Wednesday, 14 June 2006
Questions without Notice: Take Note of Answers
That the Senate take note of answers given by the Minister for Immigration and Multicultural Affairs (Senator Vanstone) to questions without notice asked by opposition senators today relating to skills shortages and to detention practices.
What we heard today at question time really misses the point of the debate. The minister had the opportunity to bring all her colleagues to heel, but what we have found is that the government is still very much divided on this issue. And no wonder, when you look at the issues that were brought before the committee that looked into the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. What a name. Most submissions and witnesses before the Senate Legal and Constitutional Legislation Committee put to the committee that the bill represents a flawed domestic policy in a number of key areas, it breaches Australia’s obligations under international law, particularly under the refugee convention of 1951, and it represents deficient foreign policy in terms of a perceived attempt to appease Indonesia over situations in West Papua.
Perhaps it is worth while explaining briefly what the bill does. This bill provides what this government brought in in 2001, which was the Pacific solution. It will mean that the offshore processing regime will apply to all persons arriving on mainland Australia unlawfully by sea. It does not try to differentiate as to whether those persons arrive by canoe, cargo ship or cruise liner. But I suspect the minister will sort that out, using her own discretion.
Therein lies one of the problems. The bill will also cover certain air arrivals, where a person travels most of the way to Australia by sea but travels the last leg by air. So we have got this enormous piece of legislation which will change the way these things are dealt with. We have a government report which unanimously recommends that this bill not proceed because of the matters that I have already mentioned. It is wrong. The report states:
… the Bill is an inappropriate response to what is essentially a foreign policy issue.
What this report shows is what Australians had already recognised—that is, you cannot fix this piece of legislation. There are no amendments that can be moved that will affect the law of Papua New Guinea, where people are dumped on Manus Island. The legislation is about pretending Australia has no border and dumping people in other countries. There is no way of amending Australian law to prevent that from being anything other than offensive, anything other than throwing away every single human right obligation that Australia considers part of the concept of a fair go.
We already knew Mr John Howard was willing to listen to Indonesian politicians. We now get to find out whether he is willing to listen to Australian politicians. Without exception, the Australian politicians who have been looking closely at the evidence have said that there is no way to fix this piece of legislation and the only way to fix it is in fact to vote no. It is unamendable. The majority government report went on to try to ameliorate its effects. It is irredeemable, and they know it. That is why they said at the outset that it should not be proceeded with. No matter what form the legislation ends up in, you cannot take away its effect. That involves dumping people in other countries and pretending that Australia has no borders.
There are no amendments that will cause us to end up supporting this bill. Labor will be voting against this bill. It is wrong on every count, on every point. The government knows that but they are going to persist with it. More importantly, the government backbenchers know that, and we will be interested to see how they feel about it. We have already heard today that there has been a bit of minor revolt over there—a bit of minor scurrying about—but guess what? I think that at the end of the day they will lock in, because they like their comfy zone over there and they are not prepared to take it up to Senator Vanstone and tell her that the legislation is wrong, that she should desist and that she should realise that it is a wrong piece— (Time expired)
The bill that is currently being considered is, it has to be pointed out, quite a lengthy one and is still under consideration. The committee has suggested that its work was supposedly significantly hampered by the absence or limited availability of critical information and also by the provision of documentation that it says provided only a minimalist framework for the proposed system. I understand that the department in fact provided a lot of detailed information in relation to the current arrangements regarding both Nauru and Papua New Guinea. This covered details of such things as accommodation, health care, education, arrangements for processing asylum claims, access to legal assistance and opportunities for monitoring by the Commonwealth Ombudsman. Let us not forget that the Department of Immigration and Multicultural Affairs has foreshadowed that a number of reviews are also being undertaken in relation to practical arrangements for offshore processing, such as community accommodation arrangements for women, children and families.
What I would like to do in the limited time I have available to me is to just focus a little bit on what this new legislation will actually mean. What it means practically is that people who arrive, unauthorised, by sea will no longer be able to make a protection visa application by reaching the mainland rather than an excised place. People who arrive in Australia by sea and seek asylum will be processed offshore. People found to be refugees will remain offshore while resettlement is arranged. As under the existing provisions, the minister will have a personal, non-compellable power to allow a person to make a valid visa application in Australia.
Australia will continue to meet its international obligations as far as refugee processing goes. Australia has a very, very good record in relation to its intake of refugees and its processing in this area. Any claims to refugee status will be properly assessed at an offshore location in accordance with the provisions of the refugee convention. As I said, Australia will continue to meet its international obligations in relation to refugee processing.
I remind the Senate that the refugee convention does not set down any particular process for signatory countries to decide who are refugees. This is a matter for each country to determine. Australia will ensure that reliable refugee assessment processes are in place. The Australian government and the Department of Immigration and Multicultural Affairs have taken several opportunities to brief the United Nations High Commissioner for Refugees on the operation of the proposed new arrangements, and I am sure that the department will continue to do so as the new arrangements are further articulated.
I want to take the opportunity to make some general comments in relation to what is a constant attack on the Department of Immigration and Multicultural Affairs that we see in this chamber. I think we need to look at the department in a wider context. This is a department that makes in excess of four million decisions a year. It administers a large and complex migration and refugee program. In terms of statistics, in addition to the 43 per cent of Australians who either are born overseas or have at least one parent born overseas, Australia is host to a large number of temporary entrants. In December 2005, for example, there were around three-quarters of a million people in this country on a temporary basis. Just to illustrate my point in relation to the department that makes four million decisions a year, in the five minutes or so that I am speaking today, the department has considered and granted around 45 visas and around 225 people have entered and left our country, which is almost one a second. (Time expired)
I rise to take note of answers given by Senator Vanstone in question time today. I asked a number of questions of Minister Vanstone in relation to the Senate Legal and Constitutional Legislation Committee report that was tabled in the Senate yesterday on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. As has been said in the chamber here this afternoon on a number of occasions, the Senate committee of which I am a member recommended that the bill should not proceed. The committee report has endorsed what Australians worked out long ago, that this bill is fundamentally wrong and should not become law. Let me explain why. There are a number of reasons but I only have a short period of time in which to speak so I will try to identify some of the key problems with the bill. As we know, the result of the reforms that were enacted last year by way of the Migration Amendment (Detention Arrangements) Bill 2005 means that, not before time, Australia now has a somewhat softer edge on mandatory detention. As we know, that bill resulted in children not being held on the mainland in detention centres.
The effect of this bill before the Senate now is that all of the changes that were made last year mean nothing. What the bill will do, as well as not ensuring that children will be kept out of detention, is remove reasonable time periods of detainment and improvements in the provision of mental care. One of the questions that I addressed to Senator Vanstone today was in relation to the Commonwealth Ombudsman’s jurisdiction over persons held in detention. The minister said today that her understanding was that the Commonwealth Ombudsman would still have jurisdiction in relation to persons being held in Nauru. This is in fact what the department said to the committee. They confirmed that the Ombudsman’s jurisdiction does extend to processing on Nauru. But when we questioned them further it was made quite clear that this would still be contingent on the government of Nauru granting a visa to the Ombudsman to travel to Nauru. As we heard in the evidence before us, it is a very rare occurrence for the Nauruan government to grant a visa to persons wishing to visit there to observe and investigate what is happening to people in detention.
This is not something which is within the control of the Australian government. If the Nauruan government determines that the Ombudsman is not to be granted a visa, then he—as is the present case—will not be able to go to Nauru and investigate. It is also quite clear, and this came out in the evidence, that the requirement in part 8C of the Migration Act that the Commonwealth Ombudsman provide reports on persons held in detention for more than two years will not apply in relation to persons held in offshore processing locations. So the improvement put into place last year in relation to detainees held in Australian detention centres, namely that the Ombudsman will be required to investigate the reasons for their detention if they have been held for a period greater than two years, simply will not occur on Nauru. This is one of the many problems that exist in this bill. As Senator Ludwig said, it is for this reason that the committee reported unanimously that the bill should not proceed. It is for this reason that Labor will be voting against this bill when it comes before the Senate.
This bill can hardly be said to be for border protection. In fact, if it is passed Australia will effectively have no border in relation to those persons coming here by boat seeking asylum. All of those people who are seeking asylum in this country who reach the mainland by boat will be taken away and put into mandatory detention on Nauru. The primary reason, as I have indicated, that this is totally unacceptable is that the processes that occur on Nauru are not subject to independent review. I have mentioned the Ombudsman, but also any decisions that are made are not subject to independent review. The RRT does not have jurisdiction in relation to decisions made. Any decisions that are made will simply be reviewed by another departmental officer. (Time expired)
I also rise to take note of the answers of Minister Vanstone. I will commence by commenting on some of the remarks of Senator Kirk a moment ago. There is a lot of presupposition that people who arrive illegally and are processed offshore are not going to be catered for. That is just not true. This is a government that will not stand by and allow people not to be cared and catered for in a humane and dignified way. I think that needs to be clearly stated and placed on the record. We are talking about border security as well as the matters of the report handed down by the Senate Legal and Constitutional Legislation Committee yesterday. We must understand that intelligence has been presented to this government that there are more people staging a process to move to Australia. We have to protect our borders in every possible way we can and also the lives of those who want to endanger themselves in coming to this country by means regarded as very substandard. I think it is very responsible of this government to create a deterrent effect to prevent people embarking on the most dangerous of voyages that they possibly could, endangering the lives of women and children, not to mention the male adults that would accompany them.
As indicated earlier today, the Senate committee report handed down yesterday is very comprehensive. It was only released yesterday, and I think it takes some time for anyone, let alone a government, to consider all the points in detail. This is a government that does that. It considers many things in detail. It examines each and every point in the report and will, where necessary, respond. I think that is the most responsible attitude that any government or any administration can take.
I also think it is important to note that the department itself has undergone tremendous transformation under the guidance of Mr Andrew Metcalfe. This department is one that has grown, developed, improved and responded to ever-changing scenery, an ever-changing feast of activities and an ever-changing host of problems that are presented to it. I think it is commendable that we have a department in a reformation process and constantly adjusting, as many departments need to do.
I think we need to be cognisant of some of the aspects of the report that were handed down yesterday, and my colleague Senator Fierravanti-Wells has indicated some of these. It is important to emphasise that the committee has suggested that its work was significantly hampered by the absence or limited availability of critical information and by documentation that provided only a minimalist framework for the proposed system. With that background, we need to understand that this report is not overly comprehensive in some areas. This report goes some way to guide the government, but it is not a complete document in itself; it is for guidance. Also, we need to understand that the report covered details of accommodation, health care and education arrangements for processing asylum claims, together with access to legal assistance and opportunities for monitoring by the Commonwealth Ombudsman.
Opposition senators interjecting—
I hear interjections from the other side about no guarantee. This government will stand by the need to ensure that there is that independent Ombudsman capability, and we will facilitate that in any way we possibly can. It is important to point out, certainly in relation to the alleged lack of information provided by the department, that the majority report states at page 59:
3.197 Despite the volume of evidence received, the committee has been significantly hampered by the absence or limited availability of critical information to assist with its deliberations in this inquiry. This is primarily due to the Bill and associated documentation providing only a minimalist framework for the proposed system. As a result, the committee has been forced to rely on information provided by the Department since the Bill was referred for inquiry to ‘fill in the gaps’.
It clearly states ‘to rely on information provided by the department’. The department is a complex and multidisciplined department that is dealing with a myriad of issues. (Time expired)
I rise to take note of the answers from Senator Vanstone today. In particular I want to note and highlight the lack of commitment from this minister to actually take this report seriously, and I want to pick up on a couple of comments I have heard in the last half an hour. We had two days of hearings into this bill. I note with interest that the government did not wheel out any of its members of the committee to actually stand before us in taking note to defend or to provide comment on their own report today—an interesting fact.
There were a number of problems in terms of information provided to the committee during the hearing, particularly on Tuesday last week in Sydney, where the department was not able to provide answers and in fact failed to even send anybody—if I remember correctly—to the proceedings in the morning. There was actually no-one from the department sitting in the public hearing for the first four hours taking notes to enable any senators to refer to the department for clarification of what was being said. I do not think I have sat in very many Senate committees in my time in this parliament where someone from the department has not at least been at the back of the room watching and listening to what was being said. The absence was particularly notable given the department was due to appear at 1 o’clock that afternoon.
Senator Parry, you are right: the lack of detail about this bill is because your government has not worked it out. The department was not able to provide us with this information and this detail. Of 136 submissions received, one wanted the bill supported—and that was your department. The 136 submissions included a large representation from churches and from the Refugee Council of Australia, which represents over 80 organisations defending the rights of refugees. Large organisations such as those can see nothing in this bill that warrants any of it being supported. In fact, as we left the committee hearing last week, I thought, ‘It will be a surprise to me if the government members can find anything in the two days of hearings that will lead them to want to support this bill being passed.’ I was not surprised when I got the chair’s draft to find that the major recommendation of this report was that the bill should not proceed. I want to commend the chair of this committee for actually coming up with that conclusion. Quite frankly, she had no other option but to do that.
It is disappointing today that we have not heard from the minister that the report is going to be taken seriously and that a response will be provided as soon as possible. In light of the massive criticism around this country and given that three of the minister’s own government members who signed up to this report do not want the bill to proceed, it is disappointing to hear from the minister that this bill is still going to proceed. There is an article in the Age today—more likely the editorial—headed ‘Human rights should not take a back seat to appeasement’. It points out that only in January this minister, Minister Vanstone, pledged that the department would not be swayed by foreign policy considerations in deciding refugee claims. But that is exactly what this bill is about.
This bill is about decisions of immigration policy being made independently of our relationship with Indonesia. But that is not what is happening here. Indonesia have got their fingers in the pie of our immigration policy now and will dictate to us, and this government has responded and changed the policy and will want to change the laws accordingly. That is clearly evident in the report and it was clear in the evidence that was given to the committee. This is a bill that excises Australia from the rest of the world and from our international obligations. There is no justification for it and there are no reasons for us to believe otherwise, given the evidence that we were provided with during the public hearings. The claims about the Ombudsman are absolutely and totally incorrect and were justified and backed up by the department. There will be access to the Ombudsman only to appeal decisions of Commonwealth officials. (Time expired)
Question agreed to.