Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

At the start of a debate on a bill like this it is tempting to refer to the way in which the opposition have chosen to approach this difficult policy question, but I am not going to do that, because the two speeches that we heard this morning, from the member for Warringah and the member for Cook, indicate in the clearest possible way that the opposition have in effect dealt themselves out of consideration of the difficult policy that is under consideration with these amendments to the Migration Act. The member for Warringah made this crystal clear at the start of his speech to the House this morning by saying, 'Let us also be in no doubt that this is not so much about offshore processing.' The very purpose of these amendments is to put in place in the Migration Act of the Commonwealth provisions that deal with offshore processing. The member for Warringah portrays the approach of the opposition as one that is purely a continuation of the kind of mad partisanship that we have come to expect from those opposite on just about every policy question, but particularly difficult policy questions like the one that arises here.

I will start by giving a little bit of personal family history. I spoke about the history of my family's arrival in this country when I first spoke in this House. It was to inform the House that issues such as those raised by these amendments to the Migration Act are very close to my heart. My father and my uncle came to this country as people seeking refuge—indeed, as children—when they arrived on my father's 11th birthday, 22 July 1939. They arrived having been sent by their parents who were still in Nazi Germany. My grandparents remained in Germany to try to persuade their parents, regrettably unsuccessfully, to escape from that regime, and my grandparents—those who were still living in 1942—perished in the camps.

My father arrived here and was given refuge, along with his elder brother, in July 1939. They waited anxiously to see whether their parents would arrive and, happily, some months after the Second World War started, my grandparents did arrive in this country and for some years enjoyed a happy life in Australia, as did my late uncle and my father, who is happily still living. So this country has provided great refuge to my family. As that is part of my family history, the issues raised about how Australia is to provide compassion and fulfil its obligations under the refugee convention are dear to my heart.

We entered the refugee convention and we participated closely in the drafting of the refugee convention because Australia, as a compassionate nation, did not want to see a repetition of the horrific events that preceded the Second World War and occurred during the Second World War. People who were fleeing persecution, fleeing torture, fleeing imprisonment, fleeing imminent death at the hands of the regime in their country were denied refuge in different countries across the world.

Just last weekend in the media there was an account given of one of the worst incidents that occurred in that context: the denial of refuge to those onboard the St Louis, a boat that sailed from Germany and unsuccessfully tried to disembark its passengers in Cuba, unsuccessfully tried to disembark its passengers in the United States of America and was forced to return to Europe where the passengers—German Jews fleeing the Nazi regime—disembarked, and within a short time about a third of them perished in the concentration camps. It is to prevent events like that that the refugee convention was brought into existence.

We have continued to wrestle with the refugee convention, not just in the drafting of it but in working through it in all of the years since, right up to this time—for example, in determining how to treat the central obligation of the refugee convention, which is not to return refugees who have arrived. I will read the central consideration in article 33 of the refugee convention:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Then there is a qualification relating to the security of the receiving country. We honour that central obligation. The government of Australia will continue to honour it. It is central to the amendment to the Migration Act of the Commonwealth that we put before this House.

I back the Malaysia arrangement that our government has come to with the government of Malaysia. More broadly, I support regional arrangements because, for those seeking asylum and those in need of refuge, regional arrangements offer, and indeed secure, a better future for a greater number. We cannot pretend that there is not a large problem in the world. There are not merely thousands or hundreds of thousands but millions of displaced people around the world who are seeking refuge from persecution, and Australia has always played its part in seeking to provide refuge and to resolve the problem. That is why we are signatories to the refugee convention, that is why Australia presently takes over 13,000 refugees on an annual basis and that is why we will continue to seek to increase this number. One of the best aspects of this Malaysia arrangement is that it will see Australia increasing the number of refugees it takes by 1,000 people each year. That indicates the compassion which our government is seeking to bring to the resolution of this problem. By contrast, we have a coalition that is simply not interested in resolving the policy problems.

These amendments seek to restore the position in law to the position as it was understood to be before the recent High Court decision. It is important to understand the purpose of these amendments. They are seeking to give power to the Minister for Immigration and Citizenship, and it is a power to be exercised on specified conditions that are set out and will be set out in the Migration Act. It is a power to send people who arrive here seeking asylum to a so-called offshore processing country. As the minister made clear in his second reading speech, it is an arrangement that the United Nations High Commissioner for Refugees is prepared to assist with. It is a recognition of the level of difficulty of this problem and a recognition of the important part to be played by all of the countries of our region that the United Nations High Commissioner for Refugees has worked with Australia in developing the arrangement with Malaysia. I do not want this to be set up as merely a competition between the possibility of sending those who have arrived in Australia seeking asylum to Nauru and the sending of those seeking asylum to Malaysia, because the purpose of these amendments is not country specific. The purpose of these amendments is to restore the position to what it was understood to be when these provisions—specifically section 198A of the Migration Act—were inserted in the act by the Howard government in 2001. The purpose of these amendments is to restore the position of the government of this country to the position that it was understood to be.

We have had a lot of discussion about the way in which the High Court's decision is to be understood. We have had all sorts of suggestions which are in error as to what the brief comments made by the High Court in paragraph 128 of the majority judgment mean. I make it clear to the House that paragraph 128 is dealing with a statutory interpretation argument and a statutory interpretation argument alone. The only reason that the majority in the High Court saw it as necessary to refer to Nauru is that the sending of asylum seekers to Nauru had been raised in argument by the Solicitor-General in order to show to the High Court the context in which the provision under consideration, section 198A, had come into existence in the first place. The Solicitor-General was pointing out to the High Court that it came into existence in circumstances where the government of Australia was considering sending people to Nauru. The High Court, in express terms, was not commenting on whether or not Nauru did then or would now satisfy the requirements of section 198A of the Migration Act, which is the section we are seeking to amend. Rather, the High Court was dealing solely with whether or not the minister's declaration that designated Malaysia as an offshore processing country was lawful.

In order to determine what the content of that statutory provision was, the High Court was invited to look at the Nauru declaration that had been made by the former government. The High Court, in brief comments rejected the argument that it should condition its decision as to what the content of this power was by reference to the hopes or intentions of the then government, which the court said:

… do not bear upon the curial determination of the question of construction of the legislative text.

Then, in the part that has been referred to this morning by the member for Cook, the High Court said:

Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question.

I repeat: the High Court was not looking at whether or not Nauru would have been a lawful place to send people seeking asylum. Rather, it was saying, 'We reject the statutory interpretation argument that is here being put forward by the Solicitor-General.'

It is the fact—and this is why this amendment is necessary—that Nauru would not presently satisfy the requirements that the High Court has read into section 198A of the Migration Act and that Papua New Guinea would not presently satisfy the requirements that the High Court has read into section 198A of the Migration Act and it is the case, because this was the focus of the decision, that Malaysia does not presently satisfy the requirements that the High Court has read into section 198A of the Migration Act. It is because we wish to pursue a compassionate arrangement with the government of Malaysia and with all of the countries of our region that we bring these amendments to the Migration Act before this parliament and seek the support of all those members of this House who genuinely seek to have, on behalf of our nation, an appropriate and compassionate resolution of a very difficult problem. It is because at present, on a full reading of the High Court's decision, there is practically no country that would satisfy the definition of an appropriate receiving country. Australia itself might satisfy the definition of an appropriate receiving country. New Zealand probably would satisfy the requirements that have been set down by the High Court, but no other country would. To point as do those opposite—and we would say ridiculously—to a sole requirement of being a signatory to the refugee convention would include countries like Afghanistan, Haiti, Iran, the Democratic Republic of Congo, Somalia and Zimbabwe. We do not think that is an appropriate qualification or condition to impose on the minister's discretion. These are appropriate and measured amendments to the Migration Act and I commend the bill to the House. (Time expired)

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