Senate debates

Wednesday, 6 February 2013

Regulations and Determinations

Migration Amendment Regulation 2012 (No. 5); Disallowance

5:53 pm

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

I move:

That the Migration Amendment Regulation 2012 (No. 5), as contained in Select Legislative Instrument 2012 No. 230 and made under the Migration Act 1958, be disallowed.

I am seeking to disallow Migration Amendment Regulation 2012 (No. 5) for a number of reasons. This regulation amends the migration regulation so that any person who arrives by boat cannot seek family reunion under the Special Humanitarian Program.

This was a policy that was used by John Howard and his government as part of his own deterrent policies, and it has now of course been adopted by the Gillard government as part of Labor's very own Pacific solution mark II. It did not work under John Howard; in fact, it forced more mothers and children onto dangerous boats. And we know that during the SIEV X tragedy it was mostly women and children who died when that boat sunk. It was very much a direct correlation to the lack of family reunion provisions as introduced by John Howard. I am extremely concerned that we are about to see—in fact, we already are seeing—the exact same trend happening again under Labor's own policy to push away family reunion for those very desperate people who happen to arrive here on our shores. The regulation change is punitive and discriminatory. As refugees are unable to return to their country of origin, if family reunion is not available for those who return by boat as a blanket rule, then there is the potential that some refugees may permanently be separated from their families. This of course for those who are left in very dangerous circumstances forces them to take the only option they have and that is to board a boat.

It is discriminatory because it treats people differently based on their mode of arrival. This is a direct breach of Australia's obligations under the refugee convention. We are meant to treat people on their need for protection not on how they arrive, and yet the cruellest and nastiest part of this type of policy, Julia Gillard and John Howard's policy, is that many of the people—in fact most—who come to Australia by boat as their only option are found overwhelmingly to be in genuine need of protection and to be refugees. They take that journey because it is the only option they have available to them.

If the Australian government does not settle enough people directly from camps around the world from places in our region such as Indonesia and Malaysia, people have no other option but to take that dangerous boat journey. The government has not given them a safer option and now they are about to force their family members to come by boat as well, just like under John Howard.

The regulations have a very detrimental effect on the welfare and support for unaccompanied minors in particular. Unaccompanied minors will no longer have access under this regulation to bring their family members to Australia under the Special Humanitarian Program. There is no alternative being put in place for them.

I have spoken in this place many times about the plight of those who are here as young people, as children, unaccompanied, and how desperate they are to bring their only surviving, if they have any, family members to Australia to be here safely with them. Under these changes to the migration regulations, those children will be condemned to being on their own virtually for years and years and perhaps even forever. It is cruel. It is mean, and it has not stopped anybody taking a dangerous boat journey.

Most importantly, the biggest concern is that this does not discourage people, because there is no other option being put in place; it is only going to encourage families who are so desperate to be safe together to take different journeys to get to Australia, risking even more lives in the process.

These regulations remove policy concessions for immediate family applicants in order to reduce the size of the special humanitarian backlog. We already know that there is a waiting list of over 20,000 people in this current family reunion application process and we are only resettling a small number of people on this 26-year waiting list. If you are a young family and if you have had to flee the Taliban, you cannot wait 26 years to get the rest of your family out here. No wonder we have more people coming to Australia by boat. We are increasingly seeing more women, children and young people taking these dangerous boat journeys because no other option has been put in place.

Last year, despite all the hoopla, all the fanfare and all the hysteria from the Labor government and the opposition in relation to this issue of how mean and nasty our policies had to get in order to deter people from taking dangerous boat journeys, we only took 714 people directly through the Special Humanitarian Program. We only took 714 people in an entire year through direct resettlement, through the family reunion process. No wonder hundreds of others have had to find another way, because they are running from war, persecution and torture. Many of them have had to wait in countries like Malaysia or Indonesia for years and years. Many of them, in fact, have already been assessed as genuine refugees by the UNHCR.

When I was on Manus Island last week, I spoke to a number of the refugees there. A number of them had already been found by the UNHCR in Malaysia to be genuine refugees. They had been registered by the UN and they had waited in Malaysia for six years or more, and yet they had never had the opportunity to be resettled. They were not safe while they were waiting there. I was told stories of raids, imprisonment and harsh punishment of people who had been found to be refugees and who were caught by the Malaysian authorities. There was the risk of deportation. It was not a safe place to stay, despite the fact that they all held UNHCR recognised refugee cards. One family I spoke to had waited for six years in Malaysia. And, when it all got too much, when it got too dangerous, they decided that the only option they had was to come to Australia by boat. They have now been locked, offshore, out of sight, out of mind, on Manus Island. They have been told they have to wait in line because of the no-advantage rule—which, we hear the government say, is about five or six years. But they have already waited five or six years in Malaysia. They have already been recognised as genuine refugees, they have waited there, and no-one helped them. And now we have locked them up. Under these regulations, if they continue, people who find themselves in that position are not allowed to bring out their mother, their wife, their daughter, their son, their children. So of course those people are going to take more dangerous boat journeys.

As I mentioned, we have seen before what a failure this policy is, under John Howard's government when he did this exact same thing. People who Australia has accepted need protection have been given refugee status but have been stopped from being allowed to bring their family members. We have seen what a failure this was, because we saw the tragedy of SIEVX. Eleven years ago, 146 children drowned when the SIEVX sank, and that was precisely because fathers and brothers were not able to sponsor their families and to be reunited.

One of the other interesting things about the numbers of people we have seen arrive since the Labor government and Tony Abbott's opposition got together and ripped out all meaning of humanity under our immigration laws and we saw the reincarnation of the Pacific solution under the management of Julia Gillard is all of the thousands of people—almost 10,000—who have come by boat since 13 August. They have not been deterred by these harsh policies. They have not stopped having to flee war because Australia decided to grow a heart of stone and close the doors. They have not stopped having to search for safety. Out of those 10,000 people who have arrived, a significant number of them are people who already have family members here in Australia. They have had to come by boat because we have not given them a safer option. So rather than punishing vulnerable refugees—rather than shutting the doors and saying no—we should be giving people a safer option and a safer pathway, yet all we continue to hear from Julia Gillard and her ministry, backed up by the opposition, is the constant rhetoric of hate and cruelty. All we see is Julia Gillard and the Labor government locked in a race to the bottom, chasing Tony Abbott back down the same dangerous, extreme, irresponsible path that John Howard and Philip Ruddock took us down only a decade ago.

There are many, many reasons to be concerned about these regulations, but my main concern is that this is going to put more lives at risk and more families in distress and, rather than deter people, force them to take those dangerous boat journeys, because that is now the only way they are going to get here. They will be thrown in detention, they will be punished and they will go through all of that suffering, but families do amazing things in order to stick together. When they have been in a country full of war, persecution and torture, and when they have had to cling together in order to survive, these families will do whatever it takes in order to be with their sons, daughters, wives, husbands, brothers and sisters. So there is no deterrence factor in this. It is a backward policy. It is a dangerous policy. It has been proven to fail before. It has not just been proven to fail in terms of deterrence; it has led to the direct loss of life at sea. Yet here we are, despite knowing all of that, 10 years on, seeing the Labor Party introduce John Howard's legislation and regulations all over again.

I just want to be very clear about how condemned this change of regulation is. There are many, many people and organisations who understand these issues very well, talk to these groups in the community all the time, understand the desperation that these families are in and have expressed their disappointment at the Labor Party introducing these changes. They have strongly suggested that this regulation be disapproved, as I am moving today. There is a long list of those organisations. They include Amnesty International; the Asylum Seeker Resource Centre; Asylum Seekers Christmas Island; the Asylum Seeker Welcome Centre; Bridge for Asylum Seekers Foundation; Balmain for Refugees; CASE for Refugees; the Centre for Human Rights Education at Curtin University; ChilOut; the Coalition for Asylum Seekers, Refugees and Detainees; the Darwin Asylum Seeker Support and Advocacy Network; the Human Rights Law Centre; the Hotham Mission Asylum Seeker Project; the International Detention Coalition; the UNHCR; and the Australian Council of Trade Unions. Malcolm Fraser has recognised how dangerous this is. There is an enormous list of people who understand and have not forgotten how dangerous, irresponsible and cruel this policy was last time it was introduced. Despite all of the evidence, despite the fact that no-one has stopped coming since 13 August—we are now at an absolute peak point of 10,000 refugees locked in immigration detention—despite the boats not slowing, despite people still coming and despite all of the evidence about how dangerous this regulation is and how much it has failed and risked lives in the past, the government wants to keep steamrolling ahead. This is why members of the community around this country are questioning what on earth has happened to the Labor Party. What are their values? What do they stand for? Because this represents nothing that kind-hearted, intelligent, hardworking supporters of the Labor Party thought that Labor stood for. This is John Howard's policy. This is Tony Abbott's policy. This is about cruelty and irresponsibility. It is a knee-jerk reaction to the most base politics. This is about forcing families and children onto dangerous boats. It is not going to save anybody's life at sea; it puts them more at risk. When people ask what one earth has happened to the Labor Party, you just have to shake your head and think they have absolutely lost their way. This regulation should not go ahead and that is why I have moved the disallowance.

6:10 pm

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | | Hansard source

I rise to speak to the motion to disallow the Migration Amendment Regulation 2012 (No. 5) and to indicate that the coalition will not be supporting the disallowance motion.

Whilst the coalition remains critical of the government in contracting out its responsibilities in this important portfolio area to the Houston panel, we do recognise, as we have said on numerous occasions in both this place and the other place, that the government is clearly severely limited in relation to the development of policy in this important area, and as such it has been rendered completely incapable of discharging its fundamental duties. As we know, it contracted out its policy duties to the Houston panel, which eventually involved the tabling of the Houston report.

The coalition acknowledges the findings of the Houston report and we acknowledge that they effectively endorse the former Howard government's strong border protection policies. The current government, whilst performing what is now known as the greatest political backflip of all time when it comes to a policy in this place, is now going some way towards accepting the recommendations of the Houston report. In fact, this regulation that we are debating that is the subject of the disallowance motion is part of the government's effort to follow through on one of the recommendations of the Houston report. As such, given that the Houston report generally follows the substance of the Howard government's policies when it comes to protecting Australia's borders, as I stated, the coalition will not be supporting the disallowance motion.

The regulation itself, although not perfect by any means, does take a small step towards protecting some of the places available in the offshore humanitarian program from onshore asylum seekers and their family members. Ensuring that the family members of onshore asylum seekers are required to apply for family reunion through the general migration program and that they do not take places in the humanitarian program through the split family provisions is a small step, but it is a small step that is in the right direction and is moving effectively towards what were the former Howard government policies. On that basis we support this very small step.

It does have to be noted, however, in debating the disallowance motion, that this regulation in no way restores temporary protection visas. The coalition is on the record saying time and time again that we believe that temporary protection visas are the appropriate mechanism, the most effective form of policy, that a government puts in place if it truly wishes to deny people access to family reunion. We have stated time and time again to the Australian public that if and when we are again given the privilege of governing Australia, one of the first things that we will do in restoring integrity to Australia's borders is that we will reintroduce temporary protection visas.

The government's policy is reflected in this regulation. In her comments in the chamber, Senator Sarah Hanson-Young was actually wrong. It is not surprising that Senator Hanson-Young was wrong. Senator Hanson-Young stated that people coming here by boat will no longer get access to family reunions. That is just blatantly wrong, and shows a complete misunderstanding of the immigration system. People still will be able to get access to the family reunification program; they will just have to apply for it under a different scheme. This regulation does not stop people, despite the words of Senator Hanson-Young, from obtaining access to family reunification.

That is why the coalition is critical of this regulation, because we say that it does not go far enough. Whilst the government takes with one hand to make it look to the Australian people that it is actually making a strong decision, on the other hand it has quietly increased the number of places available in the general family reunion program over the next four years to the tune of 16,000 places. So I am not quite sure how Senator Hanson-Young stands in this place and makes what is a totally incorrect statement in relation to this particular regulation. By this regulation, all the government is doing is shifting the ability to obtain family reunification from one stream of the migration program to another stream of the migration program.

Further proof of that is found in MYEFO, which included an extra $55 million of taxpayers' hard earned money to provide more family reunion places for people who enter Australia illegally on boats. This means that those who arrive in Australia by boat and who are granted a permanent visa will still be able to access the family reunification program. The only change that has been made by the Labor government is that they will now have to pay a fee and they will have to fill out a different form. Again, for Senator Hanson-Young to stand here and say that by this regulation there is no longer any access to the family reunification program either is wrong or shows a complete misunderstanding of the way immigration works in Australia.

All the regulation does, despite the rhetoric of the Labor Party in saying to the people of Australia, 'We are tough and we are stopping people from having access to the family reunification program,' is to create a process which actually enables quite ready access to the family reunification program. But, as I said, all the Labor Party has done here is to take with one hand but offer the exact same thing on the other hand. The proof there is the additional 16,000 places over four years in the family reunion program, and the fact that in MYEFO the government dedicated $55 million to these additional places.

What you have here is, yet again, another very clear example of the Labor Party's spin over substance. They say they are getting tough on illegal immigrants in one breath, whereas with the other breath they just create the exact same problem.

As I have stated, the Houston report recommended this step; the Houston report has effectively endorsed coalition policy. The Labor Party have adopted the Houston report themselves, which means they are well and truly moving towards the former Howard government's policies on border protection. The coalition certainly welcomes the fact that members of the Labor Party have stood with the coalition to vote for what effectively are the former Howard government's policies on border protection. And whilst this regulation is only a small step along the way, it is certainly a step in the right direction. On that basis the coalition will not support the disallowance motion.

6:20 pm

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | | Hansard source

I can indicate also that the government does not support the Greens proposal to disallow the Migration Amendment Regulation 2012 (No. 5). The purpose of that regulation is to amend the Migration Regulations 1994 to further implement recommendations made by the Report of the expert panel on asylum seekers, a report that was accepted by the government. Principally, this was to do two things: firstly, preventing persons who became irregular maritime arrivals after 13 August 2012 from being eligible to propose family members for entry to Australia under the humanitarian program and, specifically, from the Refugee and Humanitarian (Class XB) visa; and, secondly, amending the criteria to be considered for existing applications when determining whether there are compelling reasons for certain people applying for a class XB visa. The regulation gives effect to recommendations 1, 11 and 12 of the Report of the expert panel on asylum seekers. In summary, recommendation 1 relates to the application of a 'no advantage' principle to ensure that no benefit is gained by irregular maritime arrivals through circumventing regular migration arrangements. Recommendation 11 is that the current backlog in the Special Humanitarian Program be addressed through removing family reunion concessions for proposers who arrive through irregular maritime voyages. In recommendation 12, the panel recommends that future irregular maritime arrivals should not be eligible to sponsor family under the Special Humanitarian Program. Instead, family reunion for these irregular arrivals should be achieved through the family stream of the migration program. The regulation is a key part of the government's response to the recommendations of the expert panel, which aim to prevent asylum seekers from risking their lives by sea by shifting the balance of risk and incentive in favour of regular migration pathways and established international protections.

The regulation acts as a circuit-breaker to reduce the attractiveness of Australia as a destination for irregular migration. It does so by abolishing the special family reunion concession—a concession that asylum seekers who were granted protection visas have enjoyed for the last 15 years—for asylum seekers who arrived after 13 August 2012. The regulation does not punish or disadvantage protection visa holders. It puts them back on an equal footing with other Australian permanent residents and citizens who apply for family reunion under the regular migration program.

Senator Joyce interjecting

Are you okay, Senator Joyce?

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I was just wondering if you could do this at around half past 10 at night—I do have trouble getting to sleep these days!

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | | Hansard source

Disallowing the regulation would re-establish a magnet for irregular maritime travel to Australia, predictably leading to more children being sent alone on perilous journeys to Australia, and to more deaths of asylum seekers at sea. Applications by families overseas proposed by adults who arrived by boat before 13 August 2012 will now be given the lowest processing priority and only the most compelling applications will be granted a humanitarian visa. It is expected that the majority of applicants will need to apply and wait their turn for a visa in the family stream of the migration program in the same way as family of other Australian permanent residents and citizens. This option is still cheaper and certainly safer than using a people smuggler. Additionally, the processing times are often faster than under the humanitarian program.

An additional 4,000 places will be made available in the family stream to accommodate the increase in demand for visas. This is a significant improvement on the 750 places that were available under the Special Humanitarian Program for family reunion last year. Unaccompanied humanitarian minors who arrived before 13 August 2012 will continue to have access to the family reunion provisions in the humanitarian program as they have limited viable options under the migration program. Unaccompanied humanitarian minors who arrived after 13 August 2012 will not have access to family reunion in the humanitarian program.

A statement of compatibility with human rights has been completed for the regulation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The statement's overall assessment is that the measures in the regulation are compatible with human rights because they are consistent with Australia's human rights obligations and, to the extent that they may also limit human rights, those limitations are reasonable, necessary and proportionate. Australia considers that it is a necessary, reasonable and proportionate measure to achieve the legitimate aim of preventing these arrivals from making the dangerous journey to Australia by boat.

The amendments seek to prevent people including minors from resorting to potentially life-threatening means to achieve resettlement of their families in Australia. This goal, and the need to maintain the integrity of Australia's migration system and protect the national interest, are primary considerations. The Australian government will not provide a separate pathway to family reunification that will allow people smugglers to exploit children and encourage them to risk their lives on dangerous boat journeys. It is only this government that is fully committed to the delivery of a proper and sustainable regional solution through the full implementation of the recommendations by the expert panel which was led by Angus Houston. This is now a responsible government development policy; listening to the advice of experts. No-one should doubt the government's commitment to implementing the 22 recommendations of the expert panel to break the people smugglers' business model and to stop people dying at sea. I commend senators to vote against this disallowance motion.

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

The question is that the disallowance motion moved by Senator Hanson-Young be agreed to.