Senate debates

Friday, 25 November 2011


Deterring People Smuggling Bill 2011; Second Reading

Debate resumed on the motion:

That this bill be now read a second time.

2:09 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

Can I indicate at the outset that the opposition supports these amendments. As a result of discussions between the Attorney-General and myself and an exchange of letters between the Attorney-General and the Leader of the Opposition, we have undertaken both to support the bill and to expedite its passage through the parliament. I will address it very briefly, although I do not propose to take very long to do so.

Subdivision A of division 12 of the Migration Act 1958 contains certain prohibitions upon the entry into Australia of a noncitizen in circumstances where the noncitizen does not have a valid visa or is not otherwise entitled to enter into Australia. An issue has arisen in which, in certain proceedings in the Supreme Court of Victoria, as I understand, it is alleged that the claim of a right under the refugee convention and the refugee protocol is sufficient to take a noncitizen beyond the prohibitions in subdivision A of division 12. Therefore, so it is said, on the proper interpretation of those provisions the mere claiming of status under the refugee convention or the refugee protocol is sufficient to enable the noncitizen to escape the operation of those provisions.

That has never been the way in which that subdivision of the Migration Act has been understood. The purpose of these amendments is really out of abundant caution to clarify that meaning. In particular, the proposed section 228B(2) provides that, to avoid doubt, a reference to a noncitizen includes a reference to a noncitizen seeking protection or asylum, however described, whether or not Australia has or may have protection obligations in respect of the noncitizen under the refugees convention as amended by the refugees protocol or for any other reason.

We agree with the government that it is very important to maintain the integrity of the border protection regime. If it were the case that a claim of right under the refugee convention or the refugee protocol was all it took to circumvent the operation of the Migration Act, then it would be beyond the capacity of Australian migration authorities or, indeed, the Australian Federal Police or any domestic Australian authority to deal with the arrival of unauthorised noncitizens.

The effect of these provisions will be to operate from the day on which they receive royal assent, which, I understand, will be sought urgently. They will apply forthwith to all proceedings, including the proceedings to which I have referred in the Supreme Court of Victoria. It has been said, and I anticipate it may be said by the Australian Greens, who I understand oppose these amendments, that they have a retrospective operation. That is not so. It would be a misuse of the term 'retrospective' to say that provisions that apply prospectively but whose commencement applies to existing but yet to be determined proceedings is retrospective in character. In truth, these are clarifying amendments or essentially declaratory amendments which declare the meaning of an existing prohibition in the act to be as it has always been understood to be and, as I said at the start, out of abundant caution to express more fully the legal position to be as it has always been understood to be.

The opposition, as I said, supports the amendments.

2:15 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I rise to speak on the Deterring People Smuggling Bill 2011. I put it squarely on the record that this bill should not be debated today and should not be passing this parliament. It is a terrible piece of legislation and I want to give an illustration of why. I want to tell a story about a man I will call Wawan, which is not his real name. He is about 35 years old. He lived in a small village of around 50 families on the island of Sumbawa. He lived with his mother and was the sole provider for the home as his father died when he was a small child. He had survived a very impoverished upbringing in which he had worked from a young age to support his mother. As a result, his formal education finished before the end of primary school. The home he shared with his mother was a small one—a one-room bamboo hut with a dirt floor. There was no electricity and the only running water was outside in the village.

Wawan was a fisherman who often travelled for work. His mother suggested that he go to Sumba to fish for octopus. In Sumba, on this occasion, he was sitting in a coffee shop when he was approached by a man called Mohammed, who asked if he would be interested in taking a boatload of passengers to go diving in Kupang. Wawan agreed, thinking that this was a way to make money, more money than fishing for octopus would bring. When the passengers arrived, Wawan was surprised to see that none of them were Indonesian. However, he did not ask any questions as Mohammed was his boss and he knew to just do what he was told.

When they set off there were about 40 passengers on board the boat as well as another Indonesian man who had been recruited in a similar way. Mohammed followed in a larger boat and after two days he came aboard Wawan's boat and handed him a compass, telling him to continue to sail at 180 degrees. Mohammed then turned around his boat and headed back towards Indonesia. Wawan had never used a compass before; however, he still believed he was heading to Kupang, so he continued to follow Mohammed's instructions. Wawan and the other Indonesian man followed Mohammed's directions for another two days until they were intercepted by the Royal Australian Navy off the coast of Western Australia. This is an illustration of the experiences of people who are currently being held in Australian detention centres and Australian prisons awaiting their court cases because they have been accused of people smuggling.

This bill is referred to as the Deterring People Smuggling Bill. The question is: who is this bill actually deterring? This bill is not about deterring people smuggling; this bill is all about the government's barefaced political strategy of looking tough on boat arrivals. The fact is this bill has been rushed into this place to make it look as though, on the last day of sitting in 2011, the government is actually doing something to stop the boats. It is going to be very difficult and very hard for the opposition not to agree with the government's strategy.

The government has tried to tell the Australian people that this bill is simply about clarifying the crimes under the Migration Act that aim to break the people-smuggling business model. This is nothing but hollow rhetoric. The reason this bill has been brought forward at all is that the Australian government is currently a party to a legal challenge in Victoria. Rather than allowing this legal challenge to go through its proper process, the government, a party to this legal challenge, has decided to bring a bill into the parliament to scuttle the court case.

These are the types of activities that you expect of governments in other places in the world, not in a free, open, transparent democracy like Australia, which has built its reputation around the world because it has a clear division between the courts, the executive and the parliament. An important test case is currently before the Victorian Court of Appeal. By bringing forward this bill in this way the government, which is a party to these proceedings, has spectacularly breached the separation of powers and shows that the government is prepared to do absolutely anything, to go as low as it possibly can, when it comes to legislation to deal with asylum seekers and those who help them to arrive.

It is an amazing coincidence that the government only decided to bring forward this bill to clarify this particular part of the Migration Act when the test case in Victoria was elevated to a superior court. In the Senate inquiry into this bill, which was a very short one, the Attorney-General's Department conceded that they had only been given drafting instructions for these amendments in October, right after the threat of the court case became clear. For a piece of legislation that experts say breaches our international human rights and refugee obligations as well as the separation of powers and the rule of law, there has been woeful consideration of its merits through the parliamentary process. This bill should not be proceeding in this place and it certainly should not be passing without a proper review of its purpose.

This bill talks about deterring people smugglers, yet it does absolutely nothing to achieve that. The government can provide absolutely no evidence to support its argument that the particular cases currently before the courts or the current status of the crimes under the Migration Act have done anything to deter people arriving by boat. Last year, in 2010, this place dealt with a piece of legislation that set down mandatory minimum sentences, and the government said: 'This will deter people. This will stop the boats.' Yet we have not seen any evidence that that has occurred. What we see are hundreds of crew who have been locked up, detained and charged for these crimes under the Migration Act. Their cases are very similar to the young man's case that I outlined at the beginning of my speech. This bill is all about punishing the small fry and allowing the big fish to escape.

The inquiry, which I have already mentioned was quite short, showed that there is great concern and deep disapproval among the Australian community, particularly among human rights advocates and legal experts, about the amendments contained in this bill. One of the most devastating criticisms of the bill came from the Australian legal community, who remain aghast at the retrospectivity of this amendment. Even the Senate's own Scrutiny of Bills Committee has condemned this piece of legislation, expressing great concern at the retrospective application of this amendment back to 1999. It notes:

… liberal and democratic legal traditions have long expressed strong criticisms of retrospective laws that impose criminal guilt … persons should not be punished for acts that were not illegal at the time they acted.

The prohibition on retrospective criminal laws is central to the rule of law. It is clearly prohibited by article 15 of the International Covenant on Civil and Political Rights. It is banned in many countries. In Australia, retrospective criminal legislation is used only in the most rare and exceptional circumstances. Such caution is applied to retrospective criminal legislation that it has been used by the Australian parliament only three times prior to this piece of legislation.

There is no moral or legal justification for making this law retrospective. Along with the legal experts who appeared at the inquiry, the Senate's own Scrutiny of Bills Committee has criticised the retrospectivity of this bill. The Scrutiny of Bills Committee demands that the government describe exactly why there are exceptional circumstances for making this legislation retrospective. The truth is that there are no exceptional circumstances that justify the retrospective nature of this bill. It is political necessity rather than great moral need. Let's call that political necessity for what it is: the government do not want to see themselves losing another court case at the end of 2011, a year in which they have already introduced legislation and proposals that the courts have ruled unlawful. The government do not want another case on their hands. Rather than fighting their cause in the courts and allowing that process to continue, they have decided to bring forward this legislation and scuttle the legal process to which they are a party.

Let me touch on what a farce this legislation is, right down to its title's claim of deterring people smuggling. It is notable that the title is the only part of the bill that says anything in relation to deterrence. The bill is not about deterring people. It does nothing to stop desperate people engaging people smugglers. Any attempt by the government to pretend to the Australian people that this is going to make a difference is an attempt to pull the wool over the Australian public's eyes. Rather than spending precious parliamentary time on a so-called clarification which is clearly in breach of the rule of law, we should be looking at ways to fix our anti-people-smuggling policies so we are catching the big fish, the organisers, the kingpins and deterring them from misleading vulnerable asylum seekers and using and abusing boat crew in order to make a profit.

The Minister for Immigration and Citizenship has been on television telling Australians that the changes to the Migration Act are being made to catch the people smugglers who are 'sitting around in nightclubs in Jakarta'. That could not be further from the truth. The lawyers who are working at the coalface of people-smuggling prosecutions have put clearly on the record that, of the 353 people currently facing people-smuggling charges in Australia, only six are actually accused of being organisers of the industry. Out of 353 people charged, only six are accused of actually organising this business! The government are not being effective at deterring people smugglers. The government are not being effective at charging the kingpins. They would like us all to believe that they are, but it is simply not the truth. The figures tell us that. The deputy commissioner for operations has said that, of the 493 individuals arrested between 2008 and 2011, only 10 were accused of being organisers.

Are we catching the kingpins? Clearly not. Are we locking up vulnerable, tricked, manipulated, impoverished Indonesian fishermen? Yes. Are they the scapegoats of the government's 'get tough on refugees and people smuggling' policy? Yes, they are. How many of those people are children? We know that there are at least 35 people whom the government jailed in adult facilities illegally, because they are children. Mr President, do not be fooled that this legislation is in any way enforcing the government's attempt to smash the people-smuggling business model. Victoria Legal Aid, which is acting for 53 of the accused people smugglers, are running the test case the government is seeking to scuttle. They put it very clearly:

The overwhelming majority of the people charged with people smuggling in Australia are impoverished Indonesian fisherman, the totality of whose involvement is to be recruited on to the boats to steer, crew or cook. They are as dispensable to the organisers of people smuggling as the boats that get burnt off the coast of Christmas Island and Ashmore Reef.

The criminal charges which this bill seeks to amend are not deterring anyone. Desperate people will come to Australia to seek asylum as long as the prospect of life in Australia is not as bad as life under tyrannical and violent regimes such as the Taliban. As long as the Australian government refuses to increase our humanitarian intake and resettle more people directly, this is the only option many of them have. Yet rather than putting safer pathways in place, rather than catching the kingpins, the government finds it easier to use young, impoverished Indonesians as its scapegoats to try and prove it is doing something to stop people smugglers.

Rather than bringing this bill forward to interfere with, to scuttle, the Victorian Court of Appeal's ability to hear this case, the government should be heeding the warnings of judges, magistrates and lawyers from around the country. In 2010 the government introduced mandatory minimum sentences and this is where the problem began. The government should be addressing those issues, ensuring that courts can weigh up the seriousness of these offences, rather than using these young Indonesians as its political and legal scapegoats. The Australian public have a right to know exactly who is bearing the brunt of these five-year mandatory minimum sentences. How many have been children? How many have been adults? How many have been detained and charged? How many cases have fallen over because the government has not concentrated on the right areas or the right people?

The story that I told at the beginning of my contribution highlights exactly how vulnerable these individuals are, how dispensable they are to the kingpins of the people-smuggling trade—just as dispensable as the asylum seekers or the boats themselves. It surprises me that the opposition is willing to push this bill through the parliament and allow the government a free kick and a free goal on something the opposition knows is not working. It surprises me that the opposition is prepared to simply say: 'We will give the government this cover. We will continue to lock up young Indonesian fishermen rather than tackle the real people smugglers.'

But maybe I am not that surprised at all, because perhaps this is exactly the problem in this place—that neither the Labor Party nor the coalition is actually willing to face the realities of displaced people seeking protection and freedom in our region. It is all about the slogan of 'smashing the people smugglers' business model' versus the slogan of 'stop the boats'. They are as hollow as each other, as illegal as each other and as useless and ineffective as each other.

Until we have some true leadership in this place, these issues are not going to go away. It is appalling that this piece of legislation has come forth—retrospective in nature, with no exceptional circumstances provisions—to scuttle a legal challenge which the government is party to. It continues to punish the very same people who have been tricked and manipulated throughout this process simply in order to pretend to the Australian people that the government is doing something. It is a shameful piece of legislation and it should not proceed.

2:34 pm

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

I rise to say a few words in support of the Deterring People Smuggling Bill 2010 and the position Senator Brandis indicated. But before I do I will make some comments on the contribution by the previous speaker, Senator Hanson-Young. I remind the previous speaker and the people of Australia that, when Mr Howard was Prime Minister, there were at times a number of illegal entries to Australia—boat people. Through a bit of trial and error, we eventually got a system in place where we had offshore processing in Nauru—and this actually did stop the boats. It worked. So for Senator Hanson-Young to suggest that this did not work, that nothing has worked, is simply incorrect and contrary to the facts. Under the Howard government, this did—

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

Do you actually know anything at all about this legislation? This has nothing to do with the bill.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

I am answering you, Senator Hanson-Young. You were the one who went into this area.

Photo of John HoggJohn Hogg (President) Share this | | Hansard source

Senator Macdonald, address your comments through the chair. Senator Hanson-Young, you were heard in silence and Senator Macdonald should be as well.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

The previous speaker went into this area and is now interjecting and saying this is not part of the bill. I am simply responding to the arguments she made. If it is not part of the bill when I say it, it must not have been part of the bill when she was speaking.

The Howard government's approach actually worked. We did stop the boats. We were also able to turn boats around when it was safe to do so. Anyone who was at estimates a few weeks ago would have heard the Chief of Navy—who is an expert on it because he was a more junior officer at the relevant times—explain how the boats were turned around and how this was done safely. He also explained how sometimes it was not possible to do that. Of course, the ABC and some other commentators gave huge preference or exposure to the admiral talking about the one that failed and made no reference whatsoever to the admiral's original comments, where he went through in quite some detail how you could turn boats around safely and how you could make the policy Mr Abbott has enunciated work—that is, turning boats around when it can be done safely and offshore processing at Nauru.

The Labor government's border protection policies and migration policies are an absolute shambles. Hence, if this bill will do anything to stop people smugglers, even if in a very minor way, then I am in favour of it. Senator Brandis has indicated why the coalition is supporting this government bill and why we are facilitating its passage through the Senate this afternoon, the last day of sitting, after the Labor Party and the Greens have guillotined 20 pieces of legislation so far this week without so much as one word being spoken on them. We have been voting on bills all week that many people would have little idea about because we were not allowed to speak on them.

In the previous week, 18 of the most complex bills that this parliament has dealt with in the last decade, relating to the carbon tax, were rammed through this parliament with only one or two of the bills in that package being dealt with. Already we have seen what a farce that carbon tax legislation has become. Australia will become, if it is not already, the laughing stock of the world for having a tax of $23 per tonne on carbon dioxide emissions. The rest of the world is standing aside and laughing, rubbing their economic hands together with glee as they think about what business and jobs they can pick up. We have already seen jobs go from Australia to China and India because of that package of bills, which went through because it did not have proper scrutiny by this parliament.

Anything that will help border protection and stop people smugglers, as this bill will do in a way, is something we support, so we will facilitate its passage through the parliament. But before I sit down I want to again make the point to senators and to the people of Australia who might be listing to this debate that the reason why the coalition is so incensed at the Labor Party's inability to protect our borders and stop the boats is that for every person that comes in illegally by boat someone living in a squalid refugee camp somewhere in the world is put back another year. That seems to be okay as far as the Greens go. If you happen to be a wealthy person, and the Greens have shown quite often in the last few weeks that they are for the big end of town, for the wealthy people, the people who can make donations of $1.6 million—

Photo of Sean EdwardsSean Edwards (SA, Liberal Party) Share this | | Hansard source

How much?

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

You don't make a donation to the Greens of $1.6 million if you are not the big end of town, the wealthy end of town. Thank you for the interjection, Senator. You remind me that the biggest single donation ever in Australian political—

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source


Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

I'm jealous, am I? After two decades of listening to railing against private donations, somehow when I raise it I am jealous! I tell you what, Senator: I am embarrassed for you people—and that is a generosity I do not often extend to the Greens. We are talking about $1.6 million, so don't talk to me about who is in the pay of the big end of town. That is quite clear.

These people coming in by boat are not the penniless refugees who have been living in squalid camps around the world for 10 years. They are people who can afford $10,000, $15,000, $20,000 a pop, to pay a people smuggler to bring them in, and that is only what it costs to get from Indonesia to Australia. What they have paid to get from wherever they come from to Indonesia we do not know. Senator Hanson-Young, they are not the poor, the disadvantaged. They are the big end of town, the wealthy end of town, that clearly the Greens support.

What I am concerned about, and I will always make this point, is that Australia has a very proud humanitarian arrangement and we have been at the forefront on a per capita basis of taking genuine refugees for 50 years. We are proud of it, and so we should be, but we have a fixed number. As I have said before, perhaps the number is not right. I am prepared to debate that, as I have with the Refugee Council. We take about 14,000 genuine refugees every year. Maybe it should be 20,000; I do not at this stage enter into that debate. But we do take a fixed number, and for every one of these people that come in, having paid $10,000 or more to get a boat from Indonesia to Christmas Island, someone who has been in an absolutely squalid camp, someone who is a genuine refugee and has been so determined by the UNHCR over many years, has to wait another year for their chance to get to Australia.

That is the sort of policy that the Greens support: forget about those in the squalid refugee camps around the world who are waiting their turn, desperate to get into Australia within the limit of our intake of about 14,000 a year, but let's encourage these people who can pay $10,000 to the people smugglers to come in. You have to put in place an arrangement where those people who would pay the $10,000 see that they are not automatically going to come to Australia, that they are not automatically going to become part of the very generous Australian legal system where they can challenge decisions for years, right through to the High Court if needs be, or that once they get into Australia they will get social security benefits in one form or another from the Australian taxpayer that they would never get overseas. That is why the Gillard government, and the Rudd government before it, supported by the Greens, is simply a beacon, a green light, to the people smugglers who will bring these people here for money.

The issue that disturbs me, and I get very angry about this, is that the Greens and the Labor Party seem to have no interest whatsoever in those genuine refugees living in squalid refugee camps around the world. They are all in favour of the wealthier ones who can pay the $10,000 and who know they will get the support of the Greens political party and the Greens parliamentarians wandering around waving placards at every demonstration they can. It is important for senators and for the people of Australia to understand that, for every refugee who comes illegally into the country and remains here, one genuine refugee from someone else in the world misses out on their chance to come to the very lucky country.

Having said that, I support the reasons that Senator Brandis has given for the coalition's support and, in spite of the Labor government's complete mismanagement and inability to allow debate and the appropriate passage of bills in this chamber over the last few weeks, we on this side will facilitate the debate so that this bill can be voted upon. I note that the Greens say that this should not be dealt with today. If they had not voted with the Labor Party to cancel Monday, Tuesday and Wednesday's sitting next week we could have debated it more fully then. If they think they have a point, why did they not take the next three days to argue it in the Senate to try to convince us that they are right and we are wrong? But no, they want to head off to Durban, so they will do anything. Then they have the hide to get up here and complain about not having enough time to debate this. The hypocrisy of the Greens knows no ends. I support this bill.

2:47 pm

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

As Senator Macdonald and Senator Brandis have indicated, the coalition supports the Deterring People Smuggling Bill 2011. We support it because we believe it is one of those rare circumstances where retrospectivity can and should be applied in an act of parliament. We believe there is an urgency to passing this legislation because in the subproceedings in a court in Victoria an attempt is being made to represent the will of parliament through earlier legislation as being different from that which it actually is; therefore, clarifying what the parliament intended when it passed earlier legislation in 2010 is an appropriate clarifying exercise in retrospectivity in this context.

I think it is also true to say that this legislation illustrates a number of things which are wrong about the way that this government works. Firstly, this legislation has an Orwellian title. This is not a Deterring People Smuggling Bill at all. This is not a bill that makes any bold new step towards preventing people from coming to this country as refugees. This legislation simply clarifies the intent of a piece of legislation passed last year. Last year the parliament passed the Anti-People Smuggling and Other Measures Bill 2010, and this current legislation simply says, 'What we meant to say in that legislation we actually did say.' It simply makes clear what had already been determined by the parliament and, therefore, there is nothing about this legislation which changes the landscape at all with respect to actions to deter people smugglers coming to this country. I accept that that is necessary and therefore, notwithstanding its Orwellian title, it is appropriate to pass the bill.

Secondly, the process around the bill illustrates the ineptness which is so characteristic of this government. The reason parliament needs to consider retrospectivity is that, at least on one argument, the parliament appears not to have comprehensively explained in last year's legislation, and potentially in earlier legislation in 1999, that a person who smuggles people to Australia—a people smuggler—is not exonerated from their actions if the person they attempt to smuggle to Australia turns out to be a genuine refugee. It has arguably always been the intention of parliament, and certainly was as late as the legislation last year, that a people smuggler commits an offence even if the person they are smuggling to Australia turns out to be a genuine refugee. If you think about it, it is quite logical: you cannot let the crime be determined by the ultimate status of the person being smuggled. You cannot say a boatload of people being smuggled by a people smuggler somehow ends up not being an illegal act because, say, one or two people on the boat turned out to be genuine refugees. It simply does not work. The legislation quite appropriately should say that any attempt to bring people without a valid visa to Australia is an offence and should be punishable.

Retrospectivity in that application to affirm what the parliament has already decided is, in my opinion and in the opinion of the opposition, an acceptable use of retrospectivity. It does not change the law as it is understood to be in this nation at the moment. In the course of the Senate Standing Committee on Legal and Constitutional Affairs inquiry this was compared with legislation which some years ago criminalised the behaviour of Nazi operatives during World War II and created retrospective war crimes. It was suggested that, for the reasons that it was contested in the High Court, this ought to be considered an inappropriate use of the Commonwealth's power. But, with respect, that was a misconceived argument because clearly, in the case of the war crimes legislation, the parliament was—admittedly for very good reasons—creating new offences after the offences had been committed. I characterise some things done by certain people during the Second World War as crimes, even though they were possibly not crimes at the time that they were committed. That is generally understood to be an appropriate case where retrospectivity might be used. We can debate that another day. But this is not such a case. This legislation is not about retrospectivity that changes the characterisation of behaviour after the behaviour has occurred. This is about affirming that behaviour which the parliament has intended for at least 12 months and arguably for more than 10 years should be illegal remains illegal, notwithstanding the attempt by parties before a court in Victoria to turn that on its head.

When it came to the officers of the government clearly slotting this legislation under one of those acceptable headings for retrospective legislation, the linkage being made by officers was less than impressive. There is a document that the government publishes called the Guide to framing Commonwealth offences, infringement notices and enforcement powers which sets out the circumstances where, among other things, retrospective legislation can be considered. Officers were asked to link headings or opportunities within that guide to the present circumstances. They were, with great respect, unable to do that in a very convincing way. They pointed to a provision which says that the guide refers to retrospectivity as being justified where the 'moral culpability of those involved means there is no substantive injustice in retrospectivity'.

I have to say—and I, to some extent, agree with Senator Hanson-Young here—that is not a very good basis on which to argue for retrospectivity, because there is some evidence that some of the people involved in people smuggling are not particularly aware of the nature of the offences that they are committing. They are probably small operatives in a process in which they are not fully aware of the implications of what they are doing and the moral culpability might not be very evident for what they are being punished for. I would argue quite separately that we nonetheless need to criminalise such behaviour, but that is an argument for another day.

The lack of an ability to clearly characterise the case for retrospectivity by officers of the Attorney-General's Department was, quite frankly, troubling. I hope that the government fixes this problem. The committee has recommended that the government go back and examine both the legislation handbook of the Department of the Prime Minister and Cabinet and the Attorney-General's Department's Guide to framing Commonwealth offences, infringement notices and enforcement powers to ensure that the articulation of policy is clear in relation to the introduction of retrospective legislation and legislation relevant to ongoing legal proceedings, with an emphasis on ensuring that the principles of the rule of law and of the separation of powers are respected. Frankly, that is not evident from the documents at the present time. As I say, I think there is a good case for retrospectivity here, but I am not sure the case is being well made by officers of the department that is handling this legislation.

Having settled that, I have to also take issue with some of the arguments that Senator Hanson-Young has run here this afternoon. Senator Hanson-Young will be well aware that the Greens argued strongly and passionately against the Anti-People Smuggling and Other Measures Act when it was before the parliament last year. They said at the time that it was wrong because it would create offences where offences should not exist. Those offences included where people smuggle people to Australia who turn out to be refugees. They argued that the smuggling of people to Australia who turn out to be refugees should not be a criminal offence. They argued that very consistently and cogently before the parliament.

But today they are arguing that it is open to a court in Victoria to find that, in fact, that is not what the parliament intended at all and that the parliament intended that maybe people who smuggled to Australia people who turned out to be refugees were people for whom there should be no moral culpability with respect to the people smuggling and that we should forgive and exonerate people who smuggle people in those circumstances.

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

It's international law.

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

Whether it is international law or not, with great respect, Senator Hanson-Young, is irrelevant. You argued that the parliament was doing a certain thing by passing the legislation last year. You are now arguing that it is perfectly possible for people to characterise the parliament's actions in a quite different way. You are having your cake and eating it as well, with great respect.

I do not want to delay the Senate any longer. I want to reaffirm that we on this side of the chamber believe that the parliament has decided that people smuggling should be a criminal activity and that that criminality should not be in any way tempered or watered down by virtue of the fact that some of those people being smuggled may transpire to be genuine refugees. It is important for the parliament's will in this respect to be clear because there are presently proceedings before the courts of Australia where that issue is being tested. There should be no doubt that those who smuggle people should be subject to prosecution and, if the facts are found to support the case, convicted of those offences. That is what the parliament ensures by passing this legislation today. But some of the arguments being used both in support of the legislation and in opposition to it are, with the greatest respect, spurious in the extreme.

2:58 pm

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

I rise to speak to the Deterring People Smuggling Bill 2011 and to support the comments by our deputy leader in this place and shadow Attorney-General, Senator Brandis, and comment that the coalition has shown a good deal more courtesy to the government this week than has been shown to the coalition in the legislative process, to which I intend to return. What is so obvious in this whole exercise with the legislation before us, once again, is the failure of the Labor government, the Prime Minister, the current Minister for Immigration and Citizenship and the leader of the government in this place, the previous minister.

This is a circumstance in which, had the Labor government continued the policies of the Howard government—policies that actually protected those who would otherwise have got on to leaking boats; policies which had effectively cut the people-smuggling industry out—we would not be standing here today debating this issue and, more to the point, we would not have seen the tragic outcomes that have been the case over the last three or four years. I want everybody to be very clear in their understanding of that.

Why is the coalition supporting this legislation? Because there can be no more reprehensible industry or trade than the smuggling of people and the trading of human misery that we see on a day-to-day basis. Anything at all within the law that will put a halt to this trade must be supported. It is regrettable and reprehensible that the coalition has to support a situation which should never have materialised in the first place.

As a Western Australian senator I do want to draw the attention of the Senate to where the costs of most of this people-smuggling fall—and that is in our state of Western Australia. The vast majority of those either found guilty and serving sentences or awaiting trial are in jails in Western Australia. I do not want to comment in this presentation on those associated with the under-age issue, but I have a lot of sympathy for the argument that we need to be able to more accurately determine the age of people who are caught up in this trade. If we can address this issue with a greater degree of clarity, fairness and equity for minors, I would be very keen to pursue that. But that is not a topic for this discussion.

It costs the Western Australian taxpayer $130,000 per year for every people smuggler accused or people smuggler found guilty in our jails. This is an unfair impost on both the judicial system in our state and Western Australian taxpayers. For those who would say there is some equalisation in the annual tradition of GST funds and therefore that figure is picked up on behalf of Western Australia, I need only remind the Senate of the very low proportion of GST funding that returns to Western Australians each year as a result of the inequitable distribution by the Grants Commission. That figure of course is a mere 70c in the dollar, as opposed to a figure in excess of 90c in the states of Queensland, New South Wales and Victoria and well and truly over the dollar per dollar rate in the Northern Territory and South Australia. I do not want this point to be lost. The cost is not equally distributed around the nation.

We are discussing this legislation because of the government's demonstrable failure on border protection. It has been a sad litany, for then Prime Minister Rudd, Prime Minister Gillard and the various immigration ministers who have attempted to solve these issues but have failed miserably. East Timor was never a solution—anybody would just have to visit East Timor to realise that the infrastructure is not in place and that there is not yet stability. We all look forward to the elections in East Timor in March of next year. I applaud the role being played by the Australian Defence Force in trying to stabilise East Timor and assist in the democratic process. But anybody with any sense who visited East Timor would know that they are by no means ready to accept some form of botched and cooked up asylum-seeker solution.

We then had the failed Malaysia solution. Questions from my colleague Senator Cash have been miserably unanswered by Minister Carr. Malaysia was never going to be a solution to this problem. That is evidenced by the fact that originally we were considering 800 asylum seekers being resettled in Malaysia in return for some 4,000 approved refugees coming to this country. We have already vastly exceeded the 800 and so we know it was never going to be a long-term solution. History records that the Malaysia solution did go to the High Court of Australia, and the High Court adjudicated that it was unlawful. Not only was the solution never going to work; Malaysia is not a signatory to the UNHCR and therefore, even had the 800 been approved to go, it was only ever going to be a band-aid solution.

The Prime Minister chose to deliver a vitriolic attack on the High Court judges, and particularly Chief Justice Robert French. I was also on one occasion affected by an adverse judgment by the High Court of Australia, in about 1992-93. I remember being told by Crown Law in Western Australia two things—the first was that I had lost and the second was that I was not to criticise the High Court judges. It is totally irrelevant to this debate that the platform upon which that High Court judgment was made in that case has now been completely dissembled. In the words of the then Governor of Western Australia, a past Chief Justice of the Supreme Court of Western Australia, that particular judgment will go down in history as probably the worst ever in the history of the High Court. Nevertheless, I took the advice of Crown Law—advice which the Prime Minister either did not take or was not given—and did not criticise the Chief Justice.

It is well-known that through our leader, Mr Tony Abbott, we made the offer to the government that we would support their legislation in consideration of the government agreeing that any asylum seekers should be repatriated to countries which were signatories of the UN Convention on the Status of Refugees. Of course Malaysia is not one of those countries, but if my memory serves me correctly I think some 148 countries are signatories. It is obviously a case of pride on the part of the Prime Minister that she chose to not do that. Of course we know from leaked cabinet discussions—and we know that governments of any persuasion are not performing well when cabinet leaks—that clearly it was the solution desired by several in the cabinet, including the poor fellow who actually has to take responsibility for this, and that is Immigration Minister Bowen. I believe that that offer from our leadership still remains. Mr Abbott has invited the Prime Minister to come on board. Every other area has been rejected by the Labor Party, with the exception of this one. They have had to reluctantly accept this and of course it is the last option. It is so gracious of the coalition to support this bill as presented by the Labor government. We do so partially to get the government out of the miserable situation into which it has descended, but more importantly to try to put an end to the despicable trade that is people smuggling. Those of you who have any knowledge of or links with Asia would possibly know of the delight in the people-smuggling world that accompanied the High Court decision and the encouragement which, as we all know, has translated into an increase in the number of boats and people. It was only on Monday or Tuesday, I think, that questions were asked of Minister Carr. At that time, I think 13 boats had arrived since the most recent High Court decision. Of course, that number must now be increased to 16. I remind you that we are now towards the end of November. Anyone who has any knowledge of the geography of the north-west of Australia will know that we are moving quickly into the cyclone season. We are moving quickly to a time of year when it is ridiculously unsafe to be putting to sea in any sort of craft, especially those of the type that we see being used by asylum seekers.

I contrast the courtesy shown by the coalition to the government with that shown by the government and the Australian Greens in this place this week. It would be reasonable to reiterate what has been put to me by some of my constituents. They have said that democracy has gone very close to its death this week. I do not want to talk about what has gone on in the other place, simply because we are not involved in it. Nevertheless, it is an indication of the failure of this grasping government. I will comment on what has gone on in this place this week. I for one am extremely disappointed to have been in the process, part of the process and objecting to a process in which we will have seen more than 20 bills rammed through this place this week without proper debate, without proper scrutiny, without proper consideration of amendments and without the capacity to do what senators are sent to this place to do.

At the start of the week, the Manager of Government Business in the Senate, Senator Ludwig, used the term 'time management'. I am relieved to learn that it was the President who, late yesterday afternoon, used the term that was meant: the guillotine. Legislation that should have been the subject of intense scrutiny and that will have a profound effect on enormous numbers of Australians was guillotined. Contrast those bills with the one on which, yesterday, we had the pleasure of demonstrating the activities of the Senate at its best—at the level that the community would expect. That was the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill, which passed through this chamber with unanimous support and with comments by the chair of the Education, Employment and Workplace Relations Legislation Committee, Senator Marshall, myself, the Greens and the National Party. That to me was the height of this week. I will tell you what the depth, or the trough, of this week was.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Senator Back, I draw your attention to the question before the chair. You have been mostly relevant, but you have strayed in the last minute or so.

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

I will, nevertheless, with your concurrence, Deputy President, conclude—from going to the height to the trough. The trough of course was the curtailment of the debate on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill. That debate started out robustly. The contributions from all sides were fantastic on an issue of tremendous importance to Australian families, particularly to children affected in the circumstances of the break-up of a marriage. To see that debate guillotined and to see what may well have been very good amendments moved by Senator Wright, whose area of professional expertise this was before she came into the Senate, will stand for me for a long time as the low point in the democratic process of this place. I will conclude by supporting my own deputy leader, the shadow Attorney-General, Senator Brandis, in supporting the Deterring People Smuggling Bill 2011 and by hoping that the government sees sense, accepts the advice of our leadership and gets on with a proper long-term solution to the people-smuggling and asylum-seeker problem.

3:12 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

I thank senators for their contributions and I commend the bill to the Senate. Question put:

That this bill be now read a second time.

The Senate divided. [15:17]

(The President—Senator Hogg]

Question agreed to.

Bill read a second time.

I table a replacement explanatory memorandum relating to the Deterring People Smuggling Bill 2011. The memorandum takes account of recommendations made by the Senate Legal and Constitutional Affairs Legislation Committee.