Senate debates

Monday, 23 November 2015


Migration and Maritime Powers Amendment Bill (No. 1) 2015; Second Reading

11:50 am

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | Hansard source

I rise to place a few remarks on the record this morning with regard to the Migration and Maritime Powers Amendment Bill (No. 1) 2015. This bill makes a number of technical amendments to the Migration Act 1958, and one of those amendments also amends the Maritime Powers Act 2013. All but one of the amendments relate to previous amendments made by this government in previous legislation, entitled the Migration Amendment (Character and General Visa Cancellation) Act 2014. Labor supported that then, and we indicate support for this bill and the amendments that have already been put forward by Senator Carr from Labor. I can indicate Labor's support in principle for the amendments that have just been put forward by Senator Hanson-Young, but there will be further amendments brought forward by Labor in committee stage with regard to those Greens amendments. I will speak to that a little later on.

Labor opposed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and there is one amendment which relates to that schedule. The government have assured us though that there is no new policy or policy changes associated with the amendments that are before the chamber this morning, and that their clear intention is to clarify the legal framework in the two acts and ensure that they will be interpreted consistently with original policy intention and operate as intended. Essentially, this bill deals with legislation that Labor have previously supported. I note that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 invokes the United Nations Convention on the Law of the Sea as its basis and that that is of some comfort to Labor.

The bill comprises four schedules. Schedules 1 to 3 really do propose amendments to the Migration Act and schedule 4 to the maritime powers act of which I was just speaking. The explanatory memorandum notes the outcome being sought by schedule 1 in regard to when an unlawful non-citizen is being removed from Australia under section 198 of the Migration Act: until that person enters the destination country, the person can be returned to Australia without a visa and will continue to be barred from making a valid application for a certain visa. Schedule 2 is seeking to improve coherency and consistency in the character related provisions of the Migration Act, which go to the government's stated intention of using this legislation to ensure that the interpretation is consistent and that the legislation operates effectively.

Schedule 3 seeks to ensure that when the Migration Act provides for a visa to cease that that visa will cease whether or not it is in effect at the time, with the exception of visas to remain in but not re-enter Australia. Schedule 3 also seeks to ensure that fast-track applicants who are refused protection visas based on certain character or security grounds can apply for merits review in the Administrative Appeals Tribunal. The last element of schedule 3 is an attempt to clarify that when a protection visa application has been made on a person's behalf—for example, if they are a minor—and that visa has been refused, the person cannot make a further protection visa application, and that is irrespective of the grounds on which a new application would be made and irrespective of the grounds stated in the original application.

Schedule 4 deals with the Maritime Powers Act. This amendment seeks to confirm that powers under this Maritime Powers Act are able to be exercised in the course of passage of through or above the waters of another country in a manner consistent with the 1982 United Nations Convention on the Law of the Sea.

This bill has been given consideration by the Legal and Constitutional Affairs Legislation Committee, who reported to the Senate in November 2015. They did take a number of submissions and gave them due consideration, and I commend the report to the chamber and to Australians who are particularly interested in getting to the truth of this very significant challenge that faces our nation and getting to the truth of the information about the way in which Australia can fairly and consistently apply law, and make sure that children, to which Senator Hanson-Young so passionately referred this morning, are not caught up in the processes of government in ways that would disadvantage them and their wellbeing.

One of the points made by my colleague Senator Carr this morning is that, apart from indicating that Labor will support this bill and its capacity to amend two pieces of legislation that passed last year and came into effect in December, the reality is that this bill did give the minister greater discretion in removing non-citizens who had committed crimes and who could put the community at risk. That legislation was supported by Labor and all but one of the amendments in the present bill, which, as I said, are mainly of a technical nature, relate to it. We do support the bill and it does indeed provide some consistency for the treatment of the deportees who have to return to Australia. What happens at the moment is if a destination country refuses to accept a deportee, that person is unable to return without a visa. That leaves a legal problem where it would be almost as if the deportee had never left. The disruption of a journey by a deportee—such as some sort of incident that might happen while they are travelling—would put the person in a situation where they could not return without a visa. This bill is sorting out that problem. It is removing that anomaly so that returning deportees will have the same legal standing.

In terms of the consistency test and the clarity that this bill seeks to achieve, it does provide for greater consistency in the application of what is a critical part of this process—that is, the character test. It does go to some detail about the requirements for information that applicants have to provide. In the original legislation, the information had to be supplied at the front end of the process, but this bill extends that requirement to applications made on behalf of others as well. When we talk about applications being made on behalf of others, that is most commonly a situation referring to a minor—so a child. That is why Labor are pleased that the government accepted the Senate committee's inquiry recommendation that the explanatory memorandum be amended. If I could go to the report and recommendation 1, which clearly states:

The committee recommends that the Explanatory Memorandum to the Bill be amended to clarify the operation of the retrospective provisions of the Bill and the safeguards around the impact of these provisions on young people and people with cognitive impairment.

This is an important amendment, and I think that we will see the benefit of that down the track. The amendments also explain the retrospective provisions in the legislation, and by doing so they remove what would otherwise have been obstacles for Labor to indicate support for this bill.

The other legislation amended by the bill is, as I have said, the fourth schedule of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. That piece of legislation had quite a number of schedules, and one of those was intended to ensure that Australian vessels would act lawfully if they were intercepting other vessels on the high seas. That is the schedule that is going to be amended before us today, and it is a remedial amendment. I suppose that this bill could also be considered to provide that any exercise of maritime powers, such as intercepting a vessel at sea, becomes lawful provided it complies with Australia's international obligations, and that is an important consideration for Labor in determining to support this bill. Those conventions and understandings—and obligations, indeed—are set out in the United Nations Law of the Sea.

When this bill was being debated—and I think it is very important to get this on the record—over in the House of Representatives, Labor made it very clear that we simply cannot support legislation that would do anything to encourage boats to set out on journeys again. I think all of us in both chambers are very mindful of many years of tragic loss of life, and I think it is absolutely clear that there is no compassion about watching people die at sea and failing to respond to that reality. Obviously, embarking on a dangerous journey is something that asylum seekers are doing right across the world at this point in time. The importance of dissuading people from taking that journey led to the establishment of the Rudd-negotiated settlement with Papua New Guinea and Nauru. We know that, under this government, that settlement in Nauru and in Papua New Guinea looks, sounds and feels nothing like it would have under a Labor government. The standards to which we held those providing that detention would have been extremely different from what we have seen, but the fact that people have not been dying at sea is something we can also not ignore.

What we have seen from this government on every level and in every piece of enactment of policy is a consistent effort to hide what it is doing. This lack of transparency is a common theme across multiple policy areas from this government. We are deeply concerned about the decisions that this government has made with regard to the management of the facilities on Manus Island and Nauru, its continuing obfuscation about what is happening there, its denial of problems and its failure to deal with the reality that people in detention in both Nauru and Manus deserve far better conditions than those to which they have been subjected while this government has been on its watch.

Most telling, I think, of the unnecessary cruelty in the way that this policy has been implemented is the government's decision to delay the completion of facilities on Nauru, so that people were living for extended periods—much longer than necessary—in tents. The facility is an open centre, but it is still a reminder of the attitude of the government to unconscionable conduct that they should have put people in that situation. We clearly believe that the government have to negotiate with the PNG and Nauru governments and they need to, at the earliest possible moment, establish oversight of these facilities. To continue as they are is simply an untenable and unethical position. Labor certainly would not be allowing these people to be cast into limbo as they have been. In particular, the impact on families is something of great concern to Labor members right across the country. Under a Labor government, there would be a very different view about our international responsibilities in this area.

At our national conference, the Leader of the Opposition made a very clear announcement that I think should give succour to people who have genuine interest in this policymaking matter for Australia. Labor committed very clearly to double Australia's humanitarian intake, which is very different from what we have seen from this government once it came to power, and we also indicated that we would substantially increase the funding of the United Nations High Commissioner for Refugees. Currently—and I stand to be corrected on this—my understanding is that the federal government's commitment to this massive task of finding a way for refugees to find places for settlement and safety is a $20 million commitment. In the scope of the Australian federal government's budget capacity, $20 million is an insult to the United Nations, to the millions of people whose lives are affected and to refugees who are seeking asylum and who want to try to go about it in a way that is ethical and authentic and have some sense of the chaos of their lives pulled back into a sense that there is a process and an opportunity for a future for them. That is what we seek. To that end, Labor's policy is vastly different from what is on offer from the current government, because Labor would make a real and genuine commitment of $400 million to the United Nations to enable them to do the work of assessing and providing plans for a future for refugees to enable them to resettle and get on with their lives.

We have the talk of those opposite, and we have the hysteria from somewhere down on the crossbenches frequently, but we need a practical, empowered and funded response that gives authority to the United Nations, that gives power to the United Nations and that gives them the practical capacity to put people where they need to to make a transparent process of the journey from asylum seeker to resettled citizen of another country. Of course, Labor are willing to work in a bipartisan spirit on asylum seeker matters when it is possible to do so without violating essential principles of human dignity that have to be upheld. The demeaning of people seeking asylum that we have seen by this Liberal-Nationals government in coalition will go down in history as a shameful period of marginalisation of people who are already at the edge.

I indicated in my earlier remarks that we support, in essence, the Greens amendments to which Senator Hanson-Young spoke just a little while ago. She spoke about the children who remain in detention. It is very important as we approach Christmas—I remember being in this Senate last year, and there was a highly controversial debate about what would happen and children getting out of detention. We need some facts here. My understanding is that there are about 30 children who are still in detention. The reason, predominantly, that those children are in detention here, onshore, is that they are with their parents. Why are their parents not released? Their parents are not released because in those cases they have had an adverse finding from ASIO. That number was larger, and as time has passed a series of assessments have been undertaken and reviews have happened, and a number of those families have been able to move out of detention and into the community, with no threat to the community. That is one of the things that Labor really think is important. Of course we want to support those children, but we also have to make sure that, in their effort to do all things that look good to the community, the Greens do not create a situation where children are removed from their parents inadvertently. That is the risk of their legislation and the amendments that they are putting here this morning.

Our amendments, I think, are very responsible ones, moderate ones, not full of hyperbole and drama, not full of meanness and shaming and marginalisation but practical, sensible, genuinely compassionate, thought-through amendments that will improve the lives of all who get caught up in this piece of legislation and its impacts. Our amendments, which will be put very shortly when we move into the committee stage, will be to make sure that the minister has regard to national security. Of course, if there has been a negative ASIO finding, that has to be given serious consideration. If you are a child and it is your mum or dad, you are part of that. That needs to be given consideration. The second thing is that we need to think about keeping families together, even if that choice for them is to stay in detention. We need to give respect to that. Finally, we would not support anything that saw the release of people into the community into living conditions that were not at least as good as—in fact, demonstrably better than—those that they are in already. I foreshadow these amendments, and I thank you for the opportunity to participate in the debate this morning.


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