem - No accountability in the detainment of refugees. A citizen group chosen by sortition will audit the detention centres and the current state of the refugees.
• Problem - Too much arbitrary power in the Immigration Minister. The Senate will need to amend the act to remove the arbitrary nature of it. Sadly the government cares more for acting in its own interests than in following the rule of law.

I phoned Amanda Vanstone's office yesterday to encourage her to release the remaining refugees on Christmas Island. We will find out if she felt "compelled" to do so.

cam