All children in immigration detention in Australia must be released into the community under legislation passed by the Senate on Monday, but the bill faces being struck down in the government-controlled House of Representatives.
The Migration and Maritime Powers Amendment Bill (No. 1) â€“ a technical government-sponsored bill largely concerning visa application rights â€“ passed the Senate, but with a suite of amendments proposed by Greens Senator Sarah Hanson-Young that mandates the release of all children from Australian immigration detention centres, unless a court specifically orders a childâ€™s release is not in the public interest.
The amendments would also: impose mandatory reporting of abuse in detention centres to relevant, independent authorities; require all reasonable media requests for access to be granted to detention centres; and reverse the secrecy provisions of the Australian Border Force Act which makes it an offence to disclose information in the public interest about detention.
Workers in immigration detention centre, including doctors, social workers and security staff, could reveal details of what happens in detention without fear of prosecution.
The bill, with amendments, passed with the support of the Greens, Labor, and a majority of crossbench senators.
A fifth amendment, requiring asylum seekers to be detained separately from non-citizens facing deportation on character grounds (so-called 501s), did not pass.
The bill â€“ with new amendments â€“ will now go before the House of Representatives.
The House â€“ which is controlled by the government â€“ can choose to pass the new bill, reject it or amend it (likely by removing the changes voted for by the Senate).
If the House further amends the bill it will then have to go back before the Senate which is almost certain to reinstate the current amendments.
The Greens leader, Richard Di Natale, said the decision on children in detention now rested with the prime minister and his colleagues in the House of Representatives.
â€œMalcolm Turnbullâ€™s got a choice here: will he make an active decision to defy the Senate and keep kids locked up?â€
Currently, there are 112 children in immigration detention in Australia, about one-20th of the peak figure of 1,992 in July 2013.
Australiaâ€™s offshore detention regime is outside the scope of the legislative changes.
Currently 95 children are in detention on Nauru. Australia maintains their detention is a matter for the Nauruan government.
There are no children detained on Manus Island.
Hanson-Young said it was about time children were released from detention. â€œIt is a national shame that we have kept them locked up, that we have effectively stolen this amount of time from their childhood,â€ she told the parliament.
Labor amended the Greensâ€™ changes to inject ministerial discretion into the decision to release children in hopes of reducing any national security risk from dangerous parents.
The assistant multicultural affairs minister, Concetta Fierravanti-Wells, said the government couldnâ€™t forcibly remove children from detained parents with adverse security assessments. â€œAs a government we canâ€™t just take children out if their guardian or parent does not wish them to be removed from them,â€ she said.
The changes were unnecessary because minors were only detained as a last resort and it was already mandatory for assaults to be reported, she said.
Fierravanti-Wells said the changes were well outside the scope of the bill, which was largely technical in nature.
But Labor frontbencher Kim Carr said the opposition was determined to improve accountability and transparency and had always opposed the â€œexcessive secrecyâ€ surrounding immigration detention.
Australians had a right to know what was happening inside the centres at a large cost to the taxpayer, he said.
Director of policy and public affairs with Save the Children, Mat Tinkler, said the legislationâ€™s passage through the Senate was a â€œsignificant momentâ€ and called on the government to pass it through the House of Representatives.
But he said the offshore detention of children should also be limited. Some children on Nauru have been held in detention for more than two years.
â€œWe also call on the Turnbull government to immediately extend the provisions limiting detention to 30 days for children to the taxpayer funded Nauru regional processing centre. Our experience working with asylum seekers and refugees on Nauru and Manus Island before that tells us that detaining children for prolonged periods is detrimental to their mental and physical wellbeing.â€
Save the Children provided education and welfare services to asylum seekers and refugees on Nauru for two years to 31 October, when they were replaced by Broadspectrum the company formerly known as Transfield. The company also worked on Manus Island previously.