Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

On behalf of the Legal and Constitutional Affairs References Committee, I present the report on Australia's arrangement with Malaysia in relation to asylum seekers, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

The Senate's committees are often asked to consider issues of great complexity where diverse opinions exist with respect to particular decisions that governments of the day might make. With respect to this particular issue—that is, the agreement entered into between Australia and Malaysia for the transfer of 800 asylum seekers from Australia to Malaysia and the reciprocal transfer of 4,000 asylum seekers back from Malaysia to Australia—I have to say that the evidence presented to the Legal and Constitutional Affairs References Committee was quite overwhelming. It was quite unambiguous. It is rare to find a situation where so many witnesses are in such complete agreement. The arrangement entered into and the particular action that the government has initiated was totally unsupported by those witnesses.

This is an arrangement which was designed to prevent the business of people smuggling from flourishing, but the flaws and inadequacies in this arrangement were so flagrantly evident to the members of the committee that it beggars belief that anyone could view these arrangements and rationally suggest that they are a viable and effective way of dealing with Australia's problem with unauthorised maritime arrivals. The arrangement is not just unsatisfactory from various points of view; it is quite patently the most unsatisfactory option available to the Australian government today to deal with this issue.

There are many problems with that agreement that were evident from the evidence put before the Legal and Constitutional Affairs References Committee. I want to run through some of those issues. The first and perhaps most troubling issue with the arrangement that was put before the committee is that the so-called agreement with Malaysia is, in fact, not binding. The evidence to the committee was quite clear that the arrangement is aspirational in nature. It amounts to an indication of what the parties are attempting to achieve but does not place binding obligations on either nation. Australia's desire to make this arrangement work was fairly evident from the statements made by the government, but, with great respect, it is much less clear whether Malaysia has the same commitment to a number of the provisions in this arrangement, particularly with respect to the welfare of those people transferred to Malaysia under the agreement—the 800 or so who constitute Australia's contribution to that people swap. The arrangements are not legally binding. They cannot be enforced. After it has transferred the 800 people, it is very doubtful, under the evidence put before the committee, that Australia has any capacity to enforce Malaysia's adherence to agreements, for example, on the treatment of those asylum seekers. Given that this government has on many, many occasions returned to the mantra of the human rights of those concerned, ensuring that Australia exercises a humane policy—at one point indicating that it would not deal and did not believe that Australia should deal with any country which was not a signatory to the UN convention on refugees—it is troubling, to say the least, to see this kind of arrangement put in place.

One of the arrangements that is part of this agreement—this non-binding agreement—is that Australia should put in place arrangements to ensure that there is not refoulement of transferees to the countries from which they are fleeing. The identification of the vulnerabilities and heightened risks of refugees, particularly focusing on unaccompanied children, is part of the process. The agreement is also seeking to confirm that particular transferees are fit to travel and undertake the journey concerned.

As I said, the arrangements are not binding, so anything that relies on cooperation at the Malaysian end for the delivery of those objectives might not be enforceable. But what was particularly troubling to the committee was that the arrangements Australia has put in place to attempt to enforce the objectives of the agreement contained in a document on the preremoval guidelines—which supposedly determines what kinds of measures are put in place to ensure that people are not inappropriately transferred to Malaysia—were not available to the committee to examine. They have not been annexed to or incorporated into the agreement itself—which causes some concern as to whether they are enforceable with respect to the agreement with Malaysia—and they have not been made available to the committee. Indeed, at the time the committee was meeting, nor were they even made available to the Commonwealth Ombudsman, who has a role as the Immigration Ombudsman on such arrangements. That leaves a very stark and disturbing question before the committee and, in turn, before the Senate as to what these preremoval guidelines say and to what extent they protect the interests of those transferees. The committee was deeply disturbed by the absence of that information. The question of what those guidelines say remains a very open question for the Senate as a whole.

I do not want to speak at length about the conditions of asylum seekers in Malaysia— the conditions, therefore, of the transferees that Australia will send under this arrangement, if it proceeds—because I know others will make comment about that in this debate. I know that Senator Cash has already highlighted the conditions which appear to apply in Malaysia on the caning of asylum seekers in certain circumstances. Very little that the committee heard allayed its concerns about the possibility that transferees under this arrangement would indeed be caned. Again, I have to record the greatest of concern that a government which has professed repeatedly its desire to protect the human rights of asylum seekers could possibly contemplate an arrangement where people are transferred in large numbers to a country where such treatment of asylum seekers not only happens but is quite common.

The problem is exacerbated in Malaysia by the existence of a kind of volunteer-citizens police force, which is specifically tasked to regulate immigration matters and the affairs of asylum seekers in that country—people without the legal authority to be there on the basis that they are asylum seekers. This organisation, RELA, apparently has over one million members in that country and its history of involvement in extortion, intimidation, harassment and abuse of asylum seekers and refugees is very disturbing in the extreme. Some attention was focused on mitigating circumstances in Malaysia—how Australia, the UNHCR and Malaysia itself are working to try and prevent abuses such as arbitrary arrest and the abuse of asylum seekers by RELA officers—but the overwhelming impression that the committee came away with was that with such a huge number of people involved in that organisation in Malaysia the chances of that kind of amelioration actually protecting every asylum seeker transferred is very small indeed.

The impression that the committee has been left with is one of a chaotic response to the government's present woes on asylum seekers. The committee had no hesitation in recommending that the agreement not proceed. The agreement is deeply flawed and defective, and it is not in Australia's interests to be party to such an arrangement. (Time expired)