Thursday, 4 December 2014
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; Second Reading
I rise to oppose the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and to stand with the Labor Party, a party which certainly represents humanity, dignity of self-worth and compassion. I would like to start by acknowledging that this is an incredibly significant piece of legislation. If we go into the depth of it, we can see very clearly that it does incredible damage not just to the value of humanity but also to Australia's international reputation as a country which signed the refugee convention 50 or more years ago now. The bill is complex in its nature but it will also leave a legacy for this government that will not in any way leave it in a good stead. That is why Labor does not accept this bill.
There is much in this bill which, in effect, is a legislative response to actions of the judiciary—some of which is still occurring and the courts ought to be allowed to do their work—and some of it demonstrates very clearly this government's dismissive attitude to its international obligations. There is a stark difference between the Labor Party and the coalition and it can be seen very clearly in the nature of this bill—that is, the Labor Party like people and we want to help people. No matter what their background, we feel we should treat our fellow human beings as we would have them treat us. We are better than this, but it seems this government is not. It seems this government does not like people or at least it has forgotten people. As it basks in its own self-described glories about stopping the boats and saving lives at sea, the adults and children who fled their homes and countries because they thought they were going to be killed, or that they were endangering their children's lives, spend an average of 413 days behind barbed wire. Some of those people have lost their sanity in all of that time. Some have lost their lives. Most of the children have lost their childhood.
There are two young Iranian men who we know very clearly have died as a result of their detention in PNG. Hamid Khazaei was declared brain dead in September following a severe infection to his cut foot, when his life support was turned off. How did someone in Australia's care die from a cut foot? Reza Barati was beaten to death by a mob comprising camp guards and PNG local residents who had broken into the centre. Again, how did someone in Australia's care get killed by a mob? It seems to save the lives of refugees this government is prepared to destroy them, but this government is also prepared to ignore international law in order to destroy the hopes of people who asked for its help.
A self-evident truth over the course of Australian political history has been the conservatives' fear of engaging fully in the international community. Australia had to wait in fact until Gough Whitlam introduced us to the world and the world to Australia. The election of the Whitlam government was a turning point in Australia's international outlook and, perhaps most importantly for our global standing, Gough Whitlam engaged deeply with the United Nations. The Whitlam government brought a new emphasis to the United Nations processes and engaged with that organisation more deeply than previous governments. It was under the Whitlam government that Labor first made contributions to United Nations funds to support education and other development programs in Africa and signed a range of significant multilateral treaties, conventions and covenants, a number of which have been left unsigned or unratified by the Australian government for many years.
There are some 130 of them, including the Convention relating to the Status of Stateless Persons of 1954, the 1961 Convention on the Reduction of Statelessness, the 1966 international Convention on the Elimination of All Forms of Racial Discrimination and the 1967 Protocol Relating to the Status of Refugees. Curiously, the Whitlam government was not responsible for the signing of the 1951 Convention relating to the Status of Refugees, defining who is a refugee, their rights and their legal obligations as states. That was an achievement of the Menzies government in 1954. As I have noted above, in 1973 Gough Whitlam's government was responsible for appending Australia's signature to the 1967 Protocol Relating to the Status of Refugees, which of course removed geographical and temporal restrictions to the convention. It is primarily the refugee convention approved by Menzies which this government now seeks to comprehensively reject in this bill. This bill contains a brazen attempt to walk away from this government's responsibilities under that convention. I want to make clear for the Senate the convention's description of a refugee. I quote:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Clearly, this has been too much responsibility for this Abbott government—too much pressure to be humane for this Abbott government; therefore, unable to cope with the basic need to be compassionate, the Abbott government is attempting to wipe the refugee convention out of Australia's mind. I would like to add, as Senator Ludlam highlighted, that Australia is very much a successful multicultural nation. It is a multicultural nation built on migrants and its first people. Many of those migrants are refugees and they have contributed greatly to this nation over decades upon decades, and they will continue to, and that includes the refugees who have come to settle in Australia in recent times. We should note that and note the fact that this is a bill that is trying to destroy the future of those refugees in this nation—refugees who, under the convention signed by Menzies, were able to rebuild their lives. Why? Because this bill deletes references to the refugee convention from the Migration Act, the primary domestic act with which Australia engages—or did engage—with the refugee convention. This bill replaces those references with a new independent and self-contained statutory framework setting out Australia's own interpretation of its protection obligations under the refugee convention. In any event, by well established, accepted and respected principles of international law, this government has no right to self-interpret the scope of its international treaty obligations. It simply does not.
According to Jane McAdam, Professor of Law and Director of the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW:
Basic rules of treaty interpretation state that a treaty must be interpreted in good faith, and in accordance with the ordinary meaning to be given to its terms in their context, and in the light of the treaty's object and purpose. Furthermore, asserting that a treaty obligation is inconsistent with domestic law is no excuse for breaching it.
What follows are some comments, by no means all, from the UNHCR's submission to this bill, setting out very clearly its concerns:
UNHCR is concerned that the proposed amendments to the Migration Act would narrow the personal scope of the refugee definition, and lead to a restrictive application of rights to Convention refugees.
… … …
The proposed amendments specify that a person does not have a well-founded fear of persecution if reasonable steps could be taken to modify his or her behaviour so as to avoid a well-founded fear of persecution, unless a modification would conflict with a characteristic that is fundamental to the person’s identity or conscience; or conceal an innate or immutable characteristic of the person.
The UNHCR recommended the deletion of those proposed amendments, as they are fundamentally at odds with the purpose of the refugee convention. Let me repeat that: fundamentally at odds with the purpose of the refugee convention—a convention signed and ratified by Australia for over 50 years, first signed by Sir Robert Menzies himself. It is fundamentally at odds, the UNHCR has highlighted. Why? Because:
… a person cannot be denied refugee status based on a requirement that he or she can change or conceal his or her identity, opinions or characteristics in order to avoid persecution.
The fact that this bill is putting forward that a person should change his or her identity, opinions or characteristics in order to avoid persecution is in itself a bizarre piece of legislation to put forward for people wishing to seek asylum in this country—as the UNHCR states, and I completely agree, is fundamentally at odds with the purpose of the refugee convention. Further:
UNHCR is not aware of any other Contracting State to the 1951 Convention which has removed Article 1D from being a basis for determining the refugee status of Palestinian refugees.
As such, 'UNHCR recommends that Australia gives effect to its international obligations to Palestinian refugees by codifying, in full, Article 1D of the 1951 Convention in the Migration Act 1958'—agreed to and signed by Sir Robert Menzies and the Liberal and National parties. The UNHCR also recommended the deletion of the parts of the proposed amendments on temporary protection visas which require convention refugees to re-establish their continuing need for international refugee protection. No distinction should be made on the basis of mode of arrival in respect of rights. All refugees are entitled to the 1951 convention rights agreed to and signed by Sir Robert Menzies—someone very familiar to those in the coalition government.
The UNHCR also recommended the deletion of the proposed amendments which operate to limit the entitlement of a convention refugee to the rights and obligations specified in articles 2 to 34 of the 1951 convention agreed to and signed by Sir Robert Menzies. I have noted for the Senate just some of the many problems—indeed downright contradictions—that the UNHCR has identified in this bill with our refugee convention.
In the brief time I have left I would like to focus on children, because I know that this bill has a focus on children. No-one does that better than UNICEF, who have outlined very clearly what these proposed changes to the migration law mean for children, how they would widen the immigration minister's powers, how they would marginalise our international law, which I have just outlined, and how they would wind back the ability of Australian courts to scrutinise the government's treatment of asylum seekers. In their joint submission with the Human Rights Law Centre, Save the Children, Plan, the Human Rights Council of Australia and Children's Rights International, they outlined the grave human rights risks posed by this bill. They said very clearly that, under the proposed changes, children born in Australia would be classified as unauthorised maritime arrivals if one of their parents is a UMA, leaving those children subject to mandatory detention and transfer to Nauru. These children will be born right here in Australia, in Australian hospitals, yet they will be treated as if they arrived on a boat. Not only does that defy logic; it is incredibly cruel and again is a clear breach of international law.
These changes would render children stateless and deprive them of access to health care, education and their fundamental rights. UNICEF's submission clearly outlines further that, as I just highlighted, the bill would remove references to the refugee convention from the Migration Act and replace them with the government's own very watered-down interpretation, which I have gone through. The refugee convention is the cornerstone of international refugee protection and has now been signed by some 145 countries. The government should therefore not just unilaterally redefine it to suit its own purposes. That is what it is doing. It is out on its own, outside the 145 countries it joins in ratifying and signing the convention, trying to unilaterally define it for its own political purposes. I thank UNICEF, the Human Rights Law Centre, the Refugee Council, Save the Children, Plan and all of those organisations. Many of them have written to me; many of them I have met. They are at the coalface. They know a lot more than we in this place know about the real effects that this bill would have on children, on parents and on future refugees that seek asylum in this country.
This is a wealthy country. We have the capacity to take a humane approach to refugees in this country. That is what we have been known for for decades upon decades. Why now do we have to bear this government making us this most embarrassing and humiliating country, a country to be ashamed of in its approach to the treatment of people seeking asylum and their children, whether they come on a boat, whether they come in any way, shape or form; they are coming because they are fleeing persecution and they need our support. This is no way to treat them. This appalling piece of legislation completely guts them of any hope of being able to settle and rebuild their lives in this very rich country that we all take for granted and benefit from every day. That is why Labor will not support this bill. That is why we see very clearly that this bill does nothing to support the values that we stand for—the values of humanity and compassion.
I simply cannot understand why a government would do this to so many people that need our support and help and, on top of that, breach our obligations under the refugee convention, take the refugee convention out of the Migration Act. The long legacy that started under Sir Robert Menzies with the signing of this refugee convention was continued by great leaders such as Gough Whitlam, with all the conventions we signed under his short leadership, only now to have it all undone. One hundred and forty-five countries have ratified this convention, and here we stand, out on our own, as this inhumane, rich nation putting up the walls, saying: 'We are not a country of compassion. We are not going to care for refugees. We are going to be fierce and tough and hard.' What kind of message does that send? That is why Labor will not support this bill. It is an appalling piece of legislation.