Joe Ludwig (Queensland, Australian Labor Party) Share this | Hansard source

I rise to speak on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Can I start by outlining the provisions of this omnibus bill. In this instance, the government has tried to bring everything possible together, on potentially the last day of parliament, to try to deal with what are quite complex matters.

This bill provides additional powers in relation to turning back boats. The question that arises in my mind is, if they need additional powers, what is the justification for those additional powers? Have they provided an open and frank case for the justification of those powers to the Australian people and to this parliament? When you juxtapose that with the secrecy surrounding Operation Sovereign Borders, you do not get an insight into the justification. You do not get an insight into how they have managed Operation Sovereign Borders. You do not get an insight into where the failings might be which require this legislation. You do not get an insight into how this bill will fit in with the current workings of Operation Sovereign Borders. You do not get an insight into how Operation Sovereign Borders have advised the government, if at all, that they do require additional power, they do require some assistance. You do not get any of that from the government.

It is extremely disappointing to find that we have a government that is clothed in secrecy when it comes to Operation Sovereign Borders. I respect the military operation that it is, but let us not then continuously say that it is all operations and parts of it should not be made available for the Australian public to assess how it operates, particularly now, when the government has had some time—some water has gone under the bridge—to consider how the operation has operated. I have no doubt that the government has received reports from Operation Sovereign Borders about how it works. Otherwise, why would we be here with an omnibus bill? If they do exist, this government should have been more up-front about it and provided the parliament with that material. We will see in the committee stage if the minister wants to add anything, but let me say in advance: I doubt very much that the minister will add much to this debate today. This is a government that prefers the dark corner to the light.

The next thing the government seeks to do is to reintroduce temporary protection visas, through a new class of visa known as a safe haven enterprise visa. Despite the minister's comments that no-one will receive a permanent visa, it does appear that the SHEV may offer a pathway. We can explore in the committee stage how that might actually work.

One concern I have vividly reminds me of a government very similar to this one. They were perhaps not as shambolic as this one; perhaps they were a little bit more coherent; and in some respects they probably were an adult government, unlike this one. They implemented temporary protection visas, and it was disastrous. It did not work then and it is questionable whether it will work now. This government should have looked at what occurred under the Howard government as to how it would play out in the longer term. I guess this government is very short-termist. If you look at the policies it tries to implement, you see that, by their very nature, this government is short-termist.

A further area this bill seeks to deal with is to provide better consistency between the Migration Act and the Migration Regulations in respect of certain visa types—schedule 3. I will come back to that should I have time, but I will probably get extra time in the committee stage to explore it a little bit further. This bill seeks to introduce a fast-track assessment process for protection claims, combined with a limited form of review through the newly established Immigration Assessment Authority, removing access to the Refugee Review Tribunal for people who are in Australia in an unauthorised way—schedule 4. It seeks to clarify the exercise of the removal power and codifies Australia's interpretation of its protection obligations under the refugee convention. It makes clear that the children of unauthorised maritime arrivals inherit the migration status of their parents—schedule 6. It also ensures the minister can cap classes of protection visas in the Humanitarian Program—schedule 7.

Before I go to some of those more detailed provisions, I want to go to an overarching issue that has been concerning me deeply when you look at the overall context of the omnibus bill. I am not convinced the government could fairly and evenly have a statement of compatibility with human rights in respect of this bill. I have had an opportunity to look at the provisions in this bill. At page 219 of the explanatory memorandum to the bill, you find that the government does sign a statement of compatibility with human rights. I fail to see how this bill overall allows this government, without exception, without qualification, to sign a statement of compatibility with human rights. The government obviously considers that the bill and regulations and amendments are compatible with human rights because it makes broad sweeping statements about this issue rather than delving into the detail—which is what this government tends to do. It is not a government for detail; it is a government that has a broadbrush approach and does not care much about the consequences or the detail.

You hope that the Parliamentary Joint Committee on Human Rights will see the human rights implications of this bill. Arguably the most significant, and potentially the most dire, consequence would be Australia's nonrefoulement and nonreturn. It is an obligation that, in this bill, the human rights statement and the human rights lawyers should look very closely at with this government. It is a fundamental principle that we have signed up to for a very long time. If you look at the effects of this omnibus bill, you see that there are very serious consequences should the obligation of nonrefoulement be breached. Every government before this one has taken this issue very seriously, including the Howard government. Although I may have many criticisms of the Howard government, they took this obligation very seriously. I do not think this government have turned their mind to the detail as well as they could have or should have.

When you look at how we have expressed this issue, I think you come to the conclusion that there are serious questions for this government to answer in respect of meeting its international obligations in a way that is both considered and recognising of its obligations. Again, we will have an opportunity in the committee stage to explore that issue a little further.

I think the dissenting report of Labor highlights many of the issues that I averred to earlier in my speech which do create some concern. We go more to the broad again. I think Senator Carr used the word 'balance' between the judiciary and the executive. I much prefer the word 'separation' between the executive and the judiciary. There should be, and should continue to be, a separation between the executive and the judiciary. It is not a fine line; I think there is a thick line between what the executive can and should do and what the judiciary can and must do. In this instance, I do worry about whether or not the maritime powers have been confused by the government when it comes to the importance of ensuring that there is a separation and that the proper process has been followed.

As I said in my opening remarks, we are concerned about the secretive on-water operations carried out by the government. This committee report similarly reflects that concern. Those concerns are not put to one side or assured by Operation Sovereign Borders. You would think that it was within their remit to tell estimates and the various other committees it has appeared before that it is an area which they can manage and it is safe to do so. They could describe some of the examples and go through the detail, but they cannot. They talk in a very general sense—no detail, no specifics—and the justification for that, I do not think, cuts it today where we have an omnibus bill like this being put forward.

In the committee report is the dissenting report by Labor. It is a government—and I talked about that separation—that is endeavouring to legislate in areas and pre-empt High Court matters. I am not arguing for the High Court either way the case may go; however, I worry about a government that steps in too often in this instance in this omnibus bill—too often it steps into the ring to ensure that it wins. I say that it is not a particularly fair fight. This government may not want a fair fight on immigration, because it tends to nobble anybody and everybody or prevents people from having a view about their process.

As I indicated, the terms of temporary protection visas are in schedule 2. The dissenting report of the committee makes clear that Labor senators oppose revisions in schedule 2, which seek to reinstate the failed TPVs. I dealt with that earlier, so I will not transgress or deal with that again.

The Labor Party is not standing in complete opposition to the safe haven enterprise visa. If the government had the opportunity to listen—which I think is a difficult chore for them, quite frankly—to the detailed speech given by Senator Carr, they would have detected that the Labor Party was prepared to talk to them about a range of areas. We could have had compatibility and some reasonable outcomes in some parts of the bill. But it would be unusual for this government—and maybe they have been pushed by the minor parties. It seems you only get some decency out of this government where they have had to compromise or been pushed by the minor parties or Independents to a much better place—I am not complaining about that; it is not a bad thing. Perhaps Labor should put its shoulder to the wheel to convince this government to go to a better place, but this government would not go there, if it did not think it had to.

In the period from 2004 to 2007, this government had a majority in this place and they did not bother. They went hard whenever they could. They took the opportunity. They did not consult. They did not choose to ameliorate any of their harsh legislation. They treated the Senate like a sausage machine.

I think this government thought from 1 July onwards that they could do the same. They have been rudely awakened that it is not that easy to manage this place. The easy answer to it all is: it is the opposition's fault—a place for cowards to go and hide and use those phrases. It is the government's job to manage the program, the legislation and the debates, and consult and compromise where it has to. I think this government has got tin ears when it comes to consulting and compromising—but not to take away too much.

The dissenting report dealt with a range of other matters, but one in particular which always concerns me—and I think I outlined a little earlier—is how this government is stepping into what I would say is the preserve of the judiciary. Limiting appeal rights in the refugee assessment process in schedule 4 of bill seeks to deprive asylum seekers of the opportunity to have their applications for protection assessed fairly and replaces it with a bureaucratic agency subject to the direction of the executive government. I do not think I can say any more than that in respect of that provision. It is abhorrent to think that this government considers that an open, fair and transparent process.

We all understand that we need a system that works but, if it is that broken, replacing it with a bureaucratic model such as this disgusts me. These people—you may not have liked the Refugee Review Tribunal, but my dealings with and understanding of them for many years was that they were dedicated—were well-meaning, but it is a thankless and difficult task: sometimes you have to say no and other times you can say yes. They may not like either answer to that, but it is a task that is best left to an independent agency or tribunal. I think it detracts from this government, but again maybe I do not mind that position because I think it ultimately reinforces my view of this government—that they do like to have, and try to have, completely control of the bureaucracy. They do like to have complete control of the outcomes when they fit their purpose, and only when they fit their purpose. When they do not fit their purpose they try to change them to ensure that they do. I think ultimately this is a government that will pay a heavy price for that position, particularly when you look at how it is displacing Australia's obligations under the refugee convention. As I mentioned earlier, in dealing with the human rights issue I think this government is a poor government.