Peter Andren (Calare, Independent) Share this | Hansard source

I applaud the member for Kooyong for that contribution, and say to other members and senators that no preselection and no perceived populist position will ever justify immoral and unconscionable policy like this. The member for Kooyong’s electorate seems to have acknowledged that, and so, too, eventually—if not right now—will most Australians if they get the leadership the member for Kooyong and some of his colleagues have shown.

As with ‘work choices’, ‘mutual obligation’, ‘fair dismissal’, and ‘electoral integrity’, here we have another use of Orwellian doublespeak in a bill from his government: ‘designated unauthorised arrivals’. Let us cut the nonsense; it is the ‘appease Jakarta bill’. The minister said so, on the 7.30 Report in June, when she admitted she was taking into account the concerns of the Indonesian government.

The bill again turns people who are running in fear for their lives into unwelcome ‘illegals’—a familiar catchcry from the Howard government—with just a few of the more compassionate members of the coalition backbenches speaking out against this policy.

Recommendation 1 of the government majority Senate Legal and Constitutional Committee’s report says it all: the bill should not proceed. I support the overwhelming number of submissions to the Senate inquiry which detail how this bill is fatally flawed. People who have a fear of persecution have a right to seek asylum and should never be punished for the way they arrive in Australia. That obligation remains true for those who sought our help in the years up to and after 2001, and for those asylum seekers who arrived here from West Papua in recent months.

This obligation cannot be outsourced to a third nation, as this legislation intends doing. It is no good to say that we will be paying for the infrastructure and processing; it will clearly be breaking our international obligations to receive and process those who seek our protection. Under this legislation, asylum seekers and confirmed refugees will face the possibility of being indefinitely detained in a remote and isolated island camp.

The reason for this is documented in the minister’s press release of 13 April: that the government’s priority in this policy is not to grant those found to be genuine refugees protection in Australia but to transfer them to any third country that will take them. This would require an attempt to bind a third country in a solid agreement to take over our responsibilities. This process could be as drawn out as you like, with no guarantee that any agreement will be reached. And what countries do we have ready to take these people? None. We only have countries which have said that they do not want a bar of this policy: New Zealand, Fiji, even Papua New Guinea and Nauru. They may process our asylum seekers but are not prepared to take on our responsibilities.

You cannot get a more indefinite situation than this, and it will only mean uncertain futures, complete with psychological damage on top of trauma, for those we remove offshore. They will be without ready access to support, especially legal advice. Children will again be detained—however this detention is dressed up—in breach of our international obligations. It makes a mockery of the Palmer inquiry’s recommendations.

The government’s minor concessions—a 90-day time limit on processing a review and having the Ombudsman oversee actions of DIMA officers—might look reasonable to some at first sight; however, the minister is not bound by the Ombudsman’s recommendations. In supposedly reinforcing the universal obligation that children be detained only as a measure of last resort, the government will seek to provide hostel type accommodation on Nauru. Yet such accommodation is still, at the end of today, on a remote Pacific island thousands of miles from proper access and scrutiny by legal representatives and other support and advocacy services.

This legislation is a complete buckling to the wishes of the Indonesian government. It is an immoral caving-in to the agenda of a country that has, sadly, a record of systematic human rights abuses over many years. By default we are endorsing those abuses through legislation like this. President Yudhoyono may indeed be showing positive signs of cracking down on the excesses of the Indonesian military. The outcome in Aceh, tragically precipitated by the tsunami disaster, gives room for hope of a more responsible and caring administration, but we have not yet reached anywhere near that situation in West Papua, despite an apparent willingness of independence activists to lay down their arms in the hope of genuine negotiation.

The tragedy of East Timor was a tragedy the world, particularly Australia, turned its back on until we could not ignore it. We have not been prepared to properly supervise the transition to true stability and democracy and we have been party to exploiting the fledgling nation’s fair share of natural resources in the Timor Gap. Such indifference must never be allowed to happen again in West Papua where already, since the sham vote of self-determination in 1969, there have been, on some estimates, a further 200,000 deaths under Indonesian control.

Only the escape of 43 asylum seekers to our shores has heightened world and local awareness of the West Papua situation and perhaps prompted a recognition by Jakarta that changes are demanded in its West Papua approach. But such awareness will be stifled if refugees are shipped out of sight, out of mind, outside our zone of conscience. Instead of buckling to Indonesia’s demands that we sign a treaty forever recognising their formal sovereignty, we should make the genuine and lasting reform of Indonesian military practice in the province a precondition for any acceptance of Indonesia’s sovereignty over West Papua. That rule should be conditional upon an internationally sanctioned process to deliver real autonomy within the wider Indonesian republic to the people of West Papua and a guarantee of a proper share of the resources of the province.

To stand up now and announce that he has no trouble with the demands of Indonesia does the Minister for Foreign Affairs no credit and belittles this nation in the eyes of the world and, I would suggest, the eyes of the majority of Australians. We should ask the US and other nations to call on the Indonesian government to genuinely engage in talks leading to a resolution of the legitimate grievances of the West Papuans and we should, along with other countries, insist on open access to West Papua for the world media. It is one thing for the foreign minister to say:

... the last thing we want to see is the disintegration of the Republic of Indonesia.

It is quite another thing to hide behind that concern and to conveniently ignore human rights abuses in any country, let alone one just 250 kilometres from our shores from which many Papuans would flee and indeed should flee if the cruel and oppressive behaviour of the Indonesian military and Indonesian authorities continues.

A majority of Australians were not, at the time, behind those who argued that the refugees and asylum seekers on board the Tampa should be processed in this country. A large part of that reaction was because of the obscene hysteria created around those people by the likes of former minister Peter Reith and others. Indeed, they were demonised as potential terrorists arriving by leaky boat, one of which, the SIEVX, sank with the loss of 350 lives as we did nothing. Another part of the Australian community’s animosity towards the Middle Eastern refugees was the fact they were coming from countries of first, second or even third refuge—Malaysia, Thailand, but usually Indonesia.

None of that applies with the West Papuans and yet here we have this government prepared not only to send primary movement refugees who have reached Australia, the country of first asylum, to another country for processing but to then seek another country to take them once their genuine asylum status has inevitably been ascertained. What does our Minister for Immigration and Multicultural Affairs say? She says, ‘We can’t allow these people to come here to conduct political campaigns.’ Is a call for an end to abuse and persecution, wherever it occurs on the planet, a political campaign? How about a cry for help? What’s next? Is the government considering reviving the Pacific Islands Labourers Act 1901, which deported any of our South Pacific neighbours already in the country?

Our immigration laws over the years have at times been shamefully racist. In this case, we are debating a bill that deliberately is designed to do everything possible to hamper those who might try and flee oppression from our nearest offshore neighbour and others who will still and justifiably flee oppression in other countries—the Middle East, Asia and Africa. A European Commission asylum policy officer, Sandra Pratt, has criticised this bill thus:

We could not and would not do that in Europe ... we take very seriously the international conventions ... I think we have an experience of persecution in Europe still ...

I repeat: asylum seekers should be housed on the mainland with access to appropriate medical, legal and other support services. They should retain their right to timely review by the Refugee Review Tribunal and judicial review in the courts here, not on someone else’s territory 4,000 kilometres away in the mid-Pacific. The position paper of the Refugee Council of Australia bears out the importance of access to the merits review process. It said:

Since February 2003 the number of judgments setting aside RRT decisions or involving orders remitting matters by consent is somewhere in the range of 500 to 750 cases. The risk of wrong decisions being made with fatal consequences of refoulement will be magnified in the proposed system which has no checks and balances.

In other words, with proceedings conducted 4,000 kilometres from our shores and without access to proper merits review, what hope will a genuine asylum seeker have with one shot at an offshore and potentially underresourced process, when the fully resourced departmental and RRT processes have such a track record for error here?

Article 33 of the refugee convention contains the non-refoulement protection obliging countries not to return people to their country of alleged persecution. Shipping asylum seekers to Nauru, which is not a signatory to the 1951 convention, does not uphold this obligation and neither does transferring refugees to a third country or, worse, turning them back at sea. Any use of our Navy to turn back boats that have made it into Australia’s territorial waters would definitely breach our obligations under article 33. I do not want to see a repeat of the notorious ‘children overboard’ affair, leading up to the 2001 election, when our armed forces were used for blatantly political purposes and which placed our defence personnel in an unconscionable moral dilemma.

Indeed, these proposed amendments breach not only article 33 but article 32, that a state should not expel a refugee, save on grounds of national security; article 31, that states should not impose penalties on account of illegal entry on refugees coming from a state where their life or freedom is threatened; and article 3, that a country should not impose penalties on the basis of race, religion or country of origin. This is indication enough that this bill is aimed squarely at what the government would no doubt call its ‘West Papua problem.’ For our closest West Papuan neighbours Australia will accept no obligations towards any refugees under this bill other than to see whether a third country will take them. This will inevitably lead to indefinite and protracted detention, out of sight, out of mind of government perhaps, but more and more Australians are appalled at such a policy, especially now it impacts on West Papuans who might seek our help as a country of first refuge. In effect, all of the Australian territory is excised in this bill, and all claims by people such as the West Papuan asylum seekers will have to be made outside the Australian legal and immigration systems.

Add to this the cost, $195,000 per asylum seeker, for those refugees who have been detailed on Nauru alone since Pacific solution mark 1—a massive cost used to bribe a cash-strapped Pacific country, with outsourced security and detention contracts further hidden from public scrutiny. No-one objects to internment until the asylum claims of these people are investigated and their status confirmed, but it should occur on our shores, on our territory. To adopt this offshore policy—or, more appropriately, the ‘buy-off of a poor island’ policy—for immoral foreign policy purposes is to trash our international obligations. I call on those members and senators who are no doubt appalled by this piece of inhumane Realpolitik to stay firm behind the findings of the Senate inquiry’s No. 1 recommendation and fight for the position won from the Prime Minister a few short months ago in the wake of Palmer.

This bill is about discouraging dissent and the seeking of legitimate asylum. This is not about border protection; it is about supporting oppression. It is about discouraging, even denying, the most basic of human rights—the right to live without fear for your life—and the duty we as members of the world family have to honour our international obligations to the powerless in the face of the powerful. This bill is aimed fairly and squarely at disadvantaging people who are fleeing well-documented persecution—persecution that will be encouraged by these very changes.

Under the bill, refugees will be shipped to Nauru under the surveillance of Nauruan law. Nauru is not a signatory to the international human rights conventions. In the event that the DIMA people make a mistake—remember there have been 500 to 700 cases overturned in Australia after DIMA has got it wrong—there is nothing under Nauruan law that allows a review. The people are effectively isolated from appeal and could remain incarcerated even if they are legitimate refugees.

The government admits in the prime ministerial statement of 21 June that Australia cannot legislate offshore detention access for the Ombudsman because of sovereignty issues. Persons in offshore detention centres are not detained under Australian law. In fact, anyone allowed out of a camp on Nauru will only be out on a Nauruan visa. Such are the legal complexities the government says can be blithely dealt with by a memorandum of understanding. There are huge legal contradictions between Nauruan law and Australian law. For instance, in April 2004 the uncle of Nauru’s justice minister was nominated to represent asylum seekers the day after the Nauruan justice minister barred an Australian legal team from entering Nauru. Such an incident could, of course, happen again, especially if Australian lawyers again attempt to question the validity of legal processes in Nauru. In fact, our High Court has confirmed the validity of the Nauruan visa process whereby visas are issued to each and every detainee, lawyer, visitor and indeed ombudsman who enters Nauru.

There are millions of dollars worth of income for cash-strapped Nauru at stake in this. Both the Nauruan and Australian governments have a huge interest in sustaining this legal limbo, which, unlike Guantanamo Bay, will not allow even military lawyers. The refugee victims of this legislation are being thrown into a legal vacuum. You cannot confer jurisdiction over another sovereign nation, whatever the bribe. The promises on processing in Nauru are technically unenforceable and outside any law.

Finally, we have the Edmund Rice Centre’s disturbing report on the apparent disappearance and suspected death of 12 Afghan detainees who returned to Afghanistan, assured the country was safe. We hear of Yolanda and Rona, aged nine and six, killed by a bomb planted under their home because of their returned father’s former political connections. Their father’s own mother and granddaughter were also killed.

When I dared suggest at Christmas 2003 that, on my reliable advice, several returnees from Nauru to Afghanistan had been killed, I was threatened with legal action by the Afghan diplomatic representatives here in Canberra, as were any others who made what the Afghan authorities claimed were ‘reckless and unwarranted’ allegations. It was claimed by the embassy that returnees were monitored after their arrival back in Afghanistan—but only, according to the Afghan embassy website, while they were in Kabul. Then the returnees left for various provinces in different parts of Afghanistan and the monitoring ceased.

It took the Edmund Rice Centre to go there, have a look and find the facts about some of those disturbing cases, which happen because, I would argue, of a policy that is akin to refoulement. Whatever the compensation or the resettlement money offered, these people were under duress in most cases when they accepted that compensation. They were in effect, de facto, forced back to Afghanistan, and I firmly believe that we have responsibility under all of those circumstances, when they have arrived as genuine asylum seekers, whatever the circumstances of the outcome, given the state of affairs in Afghanistan and elsewhere where these people are coming from. It is our responsibility, if we turn them away, even with a cheque for a couple of thousand bucks, to ensure their safety—and that includes the responsibility of the Kabul administration and the new Afghan government.

Finally, I say: all power and all courage to those members and senators who are considering their position on this bill. Theirs is a position that I believe Australians will support more and more, and they certainly have turned around since that day in August 2001 when I said my electorate perhaps did not support me but that I did not care at that point because I knew and felt in my heart of hearts that I was correct. I think circumstances have proved exactly that. If Family First means that—family first—then how could its senator not join other fair-minded members and senators in rejecting this bill too?

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