Thursday, 16 August 2012
Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; In Committee
I want to ask the Minister for Multicultural Affairs some general questions about the bill. My first question is: could the minister point to the particular part of the bill that ensures that this legislation is consistent with the refugee convention?
I direct the senator to proposed section 198AA—Reason for Subdivision, where in paragraph (b) it states:
… offshore entry persons, including offshore entry persons in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be an offshore processing country;
I take issue with the minister's answer, and I see that it took quite some time to get the appropriate place in the bill. The truth of the matter is that this bill is not consistent with our obligations under the convention. All we need to do is to point to the articles in the convention that say that people should not be discriminated against by signatory states based on their mode of arrival. Yet this bill deals only with the expulsion, the transfer, of people who arrive here by boat.
There are other articles that are important under the convention that are not upheld by this legislation and that are, in fact, absolutely stripped away. As you very well know, Chair, this is the whole purpose of this particular piece of legislation. The minister spoke earlier in her summary of the debate on the second reading, saying that the whole point of this legislation was that the High Court had ruled out the transfer of refugees and asylum seekers to Malaysia under the government's people-swap deal. The reason the High Court ruled that out was that it would be in contradiction to the obligations that are currently in the Migration Act which import our obligations under the refugee convention. The whole point of this bill before us today is to circumvent the High Court's ruling, to make sure that this government can act outside of our obligations under the convention, to act outside of our obligations under international law.
I draw the minister's attention again to the comments made by the Secretary-General of the UN, Ban Ki-moon, overnight. He put a very clear proposition to the Australian government, reminding it of Australia's obligation under the convention. It is clear to everybody else that this piece of legislation is inconsistent with our obligations under international law. It is the entire reason the bill has been introduced. It is thumbing its nose at the ruling of the High Court and the protections that we are meant to uphold.
The government may very well like to physically transfer people offshore—out of sight, out of mind—but there is no ability under international law to transfer our obligations to people. Yet what the government has done in this bill is to strip out of our domestic law our obligations to people. In all of the things that the Houston report refers to that need to be considered, if we are to transfer people to a third country, whether it be for processing or not, there needs to be basic access to services, adequate accommodation, legal assistance and a guarantee of protection, yet none of that is in this bill. It has been absolutely stripped out in total contradiction to the convention.
My question to the minister is: is keeping people in army tents 'appropriate accommodation' as per the request of the Houston report?
I challenge the senator's assertions directly. In fact, I point the senator to proposed section 198AB and I reference directly the explanatory memorandum of the bill, in which paragraph 118 states:
New subsection 198AB(3) provides that in considering the national interest for the purposes of —
the previous subsection—
So, in this way, we are able to provide the assurances that those conventions are able to be upheld and, as I said, we disagree with the interpretation that the senator is taking of our bill.
I thank the minister for her comments but, looking at proposed section 198AB, all the minister has to do is get an assurance or a document from the country and there is nothing legally binding, is there? What I understand here is that there is a specific reference throughout this that assurances referred to in proposed paragraph 198AB(3)(a) need not be legally binding. Is that not precisely what the High Court said as to why the government was in breach of Australia's obligations under our Migration Act which domesticates international law? Is it not true that it says specifically that this new subsection says that any assurances the minister may get from any country or any place that they deem to be a designated country, whatever assurances they get, do not have to be legally binding and therefore are only as good as the paper they are written on?
I am advised that the point Senator Milne makes—that they do not have to be legally binding—is the case. The accountability measure nonetheless is that the minister needs to present those to parliament; therefore the minister is accountable to the parliament.
So that is it. We now have absolute clarity that people can be sent away to another country on the basis of a piece of paper and an assurance from that country that the minister and that country have said, 'Look, we are not going to send those people back to where they came from, or anywhere else, and we are going to treat them however we want to treat them,' and that the assurance is not legally binding. It is just a letter and an assurance from that country and the minister's only accountability is that he or she will table in the parliament that letter of assurance, that document, that says the country said they would do it, and that is an end to it. This proves beyond anything else that this legislation is to get around the High Court of Australia's interpretation of our obligations. That is why they struck down the Malaysia solution. What it was offering was not legally binding in Malaysia, so they struck it down.
This is the Gillard government, with the support of the coalition, abandoning and getting around the High Court's interpretation of our obligations. That is precisely what this is doing and that is made perfectly clear here. Whatever the minister gets does not have to be legally binding and their only accountability is to put that letter on the table and say: 'There you go. That's the assurance I got from Nauru. That's the assurance I got from Malaysia. That's the assurance I got from PNG. That's what they said they'd do.'
What monitoring will take place as to whether that country will send any of these people somewhere else?
Regarding your comment, 'Is that all?' in terms of the levels of accountability, these considerations would be made in full consultation with the UNHCR in the context of the regional arrangement. So it is misleading to express what I have described in the way that you have and I wanted to clarify that.
Further, I would like to extrapolate the process of bringing the documents to the parliament and that accountability mechanism. The new subclause 198AC(2) provides:
The Minister must cause to be laid before each House of the Parliament:
(a) a copy of the designation; and
(b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be an offshore processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by that country; and—
that is, that relating to their obligations under the refugee convention—
(c) a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and
(d) a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and
(e) a summary of any advice received from that Office in relation to the designation; and
(f) a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.
I think that satisfies the question that you just put to me.
Far from satisfying it, for the benefit of the parliament I will read out what the national interest means. The explanatory memorandum states that it has:
… a broad meaning and refers to matters which relate to Australia’s standing, security and interests. For example, these matters may include governmental concerns related to such matters as public safety, border protection, national security, defence, Australia’s economic interests … Measures for effective border management and migration controls are in the national interest.
In other words, in determining the national interest in relation to this designated other country, the minister is going to be overwhelmingly focused on what we have heard as the rationale for this in the first place—that is, deterrence and border security, not humanity, not compassion and nothing about the responsibilities we have to human rights. In fact, it is going to be about effective border management and migration controls. That is what the national interest is. That is going to be the overwhelming view of the minister and that is the rationale for this legislation—and we have heard that from day one.
All we have heard from you so far, Minister, is that the High Court told us that the reason Malaysia did not stand up is that there was nothing that said Malaysia's undertakings had to be legally binding in Malaysia. Now we have a specific part of this legislation which makes it very clear that whatever the minister tables in the Australian parliament is merely an assurance from another country. There is nothing legally binding about it; therefore, no-one can assume that anything can actually be upheld under the law.
I again refer to the explanatory memorandum. The purpose of the new clause 198AB is to set out what factors the minister must have regard to as part of the national interest—this very point you are making. It also makes clear that the minister may have regard to other factors they consider to be relevant to the national interest, but that they are not bound to do so. Given the country does not need to be a signatory to the refugee convention, the explanatory memorandum states that the minister must have regard to whether it has given assurances to the effect that:
I think this clearly satisfies your complaint about the nature of the national interest. In fact, the minister must have regard to these issues relating to the rights of the refugee and the refugee convention.
In relation to the process under new clause 198AB, 'regional processing country', and, in particular, subclause (1)(b), can the minister confirm that it is the parliament, by affirmation of both houses, that must approve a country as an offshore processing country, and it is the parliament that is going to be the arbiter of whether the conditions in the other country are to our satisfaction?
My point is in relation to the comments made by Senator Milne that under this bill, the highest law in the land—the parliament—will determine whether a country is an offshore processing country, and that all that this bill does is say that Nauru and Manus Island satisfy all the requirements that this parliament requires them to satisfy.
That the highest law in the land—the parliament—under this bill is going to be determining
I want to go back to the question I asked the minister. She said that the minister will have sought confirmation that the country to which a refugee is sent will have given an assurance that they cannot be sent back to the place where they came from or to another country. I specifically asked what is the process for that. Are we assuming that Australia will oversee any of the transfers? How would we even know if somebody in a refugee camp in Malaysia was sent back to Afghanistan? If we did know that, what would we do about it?
The process would be that the arrangements between Australia and that country would be agreed to, and that of course would be subject to scrutiny through the process of approval through the parliament. It is quite a simplistic thing to say 'but what if'—the fact is that we are confident that when those agreements are in place those conditions will be honoured.
I note again the High Court had no confidence that those agreements would be honoured, which is why the High Court struck it down—saying that, whatever assurances you got from Malaysia, they would not be worth anything in the sense that they would not be legally binding in Malaysia and therefore they would be worth only as much as the paper they were written on and the refugees' rights would not be protected. To stand there now and say assurances will enable that kind of agreement is absolutely not valid in the context of what can be proven and what can be upheld.
As to Senator Cash's reference a moment ago to what the parliament can or cannot do, the sole purpose of laying the documents referred to in subsection (2) before the parliament is to inform the parliament of the matters referred to in the documents, and nothing in the documents affects the validity of the designation. It is merely to tell the parliament that is what we agreed, here it is, and bang it on the table. The parliament cannot alter that, so let us not pretend there is parliamentary scrutiny of any of the conditions within the delegation, and let us not pretend that there is any legally binding protections for any refugees sent anywhere under this legislation. We have a very clear statement from the government, a very clear statement from the legislation, that nothing is legally binding and this legislation is specifically designed to get around the High Court and to strip out of our legislation human rights protections.
I feel compelled again to contest the assertions made by Senator Milne. In fact, the scrutiny of the parliament provides for disallowance to be moved if there is dissatisfaction with the delegation as it is presented to the parliament. That opportunity would stand in this parliament if senators found that they were dissatisfied with the delegation. So, again, it is a higher level of accountability that certainly satisfies the government's confidence not only that these agreements would be adhered to but also that we have a comprehensive accountability process within both houses of parliament.
Can the minister please explain why the government has adopted their own process for this designation rather than using the regular legislative instrument where it would be laid on the table for 15 days prior to a disallowance motion being put forward? Can the minister please explain why that process has been rewritten for the purposes of this bill?
The regular instrument for disallowance would allow the delegation to be active during the period you could move disallowance within. By changing it this way, it protects the integrity of the process—it must be cleared by both houses of parliament, or supported by both houses, before the instrument comes into effect.
So you have reduced the length of time parliament has to scrutinise so that parliament can adequately scrutinise the designation as put on the table? What a load of poliwonk. Can the minister please answer my original question. Appropriate accommodation is outlined in the Houston report as one of the conditions that would be required for the facilities in which refugees are detained. Do army tents, in the view of the minister and the government, fit into the appropriate accommodation criteria?
I take exception to Senator Hanson-Young's previous comment. Obviously the mechanism that we have provided for the delegation to be scrutinised by parliament is for the specific purpose that it does not come into effect until it has been scrutinised and passed through parliament. That is a very sensible mechanism—not extending it to a longer period means there will not be any undue delay within parliament. I take exception to the way she characterises that point, because it was designed in deference to the opportunity for parliament to make sure the mechanism does not come into effect before it is scrutinised, as is the case, as she well knows, with the normal disallowance procedure.
Army tents are used for the Army; they are obviously an accommodation option that can be provided in the short term and the government is of the opinion that they would be adequate.
I am astounded that the minister representing the Minister for Immigration and Citizenship, speaking on a bill that deals directly with people who have fled war, says that the government's view is that army tents can be defined as 'appropriate accommodation' as per the recommendations of the Houston report. I just find that astounding. Do you also believe that it is appropriate to send unaccompanied minors to Nauru for undefined periods of time? Does the minister accept that this legislation allows for the indefinite detention of unaccompanied minors?
There is an exemption that the minister can use for particularly vulnerable people, but I think the primary point here is that the expansive use of exemptions would defeat the aim of the bill to stem the heinous crime of people-smuggling, as well as the overall objectives of the bill. I also want to add, with respect to your previous question about army tents, that of course we are talking about very short-term accommodation.
I respect the points that Senator Hanson-Young is trying to make here, but that question is very difficult to answer. It is obviously a very short-term proposition to use army tents, but I am not able to answer that with any specificity other than that the period would be minimal.
I would like the minister to explain how it is that the government will determine who is vulnerable and who is not. It is clear that this bill allows for the indefinite detention of unaccompanied minors in Nauru, on Manus Island, in Malaysia or wherever the government designates.
Firstly, I will just correct the senator: obviously, the parliament has a role in that designation—just to clarify. Secondly, I have every confidence in the minister's ability to make an assessment of what constitutes an exemption for a particularly vulnerable person.
I am referring to clause 198AE. As the explanatory memorandum says:
This is the mechanism whereby the Minister can exempt persons from the duty to be taken to an offshore processing country where the individual assessment of their circumstances that is undertaken prior to a person being taken to an offshore processing country, indicates that taking the person to that country would not be appropriate. For example, the person may have vulnerabilities that cannot be accommodated in the offshore processing country, or have protection claims against the offshore processing country (in addition to those they claim to have against their country of origin or habitual residence).
I hope that gives you the clarification you are seeking.
Unfortunately, it does not give any clarification. I asked: what criterion will the minister use to determine what makes one child more vulnerable than another—which child will be taken offshore and which child will not? How will the minister determine which children are transferred offshore? Are there criteria that the minister will use to make these decisions?
The best way to answer that is, again, by referring to the legislation, which says:
… if the Minister thinks that it is in the public interest …
That obviously provides for a broad scope of considerations for the minister in making those assessments.
This is of great concern, because Australia has obligations not just under the refugee convention but also under the Convention on the Rights of the Child. In particular, when we are dealing with refugee children, article 22 of the Convention on the Rights of the Child specifies how we must treat those children. If the public interest test is what the minister is using, what happened to the best interests of the child test? Why is that not used as the criterion?
I am advised that the best interests of the child would be a primary consideration for the minister and that certainly fits within the definition of 'the public interest'.
I would like to get to a practical example. The government have made this legislation retrospective. They said it will apply to the approximately 220 people who have been intercepted trying to come to our country in the last week. Are any of those 220 people unaccompanied minors; and, if so, (1) will they be going to Nauru or Manus Island to live in tents, (2) how long will they be there and (3) what are the kitchen, toilet, shower and other facilities that they will be subject to when they arrive there in the next couple of weeks?
I am not able to answer that question because it is speculative. No designation has occurred. The legislation has not passed yet, because we are debating it. With respect to those people you are referring to that have come on boats in the last week, the government has said that they are at risk of being sent in anticipation of this legislation and the processes unfolding.
Thank you. I will refer to a hypothetical. Let us assume, Minister, for the purposes of explaining how this legislation would work, that unaccompanied minors were intercepted on a boat at some point and that the parliament had designated Nauru or Manus Island or both as offshore processing centres. In that case, does this legislation allow for the minister to determine that unaccompanied minors can be sent to either of those destinations? Let us try that for a start.
I think I answered that when I referred to the minister's ability to have exemptions where in the minister's view particular vulnerabilities exist. It would be determined through that process. I would like to clarify further the issue and quote the minister, Mr Bowen, from statements he made on the date on which he made his announcement. Minister Bowen articulated very clearly on 13 August:
From this point forward, anybody who comes to Australia by boat runs the risk of being transferred to an offshore processing place. From this point forward—
that is, 13 August—
anybody who comes to Australia by boat should be very clear about the possibility of not being processed and resettled in Australia.
While the amendments once enacted will apply to persons who arrived on or after 13 August 2012, no action under the amendments can be taken in relation to such purpose until those amendments commence.
Thank you for that clarification. Now I understand that any unaccompanied child amongst those more than 200 people who have been intercepted and not given refuge in our country should be taking on notice that they are at risk of being sent to Nauru or Manus Island should this parliament determine that. I also note in the legislation that the effect of new clause 198AD(8) is that the only consideration for the minister in making a direction under the new clause 198AD(5) is that the minister thinks it is in the public interest to do so, and it provides that the rules of natural justice do not apply to the performance of the duty under clause 198AD(5). The purpose of that is to make clear that the minister is not required to give an offshore entry person a right to be heard, for individuals who may be taken to one or more regional processing countries, in relation to the particular regional processing country he or she is to be taken to. Natural justice would involve seeking and taking into consideration the comments of particularly affected individuals.
Are we really saying that in Australia we specifically want to say in a piece of legislation that natural justice will not apply and the reason is that we do not want to give people the right to be spoken to for consideration of potentially affected individuals? You are saying that if natural justice were not excluded as a ground of review it would in effect mean that the minister could not designate a regional processing country or direct an officer to take a person there until the person had been talked to. I find it absolutely shocking, Minister, that we are specifying in a piece of legislation that only the minister can decide what the national interest is and the minister is exempted from natural justice.
I thought we lived in a country that respected the rule of law and gave people a fair go. We are now saying that we are going to hand over to the minister and make it his decision to determine what the national interest is. It is such a broad concept that to determine what is in the national interest he can take into account many things, including border security, national security, defence and anything the minister wants to take into account. The minister personally determines what is in the national interest, and he is then exempted from providing natural justice to a person seeking asylum. I want you to tell me why it is a good idea to give sole right of discretion on what the national interest is to the minister and why it is necessary to take natural justice away from refugees.
The exemption from natural justice provides for an environment which we believe is necessary to make the legislation workable. Not to have that exemption would mean that any asylum seeker could challenge the designation of a given country, for example. That would render the processes ineffective. Our aim as a government is to have a system which is effective, and not having that exemption would make it unworkable. The other point I would like to make is about unaccompanied minors. I reinforce the point: there would be an assessment of unaccompanied minors' circumstances. Again, I reject your assertion as you expressed it.
Okay. I thank the minister for making it clear that the reason we are specifically saying natural justice will not apply is so that nobody can have the right to challenge under the legislation. I ask the minister whether exempting the minister from having to provide natural justice is consistent with the refugee convention or the human rights convention.
I answered questions earlier relating to what the minister needed to take into account in designating a country, including the fact that that is tested before both houses of parliament and the opportunity to challenge those designations and the basis upon which they have been put forward in the parliament itself.
That is a deliberate evasion, Minister. I want a yes or no answer here, because that is what the public deserves. This fudging of the issue is absolutely critical. You refused to answer the question about exempting the minister from providing natural justice to refugees. I asked whether that is consistent with our obligations under the human rights convention and the refugee convention, and your answer is, 'Oh, we only have to table it in the parliament,' and that is deemed somehow relevant to the question. It is not relevant to the question. The question I asked is whether taking away natural justice from refugees is consistent with Australia's obligations under the human rights convention—we will not even go to the rights of the child—and the refugee convention.
The government is of the view that it is consistent and our obligations, as you well know, are for non-refoulement of refugees. With respect to the reference to natural justice, it is certainly consistent in the way it is expressed in the legislation with our obligations under the refugee convention.
I would like to bring to the Senate's attention that the minister is being totally dishonest in answering my colleague's question. Article 16 of the refugee convention clearly states:
A refugee shall have free access to the courts of law on the territory of all contracting states.
We have a legal obligation under the convention to allow refugees who arrive here asking for our protection to access our courts. What this legislation is doing is removing the actual physical ability, removing any access to natural justice. It is in complete contradiction to article 16 of the convention, and I wish the minister to correct the record.
In response to that point, we are talking about people seeking asylum, not yet deemed to be refugees under the convention, so again I disagree with the senator's assertion.
I cannot believe that this minister wants to play this ridiculous game with the people of Australia. It is clear that the minister's statement only a moment ago was wrong and was dishonest. This legislation is in complete contradiction to the convention, which says that people have a right to access the courts. Do the people on board the boats that we intercepted this week, who are at risk of being deported to a country other than Australia, have rights that are consistent with article 16 of the convention?
Reading from article 16 in terms of access to courts:
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi .
3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.
I am advised that our legislation is consistent with article 16 in relation to dealing with asylum seekers. I certainly understand Senator Hanson-Young's continued assertion through this debate for many months now. The Greens are of the view that this approach is inconsistent with the refugee convention. The government have always contended that that is not the case and we continue to do so.
I would like to point out again, as my colleague Senator Milne has, that it is the High Court of Australia which has said that the government's position is in contradiction to our obligations under international law. I am simply telling you what the High Court of Australia has handed down. I would like to ask minister at what stage after people's status determination has been made will they be resettled safely either in Australia or somewhere else.
Because this is speculative, what I am able to advise the Senate is that this would be done in accordance with and in time frames in accordance with the no-advantage principle expressed by the Houston panel. The principle itself is about the no-advantage test. In applying that principle it is critically important that there is no advantage to people who arrive by boat in their processing. To argue otherwise is to argue that people should receive an advantage if they arrive by boat. To argue otherwise is to suggest that somebody who can afford to come here by boat or who is inclined to come here by boat should receive advantageous treatment over those who are waiting elsewhere for resettlement in Australia.
Again, I reiterate that the principle informing this legislation is very clearly that there is no advantage. That principle is an incredibly important one as far as breaking the people smugglers' model goes and with creating the appropriate disincentive to stop that trade. In this way, we aim to put the primary humanitarian consideration of saving the lives of people otherwise tempted to travel to Australia by boat.
I would like the minister to explain how this no advantage test is consistent with the very clear principle of the convention, which says that people should not be discriminated against because of their mode of arrival. It seems the minister is unable to answer my question.
I appreciate the committee's patience, but I am doing my best to make sure that I get accurate information. Again the principle here is designed to prevent death and tragedy at sea. We know that people arriving by boat are at enormous risk, as we have seen over the last few months with the tragedies which have occurred. Therefore, we put the humanitarian interests of saving lives at the forefront of our considerations.
Madam Chair, I am more than happy to give the minister as much time as she wants. I did rise to my feet to say that the minister seems unable to answer my question. Clearly I was right. The reason is that there was no explanation as to how the no advantage test applied to those who arrive by boat can be consistent with the very clear principles of the convention that require that there be no discrimination based on mode of arrival.
I understand Senator Hanson-Young is making a political point. I refer her to the committee that made recommendations to the government, which the government has accepted—that the key principle of a no advantage test underpins the system we are putting forward and is central to its integrity.
Just referring to a report from a group of people who say 'this is central to the plan' does not answer the question that my colleague just put. The convention says that people must not be discriminated against according to the mode of arrival to a country. You are discriminating against people who come by boat as opposed to those who come by air, for a start. That is contrary to the convention—yes or no? We are not asking whether the expert panel has said being able to discriminate is central to their plan; we are asking you whether it is completely contrary to what the convention says—that there will be no discrimination according to the way they arrive. Can you say yes or no?
I think the only way I can respond to the senator's question is to say that a political point is being made. I do not think there is any other way to come at this response. It is very clear that the senator wants to make a strong political point. We have a system in place with regard to offshore processing. We are putting in place a bill which we believe will smash the people smugglers' model. The no advantage test is a key principle which the government has adopted and embodied in our approach.
The point I was making was not a political point. I asked a straight out question about the refugee convention, the specific provision which says that you cannot discriminate under the convention in terms of the mode of arrival. It is not a political point; it is a yes or no answer. The answer is: you are discriminating, you are acting contrary to the convention. I want to come particularly to the point you make all the time: that this comes to the parliament, the parliament will have full knowledge of the documents and so on, they will be tabled and on that basis the parliament will be able to not disallow but disapprove. However, I point out in section 198AC you have said that all these documents are going to be laid on the table. There is going to be:
(a) a copy of the designation; and
(b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be—
a regional processing centre—
(c) a copy of any written agreement between Australia and the country relating to the taking of persons …
(d) a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees …
(e) a summary of any advice received from that Office …
(f) a statement about any arrangements that are in place, or are to be put in place …
But then you go on to say that:
(3) The Minister must comply with subsection (2) within 2 sitting days …
But then you say that:
(4) The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.
You are saying to us: 'We're not going to comply with the refugee convention or the human rights convention. What we are going to do is table in the parliament documents giving the assurances from the other designated country of what it will or won't do and what the minister has or has not said.' But then it goes on to say: 'The fact that some or all of these documents don't exist doesn't affect the validity of the designation.' So, Minister, if in the designation there is no statement of assurance, because you have not yet got it from whichever country, it is still deemed to be an appropriate level of information on which to ask the parliament to allow or disallow. Is that correct?
The section does not say whether the minister should take it into account. It says, on what is to be tabled in the parliament, the fact that some or all of these documents do not exist does not affect the validity of the designation. It is not about what the minister took into account back in his office. You are abandoning the convention. You are abandoning natural justice. You are handing everything over to the minister and saying that the parliament is ultimately responsible, because we are abandoning the courts, we are abandoning the convention and we are abandoning natural justice. You are saying that we are going to table the designation for people in the parliament so that they can make a judgment about whether to approve it or not. You have said, 'Oh, it's the parliament that is the ultimate.' Now you say that it is not invalid if all of the required documents are not there. Even if none of them are there it would not matter. According to this, it could be raced through parliament with Liberal and Labor deciding to get together and race through a country designation, regardless of whether any of these documents actually exist or not.
It is a technical point you make. I am advised that the provision is there to make sure that the process, or the designation, is not invalidated in the absence of, for example, one document where perhaps a document is pending. Obviously, all those considerations would be taken into account by the parliament at the time. It would be aware of the status of the documents, whether all of the documents were in place and the reasons they were perhaps still to come or were not present at the time. It is with open transparency that you would be able to take that into consideration.
I would also like to go back to the point that Senator Milne made earlier about modes of arrival of refugees and their treatment under this proposal, and how that fits in terms of consistency with the convention. All claims, whether people arrive onshore or offshore, are fully assessed; that is our obligation under the convention.
I thank the minister for the clarification. She has confirmed what I have said: that the designation does not have to have all of these documents—some or all of the documents do not exist. That means the statement from the UNHCR or the statement of any arrangements that are in place—all or some—need not exist. We just stick it down and say: 'That's the designation. You can get those documents either before or after; it doesn't matter. You just agree; you disallow or allow.' That is essentially what that particular section is saying.
I will go back to when I asked the minister about natural justice applying to a refugee under the convention. The minister said that these people who are coming on boats have not been designated as refugees. In fact, some of them have, Minister. There are people who have been assessed in Indonesia and have been found to be refugees, who have waited and been frustrated for so long that they get on boats. I come back to the question: let us assume that some of these people who already have refugee status arrive on a boat in Australia. They will be denied natural justice, because you are saying explicitly that we are not giving them natural justice. Are you in contravention of the convention by taking away their access to the courts et cetera, which is, as my colleague read out, a key component of the convention?
To go back to the second point, or maybe it was the first, in your question in relation to documents as presented in parliament. Of course the minister will have the political consideration of bringing forward a package in order to secure designation of an offshore processing country. I think the concerns about that part of the process are unreasonable, and the openness and scrutiny that will be provided through the parliamentary process would be adequate protection for the concerns that you raise.
I thank the minister for suggesting that the rationale for the minister thinking that he would put those documents on the table is the political ramifications—the politics. I think this week is a classic example of how the politics are very likely to allow for a parliament to race through something with the most appalling holes in it—as was done post the Tampa and as was done this week. It could be raced through, as we are pointing out now, with absolute silence from the coalition or with both parties getting together and racing it through, regardless of the holes in it. If the only reason that this parliament can be assured that a minister might put documents on the table is the politics of not putting them on the table means it will be too difficult for them, this week is a classic case. I feel sorry for you, Minister, having to sit there and defend this, because what the government is doing, with the support of the coalition, is indefensible. It is taking away natural justice, absolutely in contravention of the convention. It is telling us that there is no legally binding protection for any refugee sent anywhere by Australia, and the whole thing is based on a piece of legislation that says that it does not matter whether or not the documents actually exist. I find it an extraordinary thing that the government would be doing that.
I want to come back to a question in relation to unaccompanied minors, and I wonder if you could tell me this, Minister. In the event that an unaccompanied minor is sent to an offshore processing facility, you have said that they will not be there a long time. I think the reference was to a 'reasonably short time'. Can you tell me specifically if there is any limitation that the government has spoken about or said anywhere that I can read? What is the time limit specifically for a person or an unaccompanied minor being in detention offshore?
In response to the last question that Senator Milne put, I have already made extensive reference to the means by which the minister would exempt a vulnerable unaccompanied minor. With respect to the time frame, the principle of no advantage applies, so it would be any time frame, and we are not able to answer that with any specificity other than to say a time frame commensurate with the time frames that would be experienced in the region.
I would like to go back to your previous point, again choosing to interpret the answers I have provided in a way that I think carries a very strong political message. It is completely untenable that a minister would attempt to bring before the parliament an incomplete or inadequate set of documents to withstand political scrutiny. I think it is absolutely the intention and the motivation that countries that we sought to designate for offshore processing would indeed fit the bill and stand the scrutiny of this parliament; otherwise it would be within the opportunity of the parliament, as we know, to move that they be not permitted to become a designated offshore processing country.
I am trying to respond systematically to each of the points Senator Milne and Senator Hanson-Young have made, and I would like to return to the issue of natural justice and the challenge by the senators as to what the circumstances are that allow it not to apply. The effective operation of the offshore processing scheme necessarily requires the ability to designate a country as an offshore processing country without it all being tied up in litigation about that process. It also requires the ability to quickly give directions that will enable transfer arrangements to be made where there are multiple offshore processing countries. The provision does not say that the minister will not accord natural justice, only that this cannot be a point of challenge for the designation. Natural justice would involve seeking and taking into consideration the comments of potentially affected individuals before any country was designated to be an offshore processing country under the new section 198AB and before the minister directed an officer to take a person to a specified country when there is more than one country designated to be an offshore processing country.
So I reiterate that if natural justice were not excluded as a ground of review it would in effect mean that the minister could not designate an offshore processing country or direct an officer to take a person to a specified country without seeking and taking into consideration comments in relation to every individual offshore entry person. This would inhibit the policy objective to arrange for persons to be taken quickly for processing offshore in order to break the people smugglers' guarantee that asylum seekers would have their refugee claims processed in Australia. I understand that the senators making their points have a very strong political point of view and they do not agree with this approach, but I am conveying the facts and interpretation, of course, of the scheme that we are putting forward, the motivation being smashing the people smugglers' business and thereby protecting the lives of people overseas.
I thank the minister for her responses and I go back to her line about the documents. If indeed it is not politically tenable to imagine a situation where all of the documents would not exist, why is it in the legislation? And could it be that we will expect a designation any moment, or in the next week anyway, and that perhaps some of these statements may not exist?
The senator is ignoring the fact that those assurances need to be obtained as part of the process, so again I think that her fear is unfounded and that what would be presented before the parliament would be adequate to allow full scrutiny of the proposed designation.
I did not get an answer to the question about whether we can expect a designation within the next week and whether this item is here because some of these documents will not exist because the Prime Minister will not have gotten them and the minister will not have been able to get them in the time frame.
I go back to the other issue that the minister raised in relation to natural justice, and I thank her for acknowledging that refugees will not have their legal right to natural justice and that it will be up to the discretion of the minister as to whether or not he decides to afford a person natural justice as they are not legally entitled to it. So I thank the minister for that clarification. I want to go back to the actual designation and what the documents are that the minister has to lay on the table to assure us all that people will be covered by the provisions of the refugee and human rights convention. As I read it, the only thing that the minister has to consider is that the country has given Australia assurances that the country will not expel or return a person taken to that country and that the country will assess whether or not they are refugees and may have regard to anything else which the minister relates to the national interest. What are the rights, apart from not being sent back to another country where life or freedom would be threatened? What are the rights? Why are they not specified here? You apparently only have to get an assurance that the person is not going to be sent back and that their refugee status will be assessed, and the minister can then determine at his own discretion what else is in the national interest.
I can add further information about the term 'national interest', but I think that was quoted into Hansard earlier by either Senator Milne or Senator Hanson-Young. I am happy to read it out again.
Thank you, but I asked what else. As far as I can see, the minister only has to get an assurance that the receiving country will not send a person back to their own country or to a place where their life might be endangered and that they have to assess them as refugees. There is nothing there about any other rights, except to say:
It goes on to talk about the national interest being border security, national security, defence, economic interests and so on. I want to know where there is any guarantee about access to the law, access to health, access to education, access to any services. Where is any of that?
I am advised that all those other matters you raise are matters to be taken into account by the minister in reaching agreement with the designated country. I also refer you to paragraph 120 of the explanatory memorandum, which also makes it clear that the minister may have regard to other factors—that is, factors other than the national interest—in his consideration of matters to be relevant to the national interest, but he is not bound to do so. That paragraph does provide for the opportunity for other matters to be taken into account.
Yes, but the issues I am raising are with regard to the rights, services and support to refugees. You are referring to what the minister might be able to consider in relation to the national interest, and the national interest as it is set out in that paragraph is:
… public safety, border protection, national security, defence, Australia’s economic interests, Australia’s international obligations and its relations with other countries. Measures for effective border management and migration controls are in the national interest. Measures to develop an effective functioning regional cooperation framework and associated processing arrangements to better manage the flows of irregular migrants in our region are also in Australia’s national interest.
The national interest pertains to what the minister thinks is good for Australia. I am asking: where does it set out what the minister has to guarantee in terms of the interests of the refugee, interests of the unaccompanied child, interests of minors? It is very specific that the minister can take anything into account that he thinks is in Australia's national interest, and it is all couched in terms of national defence, border security and economic interest, but where is there any reference to the rights of refugees?
The government is absolutely confident that it can meet the obligations it has through agreement and, thereby, the designated country also meets those obligations. I mentioned before that the nature of the agreement between Australia and the designated country can take into account these matters. Once again, the minister can have regard to other issues, as it is stated in the legislation, not limited by the matters just listed by Senator Milne as far as the definition of the national interest is expressed. Again, to provide reassurance to senators that our obligations are fulfilled, we are confident that by agreement with designated countries those obligations will be fulfilled and, therefore, we believe her concern is unfounded.
We are going round in circles here, Minister, because the refugee convention makes very clear that taking away a person's natural justice is in contravention of their right to access those services. There is no point in going over this any further. There is no legal obligation in this anywhere for the minister to provide natural justice to a refugee, nor is there any requirement for anything under the conventions, except an assurance which is not legally binding about sending a refugee back to where they came from or to another country. So I think we have it pretty clearly here that the government thought it was important enough to define the national interest in very specific terms but did not find it necessary to define the interests of refugees in any specific terms. That is now a matter of the discretion of the minister in the context of what the minister thinks is in the national interest, and then, after he or she has exercised his or her discretion as to what is in the national interest and what is in the rights of refugees, when they table the document in the parliament, there is no requirement for any of those documents to actually be presented. They do not even have to exist. For the purposes of this legislation they do not have to exist in order for a parliament to tick off a country as a processing centre for refugees. It is only the political imperative we are now told, Minister, that would require a minister to feel as if he had to put any of those documents on the table.
Minister, there is nothing in this legislation which gives a legally binding protection to any refugee anywhere Australia would send them—unless you can tell me, in this legislation which specifically says 'exempted from natural justice, not legally binding'. Can you just confirm that there is nothing in this legislation that makes it legally binding for Australia to have to have legally binding provisions that cover human rights in another country?
I think it is very clear that the process here is that by agreement with other countries we need to be satisfied that those agreements are in place and that those obligations will be honoured and the substance of those agreements then stands the scrutiny of the parliament. I am not sure what Senator Milne and other senators have with respect to confidence in the parliament, but the level of scrutiny that would need to be withstood in this place would provide the adequate assurance that they are looking for that these obligations would be met.
The other general comment I want to make is that compliance with Australia's international obligations always is broader than the content of legislation and the technical detail that we are currently discussing. It is about how Australia approaches things in toto by way of legislation but also administration and practice. Built into the approach we have taken is—as I have stated and I think has been made clear by the minister all the way through—full consultation with the UNHCR. That is a key part of how this approach will win confidence and also operate effectively in practice.
We have just established that there is absolutely no requirement for the minister to table any of the documents and assurances that the minister may have from anybody, whether that be the UNHCR or anybody else. There is no requirement for the minister to lay on the table the details of the agreement with the designated country. It is not even that there is no requirement for them to be laid on the table. They do not actually have to exist. If this government believes that they are important, why isn't that requirement in the legislation? As of yesterday, let's not forget that the government had not even picked up the phone to speak to the UNHCR. This is just absolute utter rubbish. It is saying one thing and doing another. The whole point of this legislation is to have as little scrutiny as possible, as little regard to people's rights as possible, to write out of current legislation any legal obligation that we have under the UN convention and to put precisely in the legislation that none of these documents that the Houston report says are important and that the government and the minister here tonight continue to rabbit on about even have to exist. I apologise that the minister is in this position because I doubt that Minister Lundy even knew that this clause was in this legislation, that none of these documents even had to exist. So despite all of this fanfare about how this is going to be so different than it was under John Howard—
It is worse. This is worse than the legislation under John Howard. Do you know what is going to happen, Senator Milne? That is why the coalition love it, because they have well and truly done the government over. The government is introducing worse legislation than John Howard did. The government is ripping out the limited rights that John Howard had in his legislation. The Houston report says that, if you are going to do this, you have to at least have these assurances. This legislation lets the government of the day off the hook. They do not even have to exist. I doubt the minister even was aware because, if she was, why would you continue to reference them, because they are totally irrelevant? They are not required; they do not have to exist. They are not meaningful in any way.
I think we should start to get onto the amendments that we have circulated, because the reality is that this legislation is not worth any of the responses that the government is even giving us because none of it is in the legislation. They are hollow words from a government which is designing a piece of law to circumvent the rights of people to arrive here asking for our assistance and the very clear indications that the High Court gave this parliament of the protections that needed to be upheld. My question to the minister, referring to the substance of my amendment 7264 is: what is the definition of indefinite detention? I would like the minister to answer some questions about the amendment. I move:
(1) Schedule 1, item 25, page 10 (after line 12), after section 198AD, insert:
198ADA 12 month limit on transfer to regional processing country
(1) The Minister must ensure that a person who is transferred to a regional processing country under section 198AD is transferred to Australia no later than 12 months after the day on which the person arrived in the regional processing country.
(2) Subsection (1) does not apply in relation to a person who is not in the regional processing country 12 months after the day on which the person arrived in the country.
(3) Section 198AD does not apply in relation to a person who is transferred to Australia under subsection (1).
If it helps, I will go to the essence of my amendment. That might help the minister in answering the question that has been put to her. The amendment circulated by the Australian Greens is in relation to putting a time limit on the length that people are able to be transferred to a processing facility offshore. The Australian Greens believe there should be a time limit, and that is why we are moving an amendment to limit the time to 12 months. Currently there is no time limit within the legislation. I ask the minister: what is the government's definition of 'indefinite detention'.
It is the government's intention to oppose this amendment. This amendment would undermine the expert panel's recommendation that there be an application of a no advantage principle to ensure that no benefit is gained through circumventing regular migration arrangements. To be specific, a 12-month limit would give an advantage to a person who has circumvented regular migration arrangements as they would be transferred to Australia after 12 months. The underlying principle of the recommendations from the expert panel is that people who arrive by boat should receive no advantage in their processing. To argue otherwise is to argue that people should receive an advantage if they arrive by boat. To argue otherwise is to suggest that someone who can afford to come here by boat or who is inclined to come here by boat should receive advantageous treatment over those who are waiting elsewhere for resettlement in Australia.
Just to reinforce this point, because I understand the motivation of this amendment, the expert panel has clearly said in paragraph 2.21:
… a strengthened regional approach will not be effective, or its benefits will be reduced, if those who choose to seek asylum through irregular means gain advantage from doing so over those who claim asylum through established mechanisms.
I refer the minister to page 19 of the Houston report, where it clearly says that one of the things that the Houston report believes is important is 'improved access to timely and fair processing of asylum seekers’ claims for refugee status'. I ask the minister again: what is the government's definition of 'indefinite detention' and how does indefinite detention fit with the requirement in the Houston report for 'timely and fair processing of asylum seekers' claims'?
I can go through my points again, but the overriding principle contained in the legislation and in our approach is the no disadvantage test, so there is not a definition for indefinite detention, as Senator Hanson-Young keeps asserting.
So the government has no definition of indefinite detention except that it is indefinite. Let us put this in context: 76 years is the current waiting list in Malaysia for a refugee to be resettled, so for somebody to not take advantage of seeking asylum in Australia we would need to dump them on Nauru or Manus Island for 76 years. The average across the region is somewhere in the vicinity of 20 years.
Can the minister answer these questions for me please. What is the advantage of a refugee who has to wait for 20 years in a camp in Indonesia? What advantage does that person have when they are amongst the world's most disadvantaged? How does that compare to the advantage of a refugee dumped on Nauru by the Australian government, contrary to the convention, with no guaranteed protections, no access to natural justice, for 20 years? What is the advantage, Minister, of being amongst the world's most disadvantaged people?
I would like to remind the chamber that this is part of an integrated package, and part of what we are proposing is that we increase our intake of refugees to 20,000. That will have the effect of easing the waiting periods as described by Senator Hanson-Young, so again I challenge the accuracy of her presentation and how it fits into the calculation of what constitutes no advantage. It is part of a regional approach. There is consensus that working within a regional framework provides the most durable solution for managing asylum seekers, and particularly irregular maritime arrivals, and the risks associated with travelling by sea to Australia. So, to again reiterate the point, it is part of an integrated package and we should not forget that in the context of this committee stage debate.
No, the legislation relates to those arriving as irregular maritime arrivals and by boat, our motivation being the saving of lives of people who would otherwise be motivated to undertake perilous journeys that we know can result in death and tragedy. That objective is a worthy one. The primary motivation on a humanitarian basis is to resolve a very difficult problem that Australia has been trying to manage, and we do not resile from that. This is about saving the lives of those who seek to undertake a dangerous journey by boat to Australia.
There are many questions that need to be asked in relation to saving lives, particularly the point at which we dispatch the rescue forces to actually get people from the sea. I ask here—the minister may wish to answer this—how it is that Minister Jason Clare did not know there was a ship missing until 9 August, when the representative of the Palestinians in Australia informed the government three weeks ago that the ship was missing. I am very interested in that as a matter of detail.
But I want to come back to advantage and disadvantage. I just want to clarify: why is it that a person who flies into Australia and seeks asylum does not have this punitive system applied to them? It is only people coming by boat. Secondly, why is it that people coming by boat are not able to apply for visas? Can you clarify that? Which countries does Australia not provide visas for and therefore their people cannot fly into the country and access a safe pathway?
I am advised that on arriving by plane on excised offshore places there is no entitlement to apply for a visa unless the minister lifts the bar at that point. I am further advised that they are able to have their claims under the refugee convention assessed administratively.
I just find this extraordinary. As if I was talking about anyone coming to Australia seeking asylum and deliberately choosing to fly into Christmas Island! I ask you! That is the most ridiculous thing I have heard you say here this evening, Minister. People who are seeking asylum and come here by air fly into mainstream airports. They fly into Tullamarine; they fly into the mainstream airports. If you are seeking asylum, as if you would choose to land in a place where you are going to be put into detention immediately! That is just a ridiculous contention.
Let us get back to the facts. As to the issue of whether they would get a visa or not, they are flying in because they have got a visa. They have gone to an Australian embassy or somewhere and got a tourist visa, a student visa—some kind of visa. They come here and then seek asylum on the back of their student visa, their tourist visa or whatever. We have got hundreds if not thousands of people in Australia at the moment who flew in on a valid visa. They have outstayed their visas and they are out there in the community.
There are 68,000, in fact—68,000 people have overstayed their visas in Australia, but they are not to be subjected to the advantage/disadvantage test. The question I want to ask the minister is: why is it that people from Iran, Iraq and Afghanistan cannot get visas? Can you please tell me why it is they are not able to fly in on a student visa, a tourist visa or some other visa and seek asylum at the airport? Why is it that they have no option but to come by boat?
I am advised that your assertion is inaccurate and that there is not an ability for people to apply in the way that you describe.
Senator Milne interjecting—
Just a moment, please—I will get some advice. Just to clarify, they arrive at Sydney airport and they are able to apply for a protection visa. They are not barred from that. Perhaps I can get back to you with some further detail. But I do note that we are straying from your amendment.
I think I need to take this opportunity to reiterate that the motivation of this legislation is in fact to smash the people-smuggling model. It relates to irregular maritime arrivals and our motivation is, of course, to save the lives of those otherwise motivated to travel by sea to Australia. If you would like to ask technical questions about the operation of the Migration Act more broadly, I am very happy to take those questions on notice.
The minister has just clarified—not in the most precise way, but she has confirmed—that if you fly to Australia and you land on the mainland you can apply for a protection visa. These people are not people that, under this legislation, the government is saying will be transferred offshore. Therefore, they have an advantage.
Further to the question being raised by my colleague Senator Milne, as the minister well knows, yes, you can fly to Australia and apply for protection once you arrive, but we are speaking about the people who cannot fly to Australia because of carrier sanctions. There are a whole group of people who the government believes are at high risk of seeking asylum, so they will not be given temporary visas. You cannot get on the plane.
This government's policy forces people—the most disadvantaged people—onto boats. The most ridiculous notion of this disadvantage test is that those very same people are the ones who are not allowed to fly here anyway. That is the whole point. The government wants to talk about an indefinite period of detention for people because they are amongst the world's most disadvantaged. They are not lucky enough to fly to Australia. They are forced onto boats. And now we are going to lock them up indefinitely to rot in Nauru.
This is precisely why the Greens have moved an amendment to limit the length of time that these poor people have to spend in that hideous place. Can the minister answer this question: how long will a child be detained in an offshore facility under this legislation? Is there a limit on the length of time that a child will be detained in an offshore facility?
I have answered this question previously. The minister for immigration is in a position to take into account and provide exemptions for unaccompanied minors and for others, as the minister sees fit, who have particular vulnerabilities. That would be the mechanism by which the time that they could spend there is potentially affected. I have already explained that, with regard to indefinite detention, the principle that we are applying is one of no advantage, and that does not specify a period of time, as this amendment seeks to do.
It is fairly clear, then. Thank you for clarifying, Minister. There is no limit on how long children will be detained in an offshore facility, and there is no distinction about whether a child is subject to the no-advantage test. We already know from our previous engagement that there is no reason why the minister has to take anything into consideration as to the vulnerabilities of these children. That is precisely why we must put a limit on the length of time spent in detention by children, their families and the other poor souls who risk their lives getting here, forced onto boats because they cannot take a plane ride. We do not let them. They are not lucky enough. They are not advantaged enough. That is precisely why. We need to limit the government's abuse of these people's human rights.
I just want to ask a question in relation to this issue of advantage and nonadvantage—and it does go to this issue. One of the recommendations of the Houston panel is that the whole of mainland Australia be excised and join Christmas Island et al as part of the excision zone from the Migration Act. If you are going to be fair about advantage and disadvantage and if the whole of the mainland is excised, does that mean that people who fly into Australia without a visa are now going to come under this, or is it still only going to be other people? So you can arrive by plane when the whole of Australia, the whole mainland, is excised, and you can land—and it is not subject to the migration laws et cetera—but, because you came by plane and not by boat, you will not be subject to this legislation? That surely goes against the convention that says there should be no discrimination based on the way you arrived. Can you just clarify whether you are going to excise the whole country, the whole mainland—leaving out Tasmania, of course? I just want to know that, Minister.
Senator Milne, I thought you liked Tasmania being part of and treated the same as Australia! But, seriously, this is not a matter that is addressed in the amendments that we have before us. The government has said that there are other issues that have been raised in the recommendations in the Houston report that will be subject to further consideration, but these issues are not addressed in the bills, no.
Minister, that does go to the heart of the issue of the advantage and disadvantage test if you excise the whole of the mainland. The whole point of that, as I understand it, is to make sure that, if someone arrives on a boat on the mainland as opposed to Christmas Island, they would then be subject to this legislation. But, by the same definition, I would have assumed that a person who flew in without a visa and therefore stepped onto the Australian mainland, excised under the law, would then be required to go into detention. If not, once again the advantage is to people who fly. If you want to save lives at sea, you had better start thinking about the most effective way to do that and reconsider your advantage and disadvantage test when it comes to whether people arrive by sea or by air.
But I want to go to this question. You said that the government will not say what indefinite detention is because the advantage and disadvantage test means that you have to work out the sort of average, across the region, of the length of time people have to wait before they are resettled. My colleague pointed out that for Malaysia that would be something like 76 years; for other places it may be less. I want to know from the minister: what is the process for determining that? You tell us that you cannot limit it in the way we are suggesting—that is, that the absolute maximum be one year. You are saying that it will be somehow worked out so that there is no advantage to anybody across the region. It will be an advantage to anyone across the region if it is less than 76 years, so I want to know what the process is for the government to determine before they send a single person to Nauru or Manus Island, and how we will all be informed, what the designated no-advantage period of time is?
These issues will of course be determined in full consultation with the UNHCR. This process is yet to be undertaken and will be done in due course. It is obviously a key part, as it relates to what constitutes no advantage, but it is something that we need to determine in conjunction with consultation with all of the relevant parties.
I want to go back to a previous point. Senators have a habit of reflecting, as is their right, on my previous answer and then moving onto the next question, so I reserve my right to challenge the assertions being made. One of them relates to people arriving by air. I reiterate that our motivation for these amendments is to stem the people-smuggling trade and the flow of people travelling by boat to Australia. People are dying on those perilous journeys and our aim is to smash the people-smuggling trade and the means and the motivation for people getting on unsafe boats and risking their lives in the process.
The UNHCR said yesterday that there was no way of averaging the period of time that people wait across the region. Having said that, I ask again: what is the process for determining what constitutes no advantage across the region, and will we have in the first designation that hits the table of this parliament a clear statement of what the no advantage time period in detention is?
Obviously it will be given further consideration as events unfold. The legislation as it passes through parliament will open up a series of processes, one of which is further consultation on matters such as this one. It is impossible for me to foreshadow the outcomes of those conversations that are subsequently to occur.
That is clearly one of the reasons why this amendment is so important. The minister is saying that the legislation will be passed, and that will trigger a number of processes including the tabling in this parliament, no doubt within the week, of a designated place where we are going to see people being sent. Ministers are supposed to have documents and put them on the table, but now we find they do not have to exist and the ministers do not have to have them. The minister is saying the process will be triggered for determining how many years you have to be in detention in order to be advantage or disadvantage, but clearly that process is not going to be triggered until this legislation passes. Can the minister give me an assurance that, before there is a designation on this table of another place where people are going to be sent, you have in that document a statement of the length of time which constitutes the baseline for advantage or disadvantage?
I am not able to give those assurances because those conversations are yet to occur. The important point to make here is that the no advantage test operates effectively and to put a constraint or a 12-month limit on it completely undermines the principle—hence our opposition to the Greens amendment. I respect the Greens senators' view that they oppose this legislation, they oppose the principle of no disadvantage. In responding to these questions I cannot provide the detail Senator Milne is seeking but I acknowledge that she will keep asking questions that seek to give character to her opposition to our approach. We are motivated by the humanitarian interests of the people whose lives would otherwise be at risk in undertaking those journeys across the sea, and we stand by that.
If the minister is motivated by the humanitarian interests of the refugees who feel no hope other than to get on a boat, will the minister provide them with visas so that they can fly into Australia and have a safe pathway? If humanitarian concerns for refugees are at the heart of what the minister is saying, why would she not give them visas and fly them in, and then they do not have to get on a boat.
The government is increasing our humanitarian intake to 20,000. I reiterate that this is part of a regional arrangement. This legislation is part of a process and what we believe will be a durable regional arrangement for the management of irregular migration. I challenge the premise of Senator Milne's question, because it does not acknowledge that the legislation is part of a broader solution. I know from many commentators, and from the expressions of the minister, that it is in everybody's interests, and particularly the interests of refugees, that we have an orderly migration process. Our motivation is to prevent loss of life and tragedy in boats, and part of our motivation is always, as we have said right from the start in our advocacy of the Malaysia arrangement, to come up with a regional approach that engages fully with all of our neighbours and works with them to get a sustainable and durable solution to irregular migration in our region.
I think there is broad consensus that that is a desirable outcome. This is a very difficult debate—it is very challenging and the government has compromised very specifically in accepting that we needed to have an independent panel to determine the best way forward, and we have willingly compromised again to put in place what we believe is the most effective solution to an incredibly challenging problem. Again, I respect the Greens' opposition to this approach. Their opposition has been consistent, but the government stands by our motivation to find that long-term solution. We believe that this legislation captures and embodies both the spirit and the letter of the recommendations of the Houston report.
I appreciate the minister's answer. The Greens have been asking for an increase in the humanitarian intake, and we have said from the beginning that the government have had the power to do that all along and could have done it at any time, so I really welcome the fact that they are going to do it. That does not alter the premise of my question: if the minister's genuine interest is in the humanitarian welfare of refugees, why wouldn't we give them visas and allow them to fly in to have their refugee applications assessed? Isn't it true that deterrence is at the heart of this strategy?
Again, I go back to the point about having a sensible regional approach with which we work with our neighbours in the region. There are 43 million refugees around the world. We take a very small proportion of them—and, certainly, a still smaller proportion of them are irregular maritime arrivals. So I appreciate the sentiment, but I put it to you, Senator Milne—through you, Chair—that what you are suggesting is impractical with regard to achieving the objectives of having an orderly migration process and a durable regional approach to managing irregular migration.
I would like to know from the minister whether the government received any advice, prior to drafting this legislation, as to what limits there should be on the time that unaccompanied minors and other children are detained in an offshore processing facility.
I think the best way to answer Senator Hanson-Young's point is to say that there is a difference between timely and fair processing time frames and resettlement time frames. I think that is the technical point. Again, I ask senators—through you, Chair—to remember that this is part of a broad set of measures and this legislation is dealing with one aspect of that, and that we aim to have in place a durable regional arrangement, one in which we work with our neighbours and other countries in our region to get improved outcomes for those seeking refuge in our region.
I appreciate the minister clarifying that this legislation allows for the indefinite detention of children, even once we have determined them to be refugees. That is precisely what the minister just said. There is no time limit on how long a child can be detained, even after their refugee status has been determined. They will continue to be detained while we wait to find somewhere else to dump them. I move Australian Greens amendment (1) on sheet 7264:
(1) Schedule 1, item 25, page 10 (after line 12), after section 198AD, insert:
198ADA 12 month limit on transfer to regional processing country
(1) The Minister must ensure that a person who is transferred to a regional processing country under section 198AD is transferred to Australia no later than 12 months after the day on which the person arrived in the regional processing country.
(2) Subsection (1) does not apply in relation to a person who is not in the regional processing country 12 months after the day on which the person arrived in the country.
(3) Section 198AD does not apply in relation to a person who is transferred to Australia under subsection (1).
The coalition will not be supporting Greens amendment (1) on sheet 7264. The amendment does nothing more and nothing less than undermine offshore processing. It facilitates the criminal activities of people smugglers and it is inconsistent with the findings of the expert panel, in particular in relation to the no advantage principle. It is of little surprise, however, that the amendment is consistent with the Greens' policy of onshore processing.
We in the coalition believe that people smugglers undertake criminal activities and under no circumstances at all should they or their activities ever be facilitated by domestic policy. The coalition do not want to see people getting on boats and we will not facilitate such a policy, which is exactly what this amendment will do if it is carried. The Greens should stop peddling policy that facilitates the criminal activities of people smugglers and, in particular, activities that have been condemned by the expert panel in their report. The coalition as a responsible political party will not be supporting this amendment.
I have just had notice that there is at least one small child that has been transferred to Christmas Island—on the first boat intercepted on 13 August. So that small child now faces indefinite detention, whether or not they are found to be a refugee. Chair, I move that the question be put.
The TEMPORARY CHAIRMAN: The question is that Australian Greens amendment (1) on sheet 7264 be agreed to:
by leave—I move Greens amendments (1) and (2) on sheet 7266:
( 1 ) Schedule 1 , item 25 , page 6 (lines 26 to 29) , omit subsection 198AB ( 2 ), substitute:
(2) The only conditions for the exercise of the power under subsection (1) are that the Minister:
(a) thinks that it is in the national interest to designate the country to be a regional processing country; and
(b) is satisfied that the country has in place appropriate protection and welfare arrangements that are consistent with Australia’s, and the country’s, obligations under international law (including the Refugees Convention).
[protection and welfare arrangements]
( 2 ) Schedule 1 , item 25 , page 7 (after line 13) , after subsection 198AB ( 4 ), insert:
(4A) For the purposes of subsection (2), the country has in place appropriate protection and welfare arrangements if:
(a) the protection and welfare arrangements in place in the country include arrangements to ensure that a person taken to the country under section 198AD:
(i) will be treated in a manner consistent with human rights standards under international law, including by not being subject to arbitrary detention; and
(ii) will have appropriate accommodation; and
(iii) will have access to appropriate physical and mental health services; and
(iv) will have access to educational and vocational training programs; and
(v) will be provided with assistance in preparing any asylum claim or visa application; and
(vi) in respect of any asylum claim or visa application made by the person, will have access to an appeal mechanism that affords natural justice to the person; and
(b) the protection and welfare arrangements in place in the country are monitored by a body consisting of representatives of Australia and the country.
These amendments relate directly to the requirements as outlined by the Houston panel that for any refugee or asylum seeker to be transferred to another country by Australia certain protections and operational guidelines must be included. Maybe it is just an oversight that these guidelines were not included in the legislation. We keep hearing from the government that they are implementing the Houston report. The Houston report says very clearly that if we are to transfer refugees to offshore facilities they must have access to a list of basic standards and protections. I will read them. All we are doing is taking the guidelines that the Houston panel requires and that the Houston panel says have to be included and putting them in the legislation. It seems the minister has left them out. It says the country has appropriate protection and welfare arrangements if:
(a) the protection and welfare arrangements in place in the country include arrangements to ensure that a person taken to the country under section 198AD:
(i) will be treated in a manner consistent with human rights standards under international law, including by not being subject to arbitrary detention; and
(ii) will have appropriate accommodation; and
(iii) will have access to appropriate physical and mental health services; and
(iv) will have access to educational and vocational training programs; and
(v) will be provided with assistance in preparing any asylum claim or visa application; and
(vi) in respect of any asylum claim or visa application made by the person, will have access to an appeal mechanism that affords natural justice to the person; and
(b) the protection and welfare arrangements in place in the country are monitored by a body consisting of representatives of Australia and the country.
These are all requirements that the Houston panel says must be included, yet they are not in this legislation. I ask the minister why that is.
The government will be opposing these amendments. The proposed amendments being put forward add greater protections than those required by the High Court in relation to existing provisions and the standards imposed by the Greens' amendments are so high and broad that they essentially render a regional processing arrangement unworkable. I reiterate that the arrangements must be agreed between Australia and the proposed designated country and therefore must be appropriate. Those agreements are negotiated in conjunction with and with the participation of the UNHCR and other stakeholders. Parts of the proposed amendment as well are very unclear. For example, it is not clear whether or not the appeal mechanism that affords natural justice as described is a judicial review mechanism or a merits review mechanism. Regardless, the earlier substantive points I made about these amendments rendering a regional processing arrangement unworkable have led us to the conclusion that it would be folly to consider supporting them. Hence we will not.
I thank the minister for her answer. These are not the Greens' requirements; these are the requirements of the Houston report, which the government say they will implement. There are 10 unaccompanied minors who have today arrived on Christmas Island who will be among the first people sent to Nauru. Why is the government so reluctant to ensure that these unaccompanied minors have access to these appropriate protection and welfare arrangements specified as essential requirements by the Houston panel?
A point of clarification: the Houston report in making these recommendations does not require these matters to be legislated. I have already stated that the arrangements would have to be agreed upon. So in accepting the recommendations of the Houston report we agree as a country to put in place those assurances, but nowhere does it specify that they ought to be legislated, hence they are not part of the legislation. I also want to make the point that, if they were accepted, each of the amendments proposed could potentially give rise to a basis for a potential legal challenge on the basis of what is an appropriate standard. The government is of the view that it is appropriate that the designation itself is subject to parliamentary scrutiny and in that way these agreements and the recommendations we have accepted would be tested fully under the scrutiny of parliament.
Thank you, Minister, but, as you have also said, the designation does not require any or all of those documents to be available, so it is anybody's guess as to what will be on the table. Senator Hanson-Young spoke about the recommendation of the Houston panel and, yes, in 3.46 it says very clearly that asylum seekers who have their claims processed in Nauru would be provided with protection and welfare arrangements consistent with Australian and Nauruan responsibilities under international law, including the Refugee Convention, and those protections and welfare would include—and they are all the things in the list that my colleague read out. In fact, it is not about whether the Houston recommendations are in legislation or not. The recommendations say in 7, 8, 9 and 10 that everything has to be consistent with Australian and Nauruan responsibilities or PNG responsibilities under international law. Under international law are the conventions, and we have already heard from the minister that Australia is not upholding its international obligations under the treaties, because we have given several examples where Australia is not going to do that.
Specifically in relation to conditions and standards for unaccompanied minors, can the minister clarify that it is true that under this legislation the government is changing something very significant for children who come to Australia unaccompanied? Is it the case at the moment, as a result of the High Court's decision, that the minister shall be the guardian of the person and of the estate in Australia of every non-citizen child who arrives in Australia after the commencement of this act, to the exclusion of the parents and every other guardian of the child, and that the minister shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have until the child reaches the age of 18 years or leaves Australian permanently, or until the provisions of this act cease to apply in relation to the child, whichever happens first?
Is it not true that the High Court said that, because the minister is the guardian, he has the liabilities that a natural guardian of a child would have and that, in fact, that means currently the government cannot send an unaccompanied child out of Australia while the minister has that guardianship responsibility? Is it not true that in this legislation the government is removing from the minister that guardianship of the child, therefore removing any liabilities or obligations the minister may have as a guardian of that unaccompanied child?
s it the case that, if this legislation passes, the 10 unaccompanied children on Christmas Island will no longer have Minister Bowen as their guardian, that the minister will have no responsibility for them and no liability for them et cetera, that he will no longer have to sign on the dotted line to have them removed from the country, that they will be able to be removed without his signature? He can exercise his discretion, if he wishes, to do something about them, but the fact is the government and the coalition have come here tonight to remove the guardianship responsibilities of the minister from unaccompanied children. As of tonight, if this bill goes through, those 10 unaccompanied children will no longer have a guardian under Australian law. Is that correct?
I am getting some advice on the specific point you are making, but first of all I would like to reject outright the assertion you made at the beginning of your statement that Australia was not adhering to its international obligations. I have gone to great pains to explain why that is not the case. I understand that the Greens are of a different view—they have asserted that continually—but we totally reject their claim that we are not adhering to our international obligations.
In relation to the impact of the High Court judgment and how that relates to unaccompanied minors, I would like to make a number of points which I think go to the issue you have raised. The majority of the High Court in the Plaintiff M106 case held that the taking of an unaccompanied minor from Australia is unlawful in the absence of the consent in writing of the Minister for Immigration and Citizenship under the Immigration (Guardianship of Children) Act 1946. The ruling means that no unaccompanied minor can be removed or taken from Australia in the exercise of any power under the Migration Act unless the minister, in his capacity as the statutory guardian, gives consent. This consent would be subject to judicial review.
The court also found that any decision the minister made regarding consent would need to be made consistent with the best interests of the child. In practice it would mean that an unaccompanied minor found not to be a refugee could claim it was not in their best interests to be returned to their country of origin and this may be accepted by the courts. The government has stated that this is not sustainable as public policy. In practice, the decision means that the minister has the power that no other parent or guardian in Australia has, which is to prevent the otherwise lawful exercise of removal powers under the Migration Act 1958.
In effect, the bill before us re-asserts the primacy of the Migration Act with regard to unaccompanied minors and the amendments to the guardianship act will also put beyond doubt that the minister's guardianship ceases when a child is removed from Australia or taken from Australia without a visa or right to return.
So the minister has said that the responsibility of the Minister for Immigration and Citizenship ceases the minute the child leaves the country and is sent to an offshore detention centre. The whole reason for this is to remove the rights of the child in terms of what they would have had under the existing legislation. Is it the fact that the minister has to decide, as the guardian of the child, to sign off on removal of a child and to send that child offshore—which is appealable in the courts—which will mean that the minister will no longer be their guardian? For the 10 unaccompanied minors on Christmas Island, as of tonight we are getting rid of the guardianship responsibilities of the minister in relation to those 10 children.
I refer the senator to paragraph 271 of the explanatory memorandum:
The High Court’s decision does not align with the Government’s policy intention which is that the Minister’s consent under section 6A of the IGOC Act is not required for a noncitizen child to be removed, taken or deported from Australia under the Migration Act. This intention is given effect by item 8 of Schedule 2. As such, this amendment is a consequential amendment as a result of item 8. Subsection 6A(4) is effectively replaced by the amendments to section 8 made by item 8 of Schedule 2.
That is exactly what I was saying. The High Court's decision to uphold the rights of the child and the guardianship responsibilities of the minister in relation to unaccompanied minors, as the minister has just said, does not align with the government's policy intention. That is why we are here: to remove that guardianship from the minister because the High Court's upholding of the legislation was not in line with what the government had in mind. What the government had in mind, as it says in paragraph 271, is to be able to remove noncitizen children—to take them and deport them from Australia under the Migration Act—without the minister having to sign off on it, because he is no longer their guardian. For the third time, I ask about the 10 children—the unaccompanied minors who have arrived on Christmas Island—who are going to be subject to the outcome of this legislation: is it true that when this bill passes tonight the minister ceases to be their guardian and therefore those children will have no guardian? Is it true that the minister will have given up his liability as a natural guardian of a child—in other words, to look out for the best interests of the child—under the rights of the child convention and so on? I just want a straight answer. Is that the effect of what the parliament is doing tonight to 10 children on Christmas Island?
We are not removing the minister's guardianship while the children are in Australia. The purpose of this amendment is to restore the law to the position as it was understood to be prior to the High Court's decision in the court case we are referring to.
If the nonsense of this were ever obvious, it is now. The children are on Christmas Island, which is part of Australia except for the purposes of determining whether or not the minister is the guardian, when they are not in Australia—Australia no longer exists in that context.
Sorry for interrupting. No, while they are still in Australia guardianship still exists. That relationship of the minister as guardian exists while they are still in Australia—
So, even though Christmas Island has been excised from Australia for the purposes of the Migration Act, those 10 children have the minister as their guardian until the time this bill passes tonight. The minute that it passes tonight, those children can be sent to any country that the minister deems an appropriate place. If the parliament has said, 'This place is an appropriate detention centre,' those children can be sent there and the minister will no longer be their guardian; they will have no guardian once this legislation passes.
No, that is incorrect. Once this legislation passes the minister remains the guardian of these children. If a designated country were to be identified and that stood the scrutiny of parliament then the situation would be that if those children went to that designated country it would be at that point that the minister would cease to be their guardian.
The 10 unaccompanied children who are currently on Christmas Island, who the minister has already said risk being deported to Nauru, are about to be given up on, left desolate and left on their own with no legal guardian. That is what this legislation will do. The High Court's finding that Australia's obligations under the Convention on the Rights of the Child and the refugee convention was inconvenient to the government, so it has decided: 'Oh, well, we'll just will change the law and strip those children's rights away.' This legislation is going to dump unaccompanied minors in a foreign country and no one has to take responsibility for it. They will be on their own. We have just heard from the minister that this government has no intention of putting the requirements of international legal welfare protections—basic rights that the Houston report says must be adhered to—in an offshore processing facility. Not only are we dumping these children with no-one to look after them, no-one to be responsible, no guardian—wiping our hands of them—we are dumping them in a place where we do not even have a guarantee that they are going to be housed properly. Let us remember that the minister said, only an hour or so ago, that she believed that dumping them in army tents was totally appropriate, that it was an appropriate way of housing refugees as required under the Houston report. The weasel words that are used in this legislation to get out of anything that has anything to do with the best interests of the child are just unbelievable.
I want to go to a particular point that the minister raised when answering a question from my colleague Senator Milne, that it was inconvenient that the High Court decided that actually Australia did have obligations to children who are unaccompanied minors, those poor orphaned children who have arrived here without any family. So not only was it inconvenient for the court to rule that they had rights as that somehow did not fit with the government's policies, we have just heard the minister say that protections that are in the best interests of the child are 'not sustainable' and so it is 'not sustainable' to act in the best interests of the child. That is what this legislation is doing and that is what the minister has just said here tonight. Let the Hansard record stand: the minister has said it is 'not sustainable' for the government to act in the best interests of the child. Why didn't the immigration minister say that in his press conference on Monday? Because the government is determined to rush through this piece of legislation to trash anything that is in any way a protection or a safety net for unaccompanied minors, to not let anybody know about it and to absolutely trash any obligation as to these children and any legal recourse that any of these children have—and the whole reason is that it is 'not sustainable' for the government to act in the best interests of the child! Australians would be horrified to know that this government is putting forward legislation in such a callous, cruel and utterly illegal way because it is 'not sustainable' for our government to act in the best interests of the child. This is absolutely shameful.
There is a fundamental difference of opinion between the government and the Greens on this matter. The discouraging of people risking their lives on boats coming to Australia sits at the heart of our motivation and to suggest that a way forward would be to create some systematic motivation for unaccompanied minors to be the ones to be put on boats is the height of irresponsibility. I understand the Greens do not agree with our approach but to assert, within the context of this current debate, an amendment that would single out a protection for unaccompanied minors in the way that you describe, Senator Hanson-Young, would singularly create the opportunity for people smugglers to exploit that and put unaccompanied minors on the boat. Is that your intention? I suspect it is not. I understand you disagree with the framework we are proposing and I accept that, but I will not stand here and allow you to exhort principles that have no validity in the context of this current debate.
I would like to work through some of the points you made. First of all, I challenge your assertion that there are no guarantees on the welfare. Several times through the course of this committee stages debate I have referred to the process by which an agreement is struck between Australia and the designated country. We have been through — and, in fact, several senators from the Greens party have read through — the provisions and measures which must be taken into account through the course of establishing those agreements. I challenge the point that there is no accountability for the government because, in fact, these agreements will need to withstand the scrutiny of parliament and, if tonight is anything to go by, that will not be short in coming.
I would also like to challenge over the fundamental point that we started discussing, that Christmas Island is not part of Australia for the purposes of the operation of the Immigration (Guardianship of Children) Act. That is patently false and to assert as much is misleading in the first degree. It is part of the migration zone and therefore whilst ever the children are in Australia unaccompanied minors are subject to the guardianship of the minister.
Finally, you have made some very emotive points through the course of this debate, Senator Hanson-Young, as is your right — through you, Mr Temporary Chainman — but I remind you that the minister has within his power the right to determine exemptions for unaccompanied minors and, in fact, for anyone who is deemed to be particularly vulnerable to move to a designated country once that designated country has passed the test of parliament. All of these protections and processes are in this bill for a reason. They adopt both the spirit and the letter of the Houston report's recommendations and they are designed to fit within a broader scheme that takes into account the prospect—and I think the very hopeful prospect—of a durable regional arrangement to manage the flow of migration in our region but also to break, as I have said again and again, the business of the people smugglers as to the lives that are put at risk across the sea. It concerns me that your assertions, whilst I am sure they are well intentioned and aligned with the Greens' view on these matters, would, in fact, create an absurdly dangerous situation whereby people smugglers would be motivated to seek out unaccompanied minors and place them on boats to sustain their business. That is untenable. It is at the opposite end of what we are trying to achieve and I suggest you reconsider your position.
In the minister's second reading speech there is this clear statement:
Under the interpretation of the law set out by the High Court last month, the removal from Australia of an unaccompanied minor is practically extremely difficult, if not impossible.
That is what this is trying to get around, the fact that it is practically impossible for the minister to be able to currently remove an unaccompanied child from Australia because the minister has to sign to do so and that is challengeable in the courts. That is why the minister now wants to be exempted from those responsibilities under the Convention on the Rights of the Child, under the guardianship legislation. As the minister has said herself, this is about making it easier for the government to be able to send unaccompanied children out of Australia, and the minute they leave Australia they will have no guardian. So we, Australia, send those children somewhere else, and the minister who has sent them somewhere else does not have to sign on the dotted line to do so, is not challenged in the courts to do so and has no guardianship responsibilities once the child is sent somewhere else, like to Nauru, PNG or anywhere else.
Minister, article 3 of the Convention on the Rights of the Child requires Australia to ensure that 'the best interests of the child are a primary consideration in any action involving the child'. How does sending an unaccompanied minor, a child, from Christmas Island to Nauru and keeping them there in indefinite detention, as the minister has said is what will happen, demonstrate that the best interests of the child are a primary consideration in any action involving the child? How is that in the best interests of the child?
Those protections and the reason that we continue to assert that we are in alliance with and not in contravention of our international obligations is that those matters would be dealt with in the agreement that Australia negotiates with the designated country. Those agreements will be subject to the scrutiny of parliament.
The agreement will be subject to the scrutiny of parliament if that document is one of the ones that happens to be put on the table, otherwise it could be one of the ones that does not exist. It is in the legislation and you know full well, as I read out before:
Similarly, the fact that some or all of those documents do not exist … does not affect the validity of the designation.
There is no guarantee that any such thing will exist, so we cannot have a statement that says that children's rights will be protected, that children will be looked after because that will be part of the agreement and parliament can scrutinise it. There is no guarantee that that document will actually be part of it. It does not even have to exist for the purposes of designating a place. So we have already established that the minister is giving up the liabilities of guardianship of the child and those children can now be sent away without a guardian for an indefinite length of time.
I want to come to the specifics of the amendment that my colleague has moved in relation to what will be provided for asylum seekers. What we have done is put in as an amendment what the Houston panel has recommended—it is in their recommendations—and that includes appropriate accommodation, appropriate physical and mental health services, access to educational and vocational training programs, everything through to the appeal mechanisms, care and protection arrangements, case management assistance and so on in Nauru. Will the minister guarantee that all of these things will be in place before any refugee is sent to Nauru?
I think I responded to this question in substance when I first spoke to this amendment. We believe firmly that the agreement can contain the sorts of measures as outlined and that it will be subject to the scrutiny of parliament. The other point I made to Senator Milne, through you Mr Temporary Chairman, is that to create openings that would allow for High Court challenges to the legislation to occur would render it unworkable, and we believe that in fact the appropriate test is withstanding the scrutiny of parliament. We have been through in detail what that process is.
The scrutiny of parliament is not going to provide anyone any guarantee of anything, as we are hearing tonight. I want to go specifically to appropriate physical and mental health services. Patrick McGorry said recently that anyone held in detention for six to 12 months is likely to have serious mental health issues. The government has refused already, voted down, our amendment which says 'no longer than 12 months'. So you are actually putting children and all refugees into a zone of physical and/or mental difficulties and problems. How can I be confident that there will be physical and mental health services? Why would the government knowingly put people in detention longer than the mental health experts say is the point beyond which they will suffer mental illness? Why would you do that?
I think it is important at this juncture to remind the Senate that the desirable effect, and the effect that we are all hoping for, is that this legislation will work as an effective disincentive to people getting on boats. I want to premise my answer to your question with that point because I think that, in discussing many of these amendments, listening to the debate, one could be forgiven for thinking that we have lost sight of the main point. In discussing the detail it is worth reminding people listening to this debate or perhaps reading it later that we are constructing a genuine disincentive for people to step on a boat and put their lives at risk.
The issue of welfare in detention under these arrangements is something that will be subject to the agreement. Those issues have been specified in the Houston report and I have answered the question a number of times now on what checks and balances will be on those assurances that welfare issues will be addressed through the agreement with the designated country. That will need to withstand the scrutiny of the parliament.
There is an absolutely fundamental flaw in the minister's logic, and that is that the government is now moving to set up a big detention centre in Nauru and a detention centre in PNG on the basis that people will come on boats and, therefore, be moved into those detention centres. If you thought this regime was such a deterrent, why are you preparing for many more places than the 220 that are on Christmas Island at the moment? If this was going to be such an effective deterrent, then the boats would stop and you would have these empty detention centres. That is not the case.
You are preparing for maximum size detention centres in PNG and Nauru because you know as well as I do that no deterrent that you provide is going to stop people getting on boats for all the reasons we have been through before and the fact that there are no other safe pathways. They cannot get visas. There is a flow of refugees and whatever deterrent you put in place can never be as bad as the persecution people suffer in so many countries. Let's get real about this. You are expecting the boats to continue. By punishing people, all you are going to do is make life worse for them. For those children you are making an example of, their lives will be worse. For the refugees you are making an example of, their lives will be worse. But it will not stop the boats. If you really believe it is going to stop the boats, why are you expanding the detention centres?
I would respectfully suggest that Senator Milne review her logic because to put in place the recommendations of the Houston report without having the capacity to detain people on Nauru and PNG would render the disincentive null and void. We are serious about stopping the boats. We are serious about smashing the people smuggling model and we will put in place the recommendations of the Houston review because we believe that it offers, in all of its commensurate parts, the best opportunity we have to save lives and to stop the boats coming across the sea and people putting their lives at risk.
If you are interested in putting into place the Houston committee's recommendations on what needs to be provided, the Greens have an amendment on the table which is word for word what the Houston committee recommended. In the absence of anything that is legally binding—and I go back to the fact that government has made sure that nothing here is legally binding when it comes to other countries—I want to be confident that there is appropriate accommodation in place, that there are health services in place. I cannot have any confidence about that unless this parliament actually says that is what we expect. The government has said you are going to put the Houston recommendations into place, so why not vote for them now?
The coalition will not be supporting the Greens amendment No. 7266. In relation to the amendment, I make the following point: the bill as drafted now includes a provision put forward by the coalition and agreed to by the government which ensures that the parliament will now be the arbiter of protections whereas previously the government had stripped out protections for offshore processing from the Migration Act and replaced them with nothing at all. The bill that we have before us now ensures that, case-by-case, countries to which offshore arrivals are sent will be approved by this parliament. This, of course, means that a very heavy burden of responsibility now falls upon the parliamentarians in this place and the diligent implementation of the law.
History records that previously under a coalition government there were section 198A protections in the Migration Act. These were introduced by Mr Philip Ruddock, the member for Berowra, when he was the minister for immigration to ensure that people processed offshore had legally binding protections. In relation to the bill that we are debating tonight, as I have stated, the parliament by affirmation of both chambers must approve a country for offshore processing. So in going forward a heavy duty falls on this parliament to ensure that there are protections in place and that the protections are examined and properly scrutinised before the offshore processing country is agreed to. I reiterate the words of the shadow minister who said in the other place:
… and the government should stand warned that the coalition will scrutinise the protections very carefully if they seek to bring countries forward to be designated in this way.
The coalition will not be supporting the Greens amendment.
The only reason for these protections—these conditions which the Houston report has said must be in place—not to be included in this legislation is so that the government does not have to do it. There is no other reason. Let's not beat around the bush. The whole purpose is so that the government does not have to do it. There is no legal reason to do it, there is no reason politically to do it. There is no reason to do it which might open them up to scrutiny, to legal challenge and there is this furphy that they will be included when the minister designates a country to dump people in. We know that they do not even have to exist. The only reason that these conditions are not being included in this legislation is because the government does not want to have to do them. That is the reason. Just like removing the minister's guardianship of children is because, in the minister's own words:
It is unsustainable for the government to act in the best interests of the child.
Imagine if a parent was to say, 'It is unsustainable for me to act in the best interests of my child.' That would be considered child abuse. Under this very bill the indefinite detention of children, as the Australian Medical Association has already said, is child abuse. Louise Newman, the government's own adviser on the mental health of refugees in Australian detention centres, has said that the detention of children is child abuse. There are no protections for these 10 children who are currently on Christmas Island waiting for deportation to Nauru.
The only reason the government will not agree with the Greens amendments is so that they do not have to act in the best interests of the child. I think Australians will be shocked that our government is introducing legislation to do away with our responsibilities to look after the youngest and most vulnerable children in our region. What is the advantage of being amongst the region's most disadvantaged children? There is no advantage. And yet this government's spin and posturing and lawlessness is not going to save these children's lives, it is not going to save their lives at all. It is going to subject them to torment, to trauma, to the very abuse that indefinite detention has on children. We know that because it has happened already. We know that because it happened under John Howard's Pacific solution. And under Julia Gillard's Pacific solution, which is what this legislation is, there are even less protections for children. Imagine that: even less protection for children under Julia Gillard's Pacific solution than John Howard's. That is the truth of the matter.
It is very important that I challenge the assertions made by Senator Hanson-Young. I think the senator knows that her misrepresentations are designed to underline the political point of view that the Greens bring to this debate, and we reject each and every one of them wholeheartedly. It is not an accurate representation in any way of this government's endeavours to resolve a long-standing and very challenging problem. We do so with the utmost integrity. We have taken advice from a panel of eminent Australians in trying to come to a solution that is durable, humanitarian foremost in its intent, and implemented in such a way that still provides for the oversight not of the executive of the government, not of an external entity, not of the minister, but of both houses of parliament.
I would like to ask for clarification, Minister, that there are 10 unaccompanied children on Christmas Island who may be at risk of facing deportation to be processed offshore, as per the Minister for Home Affairs press release.
I understand that there are 10, but they will be subject to the appropriate consideration by the minister for exemption if they are in a situation of particular vulnerability. I have spoken many times during the course of this debate about that ability of the minister to declare an exemption in those circumstances. Were this bill to pass and were a designated country to survive the scrutiny of parliament, then the minister would be in a position to assess their individual circumstances—as I have explained many times.
I move Greens amendment (1) on sheet 7268 relating to statutory review:
(1) Schedule 1, item 25, page 12 (after line 16), at the end of Subdivision B, add:
198AI Review of regional processing
(1) The Minister must cause an independent review of regional processing under this Subdivision to be undertaken:
(a) within 12 months after the Minister first designates a country under section 198AB; and
(b) at least once every 12 months after the first review is undertaken under this section.
(2) A review under this section must include a review of the protection and welfare arrangements that each regional processing country has in place for persons taken to the country under section 198AD.
(3) The Minister must cause a copy of a report of a review under this section to be released publicly within 14 days after the Minister receives the report.
We have just spent all evening realising what flaws are in this piece of legislation. The minister has identified that, despite the fact that a designated country would require guidelines as to how people would be treated while they are in these places, basic understandings of protections, there is nothing in this legislation that actually requires that to happen. It is absolutely fundamental that we know just how this legislation is impacting on the very, very vulnerable people that it is inflicting pain on.
This amendment allows for a review into how regional processing under 198A actually works. Under this amendment the minister must cause an independent review of regional processing under this subdivision within 12 months after the minister first designates a country under section 198AB and at least every 12 months after the first review is undertaken under this section. A review under this section must include a review of the protection and welfare arrangements that we have just seen this government vote down. We have just seen the government and the opposition vote down the protection arrangements that the Houston report said had to be included. So this review is important. We have seen all of these 'trust us' statements made in this chamber tonight, that even though these protections will not be in the law, because we have just had the government and the opposition vote them down, we are being asked to trust the government that they will happen anyway.
So this review will include an analysis of whether those protections ever actually happened. There should not be any reason that the government would not support this amendment if indeed they believe all their own rhetoric. If indeed the minister is right about all of the protections, all of these agreements to treat people consistently with international law and human rights standards, including no arbitrary detention; if the processing in offshore facilities includes appropriate accommodation, appropriate physical and mental health services, access to education and vocational training programs, application assistance during the preparation of asylum claims, and an appeal mechanism for those who do not get a positive response in the first go; if the minister is right that there will be monitoring of care and protection arrangements and that there is a proper provision of case management assistance—if the government believe that all of these things will happen—then there is no reason why they will not agree with this review.
The minister, under this amendment, must cause a copy of the report of the review under this section to be released publicly within 14 days after the minister has received the report. Currently in the Australian detention network, the Commonwealth Ombudsman is required to do reviews within the Australian detention system. He is required to ensure that the case load of individual asylum seekers is being managed properly. Every six months, if somebody has been in detention for longer than 12, he needs to review their case and provide a report to the minister. For anyone who has been in detention for longer than two years, the Commonwealth Ombudsman is required to release that report publicly.
This legislation, as tabled tonight by the government, does not require any of those checks and balances, so this legally binding review would require at least some transparency about how these offshore detention facilities are operating. As I said, if the minister is honestly trying to tell us that all of these things—even though we have just seen the government vote them down—will actually happen, there is no reason why the government should not agree to the basic transparency of a review of offshore processing facilities and how they are operating. I ask the minister: is this something that the government is prepared to accept—some basic transparency in how these facilities will operate?
Again I feel the need to challenge some of the assertions made by Senator Hanson-Young that the government voted down protections, as she described. We did not do that. Those protections remain. We disagree with the Greens' proposed amendment. We do not believe it is necessary. But in no way has that removed those protections. Contrary to the assertion by Senator Hanson-Young that this proposed amendment, in putting in place a statutory review, enhances protections, in fact the strongest protection we have is that, in the agreements to be negotiated between Australia and designated countries, these negotiations take place with the involvement of stakeholders including the UNHCR and other entities. For these agreements to then be presented to both houses of parliament I believe offers the best prospect for transparency, for scrutiny and for that test that Senator Hanson-Young and the Greens seem to be looking for in how they express the need for a review.
I do not think it will surprise the Greens to know that we as a government will be opposing this amendment. There is no doubt that reviews will be undertaken in respect of regional processing arrangements. I have no doubt that the ongoing commentary provided by all concerned, motivated and interested by this vexing matter will stand as a constant review of the operation of these policies, including the normal forms of scrutiny through the Senate estimates processes. We do not believe that there is a reason that that process of ongoing scrutiny and review needs a statutory requirement, and conducting 12-month reviews will have an effect of discouraging people from engaging in the proper migration processes and the processes we are trying to establish in creating a durable arrangement for migration in our region. On these bases, we are not going to be supporting the amendment currently before us.
I rise in support of my colleague's amendment in terms of a review. It is particularly important that we have a review of this legislation, because the debate tonight has shown very clearly that there is absolutely nothing in place. The government has nothing in the way of conditions.
There are two things happening here. One is an assertion that there will be proper process, that all of the things that the Houston panel had asked for in terms of protections for refugees will be legislated by the government and will be put into place, and then, in the next breath, we hear on the news that the government is telling the defence forces to get the tents to Nauru, get things underway. They are sending people there straightaway, and they have put 220 people on notice that they are at risk of being sent to an offshore location. Subject to the parliament, Nauru and Manus Island, PNG, are currently on the agenda.
So, the minister is telling us that there will be laid on the table of this parliament all of the documents which will provide all of the details of the protections and the agreements with the countries—notwithstanding the fact that they are not legally binding—but we have just had the government vote down all of the protections that the Houston review said needed to be in place when Australia looked like sending anyone to one of these offshore locations. They are not in place, and the minister has not been able to tell us in any shape or form how long people are going to be stuck in these places or what is going to happen to them while they are there in terms of health, education, mental health services and all the other services that they need. Under that set of circumstances I think it is entirely reasonable that we say, given the fact that the government cannot answer the questions now, given the fact that the government has not been able to say how it will put in place the kinds of protections that are required, that surely the parliament should recognise that if the minister is to be kept to her word it is the parliament which will provide the scrutiny. There should then be a willingness to embrace the idea that the minister would require independent review of this arrangement within 12 months and that review on the protection and welfare arrangements in particular will be then part of a report which has to be released publicly within 14 days of the minister receiving it.
Why is that unreasonable given the minister's complete inability to answer the questions about accommodation? She has not been able to answer a single question about how long those tents are going to be there, when people are going to be able to move into decent accommodation, and how long they are going to be there. We have not had any answers about health and mental health services in particular or any answers about any services. All we know is that there is a wish and a promise that those services will be provided at some point, and we know that children can be sent there with no guardian. We have no idea about the services or for how long. I do not think it is acceptable to have a minister stand up and say, 'I cannot tell you anything at all about how we are going to provide appropriate accommodation; I cannot tell you how the appropriate physical and mental health services are going to be carried out; cannot tell you about access to education and vocational training programs; cannot tell you about the assistance we might be able to give people during the preparation of their asylum claims; cannot tell you about the appeal mechanism against negative decisions; cannot tell you what monitoring of care and protection arrangements by a representative group will be able to be delivered. She cannot tell us any of those things, but we are voting down a review as well. That is totally inappropriate. The government cannot answer that set of questions and now it is rejecting the idea of an independent review. The minister, the government and the coalition, having abandoned the guardianship of children, are not even prepared now to have a review after 12 months of the services they say they will provide—notwithstanding, as I said, that they are not legally bound to provide then. I want to know why the parliament should have any confidence that this review will be rolled out, and, if the government are not prepared to support this review, can the minister tell me what exactly are the monitoring and review arrangements that the government has in place?
I ask the minister directly why it is appropriate for the Commonwealth Ombudsman to have a statutory responsibility to inquire into detention centres in Australia but not detention centres that the government sets up offshore—out of sight, out of mind—when clearly the issue of transparency is more important when there is less access for others to see what is going on in those facilities?
The agreements we strike with a designated country capture the intent and the body of the obligations that Australia has under our international conventions. This is transferred through the body of the agreement with the designated country and carried forth in that way. The designated countries are not Australia and therefore the application of the Commonwealth Ombudsman does not apply. But it is through the mechanism of the agreement, which must as we know withstand the scrutiny of parliament, that we are able to be confident of those conditions and parameters under which those people go to those countries.
I must note the absolute inability of the government to give any certainty on these issues. We are talking about the human rights of people—the protections that we owe to children, particularly those who arrive here on their own. There is no guarantee that any of the things that the government are talking about will happen. They have refused to put any of them in the legislation—there is no legal requirement for this parliament to see the arrangements and the conditions before we send people off to Nauru or Manus Island or Malaysia. Those documents, as this legislation says, do not even have to exist. The government are just asking us to trust them. They are not prepared to put it into law; we just have to trust them.
It is hardly a resounding endorsement of the requirements and the spirit of the Houston report, let alone our obligations under the Convention relating to the Status of Refugees and the Convention on the Rights of the Child.
The government is simply asking us to trust them, which is precisely why we should be seeing some type of review of the conditions in these places that we send people to, because we know that the last time we sent children to Nauru the conditions there were horrid. Last time we sent children to Nauru, we had children sewing their lips together. Last time we sent children to Nauru, there was one boy—the story sticks in my mind—who ate a light globe to end his own life because the conditions of indefinite detention on that island prison were so devastating that he turned to self-mutilation and attempted suicide. They are the conditions that we know existed last time, yet the government is asking us to just trust them. And there will be no review. There is no review. There is no legal reason for the government to review the conditions of detention and have to report to the parliament. This is what happens when the government of the day are desperate to rush legislation through the parliament; they override people's rights, the need for protection and the rule of law. They do not think about what will happen in 12 months' time or in two years' time.
That is why I have just circulated a final amendment. We have given this government chance after chance tonight. First of all, we said, 'If you're going to dump people in Nauru, at least put a time limit on it.' They voted that down. Then we said, 'Well, if you're not going to put a time limit on that, the length of time you leave people in these places, at least guarantee some safeguards and protections around the conditions in which people are going to be locked up.' They voted that down. Now we have asked for a review of the conditions in offshore detention facilities, and they are about to vote that down. This government does not care what happens to those 10 children once they are dumped in Nauru. You do not care. Everything you are moving tonight and everything you have voted against tonight says you do not want to have a legal responsibility for the children who are currently on Christmas Island waiting to be deported to Nauru.
Mr Chairman, as I said, I have just circulated a final amendment, which puts a sunset clause on this entire piece of legislation. If this amendment were supported, the bill as presented to the parliament tonight would cease to have effect on 16 August 2014. If you are not going to review the conditions in which you lock people up, around which you have set no parameters for how people are treated, and you will not even put a time limit on their detention, then I do not believe that you deserve to see this legislation last any longer than the next two years. How can you justify having no transparency, no protections and no time limits? This legislation must have an end date, which is contained in the amendment we have just circulated in the chamber. I return to the amendment that is currently before us, Greens amendment (1) on sheet 7268. Mr Chairman, I ask that the question be put.
I support this amendment. It is similar in tone to and it covers the same territory as my second reading amendment, which I note that the Greens supported but which was not supported by the government or the opposition. I have to take issue with the government's response to this. The government seems to think that this amendment will somehow undermine the intent and the efficacy of this bill. I do not see that. That does not make sense to me. Simply having a review would mean that the legislation is monitored, that the legislation is checked to see whether it is effective against a whole range of criteria, including whether or not it stops or significantly reduces unauthorised boat arrivals in Australia and what impact there is on human rights. It could also look, for instance, at the cost implications of this legislation. An independent review would do that, and I cannot see how that would in any way send a signal to people smugglers that there is some backing away from this legislation. In fact, an independent review could say, for instance, that the legislation needs to be strengthened. It could make any of a range of recommendations.
This is not a criticism of the government, but the fact is that the government has changed its position in relation to offshore processing to a large degree as a result of the Houston report. I think the expert panel has been a very useful exercise, resulting in a good and thorough report prepared by good and decent people.
So rejecting the idea of an independent review, rejecting the idea of scrutiny of this bill, rejecting the idea of ensuring that this bill is monitored for its effectiveness baffles me. I do not think that the reasons we have heard tonight from the government are adequate or logical in the context of what this amendment is attempting to do. I will be supporting this amendment.
In relation to the Greens amendment on sheet 7268, the coalition will not be supporting this amendment. The government already has an independent review, and that is the Houston report which has effectively endorsed the coalition's approach to border protection. In relation to the coalition's approach, tonight we will be implementing the first prong in that approach which is the re-establishment of offshore processing. More importantly, however, in relation to the terms of the independent review as set out in the Greens amendment, one of the reasons that the coalition is supportive of this bill is that the bill in its current form has been agreed between the coalition and the government to ensure that the parliament will now be the arbiter of protections.
The bill now ensures that, case by case, countries to which offshore arrivals are sent will be approved by this parliament. As I have previously stated, the coalition has made it very, very clear that we are putting the government on notice. The government should stand warned that the coalition will be taking its role in relation to an arbiter of protections very, very seriously. We will be scrutinising the instruments that the government brings forward in relation to the designation of these countries. Unlike the Greens, we do not need an independent review to tell us what our job is. We will be doing it prior to the designation of the country.
It is a very fascinating idea that prior to the designation of a country you can review the effectiveness with which the services are delivered in that country. What a fabulous idea, that before you even know which country it is you are satisfied that you have the review that needed to happen, before you even know where it is! This is absolute nonsense from the coalition. Here we have a situation where the coalition spokesperson, Senator Cash, is saying that she is satisfied before a country is nominated as a detention centre or a review has been undertaken of the services that may be provided in that unknown location. That is a complete nonsense.
As to the notion that they will be taking seriously their responsibility to scrutinise when the government put on the table the papers about where the government want us to have a detention centre, Senator Cash apparently was not listening to the fact that the government do not have to put any documents on the table. They can put on the table all or none or some. The coalition will not be able to scrutinise the process any more than anybody else will, because the documents are not actually required to be tabled. When we were discussing this earlier, it was shown to be very clear in the bill that they do not have to put the documents on the table. All you have to do is to say yay or nay. You have no opportunity to amend it and include anything better or worse, you just have to say yes or no. It is not a disallowance, it is a disapproval and you either approve of what is on the table or you do not. But the government are not required to put on the table all the documents that pertain to what may or may not be agreed in terms of what services or protections might be provided. And so you have no capacity to review them in that circumstance.
What we have is no accountability, no monitoring arrangement, no review, no requirement to put on the table the documents about what an agreement might constitute. We have nothing. All we have is the government saying: 'We're going to choose the places for the detention centres, whether or not we have the documents—it does not really matter. We do not have to have them on the table. There is no review. There is no sunset clause. There is no international law, because nothing is legally binding. There is no natural justice. There is no guardianship for the children we send there.' In fact, as Senator Lundy rightly said, they want to avoid all of this ending up in the courts and the best way of doing that is to make sure they have no legally binding requirements at all. Senator Cash, I am fascinated and it will be remembered when this is in place that you have already said as far as you are concerned the review has been undertaken before the country has been chosen.
It would be remiss of me after criticising the government for being illogical if I did not criticise the opposition for being quite illogical in terms of its position. The fact is the Houston review made certain recommendations and this bill largely reflects its recommendations. But members of the coalition quite rightly pointed out that they do not know how effective this will be. I think the coalition's position is that it should go further and if it did it would be more effective. Be that as it may, we do not know how effective this will be.
We do not know whether it will work or not work, whether it will backfire, whether human rights issues will not be monitored as recommended by the Houston review. Surely an independent review within 12 months would make some sense. I still do not understand why both the government and the opposition will not agree to a review in the terms that have been put by the Australian Greens. I think those terms are quite objective. They are not loaded terms of reference. The amendment does not seek to get an outcome one way or the other. It is objective, fair and balanced in the way that it has been set out. It just seeks an independent review, and does not direct the government which way the review should go. It gives the government a fair degree of latitude, but it still allows for an independent process to look at the effectiveness or otherwise of this bill. I think this is an opportunity lost.
Yes, I do, Chair. I have some questions for the minister before I do that. Given that we have now no conditions in the legislation for how people are to be treated in these offshore dumping facilities, and given that there is no review of the conditions of these facilities, I would like to ask the minister what assurances we have that the physical situation on Nauru and Manus Island is any different than it was under the Howard government? I will ask one specific question: what is the minister going to do about the issue of malaria that children were subject to when detained on Manus Island under the Howard government?
Again I am compelled to refute the premise of the question that Senator Hanson-Young has put to the government. The government is confident that the protections are in place. By accepting the recommendations of the Houston report both in the spirit and as it is represented in this piece of legislation, we believe we satisfy both the spirit and the letter of those recommendations. I remind senators that this is part of a holistic approach to the challenge of orderly migration in our region and this legislation forms a part of that.
The final point I would like to make is again, contrary to assertions made by Greens senators, that in fact the rigorous nature of scrutiny afforded by the parliamentary processes already, through Senate estimates and through the chamber itself, as well as the additional scrutiny that will be levelled at the agreements with designated countries, will provide an unprecedented level of scrutiny and accountability and I think satisfy the assurances the Greens are seeking with their proposed review, which we have not supported. It will not come as any surprise to my Senate colleagues that we will also not be supporting the attempt to have the bill cease to be effective from 16 August 2014.
I think we are at the point in the debate where the Greens, with due respect, continue to make their political point by moving this final of amendment. However, in practical effect, this amendment would completely sabotaged the operation of the framework we are constructing to provide an effective disincentive to the people-smuggling trade. In fact it borders on absurdity in that you can envisage, with such a clause in place, that people smugglers would spend the next two years compiling their passenger lists for when the bill ceased to be in effect. So we will not be supporting this amendment.
In accordance with the recommendations we have accepted from the Houston report, we will, obviously, be adhering to our obligations for the health, well-being and welfare of detainees from Manus Island and Nauru.
What is the practical response to one of the well-known health issues which children faced when they were detained on Manus Island? What is the government going to do to protect children from being subject to malaria?
In referencing Manus Island as Nauru, as I just did, I should make the point that no designations have been made, that the conditions by which the designations will be made will be subject to an agreement being struck and that agreement being subject to the scrutiny of the parliament. I am confident that the issues and no doubt the various degrees of detail that Senator Hanson-Young is pursuing answers for right now will be addressed through the course of those agreements. I am sure that, if she took the time to convey her issues of concern, she should be confident these issues would be addressed. I am not in a position to provide detailed advice on what responses to these known challenges would look like at this time, so I would respectfully suggest, through you Mr Chairman, that Senator Hanson-Young's pursuing the level of detail on which she is seeking assurances is beyond my capacity in this committee stage of the debate.
In saying that, it is not to avoid the issue. It is a course of the consequences as events unfold. Details of the arrangements would be negotiated with the appropriate stakeholder bodies, including the UNHCR, which I am sure, with this problem being well-known, as the Senate claims, would have strategies to address it.
I would like to ask the minister whether the officers of the defence force who were deployed to Nauru this morning have been asked specifically to inquire into fresh water on Nauru. We know that the only water available on Nauru is that produced by the desalination plant, that there is no fresh water available on Nauru. During the Howard government's Pacific solution, fresh water was rationed to the detention centre. Have the members of the defence force deployed to Nauru today by the Prime Minister been asked to work out precisely how enough freshwater will be provided to look after the refugees we will be sending there?
The minister and the coalition spokesperson, Senator Cash, have both gone on at length about how the parliament will be the ultimate place in which this will be scrutinised. You have just voted down a review. Are we going to move, as my colleague has said, for a sunset clause? We all know that in parliament we have people who have been exempted from appearing before Senate inquiries—people who have worked in minister's offices, for example, as Senator Sinodinos would know extremely well—as a result of a certain maritime incident. People were exempted from having to appear to be scrutinised by Senate committees because they knew what went on and did not have to appear to say so. Let us forget the notion that Senate estimates or any inquiries are going to get to the bottom of anything because we will just get, 'We will take that on notice; we will get something to you,' and we will get some document which says absolutely nothing or it will be exempted as cabinet-in-confidence or whatever else. So let us abandon the notion that you are going to get full-scale parliamentary scrutiny of what goes on in these places.
I ask the minister: will she now give an unequivocal guarantee to this parliament—since Senator Cash says she is satisfied the parliament is enough, that we do not need these reviews—that lawyers, members of parliament, human rights commissioners and the like will be able to visit the detention centres on Nauru and on Manus Island? They were not allowed to before when these detention centres operated, but now that the parliament is the scrutinising body, will you guarantee that parliamentarians, lawyers and humans rights bodies will have access to the detention centres?
Both senators are asking for a level of detail that is beyond the scope of arrangements that have been determined as yet. I will respond to their questions by saying that we will act in accordance with the Houston report recommendations. I am not in a position to convey to Senator Milne, through you Chair, details about access to the facilities. These things will be determined by the nature of the agreement that Australia has with the designated country, mindful of course that it is with another country. So I am not able to provide the detail with respect to the issue of access.
I take issue with the claim that parliament is somehow an ineffective watchdog or source of accountability. I reject that completely. I can assure you as a member of the government that we take extremely seriously the capacity of this parliament to scrutinise government's goings on. We are all here on that basis. We all carry with us a confidence in the parliamentary processes. I think that as senators and as members of the House we uphold the dignity and processes of this parliament. I think it is plain wrong to say that this is a place of ineffective scrutiny, thereby making a demand for other mechanisms. I believe the mechanisms we have put in place go well beyond those that have existed previously. It was never previously a requirement for offshore processing to strike agreements that endured the scrutiny of parliament. That is a recommendation we have accepted from the Houston review and it is one that I am very pleased to be presenting to the parliament. I am surprised at the scepticism being displayed by the Greens party about the veracity of this accountability measure.
I can tell you, and everybody in this parliament knows, that it is a fact that when governments decide not to provide information they can easily do it through all sorts of processes that avoid FOI and that protect people in ministerial offices. I will be very interested in Senator Lundy's responses when we get to the bottom of how it is that the Minister for Home Affairs, Jason Clare, did not know until 9 August that there was a boat missing, in spite of the fact that the Palestinians had informed the government three weeks before that that was the case. No doubt the government will be very forthcoming. Now that we can have absolute confidence that nothing will be withheld from the parliament I look forward to that. I would like Senator Lundy to tell me, if she has such great confidence in the ability of the parliament to get to the bottom of things, how it is that we never got to the bottom of SIEVX and how it is that the parliamentary committee involved never got to the bottom of it. The ALP at the time agreed that we needed a royal commission, because people who were in ministerial offices were not required to front-up and so did not have to say what really went on. There are people who do know what went on, but this parliament does not.
Let us get to the guts of what Senator Lundy was just saying about a review. It is not about asking for the detail of the review. You have said that there is no legally binding protection here, that the parliament will scrutinise the documents that are the arrangements. Then you have said that there is no need for those arrangements actually to be in the documentation that comes to the parliament, although it will be the parliament that scrutinises the arrangements. On that basis, I need to know that I as a member of parliament can go to Nauru and Manus Island and that I can be confident that lawyers and other people can go there and test whether or not the government is delivering what it says it is going to deliver, since there is no legal scrutiny available and no requirement to provide natural justice or guardianship for the children.
I might say, Senator Lundy, that the ALP at its national conference voted to say that children needed to have an independent guardian—not the minister, but an independent guardian. You have abandoned any guardian. There is no guardian at all for those unaccompanied children who might be sent offshore. I want an answer. It is not about providing the detail about how it is going to operate. I ask for an unequivocal guarantee that these detention centres will be open to the scrutiny of the parliament. Since you have removed the courts, removed natural justice and removed everything else, there is only the parliament. I want an unequivocal guarantee that parliamentarians, lawyers and human rights advocates will have access to those detention centres. Otherwise, there is no review, no accountability, whatsoever.
These issues are still to be determined, Senator Milne, through you Chair. I can reiterate that the agreements that Australia will pursue with designated countries will involve stakeholders, including the UNHCR. In offering you some assurance I point to the context in which these agreements will be negotiated.
The current restrictions on media access to Australian detention centres were drafted using media restrictions to Guantanamo Bay as a model. That is the truth of the matter. It has been revealed through FOI from the minister's office and the immigration department that they were based on the guidelines for media access to Guantanamo Bay. I would like to know from this minister: will these offshore processing facilities be under the same media access guidelines?
I offer you the same answer I provided to Senator Milne, that these operational details are not known. They will be perhaps in some way subject to the agreements we strike with the designated countries but I am not in a position to start foreshadowing such detail. I think it is well understood that these processes are yet to be undertaken. What we can commit to is reflecting both the spirit and the letter of the report prepared by the panel chaired by Angus Houston as we proceed to try to establish agreements with designated countries and, again, this will of course be subject to the scrutiny of parliament. Through you, Mr Chairman, as to this line of questioning, I understand completely the motivation but I am not going to be able to provide the detail that I think senators are now pursuing.
The reason we cannot have any detail from the minister on any of these issues is the government have rushed this legislation through the parliament. They have stripped out all protection under the current Migration Act, they have done it deliberately to circumvent the High Court and they have refused to put the benchmarks of basic protections in the legislation. They have said that no protections that will be provided will be legally binding. They have said that children who are unaccompanied will no longer have a guardian, therefore they can be deported to wherever the government wishes without it having to think of the best interests of the child. They are refusing a review. They are refusing to give us any information as to who will have access to these offshore dumping facilities and who will not. They cannot tell us what things they have fixed of what did not work when we last locked people up in Nauru. The issue of fresh water was raised by members of the government for years. For years members of this government raised such very practical issues and yet now we see no ability for the minister to even be able to answer these basic questions about if these facilities are appropriate or not. It comes back to the very first question I asked: how can the minister say that locking children in army tents on Nauru can be acceptable accommodation for those children? The amendment that has been circulated does indeed put a sunset clause in this legislation.
I move amendment (1) on revised sheet 7269:
(1) Page 2 (after line 2), after clause 3, insert:
4 Application of amendments
(a) the amendments (including any repeals) made by this Act have effect only for a period of 24 months from the commencement of this Act; and
(b) any Act amended by this Act has effect after that period of 24 months as if the amendments had not been made.
This amendment puts a sunset clause in this inhumane, unlawful, illogical, cruel piece of legislation. I would like to know what the minister's response is.
I refute all of those claims made by Greens senators. The bill before us is part of a comprehensive response to the challenge we face. We are acting on the recommendations of the Houston review. We do so with the utmost integrity of our intent. We do not want to see more people lose their lives in undertaking dangerous journeys by boat. We do want to work with our neighbours in establishing a durable approach to orderly migration in our region and we do so with a genuine effort to remove any incentive and any motivation for people to take their life in their hands or to put it in the hands of the people smugglers that are trying to exploit their hardship.
I rise to support the amendment that there be a sunset clause in this legislation. I think, when people realise just how appalling it is and realise what a shocking destination Nauru is for dumping refugees and how much money it is going to cost Australia to go through with this appalling cruelty to people, the sunset clause will not come fast enough. Clearly, we have not been able to get out of the government any indication of what indefinite detention means. It could be many years or decades. All we have got is an assurance from the minister that somehow it will mean that for people sent there there will be a no disadvantage clause, and we do not know what that means in terms of how many years someone is going to be dumped on Nauru for. The minister has not been able to tell us anything about whether Nauru can provide water. We do not even know if it can provide a reliable source of energy, for example, because that was one of the major problems for that detention centre previously.
I come to the issue of the minister saying this whole thing is about implementing the Houston review. Well, it is not. It is implementing bits of it—a couple of bits—and it is not implementing those properly because the Houston review made very specific requirements that were consistent with our obligations under international law and specified a range of conditions which had to be met. Clearly, the minister has not been able to provide any assurance about those conditions being met, so they are not even implementing in full those bits of the Houston report that have been recommended, let alone all of the report. The whole justification here is saving lives at sea, so, Minister, not only will I be very interested in Minister Clare's explanation as to how come he did not know about the boat after the Palestinian representatives informed the government weeks ago; I will also be really interested to know how come, when Australia knew that the boat that led to this furore in the parliament was in trouble on the Tuesday afternoon, we did not send anyone into the zone to rescue that boat until Thursday afternoon, when people were already in the water. I raised this at the time. The safety of life at sea is paramount. The Greens have pursued this for many years, especially since the sinking of the SIEV X. It is very clear there is a tension between the government's preferred option of deterrence and our obligations under the International Convention for the Safety of Life at Sea. We knew on a Tuesday afternoon that a boat was in trouble but we did not send in the rescue until Thursday afternoon, by which time people were in the water and over 90 people drowned.
The government has yet to explain, and in the estimates process we will be forensic about examining it. But my hunch now is that, contrary to Senator Lundy's claims, we will be told that it is about national security. We will be told that 'it is about intelligence and you can't possibly know that'. Senator Lundy, I will be really interested when we get to the estimates to hear at what point in the chain of command, from intelligence through to on-the-ground operations, somebody made the call to send the rescue in. They made that call too late and 90 people drowned. Let us see. We will find out about that.
That is why I went to the Prime Minister and asked her to codify Australia's responsibilities under our saving life at sea obligations. It was part of the Greens recommendations for the Houston review and it is what Houston recommended, and I will wait and see whether the government is prepared to codify saving lives at sea. Where were the Navy's ships between Tuesday afternoon and Thursday? Why is it when we knew that the Indonesians did not have the capacity to mount a rescue mission, that their boats cannot go to sea in anything above four metres, why is it when we knew that the Indonesians did not have the intelligence capacity to pick up the signals that we did not say earlier that we were standing in the rescue boats?
So there is a real issue here about who knew what and when and this tension between deterring people and our obligations to rescue people. We heard that ridiculous, appalling and inhumane carping from the coalition about how the Navy is not a search and rescue service, indicating quite clearly that the coalition's view is that they should be left to the last minute otherwise they will be encouraged to get on boats because they will be safely escorted.
So let's get very real about what is going on with this and let's actually look at what we have in front of us, and that is a cruel and inhumane program that is going to send people seeking asylum in our country to be punished further as an example to others and that says: 'You have already been through persecution. We now want to punish you as an example to everybody else. We don't want you in our country—'anywhere else but here. We are giving effect to a piece of legislation that allows a minister to abrogate his responsibility of guardianship to children to enable them to be deported from Australia and sent to a detention centre indefinitely without a guardian.
I feel ashamed as a parliamentarian to think that this parliament is going to just put through this legislation on the say-so that, somehow, these people's rights will be protected when the legislation specifically says that it does not have to be legally binding and that the rules of natural justice are specifically exempted in relation to this. It is an appalling day for Australia and I could never have believed that we could have gone backwards so far in the last decade when it comes to seeing ourselves as an Asian nation and seeing ourselves as offering some leadership in the region on human rights. I just cannot understand how the government thinks that this is going to in any way do anything other than undermine our global reputation and hold Australia up to ridicule around the world as a country that does not uphold its obligations under the United Nations human rights convention, under the refugee convention and under the rights of the child convention. I think it is a shameful day in Australia's parliamentary history and I would urge the Senate to at least pass this amendment, which would see an end to this appalling regime in no more than two years. At least put a time frame on ending it. Do not just leave it open for even more extreme and cruel acts in the future.
In relation to the Greens amendment with the sunset clause, if Senator Milne wants to stand here tonight and talk about being inhumane, perhaps she can explain to the people of Australia who are listening in why the Greens by their very actions tonight, and the obtuse comments that they have continued to make, support policies that encourage people to get on boats and risk their lives to come to Australia. In the case of what we know, nearly a thousand people, because of policies that the Greens support, have actually lost their lives on the journey to Australia.
If Senator Milne wants to talk about being cruel and inhumane, what does Senator Milne say to the millions of refugees who have not spent one year in a camp, who have not spent five, 10 or 15 years in a camp but who, in relation to the ones that come into my office, have spent 20 long years in camps in Africa? All of their children were born in camps in Africa because they did not have the means or the opportunity because of policies like yours to get on a boat, pay a people smuggler and jump the queue and come to Australia. To those people who come to my office in Perth who spent 20 years in camps in Africa doing the right thing, Senator Milne says: 'Too bad, so sad. We don't care about you because our policies will only support those people who have the means and the opportunity to come to Australia through unlawful means.'
Without a doubt, Mr Chairman, the Greens with their final amendment tonight have shown that they are not interested in stopping the people smugglers. In fact, people say to me, and I can understand why, that the Greens without a doubt are the best friends people smugglers will ever have. The Greens are not interested in offshore processing.
Mr Chairman, on a point of order: Senator Cash shows absolute ignorance in her remarks and I utterly reject and find it extremely offensive that she would suggest that anyone in this parliament would be a friend of the people smugglers.
The CHAIRMAN: You are debating the point, Senator Milne. It is not a point of order.
Without a doubt the Greens policies well and truly encourage the people smugglers and the people smugglers are very happy with the policies that the Greens support. The Greens have shown that they are not interested in stopping the boats because they know that they only want onshore processing and open borders. The Greens do not take their responsibilities seriously as parliamentarians in ensuring the security of this nation. But what the Greens have shown tonight—and in particular with this final amendment by which a sunset clause on the legislation that we are discussing is proposed---is that is as of 16 August 2012, never ever have the Greens been more out of touch with mainstream Australia.
As much as it is going to pain the Greens, as distressing as tonight is going to be for the Greens, I say to them: this bill does not need a sunset clause. That is the last thing that this bill needs. What the bill does need—and I also address these comments to the government—is the final two steps in the coalition's proven border protection policies. There is one party in this place that has solved the issue of border protection and that party is the party of the coalition. Our policies have been proven to work. Whilst tonight I welcome, as a member of the coalition, the government's monumental backflip that they have performed on the border protection issue and the fact that they have finally decided to agree with the coalition when it comes to the direction that this country and the policies this government should take when it comes to border protection, the government are only implementing but one of our steps and there are two more for the government to implement.
In relation to the coalition's position on a sunset clause, I say this: whilst we support the legislation that is before us today, the coalition in no way steps back from our policies of reintroducing temporary protection visas and turning back the boats where it is safe to do so. We are now supported in those two policy objectives by the report of the expert panel. The report of the expert panel does not, as the Greens propose with this amendment, propose a sunset clause. Far from it, the report of the expert panel has clearly come down in favour of the coalition's policies when it comes to border protection.
The government—and it knows it needs to do this—should implement the full suite of these measures and if it does not it cannot expect the same outcome that the Howard government achieved when it was in power. The policies of the former Howard government were not policies that were cooked up overnight. They were not policies that were produced in the last six weeks. These are policies that are the result of more than 10 years of both successful implementation and continual refinement and which will be fully reinstated by a coalition government if and when we are re-elected. The coalition has been consistent when it comes to border protection and the public trust the coalition and our policies when it comes to border protection.
So I say to Senator Milne, the last thing this bill before us tonight needs is a sunset clause. If you truly believe that it does, then you are more out of touch with mainstream Australia that even I could have thought that you were. The bill before us tonight needs to be passed and it needs to be passed in a timely fashion. Then it is for the government to consider very carefully that if it truly does want to stop the boats and to break the people smuggler model—as the minister has outlined on a number of occasions tonight in response to questions from the Greens—it has to acknowledge the passing of the bill tonight is a step forward but it is only that and there are another two steps that the government needs to take. The coalition does not support the Greens amendment.
I imagine if I was sitting in the government tonight I would be appalled listening to think that I was associated with that in any shape or form. Firstly, Senator Cash obviously has not been around this issue for a very long time. She said that the coalition had refined their policy. Yes, that is right. When they excised the territories at Christmas Island the boat count dropped because they no longer were coming to Australia. It was a smart alec technical way of recounting the boats. So excise Australian territories and the boats are not coming to Australia any more. There is a drop in the boat numbers. What a brilliant tactic that was.
Secondly, Senator Cash says that the coalition's policies saved lives. Well, Senator Sinodinos is sitting there and he knows as well as I do that when the Howard government introduced the temporary protection visas that said that people could not apply for family reunion, that the SIEVX set out and 353 people drowned, the overwhelming majority of whom were women and children. I have spent many hours with a few people who survived. They tell a very sad story of what it was like and to this day this parliament still has not had the royal commission we should have had into the SIEVX. So trying to bring back temporary protection visas, telling people they cannot bring family reunion into the question, means you will force women and children to drown. So do not sit there and suggest that under the Howard years temporary protection visas saved lives. There are 353 people who drowned on that boat. There is a memorial on the banks of Lake Burley Griffin, and I encourage you to go down there and walk around it. There are 353 poles in that memorial that remember the lives of each one of those people, the overwhelming number who were women and children. They drowned under the Howard government, under your cruel temporary protection visas.
One of the big problems with what the government is going to implement is exactly the same thing. It is going to say that the men who arrive cannot apply for family reunion under the special humanitarian category. That means it will force women and children onto boats—there is nothing surer—so it is exactly the same strategy.
Senator Cash, as to your lament about people in African camps not being able to come because of boat people, do you know why that is? It is because under the Howard government, for every single one who came on a boat and became a refugee, they took one off the category of people who could come from the permanent camps. So that is down to you, Senator Cash.
We have moved to disassociate, to decouple those things. It was in our submission to the Houston panel, and we will be very happy to make sure that you have the opportunity to vote for that, to decouple those two things so that you do not have the cruel situation that Prime Minister Howard brought in—that is, 'We will punish you by saying all of you people in camps everywhere else, every time a person comes on a boat and is found to be a refugee, we will take one off the number of people we would take from those camps.' Nobody is more responsible for that situation than the Howard government and your associates, Senator Cash. So before you stand up and make a whole lot of wild claims, go back to the history of the Howard years; go back and recognise just how appalled Australians were. Tragically, many of those cruelties are still there in the way that we treat refugees in this country.
As I have said many times in this debate, and I will say it again, we are very pleased that there is going to be an increase in the humanitarian intake. That is the best way of saving lives, to get people out of those camps and give them safe pathways here so that they are not forced into that situation where they have no hope. But do not stand up in here and try to suggest for a moment that the Howard government had any compassion when it came to refugees, that its policies worked in favour of refugees. The overwhelming majority of people who were cruelly treated on Nauru were found to be refugees and ended up here in Australia and are making their lives in Australia—as will be the case, absolutely no doubt, with a policy that is currently being pursued.
What is more, many, many people have been emotionally damaged. Who will forget people sewing their lips shut? Who will forget that? Who will forget the then Prime Minister taking away the funding from an art gallery in Wagga Wagga because it dared to have an art exhibition which showed up the policies of the Howard government with sewing lips together. No-one will forget that. There are many, many things on the record about the cruelty of the Howard years when it came to refugees, and the tragedy for Australia is that the Gillard government is now following suit and embracing a lot of those policies.
I reiterate: we should put a sunset clause on this. We should end this as quickly as possible because it is going to be shown to be incredibly cruel to refugees, to people seeking a better life in our country. When we are treating people so cruelly in this way, we should recognise at the same time that we are saying to other people, 'If you've got $2 million to $5 million, your visa will be fast-tracked.' What does that say about this country?
Many people will be extremely horrified to hear the vitriol of Senator Cash, and that this is justifying the Gillard government's backing of Tony Abbott's Pacific solution mark II. The coalition have never been interested in saving people's lives. Let us not forget the leaked WikiLeaks cables that showed very clearly how happy the opposition are every time a boat arrives in this country. Even the opposition leader's own senior advisers have been known to utter such statements. The coalition love people coming on boats. That is how Tony Abbott plans to win the election. That is how John Howard won the election in 2001, because he played to the basic level of fear that still lurks in some corners of this country.
Rather than appealing to people's better sense of humanity, the coalition, now followed by the Labor Party, prey on people's fear. The coalition want us to believe that we have something to fear from poor refugees who are arriving in our waters in wooden, leaky boats. Asylum seekers are not a national security issue. In fact, when the Refugee Convention was drafted, the drafters knew that countries would make this exact argument unless it was very clear in the convention that a national security issue could not be used as a get-out clause for helping vulnerable refugees. It is why it is in the convention that refugees are not a basis for national security.
Sure, let's find out who people are, make sure we know, do the health and security checks. But pretending to the Australian people that we should be fearful of the most disadvantaged people in our region, who are not lucky enough to come by plane, they have to come by boat. How deluded is the senator from a coalition to think that we are threatened by refugees who are here to seek our protection? Refugees are not breaching our borders; they are seeking the protection of our borders. That is the whole point.
Malcolm Fraser made an interesting point this week that if we were having boatloads of white farmers from Zimbabwe arriving on our shores, would the coalition and the government be ramming through this legislation tonight. I think that is a question the Australian people already know the answer to.
This disgusting, dishonest, disingenuous debate and the vitriol of hatred and fear that comes from the mouths of those opposite does nothing to save the lives of the vulnerable people who are seeking our protection. The experts who gave their submissions to the Houston panel have said for years and years and years that the best way of saving the lives of vulnerable refugees is to give them a safer option, to give them a safer pathway. Do not force them onto boats in the first place. If the coalition do not want people losing their lives at sea, do not force them onto boats.
Deterrence does not work when people are fleeing for their lives. It has been proven over history, time and time again. We were told 20 years ago that we needed mandatory detention to deter people from coming to Australia by boat and as conditions got worse in our region for refugees it did not deter people. We were told by John Howard that we needed not just mandatory detention but we needed temporary protection visas to deter people seeking protection coming here by boat. Under those temporary protection visas we stripped away their family reunion rights, their rights to access medical services, their rights to work, their rights to even volunteer. They were the restrictions under the coalition's temporary protection visas. Did that deter people from coming here by the only means possible that they had, and that was by boat? No, it did not. In fact, as my colleague Senator Milne has pointed out, it forced more women and children onto boats. That policy is responsible for the loss of life at sea.
We then heard from John Howard that it wasn't just good enough to have temporary protection visas and mandatory detention; we had to have the excision of our own territories, stripping of legal protections and the dumping of children and their families in indefinite detention on Nauru and Manus Island. We were told we needed to do that because Australia was under threat by some very poor, vulnerable refugees who were arriving in our waters on leaky wooden boats. How delusional are the coalition if they think that that is an attack on our sovereignty?
Of course, locking children and their families up on Nauru did not save people's lives either. The SIEVX sank after Nauru was opened and 353 people lost their lives. John Howard's government is responsible for that loss of life of those 353 people. Make no mistake about it. Shunting people off out of sight out of mind, dumping them on prison islands, has never saved anybody's life. But I tell you what, it has cost a lot of people's sanity, humanity, self-respect. It has broken people's spirit, it has broken families, it has broken their courage, it has ruined their mental health. It has sent people to the point of self-mutilation and destruction. It did not save anybody's life, but it sure cost many, many lives—not to mention the hundreds of millions of dollars of taxpayers' money that has been wasted and paid in compensation ever since because we did the wrong thing.
So for the coalition to come on here tonight and preach about saving people's lives and standing up for humanity is just utterly disgraceful. Not one member of the coalition has ever stood in this place in this chamber in this debate tonight and actually spelt out anything that will save people's lives. They have voted down consistently amendments that will protect people and safeguard children from years of child abuse in these rotten detention centres. The saddest, saddest tragedy of all is the members of the government who sit here and let that rhetoric go in their name.
This is your legislation, and it is worse than John Howard's. I have no idea how any of you will be able to sleep straight at night when you know that the history of how these detention centres operate ruins people's lives, abuses the rights of children and sends brave, courageous, intelligent people insane and to the point of self-destruction.
Mr Chairman, I cannot commend this amendment to end this horrible process to the Senate any more strongly that I have tonight.
I have one specific question. Senator Lundy, did the government's Malaysia bill have a sunset clause? Was that a sensible and a good thing to do? If so, why, when the government's previous legislation had an accepted sunset clause, would this sunset clause be useless and dangerous, when your own sunset clause was not?
This government has made no secret of the fact that it is in a situation where compromise is the right course of action. In establishing our expert panel and subsequently accepting and adopting its advice, we acknowledge that a solution has to be found urgently. We do not make any apology for that; it is what has to be done. Any differences with our Malaysia arrangement or variations to our approach now in accepting those recommendations have been necessary to progress this solution to stop the tragedies occurring on the seas. The Malaysia arrangement could have passed this place with the support of the Greens, and I note with concern that we once again find ourselves in a debate where the Greens, through opposing the government's legislation, find themselves in a situation where further compromise is being made and are levelling a complaint to the government for that.
I draw Senator Lundy's attention to the paragraphs in the Houston review which talk about Malaysia, which talk about how they were not confident that the arrangements that were in place could deliver any of the safeguards which the government had claimed were there. It is all here in the Houston report, making it very clear:
… the operational aspects underpinning the current provisions in the Arrangement need to be specified in greater detail as part of a broader revision to enhance the protections for transferees that it aims to provide.
So let us not pretend that there was anything there.
But the point I was making was in relation to a sunset clause, because that is specifically the amendment we have here before the committee tonight. The government thought in principle and in reality that it was reasonable to put in a sunset clause on Malaysia. What I am asking you is, if it was reasonable and sensible to put in a sunset clause on that bill, why you would not put a sunset clause on this one. It is the principle of whether or not you think that the bill should end that I am asking about. On one occasion you did; on this one you did not. I just want an explanation as to why it was good enough before and it is not good enough now. It is not about the compromises that you have made; it is about the issue of why a sunset clause was reasonable before and why it is not reasonable now.
I think in my general responses we have answered that question. We are of course picking up the recommendations of the Houston report in a holistic way. This bill addresses part of that response, but there is obviously work still to do on other aspects of the proposal put forward.
Again, I cannot help but point out that you appear to be concerned about facets of legislation of the government, asking why we are not pursuing it, when in fact the Greens had the opportunity to support the government, in the face of opposition from the coalition, by supporting the Malaysia arrangement. You chose not to do it. I just point out that it is somewhat ironic that now you are questioning the government about the approach we take in adopting the Houston report recommendations holistically, as we have chosen to do out of necessity in trying to find an urgent resolution to the problem that we face.
The minister of course knows that that is a totally disingenuous comment, because my colleague Senator Milne made her question very clear. The question was: why did you believe that a sunset clause on a deterrence policy was okay six weeks ago but you do not believe it is okay now? It is totally illogical for you to have that opinion, unless of course your opinion has changed.
I ask, Chair, for the amendment to be put.
The CHAIRMAN: The question is that amendment (1) on revised sheet 7269, moved by Senator Hanson-Young, be agreed to.