Wednesday, 4 December 2013
Asylum Seekers; Order for the Production of Documents
That the Senate take note of the document.
I thank the Senate for allowing me the opportunity to speak in response to this document as tabled by Senator Cash today. This issue is becoming a very concerning trend under this government: the idea that information that in the past has been freely available not just to the parliament but also to the public, to know what is going on with the immigration policies of the government of the day—
Yes. I do not know why that is. It is just the circumstance.
It is obviously a very concerning trend by this government to not allow the Australian people or the parliament to know exactly what is going on with our resources and our Navy and Customs personnel in relation to events on the high seas. We know—we have heard testimony after testimony from people within our various divisions of border protection, both current and former—how dangerous it is to engage in operations such as turning back the boats and, indeed, towing boats back, without knowing how risky any of those events are or even how many of those events are happening.
There are reports and confirmation that only two weeks ago the Australian government was attempting to tow a boat—a wooden, rickety, asylum seeker boat—and as it was being towed it split in two. The hull came off the boat. This happened on the high seas. There were refugees and asylum seekers on board that boat, and the boat started to sink. Have we heard one word from this government about this particular incident—what happened; how it occurred; who is going to take responsibility for this; what was the risk to our personnel involved in that incident; what happened to the asylum seekers and the people on board that boat? Not a word has come from this government. It is all hushed; it is all silent; it is all cover-up, pretending that this did not happen.
If you do not talk about it, if you do not tell anybody, then hopefully no-one will notice that boats are arriving and that attempts are being made to turn them back and tow them. But we know it is happening because other people are seeing it. The boats that arrive day by day into Christmas Island are watched by Christmas Island locals. They are keeping their own tally and allowing the Australian people to know through their own communication methods because they know this government is desperate to cover up the truth.
There is nothing in these documents that says anything about these incidents. There is nothing in these documents that says there was an incident when a boat which people were on board had its hull broken off and was sinking. You would imagine that that is a pretty serious event to occur—that somebody should be responsible for telling the Australian people and this parliament what happened, how it happened and who is taking responsibility for the decision to tow that boat. This is just one example of the types of things that are being covered up day by day by this government and this minister.
There are, of course, conflicting reports about how many boats have arrived and how many people have been transferred to Christmas Island under this government's watch. In our Friday briefings—otherwise known as Friday farce—the minister stands there pretending that he will answer questions, yet hides behind the military and our men and women in uniform so that they do not have to answer questions. But of course, through the Senate estimates process, we know that it is indeed the minister himself who makes the call as to what is public and what is not. Yet he pretends that it is those within Operation Sovereign Borders and the Navy who are restricting the information to the Australian people. Well, it is not. We heard directly from Lieutenant General Angus Campbell himself that it is the minister who makes the decision as to what the Australian people are able to know and what they are not. It is more of a case of the Minister for Immigration saying he will decide the information that the Australian public will get to know and under what circumstances they will know it. What arrogance of this government!
The incidents that are occurring on our seas are serious enough for this parliament to be made aware of. How much money is being spent on these operations? How many times have Australian personnel been put at risk because of the direction of this government to turn back boats and tow boats despite all of the evidence? All of the evidence, all of the testimony, is that this is an unsafe practice, that Navy personnel do not want to have to carry out these dangerous orders and that it is in fact in direct conflict with and contradicts our obligations under the laws of the sea. And yet here we have the Minister for Immigration, 'Dr Cruel' himself, 'Dr Secret Boats', saying: 'No, you will turn back boats. I don't care about how dangerous it is. We don't care if it creates a sinking just off Christmas Island when people are on board. It is all okay because we will just cover it up and not tell anybody that it is happening.'
This document is an absolute farce. It does not give any information in relation to the incidents. In fact, it says it will not. The argument is here for why that information will not be given and why the Australian people and the parliament do not deserve to know about serious incidents like the sinking of a boat and the resulting rescue of 40 asylum seekers. The argument for not giving us the information about that incident is that it is not in the public interest. Whose interest is it in? I can tell you that seeing these incidents occur on our high seas is not in the interest of our Navy and Customs personnel, and it is not in the interest of the refugees and the asylum seekers on board these boats.
It may be in the interest of the government of the day not to tell us what is going on, because it would prefer to keep the Australian people in the dark. This is a government that thinks the Australian people should be treated like mushrooms, kept in the dark and fed compost. This is basically this government's attitude to the Australian people and this parliament. What absolute disrespect for the dangerous and risky jobs that our government is asking our Navy and Customs personnel to carry out on the high seas!
Of course, the idea that everything can now be classified as an operational matter also changes day by day depending on how uncomfortable the question that the minister has to answer is. One day we hear that it is an operational matter as to whether boats are being brought back from Indonesia. Next we hear that it was not an operational matter, because Lieutenant General Angus Campbell was more than happy to tell the Senate estimates hearing that in fact nothing had happened in relation to that policy—and nothing ever will, because, of course, Indonesia is not participating in that. What is there in this strategy of 'operation secret boats' that the government has, aside from a media cover-up, aside from treating the Australian people as mugs, kept in the dark? Cover-ups, sneaking around, secrecy—and this is all this government has got going for it.
It beggars belief that an incident such as the towing of a boat that results in a sinking and people having to be rescued is not allowed to be spoken about in this chamber according to the Minister for Immigration. Why is that, Minister? Is that because it should never have happened in the first place, if we had actually taken on board the advice of people who have said over and over and over again through testimony in the Senate estimates processes, publicly, that turning back boats is dangerous? Why pretend to the Australian people that these things are not occurring, unless you are just wanting to hide the truth and hide the facts?
I do not accept the claims for public interest immunity as outlined in this document at all. There are absolutely no claims that can suggest that information such as about these serious incidents which put at risk the lives of refugees and the lives of our Navy and Customs personnel should be off limits for discussion and information here in the Senate or indeed the other place. What arrogance and disrespect they have for the people they put in these dangerous and precarious situations.
This order for the production of documents has not been complied with, as we know. I say to the government again: of course there are going to be times when information must not or cannot be fleshed out thoroughly, but we should know basic information about when events occur, the seriousness of events and when an action by this government has put at risk the lives of Australians and refugees. It is an absolute cover-up when this government puts the lives of Australians at risk and it does not want anyone to know. What an absolute joke. What disrespect and arrogance from this government to think that no-one has the right to know.
The Australian Greens will not be accepting the arguments put forward by the minister in the letter tabled today.
I will put some context around why the debate is occurring at this time, Mr Acting Deputy President Bernardi. You will be aware that the order for the production of documents required me on behalf of the Minister for Immigration and Border Protection to comply with the order by 5 pm today. At 5 pm today, the Senate has determined that Senator O'Neill will give her maiden speech. My office telephoned Senator Hanson-Young's office earlier today to inform her that the tabling of ministerial documents would occur after 5 pm because the Senate would be moving to Senator O'Neill's maiden speech at 5 pm.
We asked Senator Hanson-Young's office whether Senator Hanson-Young would be agreeable, in the usual course of business, to me tabling the documents at that required time during the tabling of ministerial documents, at which time debate on this matter could properly occur. It was noted, obviously, that this would be, however, after 5 pm. Senator Hanson-Young, I am informed through her office, stated that this was not acceptable. She therefore advised that this could occur at 3.30 pm. My understanding was that there was some other business that the Senate had to get through today, and that is why Senator Hanson-Young was denied leave. Had we gone through the normal course of events, but for Senator O'Neill's maiden speech, debate would have occurred on these documents.
The power to require the production of information is one of the most significant powers available to us as legislators. There will be, however, occasions when a minister determines that, on the accepted grounds of public interest immunity, it is not in the public interest for the particular information to be disclosed. I refer to the at least 75 occasions on which the former government failed to comply with orders for production of documents. In relation to those 75 cases, did the former government and ministers who were responding have the decency to provide concise reasoning as to the harm which they believed would be felt if the documents were disclosed in relation to the claimed ground of public interest immunity? I can assure you because I have all 75 of the responses that the answer to that question is no. So, Senator Carr, when you stand up today to comment on these documents, I suggest you might want your office to review the statements that were made by your ministers when you were formerly in government.
In relation to the information that I have provided to the Senate, I advise as follows. To assist the Senate, the government tabled a substantial amount of Operation Sovereign Borders related material on 18 November 2013. In addition to this material, the government has offered to provide the opposition and the Australian Greens senators and members with a confidential briefing delivered by Lieutenant General Angus Campbell, the commander of Operation Sovereign Borders. I can advise the Senate that to date the opposition has accepted the confidential briefing and Richard Marles, the shadow minister, has been briefed by Lieutenant General Angus Campbell on a confidential basis. I can also advise the Senate that none of the Australian Greens have accepted the offer of the confidential briefing.
In relation to the other documents for which the notice of motion calls, I have in my response to the Senate submitted that such documents should be withheld from the Senate on the grounds of public interest immunity. I have clearly articulated in my response to the Senate the relevant grounds upon which I am relying and I have then stated in detail—on behalf of Minister Morrison—the harm which I believe would occur if those documents were released publicly. As I have stated, the government has offered a confidential briefing to both the opposition and the Australian Greens and to date the opposition has taken up the offer of a confidential briefing. I would like to reiterate the comments regarding the operational sensitivity of the information that I have determined will not be disclosed that have been made by the Commander of the Joint Agency Task Force, Lieutenant General Campbell, as well as the former Chief of the Defence Force Angus Houston. They stated in relation to the matter:
There is a great advantage to have a high level of operational security which means you are not going to be transmitting frequently on what activities you are up to at that particular moment in time.
In relation to the particular grounds of public interest immunity upon which we have relied in our response, I advise that the grounds are as follows: material the disclosure of which could reasonably be expected to cause damage to national security, defence or international relations, including disclosure of documents or information obtained in confidence from other governments; and material relating to law enforcement or protection of public safety which would or could reasonably be expected to prejudice the investigation of a possible breach of the law or the enforcement of the law in a particular instance, endanger the life or physical safety of persons, disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law the disclosure of which would or would reasonably be likely to prejudice the effectiveness of those methods or procedures or prejudice the maintenance of enforcement of lawful methods for the protection of public safety.
I have further set out in detail in my response specifically to the disclosure that the documents requested relate to operational matters which should not be disclosed for the following reasons of public interest immunity: they would or could reasonably be expected to cause damage to national security, defence or international relations, including disclosure of documents or information obtained in confidence from other governments; and they contain material relating to law enforcement or the protection of public safety which would have detrimental effects. I then, in response to comments made by Senator Ludwig, specifically set out the harm which this government states would result from the production of those documents—for example, disclosure of the information revealing the location, capacity, patrol and tactical routines relevant to Australian Defence Force and Customs and Border Protection vessels and aviation assets.
The release of this information would undermine the tactical advantage of civil maritime surveillance assets over people smugglers, who may use this information to avoid or trigger detection or to precipitate a search-and-rescue operation. It would undermine the Commonwealth of Australia's ability to protect vulnerable irregular maritime arrivals from the practices of people smugglers and other serious criminal activity. It would also undermine more generally the effectiveness of Border Protection Command assets which seek to maintain maritime security awareness more generally and in response to a broad range of maritime security threats, including the security of oil and gas platforms and the illegal exploitation of natural resources.
I go on to explain in further detail how this information, if it were released, would enable an exploitation of confidential methodology and processes used by the Australian Defence Force and Australian Customs and Border Protection vessels and assets. I then state the harm that would arise in relation to the impact upon Australia's relations with foreign states. I go further to elucidate that it would undermine the further development of international agreements and cooperation. It would undermine the working relationship between operational agencies in relation to safety of life at sea. It would further increase the tactical advantage of people smugglers and consequently increase the risk to the wellbeing of irregular maritime arrivals.
Accordingly the government does not believe, for the reasons I have clearly and properly stated in my response to the Senate, that it is in the public interest to release information that may compromise current and future operations under Operation Sovereign Borders. I remind senators that the government's goal is truly to break the people smugglers' model, to stop people losing their lives at sea, to stop the flow of boats to Australia so that our Humanitarian Settlement Services program can go back to being just that and all places in our program go to people sitting in camps overseas, sometimes for in excess of 20 years. The mere fact is that Operation Sovereign Borders, in the short time it has been in operation, has resulted in an 85 per cent reduction in boats coming to Australia, which means an 85 per cent reduction in the number of people risking their lives to get to this country. I believe that Operation Sovereign Borders, because of the protocols that this government has put in place, is achieving its stated goals.
I will conclude my remarks by five o'clock because I understand there is a first speech. The gallery is filling up, not to hear remarks from me but to hear from a new senator. I am sure they will find this highly entertaining. I indicate to Senator Cash: you would have done yourself an enormous service by making the statement you have just given at 3.30. Equally you would have done the Senate a great service by not denying leave to a senator to make a short statement concerning your remarks. And you certainly would have done the Senate a great service by not trying to slip in a highly contentious document such as this without debate and without explanation.
Those members of the government that are wondering why the Senate is debating this matter and not dealing with the business of the Senate—and preventing us in due course from dealing with detailed legislation—ought to bear in mind that the arrogance and contempt that this minister is showing for this chamber will ultimately have great effect on the government's legislative program because one of the consequences of that contempt is that the Senate will show its displeasure.
When it comes to the detail of the measures that are being proposed to us today, it is unusual for governments to claim public interest immunity. It is particularly the case that at the recent estimates committee I asked Senator Cash directly, when she was refusing to answer standard questions that had been answered in this chamber, answered at estimates committees, answered at legislative committees and answered at references committees for the better part of the last generation at inquiry after inquiry: 'Remember the SIEV X inquiry and children overboard? Remember all those discussions?' Routine questions being answered are a matter of standard legislative practice, a matter of standard parliamentary procedure. Up until three months ago, it was not a controversial approach.
It may well be that officials do not want to answer questions. It may well be that governments try to obscure information. It may well be that governments would prefer that the public not know certain things, politically embarrassing things. Of course that is the routine of the parliamentary process as well. It has been the case for a generation that questions are answered, but this government has chosen not to. At Senate estimates, when implementing this procedure was attempted, I asked a very direct question regarding the issue of public interest immunity. I asked the minister in the chamber: was she claiming public interest immunity? I said: 'I will ask you directly. Are you claiming public interest immunity?' The chair said that she was not. There was no point of order. Of course there was no claim, but suddenly we discover that there is a claim.
All governments and anyone that has been a minister for any length of time understand that there are simple matters of public confidence that need to be maintained. I agree with that. There are issues in regard to state security. There are secrets that governments need to maintain. There is always, however, the need to balance that against the right of the public to know and the right of the parliament to know. There is a balance between the need for executive confidentiality and the need for the parliament to know as well. That balance has to be struck by careful consideration. I have maintained myself that there are commercial-in-confidence issues. There are genuine issues of commercial secrecy that require there not to be public disclosure. There are issues of genuine national security. There are questions that go to the need to ensure that individual citizens' privacy is not trampled upon. There are matters that go to legal proceedings. We do not discuss questions that are before the courts. These are all legitimate bases for ministers to argue: 'I am sorry. I am not going to answer those questions.' But, to try to suggest that you can write a long list of statements without justification, without evidence to back them up, and assert that that is in itself a claim for public interest immunity, I would suggest to this chamber is not the way to proceed.
There is a fundamental principle at stake here—that is, the legitimate function of this parliament to actually ask questions and have them answered. It is a legitimate function of the parliament. When a minister claims public interest immunity, it is actually up to the parliament to accept that or not. Just asserting it does not make it a fact. While it may be that people do not say anything, it may well be that under those circumstances there is no dissent. You can accept that as a legitimate acceptance of claim. However, if there is dissent then I think there is a problem. You clearly, Minister, have a problem.
When it comes to the heart of this issue, what we end up talking about are not matters of deep national security. No-one, surely, as far as the Labor Party is concerned, is asking a minister of the Crown to breach their responsibilities to preserve the security of this nation. It would be wrong to suggest that we are. We are talking about events that have occurred and have been reported in newspapers—for instance, a bow being ripped out of an asylum seeker boat by a Customs vessel.
On 19 November, it was reported that an Australian Customs boat had to rescue about 40 asylum seekers after accidentally ripping the bow out of a boat and causing it to start sinking. Those 40 people had to be transferred to Christmas Island. This was an event that was reported in newspapers and was raised in the Senate estimates committee, but the government chose not respond. It said it was not our business, in effect, to know. There were occasions where there were boats tied up to the wharf in Darwin. It was reported on 13 November that a vessel was tied up at the wharf. Again, when questions were raised about this event, we were told: 'It is not your business to know. You will be aiding and abetting the people smugglers.' There is this bizarre idea that the parliament here is not to know because people somewhere else will be told something they do not know. What a ludicrous proposition.
As we have heard in the case of a sea rescue, our maritime safety officials have advised the parliament that as a matter of course they send out an all-points bulletin, a distress signal—which is known throughout the high seas by anyone receiving that signal, anyone with the equipment—that a safety operation is in train.
The point was made quite correctly by Adrian d'Hage, the former chief of Defence public relations, who said:
In the days of mobile phones, satellites, and the internet, what Tony Abbott has termed 'the shipping news' is already out there.
It is simply not possible to bottle up information in the way that the government suggests that it can.
The former head of the Defence department, Paul Barratt, says the media strategy—that is what we are talking about here: not a security strategy but a media strategy—is unjustified and unsustainable. He says:
The fact is in a modern society any attempt to keep information bottled up is doomed to failure. There are three basic alternative sources of information—
Yes, he is quoted on the ABC. Senator Brandis, he is quoted on 15 November on the ABC saying:
There are three basic alternative sources of information: Indonesian officials in the current circumstances will be only too happy to embarrass the Government; people smugglers themselves don't need ministerial press releases to find out whether their people got through to Darwin or Christmas Island or got picked up by the Navy; and when they're within range, people on the boats have mobile phones—
an extraordinary discovery—mobile phones. An enormous breach of international security—the mobile phone.
So we have basic satellite equipment from our maritime safety agency broadcasting to the region about people needing to be rescued at sea. We have mobile phones. We have the internet. We have the Jakarta Post, but this minister thinks that the only people who should not ask questions about that are of course in this parliament. That stands in sharp contrast to the parliamentary practice that has occurred for a generation. Frankly, Minister, it is not sustainable.
We are looking at a farcical secrecy policy designed to protect the government, not the people of Australia. This is a media strategy developed by the government as a political strategy to prevent the people of this country and this parliament from knowing what is going on. This is a political strategy by the government, which stands in sharp contrast to their practices on a daily basis, and this minister in this chamber—almost on a daily basis before the election—was asking questions which she now decrees are matters of public interest immunity. Just about every question you asked me, Senator, in the previous parliament was a question that would be, under your definitions, in breach of the security arrangements of this country. They would be subject to your version of public interest immunity.
What was good just before the election was never advice to us as a government that it was in breach of security to actually discuss questions about these shipping movements. No-one advised when a boat tied up at the Darwin wharf that it was somehow a matter of national security and we could not tell anyone about it. We were never advised that these were practices that were aiding and abetting the people smugglers, but suddenly you discover these things only after coming to government, in a desperate bid to pursue a political agenda which can only thrive if the public does not know about it.
You make an assertion that 80 per cent of boats have stopped since you have introduced these draconian methods. It was 85 today; it was 80 yesterday—I know it has gone up five per cent in a day, despite the fact that another boat arrived yesterday at Christmas Island, another deep national security secret.
The actions that the Labor government took with regard to Papua New Guinea had much more impact than the actions that you are taking, which are about the desperate political survival of the government rather than the security of this nation. It is certainly not about providing the public with legitimate information we are entitled to know. It is certainly not about fulfilling your responsibilities to this parliament.
Question agreed to.