Sarah Stephen
Given the significant number of people wrongfully detained under the migration act, the potential for innocent people to be wrongfully detained under the preventative detention orders in the new terror laws is frightening.
So-called preventative detention is one of the centre-pieces of the new "anti-terror" laws. It allows for a suspect to be detained for up to 14 days when there isn't sufficient evidence to charge them with a crime. The detainee is not allowed to tell anyone, and neither they nor their government-appointed lawyer would have access to the order that made the detention possible. They may also be tried in a closed court.
When bureaucrats and police have a free hand, with no judicial oversight, people will be wrongfully detained. This has been made very clear in the case of the immigration department's (DIMIA) wrongful detention for 10 months of Australian resident Cornelia Rau and the wrongful deportation four years ago of Australian citizen Vivan Alvarez Solon.
But these cases are just the tip of the iceberg.
The migration act allows for someone to be detained if they are an unlawful non-citizen but — importantly — the decision to detain doesn't have to be tested before a court. Suspicion is enough, proof is not necessary.
So when DIMIA raided a farm in Victoria earlier this year, a Korean student visiting a friend was locked up in Baxter for two weeks. She had her tourist visa, but the compliance officers decided that she must be working. She was released eventually and fled back to Korea.
Commonwealth Ombudsman John McMillan revealed to a Senate inquiry on October 7 that his office was investigating the wrongful detention of 221 people for periods of time ranging from one day to 1272 days (almost 3.5 years). Fifty-six were detained for more than three weeks.
These cases were uncovered in May, in the wake of the Rau scandal, when immigration minister Amanda Vanstone asked DIMIA to check its records for all cases marked as "released not unlawful". Some 200 cases were referred to the Palmer Inquiry, which was charged with investigating the wrongful detention of Rau, and passed on to the Ombudsman when Mick Palmer stepped down from his role in July.
McMillan's office is still determining whether or not the person detained for 1272 days was held unlawfully for all or part of that time. He assured the Senate Legal and Constitutional References Committee that the administration and operation of the Migration Act 1958 would eventually be the subject of a public report.
McMillan told the inquiry that, with current funding and staff numbers, it would take his office two years to investigate the 221 cases of wrongful detention. He explained that a preliminary analysis had indicated that 50 people were detained because of incorrect data. "The kinds of problems are, for example, DIMIA's records not being up to date, incorrect information being recorded about a person's visa conditions or [that] the information was conflicting", McMillan told the inquiry. Another 11 people had mental health problems, making correct information difficult to obtain.
McMillan said that the Solon case indicated that immigration officers were quick to deport people instead of worrying about their welfare.
The Rau and Solon cases have highlighted DIMIA's bungles this year, but they aren't the first where the public purse has been forced to pay out for wrongly imprisoning someone. Other cases that have resulted in compensation involved nationals from nine countries — Afghanistan, Australia, Bangladesh, Britain, China, Fiji, France, Malaysia and South Korea — and have cost the government close to $1 million.
From Â鶹´«Ã½ Weekly, December 7, 2005.
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