Judi Moylan (Pearce, Liberal Party) Share this | Hansard source

I begin by paying a compliment in particular to my colleagues the member for Kooyong and the member for McMillan for their contributions to outstanding debate in this parliament today. The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, amending the Migration Act, is not a matter between conscience and patriotism, for surely each one is worthless without the other and ethical principles should inform them both. The stranger that stumbles upon our shores has a claim on both our conscience and our patriotism and, when he or she arrives with credentials uncontaminated by smugglers and pleading a case that, at the very least, is worthy of a fair hearing, the qualities that constitute fairness are not those that visit unmitigated sequestration and inhumanity upon the stranger.

This is complex legislation because it places people seeking refuge on our shores out of reach of Australian domestic law and, by our hand, places them within the borders of a country that is not a signatory to international conventions protecting asylum seekers. It is incongruous that unauthorised boat arrivals are treated any differently from unauthorised plane arrivals. People coming by boat, unlike those arriving by plane, will be forcibly removed to Nauru and denied access to a properly constituted statutory Refugee Review Tribunal and to Australian courts for judicial review—this in a system that unlawfully detained Ms Rau and Ms Solon.

Further, asylum seekers arriving by boat will be denied those standards of public scrutiny that have been recommended and implemented in Australian detention centres since the release of the Comrie and the Palmer reports that arose from the Solon and Rau cases. Church leaders, non-government organisation representatives and others, including the fourth estate, have been refused visas to visit refugees held in offshore processing centres. The memorandum of understanding between Australia and Nauru in relation to this bill is not publicly available, so we cannot access details about the future care of asylum seekers on Nauru or take any comfort that visas will be accessible in the future. The government has admitted that it has no control over the sovereign state of Nauru and its laws. How will we know what is or is not being done in our name? We must therefore search our consciences and ask if these unduly harsh measures are warranted. These amendments seek to broaden the scope of offshore processing, which means that families with children will once again be placed in fenced compounds, under guard and out of the range of Australian public scrutiny and support and the law.

I may not have shared many of Chief Justice Sir Owen Dixon’s personal views, but he was known for his strict adherence to legal principles and a view that the rule of law is the assumption on which the Australian Constitution rests. The rule of law is a conservative principle. It is the foundation of democracy. It requires, as a minimum, access to judicial review of administrative action, the right to a fair trial, the right to private communications with a lawyer and access to the courts. This bill removes or diminishes each of those rights. Who or what is to protect these people from processing errors, of which there have sadly been so many in recent times? Future asylum seekers arriving by sea could be held offshore for indefinite periods of time.

Despite the first memorandum of understanding with the Nauru government aiming to remove people from the island within six months and despite earlier assurances by the Minister for Immigration and Multicultural Affairs to that effect, many people remained on Nauru for long periods, some spending four years on that island. Detention without hope of release has been identified as the prime cause of the mental health problems in asylum seekers, including self-harm and suicide. These long periods of uncertainty have clearly exacted an unacceptably high human cost.

Less than 200 unauthorised boat arrivals have reached Australian shores in recent times, amongst them 43 West Papuans fleeing from political oppression and human rights abuses. They arrived in small canoes, were not organised by smugglers and were unarmed. They did not proceed through interim countries but came directly to Australian shores. The majority of fair-minded Australians were relieved when 42 of the 43 West Papuans were given asylum. Since that time, the 43rd West Papuan, originally refused asylum, has had that decision overturned by the Refugee Review Tribunal. Such an appeal to a properly constituted statutory refugee review tribunal will be denied others under this legislation.

Following the successful claims of the West Papuans for asylum and complaints by the Indonesian government, including the withdrawal of their ambassador, the government announced the introduction of this amendment bill, to take effect retrospectively at the time of the cabinet decision. Following the decision to grant asylum to the West Papuans, the minister for immigration said:

Australia has always made decisions in relation to protection claims on the basis of the merit of the claim and this has to be the case whether we’ll upset one or other of Australia’s friends and allies.

It stands to reason then that Australia should not fashion its refugee policy to assuage the Indonesian government. Indonesia and its president may not have received nearly enough credit for the achievement of democratic institutions in a country so populous, so geographically complex and so variegated in its cultural affinities. But, given all that and given all the respect that these aspirations and achievements rightfully engender, that is the point beyond which our self-respect must give us pause.

One can understand concerns by the Indonesian government about the possibility of civil unrest generated by an independence movement in West Papua. But our government has been crystal clear in stating that it does not support an independence movement. Yet, cleaving as we do to basic freedoms of worship, speech and political association, it is axiomatic that we cannot condone explicitly or tacitly the persecution of people because they express dissenting political views. In such cases where asylum is sought, we have obligations to hear the claims and make a dispassionate decision free from political interference.

Our relationship with Indonesia must proceed on the basis of mutual accommodation and consistency in our argument of the paramountcy of the sovereign rights and laws of each nation. Most Australians are appalled at the release of Abu Bakar Bashir but understand that, regardless of how repugnant that decision is, Indonesian law will almost certainly prevail.

Pressure that Indonesia has brought to bear over the West Papuan asylum matter is offensive to our style of democratic government and to the rule of law which underpins it. If we allow interference in the proper legal processing of asylum seekers, no matter where they come from, then where is the end point? We must ask the question: will there be further backdowns and compromises in the face of future threats by Indonesia?

Indonesia and Australia have worked cooperatively in building constructive dialogue and strong people-to-people links in trade, regional security and border protection. The goodwill we have built up between our two countries is beneficial to the people of both nations and to the region. Exercising our domestic and international legal obligations is insufficient reason for fracturing a mature relationship.

It is hoped that the Indonesian government recognises and addresses the issues underlying the current unrest referred to by Indonesia’s Minister of Defense, Dr Sudarsono, in February this year when he said:

I grant that there have been incidents of some brutality and torture and rape involving some of our troops, but there has been a tendency to blanket all of this into a notion that all of these efforts are systematic and institutional.

When these brutalities cease, then the desperation that drives people to risk their lives to cross the open sea in canoes will cease to exist, and there will be no reason for Indonesia to ask Australia to choose between its good relations with Indonesia and the legal and just applications of its own laws. It is surely safe to assume that West Papuans share the same aspirations as people everywhere: for food, shelter, health, education and access to the common pool of prosperity—40 per cent of West Papuans survive on less than $6 a week. Given that Freeport is said to be the biggest earner of foreign currency in the country, that aim should not be too difficult to achieve.

Speaking in international forums, our Attorney-General, the Hon. Philip Ruddock, has observed that the focus of Western democratic states should be on helping to prevent refugee situations at source so as to ease the burden on countries of first asylum. Thus the primary hope is that West Papua should be a comfortable home for its citizens so that they have no reason to seek refuge elsewhere. The achievement of that goal remains solely within the prerogative of the Indonesian government, but I would venture to say that there are many in this country—indeed, in this House—willing, in the spirit of friendship and common humanity, to lend a hand, just as they have been all too willing in the recent past to lend a hand when our neighbour was beset on tragic occasions by natural disaster. However much history and arduous exertion have given Indonesia the right to insist on its own standards and laws, we in Australia are no more or less entitled to do precisely the same.

Last year this parliament unanimously endorsed important changes to the Migration Act. For me there was no more important change than to release families with children from behind the barbed wire and to place them in community housing, and that policy and process have gone smoothly. There have been no complaints. There have been no problems. So why, I ask, did we ever place children in prisons behind barbed wire fences?

Australia is a big country. The Australian people have big hearts. I cannot believe that they would condone a bill that is so regressive, a bill that sends asylum seekers to a place that puts them outside the reach of community support and outside the reach of domestic and international law.

In considering this legislation we need to ask these questions in this place: what value do we place on the rule of law? How can we in all conscience legislate to consign people to a place where they are out of sight and ostensibly out of mind? Do we assume that nothing culpable by way of mistakes and misdemeanours can possibly befall them? Why is this legislation before the House today, when a majority government member Senate committee recommended that the legislation be scrapped or, at the very least, amended?

This is virtually a declaration of infallibility, which is absurd, not to say dangerous. It flies in the face of that essential principle of democratic governance that there should be visible, credible checks and balances. I cannot believe that the citizens of this sovereign country would ever cease to wonder, nor would they ever forgive, were we in this House to acquiesce in silence to pressure from a neighbour on a matter so much at the heart of our principles of justice. I for one cannot remain silent.

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