Thursday, 4 December 2014
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; Second Reading
Mr President, we have had the most irregular of procedures here where a bill has been brought on, no speakers' list has been distributed—I have not seen it. I have responsibility for the coverage of this matter. I understood there were senators in continuation and you are seeking to put the question. I think we are entitled to know at what stage this bill is at, given that the government has brought this matter on through some shady deal with the crossbenchers and without distribution of the speakers' list or proposed amendments.
Government senators interjecting—
Order! Senator Fifield! Senator Macdonald, I will respond to this first. I am not taking any further points of order at the moment. Senator Carr, I will explain what happened. There was a lot of confusion, I am sure, because no-one on this side stood. I looked across all chamber—
An honourable senator interjecting—
Order! The clerk had called the bill.
Senator Wong interjecting—
No, Senator Wong, I will explain what has happened before I take any further commentary.
Senator Wong interjecting—
I am addressing the chamber, Senator Wong.
Senator Wong interjecting—
I am addressing the chamber, Senator Wong. You will resume your seat!
And I don't need assistance from you, Senator Macdonald. What has happened, Senator Carr, was that I look across. No-one, not one senator stood to their feet until Senator Abetz did and he put the bill. Then I called it. Now, because there was confusion on your part on that side and no-one was prepared, I am very happy for the bill to be called on and you seek the call in the second reading debate. I am very happy for that to happen, but I want senators to clearly understand that it is also your responsibility to listen to the clerk when the clerk calls upon a bill, to actually show some respect to the chamber, to actually listen to the proceedings, follow the proceedings and then it is up to you to seek the call. Senator Carr, are you ready to take the call? Senator Carr!
Government senators: Take the call!
Order on my right! Senator Siewert, do you have a point of order?
Thank you, Senator Siewert. I think I clearly explained that no-one sought the call. Not one senator sought the call until Senator Abetz, after a fairly lengthy period, sought the call. We have now resolved that. Senator Canavan did not seek the call. I am giving the call to Senator Carr, so I think the matter is resolved and I will not take any more points of order on the matter. Senator Carr, you have the call in the second reading debate.
Thank you, Mr President. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 is perhaps the most significant piece of legislation to be presented to this parliament since the election of the Abbott government in regard to immigration and asylum seekers. The bill has many parts to it and is quite complex. It contains a legislative response to judicial actions. This bill seeks in part to override in part the High Court. The bill contains arrangements which might be regarded as quite unusual, to say the least, whereby the parliament is asked to intervene in a matter that is currently before the High Court. The minister describes this bill as a legislative recognition of the government policies. In fact, it is much more than that; it is an attempt by this government to override the judicial processes which have been established in this country.
We have a situation where the government is seeking in a somewhat shoddy manner to undermine a case which is currently concerning the CPSF versus the Minister for Immigration and Border Protection. What the minister is actually doing is attempting to scuttle a case before the court. If the legislation is passed, it would render the precedent value of that case redundant. It is a case which is fundamentally important to the application of the Maritime Powers Act. We know that the High Court in this country is extremely important and it ought not be treated in the manner which this bill would have us do. It is inappropriate to be able to go down this path whereby a case which is currently before the High Court, where the High Court has not made a decision—and the High Court is able to make its decision based on the evidence but it should not have the government intervene in such a manner to disrupt the proceedings that are currently before it.
The government says that this is all about saving lives and it makes an emotive appeal to the suggestion that it is the only way in which these matters can be resolved. We know that the impact of policy relates to a whole lot of issues in regard to people currently in Indonesia, people who are arriving by boats. We want to make sure that there is an appropriate response to those actions. The government is claiming that this bill is really all about legislating for a turn back policy, when we have seen quite extraordinary circumstances in regard to Indonesia.
The minister's claim that the bill is recognition of the turn back policy is quite deceptive, given that the real interest here is whether or not the government is able to intervene in a legal process currently before the High Court. Labor believes that that action is grossly inappropriate.
The bill seeks, at the same time, to resurrect TPV policy. It creates a new class of temporary 'safe haven enterprise visas'. Labor's position on TPVs is well known. We oppose them because they place recipients in limbo. There is no certainty about the way in which they will be treated, about their future within this country. Our view is that people who have been found to be entitled to Australia's protection—that is, they have genuine refugee status—should not be treated in the manner that this bill proposes.
What we are seeing here is the government trying to undermine the High Court, claiming the political imperative in terms of legitimising its policy, and taking away fundamental rights that people are entitled to have. The vast majority of people will be here, under various arrangements, without any opportunity to secure any future advancement in this country. We saw during the Howard government that TPVs were effectively abandoned because of the failure of such an approach by the government.
The bill purports to introduce this new visa class, the safe haven enterprise visa, ostensibly in fulfilment of the undertakings the government made to Mr Palmer. I say 'ostensibly' because the bill has not met those requirements. The explanatory memorandum states that the conditions for the operation of these so-called SHEVs will be laid down by regulation in the new year. The bill therefore holds out, I suppose, some hope that there will be permanency in the future for people, but that is clearly not what the minister is saying publicly. The opposition believes that there ought to be an appropriate, proper pathway to permanency for those who have been resolved to be genuine refugees. You will not find that in these measures that are before the parliament.
The measures in this bill would provide a temporary visa, valid for five years, and applicants for this visa would need to demonstrate their intent to work or study in regional Australia. If they do not work or study in regional Australia for at least 3½ years of the visa period, they would become eligible, you would think, for further action from the government. Labor's amendments propose that there is a right to work and extend bridging visas to asylum seekers while their claim for refugee status is being assessed.
We are concerned that the bill seeks to change the refugee assessment process in a number of ways. The bill seeks to speed up the processing of assessment claims, but it is not clear how this fast-tracking arrangement will work, because the bill depends on various regulations, details of which, of course, have not been provided. The second change is the replacement of the Refugee Review Tribunal by an Immigration Assessment Authority, with a limitation on the existing right of review for adverse decisions. This is a change which is a matter of grave concern. This government has undermined the whole process of legitimate, legal processing of refugee claims. Labor cannot support the limiting of applicants' rights to review the provisions of application processing. We cannot support the proposed fast-tracking of applications, which does not offer any way of reducing the duration of the process but would go a long way towards reducing the rights of people to actually get a fair outcome.
There is also the issue of the refugee convention within this bill. The bill seeks to remove any reference in the act to refugees. You cannot possibly ask the Labor Party to support such a proposal. The government argues that the bill in fact codifies the obligations under the existing convention so that the decisions of Australian courts will determine Australia's laws in this area, rather than the decisions of international courts. There is no good reason for changes of this type, and in many cases they are unlikely even to achieve the government's objectives. The minister's second reading speech argued that Australia remains a party to the refugee convention and that this is given legislative effect by the Migration Act. But our courts will inevitably refer to decisions by courts in other common-law countries when determining how obligations of this kind should be interpreted.
There is a further problem raised by attempts to codify the law. The bill inserts requirements in the act that, if a person is able to alter their behaviour reasonably, they should not be able to claim Australian protection. Setting this down in fixed, statutory form raises questions that would not be easy to resolve. We simply do not have clear administrative practice in regard to, for example, the protection of people in regard to their sexual preference. Would protection be denied on the basis that the alteration of that behaviour would result in a person not being persecuted in his or her country of origin? The fact remains that, in these measures, we would have different legal standards being applied to certain classes of people in this country. It may not be the intention of the bill, but it is simply impossible to see how you could have this bill interpreted in any other way.
The bill also contains a provision for the removal of the 90-day rule for the hearing of various claims by refugees, which is a very important accountability measure and a mechanism by which public servants have to respond to applications. At the time of last year's federal election, about half the protection applications were decided within the prescribed 90 days. But according to the most recent report about the Abbott government's behaviour here, only 14 per cent of decisions were being made within 90 days. This is a 90-day rule which this government has already sought to abrogate by administrative action. We know how important that provision is. Labor will defend that provision within the second reading components of this bill.
In essence this bill rewrites, in a far-reaching way, administrative law in regard to immigration. It seeks to set aside due legal process in regard to court actions currently underway. It seeks to undermine the rights of many people who are in this country. This is a further step in the government's downward spiral in regard to the proper treatment of refugees.
The government will say that if we do not support these measures then we will not be able to remove children from detention. Frankly, this is a proposition which says that this chamber should respond to a government that is now holding children up as hostages. If the minister were interested in removing children from various offshore facilities, he could do so tonight. He does not need this legislation to achieve that outcome. To suggest that we should respond to quite unfair measures in the hope that we can get children out of detention strikes me as the most crass form of blackmail. Holding children to ransom in that way is something that any government should regard as reprehensible. This is a government that does not blush at such a proposition. Frankly, the idea that we vote for this and we get additional humanitarian assistance places strikes me as in itself quite obscene. If the government were concerned to do these things, it could do them immediately. People do not need to be treated as bargaining chips in the government's desperate bid to further its political objectives of winding up public hostility towards people who are legitimate, bona fide refugees.
It is with great sadness that I follow Senator Carr, particularly with respect to some of the final words he spoke into the Hansard today—that is, that the government is holding children to ransom in order to get agreement on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I agree wholeheartedly with Senator Carr's comments.
In looking at the bill before us today and going by the media reports—because that is all we have to go on—seemingly, what some in this place have signed up for is no guarantee. If the media reports are correct, the offer to increase the humanitarian intake, which is one of the propositions we believe has been put forward, is a conditional one. It seems that those senators in this place that have signed up to that deal do not even have a firm undertaking—just a vague commitment that if others are processed the government might find a way to increase the humanitarian intake.
Senator Carr is completely right when he says that the government could act on children in detention right now, and it could. Many government senators and members have had a group called Love Makes a Way come and sit in their offices and talk to them. This is a religious group that has said over and over again that what the Abbott government is doing to children in detention is wrong. Those children could be taken out of detention today, yesterday, a month ago—but, no, we see not an ounce of compassion from the Abbott government. Equally, people could be processed. What we have seen over and over again from this government is the complete demonisation of refugees and asylum seekers in our country. We see nothing but demonisation of those who seek our protection in this country.
The bill before us today is really about a much bigger issue, one that the Abbott government is completely silent on. All we see from the Abbott government is their mean spirit and their small-mindedness, not just in the area of refugees and asylum seekers but right across all areas of government. We never hear the Abbott government talk about refugees who are displaced from their home country. They never talk about the persecution of refugees and they never acknowledge that the persecution of refugees is a worldwide issue. We never hear the Abbott government talking about that. That is really where the debate should start. It should look at this global issue facing all countries in the world. But, no, the Abbott government, because of their mean spirit, because of their demonisation, want to start by looking at those who try to enter this country. It is as if they were just beamed in, and that is where they start from.
What I and others want to do is shine a light on the Abbott government's absolute unwillingness to take that global perspective on refugees. Instead, over and over again, it seeks to make political capital. Over the last couple of days it has sunk to its lowest level by making political capital out of children. It is making political capital out of those who are genuinely seeking asylum. The Abbott government has shown no compassion on the issue of refugees. Instead it demonises refugees and asylum seekers at every opportunity.
If we think back a few months ago to the death of Reza Barati, the minister was the first to point the finger; Reza's death was somehow the fault of refugees. Those were the first words he uttered. Somehow they were at fault because they were rioting. All the questions from government backbenchers to ministers, whether in the other place or in the Senate, are about stopping the boats. They are not about the world's global refugee issue. They are not about the world's global asylum issue. They are simply about stopping the boats and calling asylum seekers 'illegal maritime arrivals'—dehumanising them. There has not been one question by a government backbencher about children in detention showing any skerrick of humanity; not one question about the global refugee solution—just this continued hardline demonisation of refugees and those seeking asylum.
The bill before us today seeks to make it easier for the government to deny its protection obligations—and it does have obligations to certain people. There are a lot of myths—and I heard them in this chamber yesterday at the start of this debate. The facts are: Australia does not host a large number of refugees. By comparison, Pakistan, a country that does not have the wealth that Australia has, hosts over 1.6 million refugees. Iran hosts almost 900,000 refugees. Chad has almost half a million. And Australia? Just 13,750 refugees are granted permanency residency by Australia each year—a tiny, tiny drop in the ocean. Per $1 billion of GDP, we take in less than 35 refugees. By comparison, Pakistan takes 2,811. I would say that we can afford it.
When we look at refugees hosted by countries across the world, Pakistan is the No. 1 currently, and that stands to reason, because they are in a conflict zone. But to suggest there is some kind of queue or orderly processing—of course there is not. It is another myth, another way, for the Abbott government to dehumanise refugees and asylum seekers. On that refugee hosting list, Australia is at No. 49. Countries ahead of us include China, Ethiopia, United States, Jordan, Lebanon and Iran, and on and on it goes. We are not a fair country, a generous country, when it comes to refugees and asylum seekers.
This bill today seeks to curtail rights and endorse in a legal framework the sorts of actions we have seen the Abbott government take on the high seas such as turning boats around or separating out a boat and its occupants—all of this sneaky stuff to legitimatise what they have been doing in secret.
When we look at asylum seeker applications, where does Australia sit? It is No. 30. At the top of the list is Lebanon then Jordan, Turkey, Iraq, Egypt, Germany, France, South Africa, Sweden and the United States—all in the top 10. And where are we? Right down the list at No. 30.
There is no need for this harsh, cruel legislation, because the reality is: we are not swamped by refugee applications. Contrary to what the Abbott government would have us believe, the truth is: we are not swamped. Compared to other refugee-hosting countries, Australia actually receives a very small number of asylum seeker applications, with about 16,000 people seeking asylum per year in Australia. By contrast, the United States receives 68,000 applications a year; and Germany many more—almost double that; almost three-quarters of a million. Australia has an obligation to help with the global refugee situation, and our responsibilities do not start and end with boats—they clearly do not.
The legislation before us today will seek to further demonise those genuine refugees seeking asylum in our country and curtail their rights. It is like blackmail. This commitment that we will take children out of detention by Christmas is a furphy, because the government has been so slow at processing applications. We would have no guarantee of that anyway, so I do not know what senators in this place think they would be signing up to when they sign on the bottom line that somehow children will be magically out of detention by Christmas. Are we are going to see yet a new form of visa, a Christmas visa, issued to those children in detention?
We already know that it is taking the Abbott government months and months and months to process applications. Why would any senator in this place think that somehow magically the government is going to process those children in a matter of weeks? Who in their right mind would believe that, particularly from a government who has constantly broken promise after promise?
How could anyone be hoodwinked about the increased numbers for humanitarian reasons when it is conditional upon the government to process what it claims is some kind of legacy? It has been the government for more than a year, and all we have seen is the processing claims almost stop in this country. It is well and truly below any kind of rate that we have seen in the past. Why would we even think that our humanitarian intake would be increased when it is a conditional commitment on the basis that the Abbott government processes 30,000 other applications? Whoever did the negotiation is a very poor negotiator to think we could get to that number and to think that we could have children out of detention by Christmas. In any event, it is such a low blow. It is almost the worst thing the Abbott government has done, to hold children up as some kind of bargaining chip. We do process very few applications in relation to other countries.
We know that many refugees return home, but a set number of years in Australia cannot guarantee people a durable solution. We have this new visa, the SHEV visa, and there is some question about what that might lead to because it has not been properly thought through. What does it actually mean? And here we are today being held in this place until we pass this bill, with very limited information around it.
Labor's views have been very clear on temporary protection visas: we believe that they are damaging to refugees and that they are inhumane and discriminatory. We know that during the Howard years refugees on temporary protection visas were unable to apply for family reunion visas. They are not allowed to work—although we understand the minister is saying he will give work rights as part of the deal, but let's see the detail of that. What assistance will they be given to resettle in Australia? They certainly will not be given any kind of stability on a temporary protection visa—no permanence. And there is the psychological damage that refugees fleeing persecution have, because that is the test. When people are granted asylum it is on the basis that they have been persecuted. That is what we are talking about here: people—men, women and children—who cannot remain in their home countries, who have left those countries because they have been persecuted. Let us not forget that.
Let us also not forget that refugees are a global problem, and Australia takes a very tiny part of that. We have seen that through this government cutting back foreign aid, and earlier this week we had the threat that foreign aid would be cut even further. We help to resolve conflicts in other countries by doing a whole range of things. Sometimes, yes, we have to send troops in, but we also give aid by way of talking to people and educating people about democracy. We give aid that helps with health, aid that helps to educate children and to provide basic water security and other basic needs that countries have. But what we have seen under the Abbott government is a retraction of all of that. We are not only abrogating our responsibility in terms of the global refugee program; we are making matters worse by withdrawing and reducing foreign aid.
What kind of country are we becoming? We are becoming a small minded, mean spirited country. That is what we have seen this government do across a whole range of areas. And if this bill gets up today it will treat refugees and those seeking asylum in our country in a very harsh way—much harsher than what is required. But obviously the Abbott government still thinks it is on a winning vote, still thinks that demonising refugees is going to win it votes. They are wrong. Australians by and large were quite disgusted and horrified over the death of Reza Berati. And more and more Australians are horrified about the numbers of children we have in detention, and they are starting to ask questions. When you have conservative religious leaders in this country risking arrest and prosecution themselves—which is what Love Makes a Way do—something is wrong. These are not radical, left-wing churches. These are ordinary, everyday conservative churches and leaders. The leaders of those churches are saying to the Abbott government, 'You've overstepped the mark.' I know how passionate the Love Makes a Way group are because they have been in my office. I invited them into my office. They do not need to stage a sit-in in my office and get arrested. I invited them in, we had afternoon tea and we sat down and discussed the issues. But I know that my friends at Love Makes a Way would be quite disgusted about this blackmailing. As desperate as they are to have children out of detention, they certainly would not sign up to this sort of deal. They would not, because they understand that what we need is a humane approach to asylum seekers and those who flee their countries because of persecution.
This bill is completely unnecessary. All it does is to try to legitimise those secret matters that have been occurring out in the oceans between Australia and Indonesia that the Australian public do not know anything about. What we do know is that this bill seeks to legitimise those actions. It is a harsh treatment of those fleeing persecution. To use children as political pawns in this process is an absolute disgrace and the Abbott government will be held to account for that.
First of all I would like to thank the Senate for providing the Senate with the opportunity to consider this bill. It is a bill that really does need to be considered by the Senate this week, before the Senate rises
I thank those who supported the Senate decision to allow that to occur, particularly in a week where the Labor Party have conspired with the Greens to minimise the opportunity that the senators have had to consider government business this week before we go away. There are a number of other bills which were also time dependent and which the Senate has not had the opportunity to consider because of the games that have been played in this place this week.
On behalf of the government, I can indicate that if this bill is not likely to be finalised by 11 pm tonight, the government will move to suspend the Senate until 9 am tomorrow.
I am rising today speak about the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. It is a very long name and it is a very complicated technical name, but the thing that I want to focus on is that this bill is about people. It is about real people, it is about people's lives, it is about people who are suffering and it is about people who Australians care about and who Australians want to see protected.
I think about the refugees that this is going to affect and whom I have met over the last five months whilst I have been a senator, and the many others that I have met prior to that. In particular, I think about a lot of the refugees I met as I was on my journey to Canberra. I travelled to Canberra through regional Victoria on a listening tour, and along the way, at every stop, I managed to meet with members of the community. The plight and the fate of refugees, those who were living in the community, those who were languishing on Christmas Island and those who were locked up in detention on Nauru and Manus Island was something that people were passionate about and that they wanted to talk to me about.
My first stop on my ride out of Melbourne was at Bacchus Marsh. I met with some Burmese refugees who had been accepted as permanent residents. They were very fortunate compared to the more recent arrivals. They were working now as part of a social enterprise and were contributing to the country. They were growing vegetables. They were doing that with the support of the local church community and a local person who had donated land on the fertile river flats of the Werribee River at Bacchus Marsh to help this group of refugees, who are largely Burmese but who are also from other parts of the country. They were showing that Australians do have a heart.
The refugees were contributing to part of the community. They really want to establish their roots there. I think the fact that they were growing vegetables on the bank of the river showed that here they were establishing their roots, they had their kids going to local schools and they were on their way to becoming productive and happy Australians like the rest of us. In Australia, as a culture and as a country, we have people from all over the world. Our culture is based on contributions from people from all over the world, so many of them refugees. Our national anthem says, 'We’ve boundless plains to share'accepting people and knowing that the can contribute to our diverse multicultural country. This is the sort of approach and the sort of culture that is being so compromised and so attacked by this cruel and heartless legislation.
From Bacchus Marsh, I moved on to Ballarat. I was very fortunate to be in Ballarat at the launch of World Refugee Week, where I met with refugees from Sri Lanka and from Sierra Leone. I met with a young man from Africa who was now the Young Citizen of the Year in Ballarat. He had arrived from war-torn Africa and was now able to contribute to Australia.
The Sri Lankan refugees were in a more difficult situation. I met with a number of them who were on bridging visas at that stage. They wanted to talk to me about how we could help them, because all they wanted to do was to settle down and to help—to be part of Australia and to contribute to a vibrant, prosperous and healthy Australia, and to be recognised for the contributions that they were able to make. They told me their stories, about what they have escaped from. That is the really sobering thing for me and for us here, who have the opportunity to be living good lives. The refugees that we are talking about are people who, through no fault of the own, are suffering. They have suffered torture, they have seen the death and the murder, in many instances, of friends, family and people around them. They have taken any opportunity, as you and I would, to flee for their lives. If we put ourselves in the shoes of these people and think about the choices—the choice of being shot or of taking any opportunity to escape, or taking any opportunity to save your children to give your children the opportunity of a good life—we would take that opportunity. That is the choice that people have had, regardless of how they have tried to come to Australia.
I moved on in my journey to Canberra, from Ballarat to Shepparton. In Shepparton I met a group of approximately 60 Hazara men. I had said that I was interested in meeting with some of the local Hazara community living in regional areas and I offered to meet with them. I expected that we would have around perhaps a dozen men and women who might like to meet with me. I arrived at the community hall where the meeting had been arranged and there were 60 of Hazara men wanting to talk to me, to tell me their stories and to see whether I could help them. Most of these men were on bridging visas. They did not have the opportunity to work or study, and they did not have the opportunity to bring their families out who they knew were still in very dire circumstances in their home countries of Iraq, Iran and Afghanistan.
All they wanted was the opportunity to contribute; all they wanted was the opportunity to settle down, to work, to raise their families and to know that they have the certainty of being able to be Australian residents permanently. Like many refugees before them, the expectation would be that if things calm down in Afghanistan, as we all hope that one day they may, they would be able to move backwards and forwards but still be able to come back to Australia. They would be able to see themselves as global citizens moving backwards and forwards, as is the case in our modern society. But, no, the circumstances they were in and the circumstances they will continue to be in, even if they are offered one of these temporary protection visas, are such that they will not have that ability. They will not have the rights they deserve and that we should be able to offer people because of what they can contribute to Australia, which can offer them safety and refuge.
Finally, the next group of refugees that I met was when I was in Albury-Wodonga. There were some members of the African community there but I also met with the Albury-Wodonga community group that was working with them—welcoming them to their community—and supporting them as being part of the community. Meeting that group of people really gave me heart, because here—like all over Australia—there were people in rural Australia who were reaching out. They recognise the contributions that refugees from all over the world are able to make to their community and they were welcoming them into their community. They wanted them to have the same rights and opportunities as other Australians. This very cruel bill is not going to give people those opportunities.
If passed, this bill is going to widen the immigration minister's powers. It is going to marginalise international law and the rules of natural justice, and it is going to severely restrict the ability of Australian courts to scrutinise the government's treatment of asylum seekers. The title of the bill—I referred at the beginning to the complex legalese—refers to the 'legacy caseload'. That is the 30,000 people, including the Hazara men I met in Shepparton, who sought Australia's protection between August 2012 and December 2013, who have suffered the physical and mental anguish of mandatory detention, family separation, absolute uncertainty about their legal status and the constant risk of removal to Nauru and Manus Island. Again, referring to the people I have met and the people I have known who are in this circumstance, I can attest to the mental anguish, the depression that they feel because they just do not have the certainty of knowing whether they are going to be able to stay, that they feel because they are unable to sleep at night, that they feel because they do not know what their future holds. The whole concept of only giving people temporary protection feeds into that. We as a country are better than that. We can be giving these people permanent protection. It is good for refugees and is good for us as Australians.
To quote the New South Wales Bar Association, the bill:
… goes far beyond what is necessary to deal with any "legacy caseload" the. It involves serious departures from Australia’s international obligations, both as to human rights and more generally. To the extent that the Bill does deal with the "legacy caseload", it does so in a way which is procedurally unfair and unjust.
The process for us to consider this legislation today is so inappropriate, given the severity of the legislation. The significance of the changes proposed in this bill should not be understated. Along with the other bills before parliament, this bill constitutes the single biggest change to Australia's asylum seeker policy ever made and it is being rammed through here on this last day of sitting on the basis of a blackmail deal which says 'if you support this bill 500 children will be able to leave Christmas Island.' This is not good process. It is not good law-making. It is not the sort of process that I thought I would be part of when I joined the Senate.
The bill's six schedules will fundamentally change the way that protection claims are assessed. The bill changes the criteria by which a person is found to be owed protection and the nature of the protection provided by Australia to those in genuine need. It also changes the legal status of those seeking our protection and empowers a range of government agencies to restrict or remove their liberty. In each schedule, the bill removes the rare existing features of the Migration Act that operate to protect the rights and interests of asylum seekers. They have not got many rights but this bill removes the rights they have in favour of a system that departs from international law and the principles of the rule of law. One of the very sad things about this is that, on Australia's contribution as a global citizen and living up to international law, we are departing from that and sending ourselves down a very sorry slope. Australia is better than that and most Australians consider that that is not the direction that they want to see Australia taking. This bill will have a really ruthless impact on the lives, health and wellbeing of the 30,000 men, women and children who will be subject to it.
Other Greens speakers, including Senator Hanson-Young, have spoken of the brutal changes being proposed in schedule 6, which, chillingly, are going to classify children born in Australia to asylum seeker parents by the deliberately depersonalising and Orwellian term 'unauthorised maritime arrivals' and leave these babies, these children, stateless. These are children like yours and like mine. The beginning of these children's life is going to give them such handicaps to overcome, when we could be offering these children, these babies, a good life here in Australia. They could be kids like the kids my children went to school with, from all over the world, who we know we are offering security, support and the ability to contribute to Australian society. Once these stateless babies, these unauthorised maritime arrivals, have been declared as such they are required to be detained and transferred to Nauru. We have seen the conditions on Nauru. We have seen the cruel treatment of asylum seekers on Nauru. This government is going to continue to hold children in those cruel, heartless circumstances that we know are going to have a long-term impact on and long-term implications for the mental health of the children and the adults who are living there.
This bill also, astoundingly, removes references to the refugees convention from the Migration Act and replaces them with the government's own interpretation of the convention. These changes allow Australia to turn its back on the document that 145 nations have signed up to as a legal framework for the international protection of refugees. The measures in this bill have been condemned by the United Nations High Commissioner for Refugees and the Parliamentary Joint Committee on Human Rights as being contrary to international law. They allow the minister to decide the definition of a 'refugee', and there will be no review of that allowed. This is not good law. This go-it-alone approach has implications for any attempt Australia might make in future to engage the countries of our region in cooperating to address issues around processing and resettling asylum seekers. How can we possibly persuade other countries to fulfil their international obligations when our own actions show that we are prepared to manipulate and undermine an important international convention? Our hypocrisy will be seen for what it is.
As I have already discussed, the bill proposes to introduce temporary protection visas and the safe haven enterprise visas. These visas only last for three or four years. They limit family reunion and require people found to be genuine refugees—people who arrive genuinely seeking protection because of persecution—to continually establish their internationally recognised right to protection just because of the way they entered Australia. As Save the Children has explained, TPVs will mean people fleeing persecution are left in limbo—forced to prove and re-prove that they are refugees. The emotional and mental cost of such uncertainty is enormous and well documented. Again, it does not have to be this way. It is a choice of this parliament, if this bill ends up being supported, to make it that way. The reintroduction of these visas is being pursued in the face of a significant body of medical evidence which shows the detrimental effects that TPVs have on people's mental health and in blatant disregard of the actual facts. They are hateful, punitive things.
The policy settings that existed the last time that TPVs were introduced have fundamentally changed. None of the deterrence based arguments apply anymore. We do not need temporary protection visas. This is because TPVs cannot possibly be seen as a deterrent to the 30,000 asylum seekers already in Australia, whose only other options are to return to a place of harm or face indefinite detention. Nor can TPVs be considered a deterrent to any future asylum seekers arriving by boat, because, if they are intercepted, they must be removed to Nauru or Manus Island, and will never be offered a TPV.
This bill also removes fundamental procedural rights to safeguard the integrity of what can be a life-or-death decision about a person's need for protection. It does this by introducing a new fast-track procedure and by establishing the Immigration Assessment Authority to deal with the claims of asylum seekers who have arrived by sea in Australia without visas on or after 13 August 2012. This fast-track process only gives asylum seekers one go at setting out the evidence needed to substantiate their protection claim to an immigration official. It does not provide them with any access to independent advice or support. It flies in the face of what is recognised as good procedural and good legal practice. A woman fleeing politically motivated sexual violence, for example, will be required to assemble evidence to substantiate her claim without any expert help or support. And she will only have limited time to do this. We are better than this. This is not the rule of law that we should have in an advanced, caring country like Australia.
To make things worse, under the fast-track process applicants for protection visas will no longer be entitled to have the merits of their claims reviewed by the Refugee Review Tribunal. In some cases, but not all, they may be able to have a negative decision fast-tracked by the Immigration Assessment Authority, but that review will not involve a hearing where the applicant can set out his or her claim for protection. The decision will have to be made purely on the papers; the applicant will not be interviewed or have the opportunity to comment on an application. The applicant will not be allowed to provide new information or evidence, except where exceptional circumstances exist. This is extraordinarily bad. It is undermining the whole nature of what it means to be a caring country and a caring Australia that has international obligations. It is not consistent with the obligations which, when we signed up to the refugee convention all those years ago, we said we were going to comply with. It is not the Australia that I want to live in. I know it is not the Australia that thousands and thousands of people who have spoken to us want to live in. It is something that really needs to be rejected. (Time expired)
I rise to make a contribution on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I think it is really important to note at the outset that Australia has an enviable reputation in respect of migration matters. We have accepted thousands of refugees over the history of our great country. The fact that migration policy is so political now is something that I personally deeply regret.
I go to the detail of this bill before us. I think it is very pertinent to go through and place on the record exactly what is before the Senate. Schedule 1 relates to turnbacks and addresses issues that have been raised in the current High Court case CPCF versus the Minister for Immigration and Border Protection and another, relating to the 157 asylum seekers intercepted on 27 June 2014. Most of the provisions relate to the operation of sections 69 and 72 of the Maritime Powers Act 2013. These sections relate to the detention of a vessel by a maritime officer and the taking of a vessel—section 69—and the people on it—section 72—to a destination. This makes clear that the powers exist where the people and/or the vessel is being taken away from Australia. It also makes clear that the powers relate separately to the vessel and the people on board, thus covering the circumstance where persons are removed from the vessel.
I can tell you I had the privilege of leading a delegation to ASEAN. In that delegation we went to Indonesia. It was very clear through the interaction with members of the Indonesian parliament that there was concern about turning vehicles back. They were raised in discussions with our delegation. It was also very clear that the new President of Indonesia, Joko Widodo, has also indicated a very keen interest in our policies in this respect. I am sure that all Australian governments want good relations with Indonesia and I am sure that we need to deal in a very sensitive and proper way. This legislation is very clear about what it is trying to do, but I thought that I would put that on the record.
This bill explicitly gives the power to the minister to give specific and general directions about the exercise of powers under subsections 69 and 71—which can include matters on board an Australian vessel—and subsection 72 of the Maritime Powers Act. This overcomes concern that a commanding officer's decisions are invalid by the virtue of their discretion having been fettered by the dictation of a minister. These are significant issues which really do need to be on the public record.
With regard to maritime powers on the high seas this bill ensures that the full suite of maritime powers under the Maritime Powers Act can be exercised between Australia and another country provided the minister has authorised this use and there is continuity with a detainment which has occurred within Australia's contiguous zone. It ensures the provisions in the Maritime Powers Act will apply continuously from where a vessel is apprehended in Australia's contiguous zone to wherever the final destination is.
Natural justice is not to apply to certain aspects of the Maritime Powers Act. The amendments make it clear that natural justice does not apply to the detainment and movement powers in the Maritime Powers Act. According to the explanatory memorandum for this bill, the original explanatory memorandum to the Maritime Powers Act acknowledges the unique circumstances in a maritime environment render the provision of natural justice in most circumstances impracticable. This seeks to give effect to the original intent of the Maritime Powers Act.
It separates Australian domestic law from international obligations. It ensures that decisions of Australian maritime officers cannot be invalidated because of a failure to take into account international law or laws of another country. Maritime officers' decisions will only be judged by reference to the application of Australian domestic law.
There is no need for an arrangement with another country. These sections provide that a vessel or a person may be taken to a place outside Australia and near another country whether or not Australia has an agreement or an arrangement with that country concerning the reception of the vessel or persons. That place may be another country. This changes the terminology in the Maritime Powers Act from 'place' to 'destination' which may or may not be a country and may be outside Australia.
Obviously, these amendments are quite complex. I think they require a reasonable amount of time to consider. I think this should be a regular and healthy debate. Australia cannot really afford to get any of these arrangements wrong. We live in a very delicate area where we are dealing with neighbours who do not always agree with what Australia's view is. We live in an area where trade is really important. We live in an area where good relationships need to be built and harmoniously developed. I think at times we may have too much of a sense of how relevant Australia is to the region. We are only 20-odd million people. There is a country north of us with 10 times that population, ASEAN has 600 million people and China has over one billion people, so I do not think we can afford to put our finger up at the rest of this region. We need to do these things very carefully and do them with a sense of justice and compassion.
Then there is the time of detainment. Currently section 87 of the Maritime Powers Act provides a 28-day time limit for detainment. These provisions insert a notion of reasonableness in respect of the time it takes for such matters as dealing with a detained vessel, making decisions in respect of the final destination and travelling. The reasonable time associated with these matters is not considered to be part of the 28-day time limit. Accordingly, these provisions seek to prevent an argument that there has been false imprisonment on a vessel over an extended time period. This has an effect on regional processing and interaction with the Migration Act 1958. These provisions make clear that powers in the Maritime Powers Act are intended to operate in their own right. Accordingly, the regional processing arrangements that are written in the Migration Act will not limit the operation of these maritime powers—that is, it cannot be argued that regional processing provisions in the Migration Act automatically apply to detained vessels and the persons on those vessels, thus requiring those persons to be placed within the offshore processing system.
I turn to the exemptions for Customs and other vessels from other legislation. These provisions allow Customs and other vessels involved in turn-back operations to operate without having to comply with certain aspects of the Navigation Act 2012, the Shipping Registration Act 1981 and the Marine Safety (Domestic Commercial Vessel) National Law. This essentially means that Customs and other vessels are put on the same regulatory footing as Navy vessels while participating in turn-back operations. The minister may make a written determination specifying a vessel or a class of vessels to which these exemptions will apply.
I turn now to the exemption from the Legislative Instruments Act 2003 and the AD(JR) Act. These provisions mean that certain determinations made by the minister in respect of turn-back operations cannot be interpreted as legislative instruments and thus subject to tabling or disallowance. The bill exempts decisions in respect of turn-back operations from the AD(JR) Act, bringing the Maritime Powers Act in line with the Migration Act. This means that any legal action will be restricted to judicial review.
We remain open to any policy that saves lives at sea; however, we retain significant concerns about the safety at sea of personnel having to conduct turn-back operations as well as the damage this policy is having on our relationship with Indonesia. I have personally heard representatives of the Indonesian people in the Indonesian parliament, in front of our ambassador and in front of our delegation to ASEAN, express concerns directly about our policy. I think this is a really important issue given our relationship with Indonesia.
We do not support the Hon. Scott Morrison's attempt to make changes to the legislation based on guesses about the outcome of a case that is currently before the High Court. The High Court should be allowed to do its job on this matter before any legislative changes are considered. The subject of this legislation is currently before the High Court so we believe that until that case is properly resolved it is inappropriate to introduce this legislation.
I go to schedule 2—temporary protection visas and safe haven enterprise visas. In principle we are opposed to the temporary protection visas. The bill establishes within the act that a TPV of a three-year duration will be offered as a protection visa to any person seeking protection who is in Australia in an unauthorised way. Work rights are provided to TPV holders and access to the safety net is provided to TPV holders; however, it appears that this would not include access to the full suite of resettlement services. The holding of a TPV bars a person from ever holding a permanent visa. There are no rights to family reunion. There are no re-entry rights.
I go to a permanent protection visa application deemed to be an application for a TPV. Once again we oppose this. This deems an existing application for a permanent protection visa by a person who is in Australia in an unauthorised way to be an application for a TPV. It also provides a general power to deem an application for one kind of visa to be an application for another. This legislation was brought on in this chamber an hour ago and I have not had time to go through all of the application and detail of what is before us. It is critically important that this debate happen and that we place on the record exactly what I am advised the situation is.
There is clarification about the application of bars. Once again in principle we oppose these things. These provisions are consequential to the deeming provisions above and ensure that the application of bars to the making of protection applications is not altered by the deemed change of a permanent protection visa application to a TPV application.
Then we have the safe haven enterprise visa. We support, with an amendment, this provision by the name of SHEV, but there is no detail in this package beyond the name. It is envisaged that regulations would be made around March next year, which will describe it. The government has publicly stated that a SHEV will be open as an alternative to a TPV, can be applied for by a TPV holder at any time, will be for five years, will allow work rights, will not allow rights to family reunion, will not allow re-entry rights, and will require the holder to live in a region that has nominated itself to be a SHEV destination. It will allow access to the safety net; however, not settlement packages—although it is imagined that some regions may provide a package and will enable a holder who has not been the recipient of the safety net for 42 out of 60 months the ability to apply for an onshore visa and thus may ultimately provide for some pathway to a permanent visa. Pending the outcome of the legal and constitutional affairs committee inquiry and report, we will consider moving an amendment in the Senate to secure an explicit pathway to permanency. These are quite complex proposals.
We now go to the TPV and the SHEV consequential provisions, which, once again, in principle we support. The bill will allow for multiple classes of protection visas given that it is the upshot of creating TPVs and SHEVs. The bill will provide a definition of a protection visa, given that it will now incorporate more than a permanent protection visa. Our supporting these provisions flows from the conditional support of the SHEVs. Labor has had a long-standing position of opposing TPVs. They do not appear to offer the deterrence value, and place people in a state of uncertainty. It remains unclear as to whether the SHEV will offer a pathway to permanency. The legislation does little more than name the SHEV. There is no detail in the legislation regarding the criteria or any firm policy around what the requirements will be, apart from the minister's public comments. Accordingly, there is a real danger that the Palmer United Party has been sold, excuse the pun, a pup. If SHEVs did provide a pathway to permanency, this would be of value. Labor will give further consideration to ensuring that this is the effect of SHEVs for amendments in the Senate.
We now go to schedule 3, linking the Migration Act 1958 and the Migration Regulations 1994, which in principle we express support for. This schedule creates an express link between the way certain classes of visas are described in the act and in the regulations. These visas are special category visas, S32; bridging visas, S37; temporary safe haven visas, S37A; maritime crew visas, S38B; and protection visas including, TPVs and SHEVs, S35A. This clarifies the need to meet requirements for a valid visa application both in the act and in the regulations, as opposed to the act or the regulations. If the regulations do not describe any criteria then the visa will be inoperative. Basically, this is a sensible tidying up of the act and the regulations.
Schedule 4 goes to limiting appeal rights in the refugee assessment process, and in principle we are in opposition to it. For persons who are in Australia in an authorised way, a new fast-track assessment process will be developed. This will involve shortening the existing time frames through regulations that are yet to be developed. Access to the RRT will be removed. The bill establishes that the IAA will sit within the RRT. Any adverse initial decision must be referred to the IAA for review. The review will be limited and need only to be done on the basis of the papers, or the applicant can be interviewed if the IAA wishes. The IAA will be able to seek new information, if it wishes, and consider new information presented to it in exceptional circumstances. The bill sets out the manner in which the IAA will operate and it empowers the principal member of the RRT to issue practice directions and guidance decisions. The reviewers within the IAA will be employed under the Public Service Act 1999, there will be a senior reviewer who will have administrative responsibilities as delegated by the principal member of the RRT. In the short time that was allotted to me today, I have gone through some really interesting points and a really careful consideration is required.
On 5 April 2013 the now Prime Minister, Tony Abbott, who was the opposition leader at the time, in a speech to his favourite organisation, the Institute of Public Affairs—that is, the Rupert Murdoch-Gina Rinehart think tank—said this:
'Do unto others as you would have them do unto you' is the foundation of our justice. 'Love your neighbour as you love yourself' is the foundation of our mercy.
That was our Prime Minister when he was the Leader of the Opposition, and now this government is engaged in what I think will be regarded as crimes against humanity because it is systematic abuse. It is not one-off, not by any means: it is systematic and deliberate humiliation and degradation of people, and a deliberate and systemic process to destroy people's mental health. That is what this government has undertaken, and that is what we are talking about here today. The fact that there are children locked up in detention at all is a disgrace, and the minister has the power right now to free all of those children and their families, but he will not do it. He will not do it because he wants to treat those children as pawns in a political game to try to get more power and to get more disgraceful legislation through this parliament. What sort of a person uses the fact that he has the power to keep children locked up behind barbed wire in detention centres and decides to trade or not to trade their freedom depending on whether he can get other people to agree to give him more powers which are against international law?
As a nation, we would be the first to condemn other countries for behaving in such a way, but here we are, Australia, doing it ourselves. A campaign has started around the country: 'Australia—we are better than this'. And we are better than this as a country. As you well know, Mr Acting Deputy President Seselja, under crimes against humanity they are defined as odious offences, constituting a serious attack on human dignity and grave humiliation or degradation of human beings. People can be held personally responsible for these crimes—and the threshold, as I said, is that it is systemic. People who vote for these things need to recognise that this is more than just a political debate in the Australian parliament; this is more than the Australian parliament making a law. The Australian parliament and people who make these laws will be held to account, and they should be held to account.
There are so many things wrong with this legislation that it is hard to know where to begin. Schedule 6 provides that you can classify children born in Australia to asylum seeker parents as unauthorised maritime arrivals. No, they are not. They are babies born in Australia on Australian soil, and they should be regarded in the same way as any other child born here and be given their citizenship—their statehood. But we are taking their statehood away from them. We are leaving them as stateless people.
What do you call this treatment of pregnant women? There are two women on Nauru who are eight months pregnant. They had been classified as genuine refugees and were settled as refugees on Nauru—not criminals but settled refugees—but, because Australia has determined to send people to Nauru, where, clearly, the medical facilities are not good enough and these women had to be sent to Australia to have their babies, they have been put in detention. They are eight months pregnant and were put in detention, when they are settled refugees. I call that disgraceful and grave humiliation of those people. It is degradation of their human rights. They are settled refugees—they should be treated with the respect that they deserve, not shoved into detention. Children are already in detention—we have had endless reports of the mental health stress of those children. They should be freed immediately, but a piece of legislation has been put up that says: 'Oh, well, if you want those children to be freed, you agree to this other appalling set of provisions.' I want to go through some of those.
I want to talk first of all about the minister's grab for power—that is, the removal of judicial oversight of the use of maritime powers. The fact that this bill will amend the Maritime Powers Act and remove judicial scrutiny of whether Australia complies with certain human rights obligations, by removing a role for judges and removing a role for the courts to invalidate government actions at sea, proves and provides that the rules of natural justice do not apply to certain key actions. It suspends Australia's international obligations in the context of powers exercised under the Maritime Powers Act. This is the parliament saying that it will exempt itself and its behaviour from the scrutiny of the courts. This is absolutely shocking behaviour in international law terms—we are abrogating our responsibilities under international law just so this minister can do what he likes on behalf of his government. Every one of his ministers and every one of the crossbenchers who votes for this is voting for Australia to exempt itself from the provisions of international law for the sole purposes of the minister being able to do what he likes on the high seas. And why? Because the courts are catching up with him—that is why. The High Court is catching up with the behaviour of this government, so what do the government do? They exempt themselves from the scrutiny of the courts. What disgraceful behaviour from a government.
I want to go back to what this bill does in relation to again bringing in temporary protection visas. Thirty thousand people have already sought Australia's protection between August 2012 and December 2013. They have already suffered physically and mentally. They have been locked up in mandatory detention, separated from their families, uncertain about their legal status and at constant risk of removal to Nauru or Manus Island. On Manus Island, of course, they know that Reza Barati was murdered. Nobody has been held to account for that murder, and this government has tried to palm off responsibility to so-called service providers. The responsibility for whatever happens to people on Manus Island or in the detention centres in Nauru lies firmly and squarely with the Australian government.
What this does is go way beyond the legacy caseload suggestion put here by the government. It is a serious departure from Australia's international obligations under human rights and it is procedurally unfair and unjust. Basically, this bill changes the criterion by which a person is found to be owed protection and the nature of the protection provided by Australia to those in genuine need. It changes the legal status of those seeking our protection and empowers a range of government agencies to restrict or remove their liberty.
I cannot believe that we are in this situation. I have looked around the world in the past and I have asked myself the question: how is it that decent people who care about other people have allowed the atrocities that go on around them and have just carried on with their lives as though it was not happening? I have never understood how it could happen. And now I am standing in a parliament where it is happening, where people will happily go home for Christmas and sit up with their own families making speeches saying, 'Do unto others as you would have them do under you,' and make speeches saying, 'Love your neighbours as you love yourself,' and happily lock up people in detention, excluding Australian government actions from the courts, leaving thousands of people in the mental anguish of never being able to settle in this country and wondering what on earth will happen to them in the future. They will happily head off to church, talk about their Christianity, yet fundamental Christian principles, fundamental decency and fundamental principles of humanity are being violated here knowingly and wilfully.
I also want to put on the record that while people will argue that they have no personal responsibility for the crimes that are going to be carried out as a result of this legislation passing, yes they do. They cannot say they did not know. They cannot say it was not wilful and they cannot use any other excuse. Wilfully and knowingly passing this legislation means that you are signing up to crimes against humanity and it is in the Australian parliament that people are doing it. The rest of the world is going to be horrified when they see the detail of what it is that Australia is doing to people. I just find it extraordinary.
As Save the Children has explained, temporary protection visas will mean people fleeing persecution are left in limbo, forced to prove and reprove they are refugees. The emotional and mental cost of such uncertainty is enormous and well documented. There is a body of significant medical evidence which shows the incredibly detrimental effects on people's mental health. It is just disgraceful that this is being allowed to happen and that people are going to vote for it.
The other thing that is appalling is that it is allowing for fast-tracking to occur. To make things worse, under this fast-track process, applicants for protection visas will no longer be entitled to have the merits of their claim reviewed by the Refugee Review Tribunal. In some cases but not all they will be able to have their case looked at by the immigration assessment authority, but it will not involve any hearings where the applicant can set out their claims and a decision will be made purely on the papers. Of course everybody knows that for refugees and people seeking asylum that is going to be virtually impossible. Many of them are already frightened of the authorities because of the way they have had to leave the countries they have been in. They will have no papers and no-one to justify or prove or verify some of the things they are saying.
This is setting up a grossly unfair procedural process. And you are knowingly doing it. It is beyond my understanding of how you continue to use this Orwellian language. 'Unauthorised maritime arrival'—no, person, people like you and I, people with parents, with children, with brothers and sisters and families and hopes for a better future, people who have had to leave Afghanistan, Hazaras who have had to leave because they are being persecuted. And this government thinks it is fine to turn them around at sea and send them back to Sri Lanka, for example, where you know and I know that the Rajapaksa government is engaged in crimes against humanity all the time, yet you appease them. You appease the Rajapaksas. You know exactly what they are doing in Sri Lanka. You know what they are doing to the Tamils. You know that the white vans turn up and people disappear, yet you send asylum seekers back because it suits you to do so and, what is more, you give to the Rajapaksa regime some of the vessels which will better able them to intercept people leaving or to return them.
You are more than happy to turn people around, to traumatise the Navy, for example, as we saw on the 7.30 Report this week where people were horrified about what they have been expected to do. They have been given no counselling or assistance even though they are experiencing the humanity they feel about seeing the way these people are being treated. There is the fact that anyone could say it would be inconvenient for a refugee vessel to turn up on Australia Day, 'So let's make sure that doesn't happen, let's turn them around, let's push them back, let's do what we like, let's get rid of them because they're unauthorised maritime arrivals.' No, they are people of whom the Prime Minister has said, 'Do unto others as you would have them do unto you.' It is very clear that he does not believe that. The Prime Minister would not have his own family treated in this way. He would not have a child of his own family left stateless.
Every child has a right to a name and a nationality, a statehood. In the UN Convention on the Rights of the Child every child has a right to a name and a nationality, yet you are taking that away from them
You are saying: 'That child will be stateless and, what's more, we're not even calling a child a child; we're just going to label them'—in Orwellian terms—'an "unauthorised maritime arrival."'
International law will catch up with this government. The International Criminal Court was set up to look at systemic abuse by governments around the world. This government will be and is in breach of international law. Everyone who votes for this legislation will be knowingly and wilfully supporting breaches of international law and will be subject to the same scrutiny in international law—as they deserve to be. You can walk out of this parliament and think you have gotten away with it, think you have pulled some great stunt—and in another 20 years, of course, we will have the apology, and people will tell their children that they had nothing to do with that, that they could not possibly have known; if they had known, it certainly would not have happened. Well, they do know and they are knowing and they have done it. They are making children stateless. They are making people live in limbo on temporary protection visas, with no hope for the future, and deliberately imposing mental health problems on a group of people. They are deliberately exempting the Australian government from the law, to enable the minister to do as he likes on the high seas. That is a disgrace.
I know that this government will rush out there and say, 'Oh, we were doing it to free the children before Christmas.' The Christmas story has Mary trying to get to the inn—you might remember, Mr Acting Deputy President—but the inn was closed, and that is why she ended up in a stable. This lot are the innkeepers, closing the door. So, when you tell your Christmas stories, I hope you will explain to your own families that you are the innkeepers. You are closing the door. You are sending refugee women who are pregnant into detention, even though they are refugees. 'Settled refugees' is the term. So let us actually have on the record here what this government is doing, and let us not have this being said: 'Oh, we had to get the children out.' The minister has the power to get them out immediately. The minister has the power not to put them into detention in the first place. They should never have gone into detention. They are being illegally held in detention. It is not illegal to seek asylum. It is wrong that they are being locked up and their freedom deliberately taken from them. This is appalling legislation. It is un-Australian. It is a matter of shame to me that this parliament will pass this legislation, but the future will ensure that justice will be done.
I rise to speak on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Can I start by outlining the provisions of this omnibus bill. In this instance, the government has tried to bring everything possible together, on potentially the last day of parliament, to try to deal with what are quite complex matters.
This bill provides additional powers in relation to turning back boats. The question that arises in my mind is, if they need additional powers, what is the justification for those additional powers? Have they provided an open and frank case for the justification of those powers to the Australian people and to this parliament? When you juxtapose that with the secrecy surrounding Operation Sovereign Borders, you do not get an insight into the justification. You do not get an insight into how they have managed Operation Sovereign Borders. You do not get an insight into where the failings might be which require this legislation. You do not get an insight into how this bill will fit in with the current workings of Operation Sovereign Borders. You do not get an insight into how Operation Sovereign Borders have advised the government, if at all, that they do require additional power, they do require some assistance. You do not get any of that from the government.
It is extremely disappointing to find that we have a government that is clothed in secrecy when it comes to Operation Sovereign Borders. I respect the military operation that it is, but let us not then continuously say that it is all operations and parts of it should not be made available for the Australian public to assess how it operates, particularly now, when the government has had some time—some water has gone under the bridge—to consider how the operation has operated. I have no doubt that the government has received reports from Operation Sovereign Borders about how it works. Otherwise, why would we be here with an omnibus bill? If they do exist, this government should have been more up-front about it and provided the parliament with that material. We will see in the committee stage if the minister wants to add anything, but let me say in advance: I doubt very much that the minister will add much to this debate today. This is a government that prefers the dark corner to the light.
The next thing the government seeks to do is to reintroduce temporary protection visas, through a new class of visa known as a safe haven enterprise visa. Despite the minister's comments that no-one will receive a permanent visa, it does appear that the SHEV may offer a pathway. We can explore in the committee stage how that might actually work.
One concern I have vividly reminds me of a government very similar to this one. They were perhaps not as shambolic as this one; perhaps they were a little bit more coherent; and in some respects they probably were an adult government, unlike this one. They implemented temporary protection visas, and it was disastrous. It did not work then and it is questionable whether it will work now. This government should have looked at what occurred under the Howard government as to how it would play out in the longer term. I guess this government is very short-termist. If you look at the policies it tries to implement, you see that, by their very nature, this government is short-termist.
A further area this bill seeks to deal with is to provide better consistency between the Migration Act and the Migration Regulations in respect of certain visa types—schedule 3. I will come back to that should I have time, but I will probably get extra time in the committee stage to explore it a little bit further. This bill seeks to introduce a fast-track assessment process for protection claims, combined with a limited form of review through the newly established Immigration Assessment Authority, removing access to the Refugee Review Tribunal for people who are in Australia in an unauthorised way—schedule 4. It seeks to clarify the exercise of the removal power and codifies Australia's interpretation of its protection obligations under the refugee convention. It makes clear that the children of unauthorised maritime arrivals inherit the migration status of their parents—schedule 6. It also ensures the minister can cap classes of protection visas in the Humanitarian Program—schedule 7.
Before I go to some of those more detailed provisions, I want to go to an overarching issue that has been concerning me deeply when you look at the overall context of the omnibus bill. I am not convinced the government could fairly and evenly have a statement of compatibility with human rights in respect of this bill. I have had an opportunity to look at the provisions in this bill. At page 219 of the explanatory memorandum to the bill, you find that the government does sign a statement of compatibility with human rights. I fail to see how this bill overall allows this government, without exception, without qualification, to sign a statement of compatibility with human rights. The government obviously considers that the bill and regulations and amendments are compatible with human rights because it makes broad sweeping statements about this issue rather than delving into the detail—which is what this government tends to do. It is not a government for detail; it is a government that has a broadbrush approach and does not care much about the consequences or the detail.
You hope that the Parliamentary Joint Committee on Human Rights will see the human rights implications of this bill. Arguably the most significant, and potentially the most dire, consequence would be Australia's nonrefoulement and nonreturn. It is an obligation that, in this bill, the human rights statement and the human rights lawyers should look very closely at with this government. It is a fundamental principle that we have signed up to for a very long time. If you look at the effects of this omnibus bill, you see that there are very serious consequences should the obligation of nonrefoulement be breached. Every government before this one has taken this issue very seriously, including the Howard government. Although I may have many criticisms of the Howard government, they took this obligation very seriously. I do not think this government have turned their mind to the detail as well as they could have or should have.
When you look at how we have expressed this issue, I think you come to the conclusion that there are serious questions for this government to answer in respect of meeting its international obligations in a way that is both considered and recognising of its obligations. Again, we will have an opportunity in the committee stage to explore that issue a little further.
I think the dissenting report of Labor highlights many of the issues that I averred to earlier in my speech which do create some concern. We go more to the broad again. I think Senator Carr used the word 'balance' between the judiciary and the executive. I much prefer the word 'separation' between the executive and the judiciary. There should be, and should continue to be, a separation between the executive and the judiciary. It is not a fine line; I think there is a thick line between what the executive can and should do and what the judiciary can and must do. In this instance, I do worry about whether or not the maritime powers have been confused by the government when it comes to the importance of ensuring that there is a separation and that the proper process has been followed.
As I said in my opening remarks, we are concerned about the secretive on-water operations carried out by the government. This committee report similarly reflects that concern. Those concerns are not put to one side or assured by Operation Sovereign Borders. You would think that it was within their remit to tell estimates and the various other committees it has appeared before that it is an area which they can manage and it is safe to do so. They could describe some of the examples and go through the detail, but they cannot. They talk in a very general sense—no detail, no specifics—and the justification for that, I do not think, cuts it today where we have an omnibus bill like this being put forward.
In the committee report is the dissenting report by Labor. It is a government—and I talked about that separation—that is endeavouring to legislate in areas and pre-empt High Court matters. I am not arguing for the High Court either way the case may go; however, I worry about a government that steps in too often in this instance in this omnibus bill—too often it steps into the ring to ensure that it wins. I say that it is not a particularly fair fight. This government may not want a fair fight on immigration, because it tends to nobble anybody and everybody or prevents people from having a view about their process.
As I indicated, the terms of temporary protection visas are in schedule 2. The dissenting report of the committee makes clear that Labor senators oppose revisions in schedule 2, which seek to reinstate the failed TPVs. I dealt with that earlier, so I will not transgress or deal with that again.
The Labor Party is not standing in complete opposition to the safe haven enterprise visa. If the government had the opportunity to listen—which I think is a difficult chore for them, quite frankly—to the detailed speech given by Senator Carr, they would have detected that the Labor Party was prepared to talk to them about a range of areas. We could have had compatibility and some reasonable outcomes in some parts of the bill. But it would be unusual for this government—and maybe they have been pushed by the minor parties. It seems you only get some decency out of this government where they have had to compromise or been pushed by the minor parties or Independents to a much better place—I am not complaining about that; it is not a bad thing. Perhaps Labor should put its shoulder to the wheel to convince this government to go to a better place, but this government would not go there, if it did not think it had to.
In the period from 2004 to 2007, this government had a majority in this place and they did not bother. They went hard whenever they could. They took the opportunity. They did not consult. They did not choose to ameliorate any of their harsh legislation. They treated the Senate like a sausage machine.
I think this government thought from 1 July onwards that they could do the same. They have been rudely awakened that it is not that easy to manage this place. The easy answer to it all is: it is the opposition's fault—a place for cowards to go and hide and use those phrases. It is the government's job to manage the program, the legislation and the debates, and consult and compromise where it has to. I think this government has got tin ears when it comes to consulting and compromising—but not to take away too much.
The dissenting report dealt with a range of other matters, but one in particular which always concerns me—and I think I outlined a little earlier—is how this government is stepping into what I would say is the preserve of the judiciary. Limiting appeal rights in the refugee assessment process in schedule 4 of bill seeks to deprive asylum seekers of the opportunity to have their applications for protection assessed fairly and replaces it with a bureaucratic agency subject to the direction of the executive government. I do not think I can say any more than that in respect of that provision. It is abhorrent to think that this government considers that an open, fair and transparent process.
We all understand that we need a system that works but, if it is that broken, replacing it with a bureaucratic model such as this disgusts me. These people—you may not have liked the Refugee Review Tribunal, but my dealings with and understanding of them for many years was that they were dedicated—were well-meaning, but it is a thankless and difficult task: sometimes you have to say no and other times you can say yes. They may not like either answer to that, but it is a task that is best left to an independent agency or tribunal. I think it detracts from this government, but again maybe I do not mind that position because I think it ultimately reinforces my view of this government—that they do like to have, and try to have, completely control of the bureaucracy. They do like to have complete control of the outcomes when they fit their purpose, and only when they fit their purpose. When they do not fit their purpose they try to change them to ensure that they do. I think ultimately this is a government that will pay a heavy price for that position, particularly when you look at how it is displacing Australia's obligations under the refugee convention. As I mentioned earlier, in dealing with the human rights issue I think this government is a poor government.
This bill should not pass. We have heard some very good contributions detailing the horrors that would occur if it were to become law. I congratulate my colleague Senator Sarah Hanson-Young for the work that she has done over many years on this issue, bringing the voices of refugee advocates and human rights activists into this chamber and representing the rights of refugees in such a clear, articulate way. I also draw the attention of my colleagues in this place and others who read Hansard or who are listening to this debate to the speech of Senator Christine Milne, the Leader of the Australian Greens. She made a very telling speech in which she set out the crimes that are embodied in this legislation. She particularly nailed the issue that there are, embodied in this legislation, crimes against humanity. We need to realise how incredibly serious this legislation is.
A large number of legal and human rights experts have warned how dangerous the legislation would be if it is passed. I do not support the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Just the title, 'resolving the asylum legacy caseload': this does not resolve the caseload; it inflicts cruelty, it could result in death, it breaks the law. It should not be passed. Refugees are essentially being used as an electoral football here. We have seen this occur under the Liberal and National parties for years now, where refugees and asylum seekers are demonised. The issue is played out particularly when we are coming into elections, when there is such a carry-on about people seeking asylum in this country. People do become fearful. They do start to worry about what is happening with our borders, but it is because of the hysterical, extreme way that people in the government present this issue.
I do acknowledge that there have been and are some individual MPs and members of the Liberal and National parties who do not hold the views of the Abbott government. However, we need to acknowledge that the Liberals and Nationals, whether in opposition or in government, are driving a very ugly policy process and are pushing forward with laws that will do such deep damage not just to individuals but to the very fabric of our country. The harshness and cruelty of this bill are so extreme. If this bill passes, and I understand that a deal has been done, there will be an absolute shift by the Australian government. Senators who are considering voting for this need to recognise what they will be voting for. They will be voting to trash respect for the law; they will be voting to trash recognition of the rights of refugees. What this bill will essentially do if it is passed is to establish in law the mistreatment of asylum seekers and refugees who have left their countries, where they have faced death, rape, imprisonment, persecution and torture. It will now be very easy to return those people to those terrible threats. This is how far this government is considering going with this legislation.
We know it does not have to be like this. Many of us here would remember the 1980s and the 1990s, when the issue of refugee rights and asylum seekers in this country occupied barely any space in our media. It is worth reflecting on why that was the case. It was the case because there was a bipartisan approach, with Labor and the coalition at that time largely working together for a humane approach to people who had every right to come to this country to seek asylum. So many refugees were processed quickly and in a way that their safety was not in jeopardy and they were able to rebuild their lives in Australia.
I want to share with the Senate tonight some comments by former Prime Minister Fraser which he made at the 2012 Whitlam Oration. It really does give detail about how this developed. The period he is describing in the first instance is the aftermath of the Vietnam War—a war that was very divisive in Australia. Despite that, the leaders of the two major parties at the time came together with a humane and largely successful approach to handling people who were coming to this country. These are the words of Mr Fraser:
At the end of the Vietnam War, tens upon tens of thousands of Indo-Chinese sought to flee to safety. Initially the Whitlam Government decision was to have limited numbers of people from Vietnam. My Government made the decision to take large numbers of people. Gough Whitlam did not play politics with this. It would have been easy to do. Instead he led his party to fully accept the convention of the post war years. Bipartisanship on issues of immigration was maintained. This bipartisanship was fundamentally important. It shows that political conflict can live alongside the sustaining of a shared, deep respect for people regardless of colour, race or religion, a belief that people should be respected for who they are. The capacity to engage in conflict and maintain such a respect depends on a degree of consensus between political leaders. Gough Whitlam and I participated in this consensus.
If instead of this consensus, the disgraceful race to the bottom of the populist political point scoring of recent years had prevailed, the cost to Australia would have been enormous.
I do say that that is a most significant quote and I urge senators to read all of Mr Fraser's speech. I do want to share one other aspect of another comment that he made in that speech, because it brings us forward to recent times:
Before Tampa there would have been many who accepted that the idea of the White Australia Policy was dead and that those who supported racism had no influence. Since Tampa, despite the great and beneficial diversity of people within Australia today, there are many who interpret our attitude to refugees, and the toxic and demeaning debates that have taken place over this question, as a resurgence of racism.
Those were Mr Fraser's words: 'resurgence of racism'. He went on to say:
Our treatment of refugees, and the poisonous debate engaged in by our major political parties has done Australia much harm throughout our region.
This is where we are today, with a resurgence of racism and the harm done within our own region; and it is actually now beyond that. Mr Fraser's speech was from two years ago.
We now have a very bad name around the world because of the way we are treating refugees. It is a shameful period in our history, and if this bill goes through it will be much more shameful. The indignity, the abuse and the cruelty of this bill is encompassed in the reintroduction of temporary protection visas. This means that refugees will have to prove and re-prove that they are refugees. Think of our daily lives: our freedoms, our rights, the pleasures we take and how we are able to hang out with our families and our friends, largely when we wish—when we get out of this place—we can visit our special places and we can work. But for those on temporary protection visas, those basic rights and the things that we take for granted are not there. Let us remember that Australia has tried this before, so we know of the cruelty this brings—the anguish and the emotional and mental cost. People do not know their future, are left in limbo and are unable to reunite with their families. This is what we are about to impose on people.
When the history of our country is written this period will shock people; when they read what this country and successive governments, both Labor and coalition, inflicted on people who have every right under international law to come here. What will deserve special treatment and will so deeply shock people is temporary protection visas. This is so ugly. I am still shocked that I live in a country like this. Obviously, with my politics there is a lot that I have disagreed with, but I never thought that either side of politics would get to the point where they would treat people like this.
It is understandable that people ask what we should do: we should recognise that seeking asylum is a humanitarian issue rather than an issue of border security or defence, and that people seeking asylum must be treated with compassion and dignity. Considering what this bill does, we need to remember that as a signatory to the refugee convention Australia should assess the applications of all asylum seekers who arrive in our territory, including our territorial waters, irrespective of their mode of arrival. We also need to recognise that Australia has additional responsibilities to refugees from countries where Australian defence personnel have been deployed in conflict situations. Clearly there is a link there, and it is something that we should recognise. We should work to settle people quickly. This is what we need so that people can rebuild their lives, gain work, find a home, study and do all of the things that people have the right to do.
The figures show how unnecessary temporary protection visas are. When we had them before, some 95 per cent of people on TPVs the first time around ended up with permanent protection. That speaks volumes—95 per cent of those people who were put through such humiliating processes and had to live in such a degrading way, were given permanent protection and are part of our society now. There is no reason to believe this statistic would be any different now.
We particularly need to give consideration when debating this bill to the role of the minister. He has quite rightly figured strongly in this debate because the bill gives unacceptable power to the immigration minister. I think we should be asking, 'Why?' The minister will be able to make life-and-death decisions about individual refugee cases. This means that the chance of people being sent back to a situation of grave danger, or even death, is a real possibility. Imagine this: this bill denies even babies born on Australian soil—in Australia, here—to parents who arrived by boat, any protection. They will effectively be rendered stateless. Again, there are so many aspects of this bill that shocks and then shocks again and again and again. These babies will be retained offshore until they are forced to go to a place like Nauru.
The changes to the definition of 'refugee' is one of the most despicable aspects of the bill. So much flows from this abuse that is set out in the law in this bill. This change means it will be easier to send more people back to where they came from, to where they could be abused, tortured or killed. We do not offer them assistance and we do not offer them protection. We take actions that will lead to harm. The power the minister will have is so troubling. We have the scenario that if the department asserts that a refugee can simply 'modify their behaviour'—they are the words: 'modify their behaviour'—to avoid persecution or harm at home, then they will be sent back. What a flimsy policy! 'Flimsy' is too light a word. What an outrageous and cruel policy! The people who are making this assessment will either be told what they have to do in making those assessments to approve as few refugees as possible, or they will just know that that is what their job really hinges on: to send, by far, the majority of people back. That is the situation we are facing.
Then there is the issue of travel documents. It is quite understandable that so many asylum seekers arrive with no papers. That has been the case forever with refugee asylum seekers. That is the nature of escaping from the abuse that they have experienced. Having no travel documents can now be used against them. It can mean, in fact, that they are knocked back.
Let's reflect on history here. Let's remember people fleeing from Nazi Germany or at the end of the Vietnam War or from Pinochet's Chile. All of those times in our history come to mind. I believe that so many of those people would have escaped with no papers. At those times, we did the right thing. We assisted those people. We assisted them to settle and to rebuild their lives in Australia. So many of those people have gone on to have wonderful lives here and to be a very rich and important part of our society. But we do not do that now. We need to ask: how many of the people who will come here now will be treated like we have treated people in the past who had every right to come to our country? I fear under Minister Morrison and under the Abbot government, no matter who the minister is, very few people in a situation similar to those escaping from Pinochet's Chile, Vietnam post 1975 or Nazi Germany will be treated in the same way.
It comes to this point: how extreme does this government want to be? It already has very tough legislation in place. It is already loaded against refugees. Now it wants to be so much more extreme. The current Migration Act has a very tough process to check if asylum seekers should be given protection. Asylum seekers will now, however, face a minimalist process that will determine issues of life and death. Some call it a 'fast-track' process, but for most of them it is a fast-track process back to misery. It is essentially about accepting minimal numbers of refugees.
Consider the state so many people are in when they arrive here. They are frightened and intimidated. They are particularly often intimidated by authority. And who do they had to deal with when they come here? It is military people. I know that many of those military people are absolutely trying to do their best, but put yourself in the minds of these people who are coming here. So often they have fled authority and military people and then they have to adjust to the situation that confronts them when they first arrive. Then they face department representatives who have been told what the minister expects from them. That is going to be set out very clearly. Again, I repeat: many of them will know, even if they are not told how many to not approve, that that is what the minister wants. That will be the culture. That will be the intent. That is how this bill will play out for the people who have to put it into effect.
Asylum seekers will, in the main, have to quickly assemble their case with no legal assistance. That is the other aspect of this. How hard will that be? They will be confronted by a new range of authorities and they will have to try to articulate their case. They may have no travel papers and no legal assistance.
On top of this abuse of process and abuse of people, this bill gives the government the power to disregard whether someone is at risk of torture. Can you imagine that? I have often felt a characteristic of our society is that we recognise that torture is wrong, that it is a criminal act, that one needs to speak out and highlight what regimes engage in torture and that we need to assist people who have escaped from that. But here we have a government with the power to disregard whether somebody would be at risk of torture if they returned. Again, it is one of those aspects that I find so hard to believe—that the government wants to make torture effectively irrelevant when it comes to determining the status of asylum seekers.
Another horror aspect of this bill is that it is designed to put the government's actions above international maritime law. This will allow the minister and future ministers to force people on boats back to the country they have left without any court oversight. Again, this is a real abuse of process and our obligations under international law. I have set out the case in a very thorough way—and many of my colleagues have too—why this bill should not be passed.
I want to touch on the fact that there is also the very ugly aspect of how so much of this work has been outsourced to a private company, Serco. That deserves a mention here because, every time the law gets worse in this place, Serco, a private company, makes more profit. That is now on the record. It is a British multinational. It is in financial trouble. Significantly, the company which is favoured by our government and by governments in other countries as well to lock up refugees has admitted that it is its Australian detention operations that are effectively keeping it afloat. It is in financial difficulties, and we now have private companies that, based on cruelty, are profiting from the misery of people who our country, our government and our departments should be working with to help them rebuild their lives. This bill should not pass. It will be a shameful day if it does.
I rise to comment on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. At the outset let me make a few comments about the way that this legislation has come to the chamber. I have to say that what I saw happen in the chamber this afternoon was some of the worst behaviour we have seen in this place. When this happens, we are all diminished. We have to be very careful, in the delivery of our responsibility as senators, that we ensure that this chamber and this place command the respect of the Australian people. That did not happen today, and that can only be sheeted home to the government. The government runs this chamber. The silliness we had to witness this afternoon does us no good. So I call on the government—
To conclude, I do understand that those opposite are a bit sensitive about what I am saying. The criticism I am making of them will hurt, but it is their responsibility to keep order in this place, and it did not happen today.
I will now go to the bill. The bill has seven schedules. Labor senators have very significant concerns about some elements of the bill, and we cannot support it in its current form. I want to go through some of the schedules and discuss how they will operate and why Labor is opposed to them.
The intention of schedule 1 is to seek to provide legal authority, according to the government, for the government's policy of turning back asylum seeker boats on the high seas. During a committee inquiry there was a lot of discussion about this particular element and what in fact its intent is. The intention, as described, is to give some legal authority for the actions that are happening on the high seas—we do not know about them, but they are still happening. Through schedule 1 the government asserts that this requires some sort of legal framework. The Labor Party maintains its long-standing concern about what has happened, since the change of government, in the ocean between ourselves and our northern neighbours.
On the government coming to power, we heard of Operation Sovereign Borders. It was turned into quite a militaristic type of response to the issue of people seeking asylum in Australia. According to the government, we had to turn this response into a response that had a militaristic way of behaving. Who can forget those uncomfortable weekly briefings that Minister Morrison was conducting in the early days of this operation—painful, they were, with Minister Morrison refusing to answer almost any questions, saying that they were 'on water' matters. Everything was an 'on water' matter and could not be answered because that would compromise the operation. The secrecy we had in those days—and it is not a lot better now—was a shameful part of Australia's history in dealing with migration matters.
The other part of it that offended me particularly was, frankly, the abuse of Defence Force personnel. Minister Morrison required, or demanded—I cannot work out how that happened—a member of our Navy to stand with him and respond to media questions. I think that was a dreadful abuse of our military. To use them in that way was appalling. In saying these words, I make no criticism, though, of the officer involved. He was doing what the government of the day had asked him to do. As we all know, that process then moved away from those very awkward weekly briefings to more information, and then finally—and I was pleased about this—the naval officer was not required to stand with Minister Morrison.
I have to say we still do not really know—we do not know what is happening out there on the water. We cannot find out. We have even had the circumstance where the immigration minister has refused to admit that a boat has been intercepted, despite widespread reporting in the media that that was the case. It has gone past amusement and it is now to the point of embarrassment. As previous speakers have noted, the way this happens is frankly a shame on our nation and we should behave better as a nation when we are dealing with these matters. It is important to note that in 2012 Admiral Ray Griggs stated before Senate estimates inquiry said:
There are obviously risks involved in this process.
He was referring to turn backs. We are yet to hear or find out what is different and what has changed that means that there are no longer risks involved with turning back boats to Indonesia.
Another issue is the issue of the relationship with Indonesia, our closest neighbour and a very important neighbour for us. I find the number of incursions that have occurred in Indonesian waters astonishing. We are yet to know why and how this has happened; but importantly it has now impacted our relationship with Indonesia and the new Indonesian President, Joko Widodo, has issued a very stern warning to the Australian Prime Minister about the Prime Minister's failure to respect Indonesian sovereignty. This is a relationship that has to be mended and that we have to make sure is strong and respectful, and to do that will require good diplomatic relations as well as also continued openness with Indonesia, our nearest neighbour.
I think we should call schedule 1 for what it actually is. It is less about legislating for turning back boats and more about seeking to undermine a specific case which is before the High Court—namely, CPCF v the Minister for Immigration and Border Protection, commonly known as the CPCF case. It is Labor's view that schedule 1 is a pre-emptive strike on an existing High Court case, and in our view that it is an inappropriate way to legislate. It is important and surely fundamental that the High Court be allowed to do its job and apply the rule of law. Surely this government can respect the role of the High Court. The High Court should be allowed to determine the legality of the government's turn-back policy as implemented on the basis of existing law. If the policy is shown to be totally lawful, that is important for public confidence in the government and its actions. Equally, though, if aspects of the turn back policy are found to be unlawful, it is important that this be a transparent part of the public record. This in my view is an extraordinary way to use this parliament and legislation generally. Accordingly, Labor senators will oppose schedule 1.
In the time I have available I too want to go to the visa elements of this bill. This bill proposes to reintroduce into Australia the temporary protection visas. The government argues that this is a deterrent to people coming to our country by boat, but there is no evidence to support that assertion—none at all. When the Howard government introduced TPVs more than 90 per cent of refugees who were initially granted temporary protection visas were eventually granted permanent protection, because the situation of their country of origin had not changed. This is not a deterrent and it is a furphy frankly to argue that that is why the visas are being introduced. The reality of what happens with temporary protection visas is that people seeking asylum are placed in a state of limbo. I am sure that many of us in this place have met people who have been living on temporary protection visas. They are in a place where they cannot make decisions about their lives. There is a level of fear and anxiety that they will be returned to their country and so placed in a dangerous circumstance. They live in incredible financial hardship but it is the effect on families who are living under temporary protection visas and their inability to make decisions about their futures that I find the most troubling. You see families who have made the decisions not to progress with education, not to make decisions about forming families. People are almost put in limbo, and it is a cruel way of dealing with potential migrants.
In December last year when the parliament rejected Minister Morrison's policy of bringing back temporary protection visas, Mr Morrison reacted by stopping the processing of people. I have to say that that was a pretty petulant response. Labor believes that the correct response should be now to start and continue processing people without delay and managing our detention facilities in a safe and humane and dignified manner. The other important point to make is that this legislation deals with people who are already in detention, who arrived before 19 July last year. This flies in the face of any argument that this is a deterrent policy. This deals with that group of people who are currently in detention.
The other visa class that the bill ostensibly introduces is the safe haven enterprise visa. This resulted from consultations with Mr Palmer and his party earlier this year, in September. But the truth is that this bill does not in fact give any legal effect to safe haven enterprise visas as a new visa class. The most that the bill does is to introduce a new subsection 35A(3) into the Migration Act, which provides:
There is a class of temporary visas to be known as temporary protection visas.
But that is it. There are no further details. There are no criteria for the visa or the conditions that apply to it. I am interested to know whether Mr Palmer and his party are comfortable with those words in the legislation as it stands. Does that in itself deliver on the agreement that was made in September of this year, when Mr Palmer provided some support for the bill? In my view, it does not provide the outcome which Mr Palmer was looking for when he said:
… it’s a win for regional Australia, which will benefit from the additional work resources in communities where there is a labour shortage, thereby increasing the viability of these areas.
So I am interested to know whether Mr Palmer and his party are comfortable with what they have achieved in negotiations with the government. Does it actually provide what they were seeking? The other question that they might want to ask is: how many people will be able to receive a SHEV, a safe haven enterprise visa? Mr Morrison himself responded to a question on this issue during a press conference. He was asked how many people would be able to receive a safe haven enterprise visa and would it be a very small number. His words were:
It's very possible.
There is also a high level of doubt about many aspects of the visa, including what pathways there will be to other visas—an issue that does need some clarification. There is a question about regional Australia. What is the definition of 'regional Australia' when it applies to the safe haven enterprise visa? Also, what social services would disqualify a holder of a safe haven enterprise visa from applying for other visas? We do need some clarity about those elements. If the agreement with Mr Palmer is to be upheld, I think Mr Palmer should be asking for answers to those questions.
As I said, there are real questions about the way in which this bill was introduced into the parliament and about the decorum and the demeanour of the parliament during its entry into the chamber. But there are also questions about what we should be doing as a country, as a nation, in dealing with asylum seekers. Repeatedly, people say to me that they are offended by the way that the language has drifted to the bottom, that we use the wrong language to describe asylum seekers. The word 'illegal' is used inappropriately and, in a legal sense, incorrectly to describe people who are seeking asylum in our country. We are better than this. We can be respectful of people who are acting within the law. We know that we have to work with our international neighbours and with the international community more broadly to ensure that the very, very large numbers of people who are seeking asylum from their war-torn countries are provided the support that we can give. We are the furthest away than possibly New Zealand in terms of destinations for people seeking asylum. We can do better. We can do it in an orderly way. We can provide to our community a much more dignified way of speaking about individuals who are seeking asylum in our country.
People have talked about bipartisanship. It is hard to see where we will be able to get to a point of bipartisanship in the future, but I still do have a hope that we should aim for that, that we should aim for a place where we do not turn desperate people into political footballs, that we do not use people seeking asylum who come from different nationalities, different religious backgrounds, that we do not demonise those people for the benefit of a political outcome. Unfortunately, that has been the case for about the last 10 years, maybe even longer, and that we have been divided as a nation on this issue. It is time that we came together to try and provide a better way for our country. (Time expired)
I rise to make a contribution on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I want to make a number of points with respect to the proposed bill, which some have characterised as the most significant piece of legislation on immigration and asylum seekers that has been put to the parliament since the election of the Abbott government.
This is an omnibus bill, as many of the speakers have already indicated. It contains many parts. There are some parts of this bill which Labor can support, but we have a number of significant concerns with respect to certain other aspects of the bill.
I think the most appropriate way to characterise my concerns with the bill is this: it does not apply principles of fairness and natural justice to the very contentious issue of dealing compassionately with refugees. Labor understands that there does need to be a balanced approach between the fact that we do not want to see deaths at sea, but on the same token we want to deal compassionately with people who are refugees. Labor knows the contribution that refugees have made to our country over many years. It is a vexed issue and very contentious.
This is a bill that is broken up into a number of parts, as I indicated. The parts that I will be attempting to deal with are the areas in which Labor has some concerns. As a brief overview of the various parts of the bill, schedule 1 provides additional powers in relation to turning back boats. I will come back to that particular schedule with some comments. Schedule 2 seeks to reintroduce temporary protection visas and to introduce an alternative class of visa, known as a safe haven enterprise visa, although, as we will see, this class of visa seems to be introduced in name only. Very many parts of that particular visa and how it will operate are left for next year in terms of regulations. That is an area that I will make further comment on.
Schedule 3 provides better consistency between the Migration Act 1958 and the Migration Regulations 1994 in respect of certain visa types. Schedule 4 goes on to introduce a fast-track assessment process for protection claims, combined with a limited form review, through a newly established immigration assessment authority, removing access to the Refugee Review Tribunal, or the RRT, for people who are in Australia in an unauthorised way. Schedule 5 clarifies the exercise of the removal power and codifies Australia's interpretation of its protection obligations under the Refugee Convention. Schedule 6 makes clear that the children of the unauthorised maritime arrivals inherit the immigration status of their parents. Schedule 7 ensures that the minister can cap classes of protection visas in the Humanitarian Programme.
In terms of Labor's position, we are opposed to schedule 1. In making some comments about our position on schedule 1, I want to reiterate the Labor position: we are completely committed to doing everything we can to see an end to deaths at sea and the human tragedy which is unfolding on our borders. Labor has a history of attempting to put arrangements in place which deal with this issue. We put in place the Papua New Guinea arrangement, which did a lot of the work necessary to see an end to the flow of asylum seeker vessels.
But we do have two concerns about schedule 1. I think some of the speakers before me have touched on these points. Firstly, there is the fact that we do need to do this in a way which does not have a detrimental impact on our relationship with Indonesia. Labor has a very clear history of understanding the diplomatic necessities in that regard. The incoming President of Indonesia has made some comments in respect of Australia's border protection policies. His Excellency Joko Widodo, as I understand it, has issued a stern warning to the Australian Prime Minister about his alleged failure to respect Indonesian sovereignty. We do need to have an approach which is not going to impact our very, very important relationship with our northern neighbour. It is obviously a country with 200 million or so people and, being one of our closest neighbours, it is extremely important that we have a hand in glove relationship with Indonesia in respect of dealing with asylum seeker vessels. That is the approach that Labor adopted in government and we were able to achieve that close working relationship.
It is probable that this is not a short-term issue that we are addressing here. We are probably looking at an issue that will take some years to work its way through. Obviously, the sooner the better, but in order for us to deal with this comprehensively with Indonesia it is important that those concerns be taken into account. The second concern we have with schedule 1 is the question of safety at sea. We have had advice from the Navy to the parliament about the question of safety at sea. Unfortunately, there appears to be a lack of information in respect of this issue. When there is a lack of information, there cannot be public confidence in whether the operations that are occurring at sea are in fact safe; it becomes an open question. In order for us to form a position with respect to the issue of turning back boats at sea, there is this need for further information, and we need to be satisfied that it is a policy which can be carried out safely.
The other aspect of schedule 1 which causes us some concern is that, in a sense, this aspect of the bill is attempting to deal with a case which is currently before the High Court—the case of CPCF v Minister for Immigration and Border Protection and others. This is an important case; it will determine the legality of the government's turn-back policy, as implemented on the basis of the existing law. We say that the High Court should be allowed to come to a position on that particular issue. If the turn-back policy adopted by the government is shown to be lawful, then that is important for public confidence in the government and in its actions. Equally, if the turn-back policy is found to be unlawful, it is important that that be placed on the public record and that it be totally transparent. Of course, if that were to occur, then this parliament could consider this issue and this legislation in light of the legal position. But there is a scattergun approach that is being adopted by this government, and I would take the opportunity to say that we have this extremely important piece of legislation being put through on what may or may not be the last day, or the second-last day, of sittings for the year; it is probably not an appropriate way for this extremely important matter to be dealt with.
On the issue of schedule 2 of the bill, this seeks to reinstate what we would call the 'failed' temporary protection visas. The Labor Party has a well-established policy on temporary protection visas. We adopt the view that these visas suspend asylum seekers in a prolonged state of uncertainty. Under a temporary protection visa, people put their lives on hold for a significant period of time. People are unable to take out loans or to do the sorts of things that we all take for granted in our lives. It causes fear, anxiety and financial hardship to asylum seekers; it means that they are unable to move their lives forward for themselves and for their families in Australia; and it prevents them from making a contribution to the community.
We would also say that there should be no pretence about the fact that temporary protection visas in any way serve as a deterrent to people seeking to risk their lives and to come to Australia by sea—that is patently wrong. We saw evidence of that in the Howard-government era in the use of temporary protection visas by the Howard government—and the figures speak for themselves. More than 90 per cent of refugees initially granted temporary protection visas under the Howard government were eventually granted permanent protection because the situation in their country of origin had not changed. I will recap: the temporary protection visas offer no deterrent value and only place people in a state of uncertainty.
We move to the proposal under schedule 2 on safe haven enterprise visas, to which the Labor Party has offered its in-principle support. Speakers before have expressed disappointment with the fact that the government has failed to deliver the SHEVs, as they are called, through this bill. We note that the commitment on the part of the minister to deliver the SHEV was a key component of an agreement with the leader of the Palmer United Party, Mr Palmer, to support the reintroduction of temporary protection visas. The minister has repeatedly claimed that he would give life to a new visa to be known as the safe haven enterprise visa. On 24 September, he wrote to Mr Palmer to say that the visa would be introduced. Then on 25 September, in a statement to the House of Representatives, the minister said that the visa would be created. In a media release on 25 September, the minister asserted:
A further temporary visa, a Safe Haven Enterprise Visa (SHEV) - where holders work in a designated self-nominated regional area to encourage filling of job vacancies - will be introduced as an alternative to a TPV.
It is a matter of regret that Mr Morrison has failed to deliver on this commitment. I say that because this bill does not give legal effect to a safe haven enterprise visas as a new class of visa. All it seems to do is introduce into the Migration Act new subclause 35A(3A), which states:
There is a class of temporary visas to be known as safe haven enterprise visas.
No further details, let alone any criteria, are provided to us about the conditions that apply to this visa. Extensive provisions are included in the legislation to make clear that despite the SHEV being named in the bill no such substantive visa is actually brought into effect and nobody can apply to obtain one until we see regulations coming forward. There is no guarantee, and nothing in the proposed legislation, to compel the minister ever to promulgate the regulations that are required to give effect to this class of visa. We would argue also that the government has failed to undertake the detailed policy development necessary to make the safe haven enterprise visa a reality.
All of this uncertainty goes to the concern and the suspicion we have that nobody really knows what this new type of visa will look like, if it comes into existence at all. Labor supports in principle the idea of the safe haven enterprise visa. We agree with the leader of the Palmer United Party when he says that they would be a win for refugees and a win for regional Australia. It would be important for both of these wins to come into effect, but we do not see the detail of that.
The Australian Labor Party opposes schedule 4, which seeks to deprive asylum seekers the opportunity to have their applications for protection assessed fairly. What it does is replace it with a bureaucratic agency that is subject to the direction of the executive government. In the time available to me I will not deal with that further, but there are real concerns about the procedural fairness in relation to the way in which the proposed system will operate. Returning to the points I made at the outset, we believe that the government should go back to the drawing board in relation to this bill in respect of the areas that I have touched on.
I rise to talk about the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I do so with a heavy heart on the last night of parliament for 2014. I am looking forward to getting home to my home state of Tasmania and spending time with my children and the rest of my family and enjoying the good life that so many Australians enjoy, spending time with our loved ones over Christmas. I will certainly be reminding myself of what a lucky country we live in. I think that sometimes we forget that it is not like that in the rest of the world, unless you have been overseas and experienced life in other places or have met people who have fled these other places. For example, I grew up socialising through our church group with Vietnamese refugees during the mid-1970s. They were a common part of my Sundays—we called them 'spring roll Sundays'. Our families would get together and we would spend time with them. I think now about the sort of society that my children are going to live in and the message that is coming from this government about other human beings. We need to get this right back to the building blocks and wash away all the spin, all the nonsense and all the messaging around this debate. Essentially, we are dealing with human beings.
I will get to the drownings for your benefit, Senator O'Sullivan, through you Mr Acting Deputy President Smith, very shortly. We are dealing with human beings. Every human being has human rights. We should all have the same human rights. It is a fundamental concept that I think we in here all understand.
The reason I am standing here and debating this bill on the last night of parliament, on a Thursday night, rather than being on a plane heading home is politics. It is not because Senator O'Sullivan's side of the chamber is trying to save lives at sea. We are here because the government desperately needs a win in the last remaining hours and minutes of parliament. When the bell rings and we go home the government wants to be able to say that it has controlled the agenda and that it has focused on an area that it believes it is strong on and has delivered on. It wants to show the Australian people just how big and tough and in control it is. Considering that I have heard several times from the Prime Minister and Minister Morrison this week that the big achievement of this government this year is that it has stopped the boats—not that we would know, because it is top secret; but let us take their word that they have stopped the boats—why are we here trying to pass this fundamentally flawed legislation as a matter of urgency? It is legislation that the majority of human rights experts in this country condemn. It is an extraordinary bill even for this government with its record of cruelty towards refugees and asylum seekers. It is an extraordinary bill—and there is no hurry for this. This is all about trying to get a good headline and appearing to be strong and in control, because this government is in disarray. It is ending the year having been thoroughly spanked in this chamber, in the opinion polls and by the Australian people. It makes me sad that it believes that a race to the bottom on cruelty is somehow something it should be waving a flag on, saying how great it is and, 'Look at what we've achieved.'
I have talked before about language that we use as leaders in parliament on issues relating to war and terrorism. I have talked about the role of the media in these types of debates. And it is no different here. It really disgusts me. I know that Senator Cash probably has a good heart, but it is her job to stand up in the chamber during question time, talk about the government's message and use certain language. But it really disgusts me that we have couched what is humanitarian assistance in military terms—even the word 'operation', as in Operation Sovereign Borders, and 'protecting' our borders. Protecting our borders from what? From the most unfortunate and desperate people in the world. The last time I checked, they were not coming here to seize our national assets. They were not carrying guns or explosives. This is set up because this cruel, conservative government knows it is good politics, and has been good politics in the past, to demonise, dehumanise and marginalise other human beings.
In an attempt to appear more reasonable, the argument goes that it is all about people-smugglers, but, in the attempt to push that frame into the minds of Australians through the media and through this parliament, they forget that they are doing a lot of damage—not just to the people that they are locking up on prison islands but also to migrant communities here in Australia. The Greens have consistently offered alternative solutions. I want to talk in a minute about a project in my home state of Tasmania which a number of church groups have come together to lead as an alternative solution to cruel offshore processing, turning back boats and temporary protection visas.
The procedures set out in this bill actually clearly point to this Australian government seeking to limit the number of people who are found to be genuine refugees, thereby limiting the onus on Australia to meet its fair share of responsibility in dealing humanely with those seeking asylum from persecution and violence. The unfairness in the system is obvious to anyone who has ever worked with refugees. This is the position of strength that the Greens have always had in our policy—and through Senator Hanson-Young in all the work that she has done. Our position is firmly embedded in that of stakeholders in this country who work with refugees. We have always worked with stakeholders in the formulation of our policies and ideas around refugees. Many of these, who have provided written submissions to the Senate inquiry, which I will touch on in a minute, have pointed out things such as the following. People fleeing countries where government institutions are weak or predatory are, understandably, initially fearful of Australian officials. Asylum seekers are often traumatised by their experiences and are unable to put the whole of their claims into a logical or coherent narrative. I have met a number of them in Tasmania at the Pontville detention centre. There are heartbreaking stories from young men who have fled persecution. They do not understand what is important and what is incidental in recounting their stories. It takes some time before they feel safe. When sexual violence is also involved, it can be many months or even years before an asylum seeker feels enough trust to be able to divulge the nature of their suffering.
It is also important to note that even this substandard form of review will be off limits to certain categories of asylum seekers who arrive by sea—for example, those whose claims the minister decides to exclude, based on his or her opinion, as being manifestly unfounded. This effectively renders the minister judge and jury in a decision that could cost the person their life, their family and their future. I do not know about others in this chamber, or how Australians feel about it, but, from what I have seen of Minister Morrison, he is not the sort of person I would want in a position where compassion, empathy and understanding are required in dealing with human beings who have universal—or should have universal—human rights. When taken together, the Australian Human Rights Commission has warned that these changes will:
These changes are also unlikely to lead to the types of efficiency gains—which I have heard coalition senators in the chamber talk about this week—that the government coldly hopes for, particularly if protection applicants continue to be denied access to legal advice. As the Law Council of Australia has pointed out, the lack of access to legal advice at the initial stage, coupled with the removal or restriction of merits review, is:
… likely to lead to more applications to the High Court based on common law judicial review principles. This will undoubtedly lead to further inefficiencies, and prolong the process of determining Australia ' s protection obligations.
The bill also seeks to amend the Maritime Powers Act 2013 to remove judicial scrutiny of whether Australia complies with certain human rights obligations. And on and on it goes.
The debate that was in the media today and was focused upon in the Senate was about temporary protection visas. That is one of seven schedules. That is being used as a Trojan Horse to ram through this parliament tonight, with no real urgency except for headlines and political gain, a whole series of manifestly unjust, unethical and dangerous provisions that have been so well summarised in the Senate inquiry into the migration and maritime powers legislation amendment.
We heard from thousands of human rights lawyers, refugee advocates, academics and community members, all of whom rejected the amendments proposed in this bill. Despite the overwhelming evidence from experts in the community, who have said this bill should not proceed, the majority report had recommended that the bill be passed. This committee has arrogantly rejected the evidence of thousands of Australians and has chosen to favour politics and punishment over protection and the rule of law. Unfortunately, I am sometimes not paying enough attention during question time, but I do not know how many times I have had to stand up and ask Senator Cash to retract her statements that they are illegal entrants into this country. They are not. Under international law it is not illegal to seek asylum.
This bill is by far one of the most regressive pieces of legislation this parliament has seen when it comes to the treatment of asylum seekers and refugees. There is no doubt this bill is an attempt by the government to dramatically reduce the number of refugees Australia takes each year and to legitimise their actions at sea when intercepting and turning back asylum seeker boats. It seeks to legalise the government's actions at sea, limit parliamentary and judicial oversight, disregard Australia's international and human rights obligations—and we are becoming a global embarrassment—reintroduce temporary protection visas for boat arrivals, introduce a new temporary protection visa called a 'special humanitarian enterprise visa', introduce rapid processing with the sole aim of reducing the number of people Australia finds to be in need of protection, remove the refugee convention from the statute books and deem babies born to asylum seeker parents as unauthorised maritime arrivals.
This bill is an attack on Australia's generous heart and our whole concept of fair and equitable treatment and will result in Australia wrongly refusing protection to genuine refugees and returning them to persecution or significant harm. We do not know how many genuine refugees we have turned away when we have 'safely towed back the boats'. We have no idea how they are hurting or what kind of lives they fled from. We have denied them the right held by so many of our predecessors in generations before us who had fled persecution, come to this country and built themselves a better life. They not just built themselves and their families a better life but built a better country.
Why is all this happening? Why are we having this radical deviation from Australia's longstanding commitment to international and human rights law? Why are we seriously endangering the lives of thousands of asylum seekers? While you can say you are saving them from drowning, you have no idea what they are going back to or how long they can survive in the places they are going to have to flee to.
Senator O'Sullivan interjecting—
You can laugh, Senator O'Sullivan. It's not a good look.
Good. I hope that is the case.
The Australian Greens strongly recommend that this bill be rejected by the Senate. We are better than this. This is not about saving lives at sea. This may be about saving money because efficiency dividends are so important to this government. This is about politics. This is about trying to get a win in this chamber before we go home for Christmas, because this government is under pressure. It is in disarray. Even the Murdoch press has turned on it in recent weeks. It knows it has six to eight weeks before parliament comes back and it desperately needs a win. Once again, it is genuinely sad that the coalition government feels it can get a win on being more cruel to people every time it tries to introduce a new piece of legislation.
I want to finish on the concept of empathy. If you saw the documentary Go Back to Where You Came From, it was pretty hard not to feel empathy for people who were fleeing persecution. But, without that empathy, there is no understanding. And, of course, there is no compassion without empathy. If any one of us here tonight goes home, stares at the ceiling before they close their eyes and try to imagine that it would be like to be in people's shoes, we probably could not, to be honest, because we have never seen our children shot in the head. We have never seen some of the awful—
Senator O'Sullivan interjecting—
Senator O'Sullivan, these are eyewitnesses. This is what I have been told. Some of the atrocities these people are fleeing from are well documented. They are often from war zones and areas of famine or disease. All they want to do is get a better life. A young man who gets put on a bus at two in the morning by his dad and his uncle is spirited away somewhere, and before he knows it he is on more buses. Then he is on a boat. He does not know where he is going or why, but his family want a better life for him or do not want him killed. These are the kind of people we are 'safely towing back' at sea, safely spending them back into the blue yonder. Goodbye.
What are we afraid of in this country? What are we actually protecting our borders from? That is the question at the heart of this debate. Why does the coalition, going all the way back to John Howard and Tampa, see it as good politics to be cruel, dehumanise and marginalise other human beings? I am still struggling with why there are people in my country who are so fearful of desperate people arriving by boat. The only conclusion I can come to is that that fear is deeply seated for a number of reasons. I sometimes wonder whether it is just the fact that we fear for our quality of life, because we have such a good one in this country. We are so lucky. Of course there are people doing it tougher than others. There are people doing it tough here but, compared to the poor souls risking their lives for a better life, I actually think we do pretty well here, and we would do pretty well to remember how fortunate we are.
I have been very pleased to be working with a group of Tasmanians—originally it was church groups but a number of people have joined them—to look at the Tasmanian opportunity to offer an alternative to offshore processing in Tasmania using facilities that are there, using the community to resettle refugees and taking a compassionate approach that will cost a fraction of what Senator Cash's department is spending on her so-called military operation to protect this country from the world's most unfortunate people. We could do it through our communities in a positive and inclusive way. There is another way. We have to build the politics. It is our job in the Greens, and hopefully in Labor and other progressive parties, to build support for that kind of initiative in the Australian community. That is our job—to let Australians know that there is nothing to be fearful of. This is a normal part of Australia's heritage and it will have a very positive future if we can come together—
Senator O'Sullivan interjecting—
and put aside the politics of fear, Senator O'Sullivan. Have a Merry Christmas and enjoy the time with your family.
I rise tonight to oppose the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in the strongest possible terms. This is the latest sordid chapter in a race to the bottom. I guess many of us thought it would not come to this. Just when you think this government cannot get any more vindictive in its treatment of innocent families fleeing war and violence and just when you think this government could not get any more sadistic, secretive and authoritarian in its attitude towards some of the most vulnerable people in the world, this government finds a way to surprise you.
So I am now beyond surprising. In truth, the ruination of Australia's arguably proud record of providing safe harbour to people seeking to escape political or sectarian violence has been a long time coming and there is no point in laying all of the blame at the feet of Minister Scott Morrison. From the moment the ALP and the Liberal-National parties settled their bipartisan consensus that henceforth Australian refugee policy would rest on the principle of deterrence, a bill like the one we are debating tonight was practically inevitable.
To deter people from fleeing the Iranian secret police, the medieval violence of the Taliban, the horrors faced by the Rohingya in the western part of Burma and the murderous repression that passes for official state policy in Sri Lanka inevitably means your policy ends up in a very dark place indeed. The United Nations has recognised this. The Australian High Court has recognised this. Advocates who work face to face with refugees fleeing the unfortunate circumstances that people find themselves in, refugees themselves and advocates, like Amnesty International, which keep an eye on the kinds of horrific situations that people find themselves in around the world, have looked at Australian government policy in recent years and found it extremely wanting.
The refugee convention that the Australian government will effectively shred tonight was written in the aftermath of the Second World War. The precursor to the UN High Commissioner for Refugees—the UN Relief and Rehabilitation Administration—was actually set up in 1943, in the latter part of the Second World War, to provide humanitarian relief to the vast numbers of potential and existing refugees in areas that were facing allied liberation at the time. Millions of people were on the move, fleeing the various fronts of the war.
It was evident after the First World War but it was certainly very evident in the aftermath of the Second World War that we needed to ensure that people fleeing Nazi Germany in various occupied territories and those fleeing regimes as the fronts and the ruination of war shifted from place to place would never again find themselves—like many Jews, for example, fleeing the Holocaust found themselves—stateless, unwanted and shunted from port to port. It was decided by the international community in the aftermath of the Second World War that nobody should face these horrors again and that nations that considered themselves civilised should have an obligation to provide safe harbour for people with legitimate reasons to flee regimes, to flee war, to flee violence, to flee occupations and to flee persecutions.
So we ended up a proud signatory of the 1951 refugee convention. I do not think there would actually be disagreement in this chamber tonight that Australia ended up a better place for participating in that convention, for recognising the horrific circumstances faced by families fleeing war and violence, and for allowing people to make a new home in this country. It has made Australia what it is. Of course it has its flaws. It has so many flaws, but you could also argue that Australia is one of the most successful experiments in genuine multiculturalism anywhere in the world as a result, in part, of our ascension to the 1951 refugee convention, which said that as a civilised country, as a democracy and as human beings we would provide safe harbour to people when they needed it.
The convention was obviously more or less limited in its initial draft to protecting European refugees in the aftermath of the war. But, of course, the 1967 protocol, which Australia also signed, expanded its scope as the problem with displacement spread around the world. And that is why the bill we are faced with tonight will do such damage. It will do damage not just to Australia's international reputation and not just because of our evident disrespect for the rule of law here and overseas; it will do damage, most importantly, to those families and those individuals and those children who find themselves, having committed no crime and through no fault of their own, on the move and forced to flee their homes.
We have a bill tonight that will grant almost total impunity to Minister Scott Morrison and whoever comes after him in the continued process of the militarisation of a humanitarian crisis. And that, I think, is something that Prime Minister Howard kind of put down in draft. We saw during the Tampa crisis what that looked like—when you had a cargo ship boarded by the SAS and which cued the militarised press conferences and the chest thumping that arguably changed the course of an election—to what we see now: Minister Morris, flanked by men and women in uniform, having militarised a humanitarian crisis. This bill grants almost total impunity to a minister who has already shown himself fundamentally secretive and untrustworthy, and I genuinely fear for what powers this bill would grant an individual like Minister Scott Morrison—his authoritarian tendencies when he thinks he can score some kind of political point; brutalising people who already have lost so much—and I genuinely fear what this will actually mean for people who, through no fault of their own, find themselves on the front line.
It is a bill that seeks to reintroduce temporary protection visas, and I guess that is what has seemed to have dominated the public debate and public understanding of this bill. Temporary protection visas effectively invite people to put their children on boats if there is no other way of and no other hope for family reunification.
We understand that the Palmer United Party—and I think Senator Lazarus will speak later in this debate about the concessions, if you could call them that, that Mr Palmer has been able to extract—think this bill will create a safe haven enterprise visa, but of course the bill does not actually do any such thing. Mr Palmer again appears to have engaged in the tactic of creating all kinds of diversionary press conferences, putting himself in front of cameras, demanding concessions, marching around the landscape as though he is some kind of deal maker, but has come away with precisely nothing. There is nothing in the bill to give any kind of life to the concessions he says he has extracted. And we have seen this repeated pattern of behaviour. Maybe everyone does have their price, it is just that Mr Palmer's is very, very low. We do not see anything in the bill, as it is drafted, that would give any kind of expectation of permanent protection to people who find themselves in this country, no matter how they have managed to get here after fleeing some of these horrific circumstances.
The bill effectively will redefine the definition of refugee to be whatever the minister of the day says it is. And although Mr Morrison appears to be using hundreds of children who should never have been detained in the first place as a bargaining chip—and, again, we see the kind of compassion that I think has driven this debate for many years. People right across the political spectrum, across all parties—Independent, Liberal, Labor, Green—were horrified at the number of people who were making risky voyages on unseaworthy vessels and finding that the boats simply were not able to get them here. So many people died in those crossing. The compassion that was felt by people right across the debate was so callously manipulated, and, again, that is what is happening tonight. The crossbenchers have been told that Minister Morrison will trade off children behind razor wire—who should never have been put there in the first place—as though they were poker chips in a political negotiation. What kind of sociopath engages in a political debate or a political negotiation using the lives of children who have fled from Hazara lands in Afghanistan or from Sri Lanka? It is very, very hard to fathom how it could possibly have come to this. Those children could be released tomorrow, irrespective of the outcome of this debate tonight. That is what the Labor Party understands, it is what the Greens understand, and I would urge the other crossbenchers—some of whom have made their position clear and some of whom have not—to rest with that consideration overnight, because that decision will be on their conscience and on all of our consciences irrespective of which way the vote goes when it is committed.
The bill effectively removes most references to the refugee convention from Australia's Migration Act. This is something that I am not expecting will make the front pages of the papers tomorrow because for whatever reason most Australians, through spending our lives in such a fortunate part of the world, if we are lucky will not ever have to think carefully about what human rights actually mean in the flesh or what international humanitarian law actually means to families, to real individuals. These things are seen by most of us, mediated through television screens, happening to other people.
But these instruments were put there for a purpose. As I described briefly earlier, they were put there so that nobody would ever have to face what those of Jewish descent fleeing the horrors of Nazi Germany had faced, or that the story of those fleeing Poland would never be repeated. That is the flesh and blood behind these human rights instruments that this government is so casually violating in the terms outlined in this bill. What kind of legislator—what kind of leader; what kind of politician—determines that the children of boat arrivals who were born in Australia, in Australian hospitals, are nonetheless unauthorised maritime arrivals? It is bleak. It is not even ironic; it is an incredibly black piece of legislation. And yet that is what this bill does—newborn children are classified as unauthorised maritime arrivals. How did it come to this degree of political dehumanisation?
Of course, there will be further debate on the amendments that are outlined in this bill when we get to the committee stage, and further amendments will shape the final form of the bill. I will leave comment on those to my colleague Senator Hanson-Young, who has carried the burden of government policies under the former government and under this government as they have sought this race to the bottom—as governments of both persuasion have sought to outdo each other in that deterrent effect that would somehow make Australian government policy scarier than the Taliban or the Iranian secret police. We will see what kind of final form this bill ends up in, but in the meantime I fear that this Senate is going to fail these people tonight and that, again, we will see that the resistance and hope and compassion wielded by people a long way from Capital Hill actually provide the real opposition and the real hope in refugee policy in Australia.
In my own home town, there are groups like the Refugee Rights Action Network, and right across Australia there is a movement called Love Makes a Way. These are people of faith who have taken some of the most significant parts of scripture about loving thy neighbour very literally indeed. Hundreds of them have risked arrest, and many of them have been arrested, in peaceful, non-violent sit-ins in ministers' offices around the country, including that of my Western Australian colleague Senator Cash, who is here tonight. They are respectful but defiant that we simply cannot continue this hateful race to the bottom. I want to acknowledge all of those who have taken those kinds of matters into their own hands to ensure that there is some hope in the Australian community for compassionate policy on refugees, because it is very, very hard to find it in this building.
There are groups like the Asylum Seeker Resource Centre, who work with those who arrived with nothing and are trying to make their way in the Australian community or avoid deportation. There are groups like the Refugee Council and, as I said, like the Refugee Rights Action Network, who do everything from political advocacy to front-line activism to visits to detention centres, where people find themselves detained for years despite the fact that they have committed no crime.
We can talk about the high-level policy of lifting the humanitarian intake and about the Greens' safer pathways proposal, which would lift the humanitarian intake to 30,000 to take the pressure off those people who found themselves stranded in transit camps in Malaysia and Indonesia. Under that proposal, out of that target of 30,000, we would take 10,000 from those camps in our region, where people have been told there is no queue. That is what creates the business model that the people-smugglers exploit. Momentarily lapsing into the language adopted by the coalition, if you want to smash that business model, remove the incentive to climb onto a boat. Rather than making people more terrified of the Australian government than they are of the Sri Lankan white vans, offer them hope by offering them a chance at a safe harbour—you might be in this camp for a period of time, but you will be safe while you are here, and you will eventually be resettled. If you want to dissolve the people-smugglers' business model, that is how to do it. The Greens propose an additional $70 million per year in emergency funding for safe assessment centres in Indonesia to enable this kind of process and to give people confidence that they will not be in these camps forever while they wait for assessment and resettlement. We propose to shut down all offshore detention in Nauru and PNG. This is not simply about getting children out of detention; it is about getting all human beings out of detention.
There are many, many policy instruments if we simply set the racist undertones of this debate aside, cease the race to the bottom—where we try and terrify people out of fleeing military dictatorships and war zones—and actually adopt a compassionate approach. With all sides of politics engaged in that project, we could potentially regain some of the dignity that we had under the Fraser government, when we resettled tens of thousands of people fleeing the Vietnam War—a war that Australia was also implicated in. At that time, nobody on either side of the old political parties decided to throw rocks, and there was a bipartisan consensus at the time that these people should not be used as political bargaining chips. Perhaps it was a more civilised political age, but it is our hope that we can return to that kind of civilised debate where people, and particularly children, are not treated as some kind of political weapon to be wielded in pursuit of one cheap headline after another.
I want to particularly acknowledge Jarrod, Teresa and Tyson for their First Home Project in Western Australia. This is what I think Australian refugee policy would look like if it actually proceeded from love rather than fear. The First Home Project is a unique experiment where funding was crowdsourced for a home in Perth's eastern suburbs, where recently arrived refugees could actually live and get themselves a rental history—and, of course, as we know from our work in homelessness policy, if you have somewhere to live you can build a life. You can go out and get the services that you are looking for, you can get job training, you can learn the language, your kids can go to school and you can find a way in our community. This was created with absolutely no government support at all, and it is a wonderful experiment. People end up moving on after a year in the place with a rental history and they can then go out into the private rental market. It is that kind of Australian spirit of welcome and compassion that I think, surely, is what most Australian people want. They want for this debate to proceed not with fear but with love and compassion for people who actually have nowhere else to go in many instances and have fled circumstances that we in this wealthy and very fortunate place could barely imagine.
That is what I hope the crossbenchers tonight will rest with, as we all rest with these kinds of debates. I wish these debates were considered conscience votes. For all of us in here I think it is that serious where these lives are at stake, that just for once we could see party discipline relax, the talking points set aside and we could treat people as human beings not as collateral in a political debate that has long since passed the point of dismal. As Australians, whatever our political allegiances, we can do better than the kind of bill we are debating tonight.
I rise to oppose the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and to stand with the Labor Party, a party which certainly represents humanity, dignity of self-worth and compassion. I would like to start by acknowledging that this is an incredibly significant piece of legislation. If we go into the depth of it, we can see very clearly that it does incredible damage not just to the value of humanity but also to Australia's international reputation as a country which signed the refugee convention 50 or more years ago now. The bill is complex in its nature but it will also leave a legacy for this government that will not in any way leave it in a good stead. That is why Labor does not accept this bill.
There is much in this bill which, in effect, is a legislative response to actions of the judiciary—some of which is still occurring and the courts ought to be allowed to do their work—and some of it demonstrates very clearly this government's dismissive attitude to its international obligations. There is a stark difference between the Labor Party and the coalition and it can be seen very clearly in the nature of this bill—that is, the Labor Party like people and we want to help people. No matter what their background, we feel we should treat our fellow human beings as we would have them treat us. We are better than this, but it seems this government is not. It seems this government does not like people or at least it has forgotten people. As it basks in its own self-described glories about stopping the boats and saving lives at sea, the adults and children who fled their homes and countries because they thought they were going to be killed, or that they were endangering their children's lives, spend an average of 413 days behind barbed wire. Some of those people have lost their sanity in all of that time. Some have lost their lives. Most of the children have lost their childhood.
There are two young Iranian men who we know very clearly have died as a result of their detention in PNG. Hamid Khazaei was declared brain dead in September following a severe infection to his cut foot, when his life support was turned off. How did someone in Australia's care die from a cut foot? Reza Barati was beaten to death by a mob comprising camp guards and PNG local residents who had broken into the centre. Again, how did someone in Australia's care get killed by a mob? It seems to save the lives of refugees this government is prepared to destroy them, but this government is also prepared to ignore international law in order to destroy the hopes of people who asked for its help.
A self-evident truth over the course of Australian political history has been the conservatives' fear of engaging fully in the international community. Australia had to wait in fact until Gough Whitlam introduced us to the world and the world to Australia. The election of the Whitlam government was a turning point in Australia's international outlook and, perhaps most importantly for our global standing, Gough Whitlam engaged deeply with the United Nations. The Whitlam government brought a new emphasis to the United Nations processes and engaged with that organisation more deeply than previous governments. It was under the Whitlam government that Labor first made contributions to United Nations funds to support education and other development programs in Africa and signed a range of significant multilateral treaties, conventions and covenants, a number of which have been left unsigned or unratified by the Australian government for many years.
There are some 130 of them, including the Convention relating to the Status of Stateless Persons of 1954, the 1961 Convention on the Reduction of Statelessness, the 1966 international Convention on the Elimination of All Forms of Racial Discrimination and the 1967 Protocol Relating to the Status of Refugees. Curiously, the Whitlam government was not responsible for the signing of the 1951 Convention relating to the Status of Refugees, defining who is a refugee, their rights and their legal obligations as states. That was an achievement of the Menzies government in 1954. As I have noted above, in 1973 Gough Whitlam's government was responsible for appending Australia's signature to the 1967 Protocol Relating to the Status of Refugees, which of course removed geographical and temporal restrictions to the convention. It is primarily the refugee convention approved by Menzies which this government now seeks to comprehensively reject in this bill. This bill contains a brazen attempt to walk away from this government's responsibilities under that convention. I want to make clear for the Senate the convention's description of a refugee. I quote:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Clearly, this has been too much responsibility for this Abbott government—too much pressure to be humane for this Abbott government; therefore, unable to cope with the basic need to be compassionate, the Abbott government is attempting to wipe the refugee convention out of Australia's mind. I would like to add, as Senator Ludlam highlighted, that Australia is very much a successful multicultural nation. It is a multicultural nation built on migrants and its first people. Many of those migrants are refugees and they have contributed greatly to this nation over decades upon decades, and they will continue to, and that includes the refugees who have come to settle in Australia in recent times. We should note that and note the fact that this is a bill that is trying to destroy the future of those refugees in this nation—refugees who, under the convention signed by Menzies, were able to rebuild their lives. Why? Because this bill deletes references to the refugee convention from the Migration Act, the primary domestic act with which Australia engages—or did engage—with the refugee convention. This bill replaces those references with a new independent and self-contained statutory framework setting out Australia's own interpretation of its protection obligations under the refugee convention. In any event, by well established, accepted and respected principles of international law, this government has no right to self-interpret the scope of its international treaty obligations. It simply does not.
According to Jane McAdam, Professor of Law and Director of the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW:
Basic rules of treaty interpretation state that a treaty must be interpreted in good faith, and in accordance with the ordinary meaning to be given to its terms in their context, and in the light of the treaty's object and purpose. Furthermore, asserting that a treaty obligation is inconsistent with domestic law is no excuse for breaching it.
What follows are some comments, by no means all, from the UNHCR's submission to this bill, setting out very clearly its concerns:
UNHCR is concerned that the proposed amendments to the Migration Act would narrow the personal scope of the refugee definition, and lead to a restrictive application of rights to Convention refugees.
… … …
The proposed amendments specify that a person does not have a well-founded fear of persecution if reasonable steps could be taken to modify his or her behaviour so as to avoid a well-founded fear of persecution, unless a modification would conflict with a characteristic that is fundamental to the person’s identity or conscience; or conceal an innate or immutable characteristic of the person.
The UNHCR recommended the deletion of those proposed amendments, as they are fundamentally at odds with the purpose of the refugee convention. Let me repeat that: fundamentally at odds with the purpose of the refugee convention—a convention signed and ratified by Australia for over 50 years, first signed by Sir Robert Menzies himself. It is fundamentally at odds, the UNHCR has highlighted. Why? Because:
… a person cannot be denied refugee status based on a requirement that he or she can change or conceal his or her identity, opinions or characteristics in order to avoid persecution.
The fact that this bill is putting forward that a person should change his or her identity, opinions or characteristics in order to avoid persecution is in itself a bizarre piece of legislation to put forward for people wishing to seek asylum in this country—as the UNHCR states, and I completely agree, is fundamentally at odds with the purpose of the refugee convention. Further:
UNHCR is not aware of any other Contracting State to the 1951 Convention which has removed Article 1D from being a basis for determining the refugee status of Palestinian refugees.
As such, 'UNHCR recommends that Australia gives effect to its international obligations to Palestinian refugees by codifying, in full, Article 1D of the 1951 Convention in the Migration Act 1958'—agreed to and signed by Sir Robert Menzies and the Liberal and National parties. The UNHCR also recommended the deletion of the parts of the proposed amendments on temporary protection visas which require convention refugees to re-establish their continuing need for international refugee protection. No distinction should be made on the basis of mode of arrival in respect of rights. All refugees are entitled to the 1951 convention rights agreed to and signed by Sir Robert Menzies—someone very familiar to those in the coalition government.
The UNHCR also recommended the deletion of the proposed amendments which operate to limit the entitlement of a convention refugee to the rights and obligations specified in articles 2 to 34 of the 1951 convention agreed to and signed by Sir Robert Menzies. I have noted for the Senate just some of the many problems—indeed downright contradictions—that the UNHCR has identified in this bill with our refugee convention.
In the brief time I have left I would like to focus on children, because I know that this bill has a focus on children. No-one does that better than UNICEF, who have outlined very clearly what these proposed changes to the migration law mean for children, how they would widen the immigration minister's powers, how they would marginalise our international law, which I have just outlined, and how they would wind back the ability of Australian courts to scrutinise the government's treatment of asylum seekers. In their joint submission with the Human Rights Law Centre, Save the Children, Plan, the Human Rights Council of Australia and Children's Rights International, they outlined the grave human rights risks posed by this bill. They said very clearly that, under the proposed changes, children born in Australia would be classified as unauthorised maritime arrivals if one of their parents is a UMA, leaving those children subject to mandatory detention and transfer to Nauru. These children will be born right here in Australia, in Australian hospitals, yet they will be treated as if they arrived on a boat. Not only does that defy logic; it is incredibly cruel and again is a clear breach of international law.
These changes would render children stateless and deprive them of access to health care, education and their fundamental rights. UNICEF's submission clearly outlines further that, as I just highlighted, the bill would remove references to the refugee convention from the Migration Act and replace them with the government's own very watered-down interpretation, which I have gone through. The refugee convention is the cornerstone of international refugee protection and has now been signed by some 145 countries. The government should therefore not just unilaterally redefine it to suit its own purposes. That is what it is doing. It is out on its own, outside the 145 countries it joins in ratifying and signing the convention, trying to unilaterally define it for its own political purposes. I thank UNICEF, the Human Rights Law Centre, the Refugee Council, Save the Children, Plan and all of those organisations. Many of them have written to me; many of them I have met. They are at the coalface. They know a lot more than we in this place know about the real effects that this bill would have on children, on parents and on future refugees that seek asylum in this country.
This is a wealthy country. We have the capacity to take a humane approach to refugees in this country. That is what we have been known for for decades upon decades. Why now do we have to bear this government making us this most embarrassing and humiliating country, a country to be ashamed of in its approach to the treatment of people seeking asylum and their children, whether they come on a boat, whether they come in any way, shape or form; they are coming because they are fleeing persecution and they need our support. This is no way to treat them. This appalling piece of legislation completely guts them of any hope of being able to settle and rebuild their lives in this very rich country that we all take for granted and benefit from every day. That is why Labor will not support this bill. That is why we see very clearly that this bill does nothing to support the values that we stand for—the values of humanity and compassion.
I simply cannot understand why a government would do this to so many people that need our support and help and, on top of that, breach our obligations under the refugee convention, take the refugee convention out of the Migration Act. The long legacy that started under Sir Robert Menzies with the signing of this refugee convention was continued by great leaders such as Gough Whitlam, with all the conventions we signed under his short leadership, only now to have it all undone. One hundred and forty-five countries have ratified this convention, and here we stand, out on our own, as this inhumane, rich nation putting up the walls, saying: 'We are not a country of compassion. We are not going to care for refugees. We are going to be fierce and tough and hard.' What kind of message does that send? That is why Labor will not support this bill. It is an appalling piece of legislation.
Madam Acting Deputy President, I would like to inform you that this is not my first speech. I would like to make a statement on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Coming to a decision on this bill has been, without a doubt, one of the hardest decisions I have had to face—a choice between a bad option and a worse option. It is a decision that involves human beings: children, mothers, fathers. It involves the lives of people who have had to endure unthinkable hardship, people pushed to the point where they go to any lengths to seek asylum.
In its initial form, I could not vote for this bill. What the government is proposing is not ideal. There are parts of the bill that I am not comfortable with. However, to do nothing is not an option either. I fear that doing nothing will not help these people. The government has said that, if this bill does not pass, the 30,000 people currently awaiting processing will continue to be left in limbo. The government has said that, if this bill does not pass, the 1,550 people who arrived between 19 July 2013 and the election would be sent to Nauru. The minister has said that, if this bill does not pass, he would be unable to use statutory processes to assess refugee claims and would need to go through an administrative process. He has publicly stated, 'What it means for those 30,000 people is they will just wait longer and longer and longer.'
I believe that this bill has many bad aspects; however, I am forced into a corner to decide between a bad decision or a worse decision—a position which I do not wish on my worst enemies.
Ultimately, it is my desire to see the legacy case load resolved with a clear pathway to permanency for those who are found to be genuine refugees, and for those who are found not to be genuine refugees to return home. Unfortunately, due to the current government's policy, I do not have that option in front of me.
The question is: if I am to vote this bill down because it is not perfect, am I making a worse decision for the people who desperately want to be processed? There has been a lot of concern expressed about the government's new fast-track process. There have been claims that, if a protection visa applicant has their claim denied by the immigration assessment authority, then the only hope is getting that overturned by the High Court. I want to assure people that, if a genuine refugee has their claim knocked back by the case officer, the immigration assessment authority, they can have that decision reviewed by the Federal Circuit Court. Access to the courts for asylum seekers is something that this bill is not taking away.
It is important to remember that this bill is not about how we process people in the future but how we process the current case load left behind by bad policy. I fear for what may happen to people currently seeking some form of security and I believe we need to give them a chance to contribute to society and finally have a chance to get on with their lives.
This has been an extremely difficult process for me. I agree with the remarks made by my colleague Senator Xenophon, who I know has been working extremely hard on this issue. There are many parts of this bill that I am not comfortable with. Whilst I have not had the opportunity to visit detention centres to hear their stories personally, I cannot ignore a joint letter written by refugees on Christmas Island. In that letter, they state that, if a TPV was the only option this government was going to offer, to accept it, because the mental anguish and pain cannot go on. It was a plea, a loud cry for help.
Tonight I have also spoken with people who have worked closely with detainees on Christmas Island. They told me that this bill is not completely fair, but that the detainees are tired. They told me that the detainees have had enough and that they want out. They are desperate. She told me that they have watched the news and they know it is down to one vote, and that vote is mine.
While I was speaking to these people and they were informing me, they started to break down and cry as they were speaking about children who have been in detention since they were born who are two years old. They speak about the word 'out'. To them 'out' means going to church on occasion, and that is it. When they hear the word 'out', they cannot begin to associate it with freedom.
They told the people in detention that they rang the office of the man whose decision it was to decide whether they would be out of detention before Christmas. That man wasn't the minister for immigration; it was me. It should not be like this but it is. The crossbench should not have been put in this position, but it has.
I feel that amendments suggested by my colleagues in the Palmer United Party and Senator Xenophon address some real humanitarian concerns and have the potential to give an opportunity to the current case load of 30,000 refugees. It is important that the Senate look closely at the amendments and vote in a manner which I honestly believe will be in the best interests of my fellow human beings.
I rise tonight with a heavy heart to speak on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I would like to respond, before I make my more formal prepared remarks, to what we have just heard—that extraordinary statement for the record of this parliament from Senator Muir.
Let us be very clear about what we just heard from Senator Muir: he has a choice between a bad option and a worse option. Let us remember who has put him in that position. A man has received a phone call tonight and he has put on the record that he is the man who is going to decide the fate of these tired and desperate people. Why are we in that situation? Because the cruel and heartless government that is running this country and the disgraceful minister, who history will show is presiding over the most appalling treatment of refugees in the history of this nation, have put our crossbench—these men and women who are elected to the parliament—in a position where they have to make a choice tonight on the fate of these desperate, tired people. They are making them make that decision tonight.
'It is not ideal,' said Senator Muir, and he is uncomfortable. Tonight in his discomfort and his weariness from carrying this burden in this parliament, in this not ideal situation, the government will smugly sit over there. They will smile and, if they are successful in getting this piece of legislation through, they will count it as a political victory.
But they will have ripped away good process in this place, in the genuine care that we should be able to apply to the people who need us tonight—the people who are on the end of that phone call to Senator Muir; the people who are tired; the people who are vulnerable; the people who are nearly broken by the experiences that are being inflicted on them by this minister, who has the capacity in his own right as a minister to do the things that he is dressing up as required by this legislation.
It is a litany of deception—one layer after another like some dirty, disgusting cake that they are concocting one layer at a time. It is disgraceful. What they are attempting to do tonight—let us be very clear—is a great shame. It is a stain on this nation.
This cruel government has put to Senator Muir—in language that he expressed on multiple occasions in his comments—'If this bill does not pass, the minister will not …' He said it at least three times that I heard. This is the language of threat and intimidation. This is not the language of a government that is in control, dignified and carefully considering the legislation that it brings before this place. This is a government of bullying and intimidation that is placing the crossbenchers in this untenable position this evening. The reason it is doing it is that tonight it thinks it has got the numbers. It did not have them yesterday and it might not have them tomorrow, and that is why there is this disgraceful, unedifying haste to shove this legislation through the parliament, because tonight it thinks it might have the numbers.
I say to Senator Muir and to the other senators who may be listening to my contribution—small as it might be in this great conversation we are having here tonight—that senators have found an option C with much of the other disgraceful legislation that the government have tried to bring to this parliament, and that option C is to send back dodgy legislation to the dodgy government and make them put in writing, carefully articulated, the things that they are promising on the horizon. The senators in this place know, from their interactions with the government, that they cannot trust a word the government say. So, for the vulnerable people whose plight was well explicated by Senator Muir in his contribution, for the children who want out, I urge the senators this evening—or tomorrow, as the case may be—to do what they have done wisely with other legislation: send it back to the dodgy government. Do not trust them, because they are not worthy of our trust.
As I have said, my heart is heavy with the weight of what this parliament is being asked to do in this piece of legislation. It is a very dense piece of legislation. There are seven detailed schedules, each of which makes very significant changes to the lives and opportunities of people who will share this nation with those of us who are lucky enough to be Australian citizens. Each schedule in itself is worthy of the careful consideration of this Senate, but that will not happen. The reason it will not happen is that this government does not want it to happen. This is a government that wants to govern in darkness. It does not want the light of scrutiny to come near the dodgy legislation that it is putting before us this evening. It is pushing the legislation through as if its very life depended on it—and in a way it does, because the deal that has been done to get this matter through tonight really is not about the seven schedules and the people they will impact; it is about a chaotic, deceptive government that is desperately trying to create some pseudo-impression that it is in control.
As the government grind to a halt at the end of the parliamentary sitting year—and let us not forget they have been in for more than a year—out of the chaos that they have generated in these last few hours they think they are going to grab a little moment of glory, of control. That is what this is about. It is not about the goodwill of people. It is not about the good intent of legislation to advantage human beings. This is about a government scratching for their own survival and the creation of an impression. They are a government in chaos, a government having to toss their legislation overboard, off the barnacled Abbott canoe—chuck it overboard one day and then reach over and fish it out the next day when the winds of change have shifted and they think they might have stitched together some sort of sordid or dodgy deal for a day. This is what is happening here tonight.
Today, not yesterday and perhaps not tomorrow, the government think they have got a chance to get their legislation over the line. Today, not yesterday and perhaps not tomorrow, they think they have got a deal with enough members of the crossbench to get a vote up and bring into being law that will forever change thousands of tomorrows for people it will affect. We see this unseemly haste and determination from the government to do whatever deal they need to—the heavy-handedness of Minister Morrison, the heavy intimidation that we have seen as people have been moving around the chamber, walking up and down the corridors, in and out of offices. Why have they been doing this? Because they know that they have no trust. The reason they have to do it today is to do with the currency of trust this government have with the people who work with them here in this parliament, as well as with the Australian people, who are watching this debate and are part of what we are doing here tonight. The government's word is of so little value that it cannot be connected to the promises of yesterday and it certainly should not be connected to the promises of tomorrow. That is why this legislation should not pass the Senate tonight, or indeed tomorrow. The senators should send it back to the drawing board.
This week we saw senators in this place yet again trying to pull the wool over the eyes of the Australian people. We have seen them do it in so many areas. Today, in question time, we had questions of the Minister for Defence, a minister who is presiding over such chaos that he lost two staff this week. Last week he lost a few canoes or something. Next week we all anticipate he might lose his ministry. He is in chaos.
He is up the creek. That is exactly right, Senator Polley. Despite a government talking about a budget emergency, despite a government offering our Defence personnel an effective pay cut this year, we had a minister today who was challenged about $6,300 worth of spending on a gastronomic feast.
We had Senator Abetz trying to justify here in the Senate today why the foreign minister needs her junior minister to hold her hand overseas next week. The Prime Minister's only woman in cabinet is not even allowed to do her own job by herself without a chaperone to accompany her to make sure that she does the right thing. It looks like it is a situation of 'father knows best'. It seems that the PM thinks he is the great patriarch of the party and he is going to tie everyone down; trying to limit and contain. And in his haste, along with his chief of staff, to contain this government, what we have is a government breaking out all over the place: a government in chaos—constantly in chaos.
Amongst this chaos and this confusion, we have this bill this evening. It is one of the most significant pieces of legislation that we are probably going to have to deal with since the election of this government—it is certainly one of the major pieces. And this eleventh-hour reprieve on the final day of sitting for the year is basically serving as an omnibus catch-all bill to try to clean up all the mess of this government's failure in immigration and in the border protection space.
Labor is not opposing this just for the sake of opposing. I notice that Senator Carr has returned to the chamber. His comments earlier this evening made very, very clear that there are parts of this bill that we agree with. There are parts of this bill that are sensible. But, then, there are the other parts—an ideological fight to the bottom where the Liberals are committed to putting their policy ahead of human policy. Much of this bill just serves as a legislative response to the actions of the judiciary. This should be of great concern to us: a government interfering with that process. Some of it is understandable, but other serious parts of this legislation fly in the face of the separation of powers. The attempt to pre-empt the work of the courts is again another revelation about the attitude of this government; a government that thinks it is bigger, better, braver and bolder than anything else, even the judiciary. That is what we are seeing pushed through here this evening. And that is why Senator Muir was so right to describe this as a choice between a bad option and a worse option.
The High Court is currently dealing with a case with strangely familiar elements to what we see presented here this evening in this bill. If we delve a little deeper we can see that, sadly, this is not a coincidence, because if it were passed through this parliament, this piece of legislation would render the precedent value of that case redundant. It is a case which is fundamentally about the Maritime Powers Act, and the very outcome of that case may well have an impact on the government's ability to conduct its turn-back policy and rip the backbone out of the government's immigration standpoint. It sets a dangerous precedent for governments and their relationship with the High Court, that should a case be heard that a government of the day disagrees with, they can subvert any hearings of the court with pre-emptive legislation. That is what is underway here: pre-emptive legislation to get ahead of the courts from a government that thinks it knows best.
Our view about the question of turning back asylum vessels is simply this: we are open to any measure which saves lives at sea, and we are completely committed to doing everything we can to end the human tragedy which has unfolded on our borders. That is why we took deliberate steps, including putting the PNG arrangement in place, which has done an enormous part of the work in seeing an end to the flow of asylum seeker vessels. We absolutely understand that that needs to happen in order to end the human tragedy, and we hope that we are in a place now where have seen the last of the deaths at sea.
We do have two anxieties in relation to the question of turning back asylum seeker vessels. The first is the impact that this policy, if established through this legislation, will have on our relationship with Indonesia. It becomes clearer and clearer every day that this government, in all its relationships, including those with our international friend just to the north, Indonesia, has a lack of respect for relationships. The second area of concern with regard to safety at sea is with regard to the expertise of the Navy. We have had advice from the Navy to this parliament about the question of safety at sea. But since the election of the Abbott government, information about this part of proceedings has been—if we are honest—very difficult to ascertain. We cannot get questions answered openly in this parliament on the circumstances of the conduct that is occurring on the high seas because the government has tried to hide that too from the Australian people and from this parliament. In its opaque governing, in its determination to do deals in the darkness—dirty deals done behind doors over and over—this government continues to hide very important operational matters from the public.
In closing, I would like to return to the responsibility that weighs heavily tonight on the hearts of those who are on the crossbench this evening. They have been pushed and pushed by the government on this day. First of all, the crossbench should not be put in such an intensely uncomfortable position. The difficulty of dealing with this complex piece of legislation and its long shadow across this nation, really requires that a more transparent, more open, more informed, more effective and less hasty response be developed. We have seen our crossbenchers work with Labor. We are clearly the ballast of this parliament in making sure that we hold true to a message of fairness for the Australian people. On the test of fairness, so much legislation has been rejected. We rejected the higher education bill this week because we knew it would lead to an unfair Australia, with two types of students—two classes of students—huge debt and a Commonwealth scholarships that has no Commonwealth money in it.
This legislation that we have had before us was rejected because senators could see that they simply could not trust the government. They sent it back to the drawing board and said, 'Let's get this cleaned up and let's lock down this dodgy group of people, who consider themselves the leaders of our nation at the moment, in language that they can't run from.' We know from the promises of the Prime Minister who said, 'No cuts to health, no cuts to education, no changes to the pension, no cuts to the ABC, no cuts to SBS,' that when they tell you they are not going to do something it is almost as if they have concocted a recipe for doing the exact opposite.
The words from this government with promises attached should not be trusted. They have no currency of trust. Everything they promised they have gone back on. I urge senators: if it is not locked down, described, written in triplicate and photocopied several times over do not trust the government with this heavy, heavy piece of legislation. Did not trust it yesterday. My bet is that tomorrow you probably will not trust them again. Do not trust them tonight on the one day that they think they have stitched together enough votes. This is too important an issue for us to have to deal with it in this short time frame, this disrespectful time frame, which reveals through process just how little respect this government has for the fair work of the parliament.
Australia's reputation across the world is being damaged. We are being viewed by the world as a country that locks up innocent and defensive children, subjecting them to jail-like conditions without hope, compassion or any sense of a future. The sad truth is that we are a country that locks up defenceless children who have been washed up in our waters, children who have been dragged onto boats as innocent victims by their parents or others at the hands of unscrupulous people smugglers.
Australia is locking up traumatised children who have lost their parents and have been forced to travel by sea in treacherous conditions on unsafe boats. In Australia we are currently keeping some 30,000 asylum seekers in detention on the mainland and on Christmas Island, 468 of whom are children. Of those children, 32 are unaccompanied children. Let us be very clear, Australia is currently keeping 32 children without parents in a detention centre on Christmas Island.
Over the last 12 months, processing of asylum seekers has come to a grinding halt. Human beings have been left to languish in detention in jail like conditions at the hands of the Australian government. Detention means that these people are either living in detention centres or living in Australia on bridging visas, unable to work and living in appalling conditions. I cannot be a part of this. Palmer United cannot be a part of this. Australia cannot continue to be part of this.
As a representative of the people of Queensland and more broadly Australia, as a father and as an Australian with a genuine desire to ensure Australia flourishes as a nation, I have to do something. I cannot look forward to Christmas while young children are in detention on Christmas Island suffering, lonely and without hope. We have to process the asylum seekers—the men, women and children—who are being kept in detention, as they desperately need to know what their future holds. We have got to get the 460 children out of detention and we have to start doing the right thing.
Palmer United has spoken to the government and put forward a solution. Our solution is not one of political pointscoring. It is one that ensures that Australia as a country meets our humanitarian obligations and treats people with respect, decency and offers authentic refugees real and genuine hope. I recognise that it is a difficult pill for the government to swallow to take on board Palmer United's proposal to redress the current asylum seeker crisis. I am grateful that the government has agreed to Palmer United's ideas to ease the asylum seeker crisis and, as a result, agreed to implement our solution through key amendments to this bill, which will significantly improve outcomes for asylum seekers and put Australia back on the right path. As a result, in response to Palmer United's demands, the government will put in place a fast-track processing system to process the existing group of asylum seekers awaiting decisions in relation to their future. Further, the government has agreed to ensure that the 1,500 asylum seekers who arrived in Australia illegally by boat between 19 July and 31 December 2013 will not be transferred to Nauru for processing but, instead, will be included in the group of asylum seekers to be processed through the fast-track system. This will ensure that the 460 children in detention on Christmas Island, including the 32 unaccompanied children, will be removed from Christmas Island by Christmas this year. In addition, the government has agreed to increase Australia's refugee and humanitarian intake by 7,500 over the next budget and forward estimates periods.
Importantly, the government has also agreed to introduce the concept of a Palmer United safe haven enterprise visa, commonly referred to now as a SHEV. As Australians, we all recognise the important socially, economically and culturally significant benefits that immigrants have brought to our country. As a young boy growing up in Queanbeyan, I grew up and went to school and my local primary and high school with kids from local Italian, Croatian and Greek families. These family settled in Australia showing incredible tenacity and entrepreneurial spirit by establishing small local businesses, building a life for themselves, providing immense benefit for their local communities and contributing to the overall cultural fabric of our great nation. These families worked hard and were tireless in their commitment to their communities and their family businesses. They worked long hours every day building their businesses. Some of them were builders, restaurateurs, painters and corner-store owners. Without the arrival of people from other countries we would not be the wonderful multicultural and diverse nation that we are today, excelling in so many fields and industries. This is why the Palmer United Party developed the concept of the SHEV, because we value the benefits that people from other countries bring to our nation. We would like to give genuine refugees the opportunity to build a life for themselves here in our great country while also contributing to the continuing growth of Australia. Australia should open its arms to the genuine refugees and give them the opportunity to be part of our nation through real and genuine integration that builds on the strength of our great country while also supporting them to build a life of their very own, entwined with our laws, values, culture and social norms.
I am pleased the government has agreed to the Palmer United's SHEV idea, which involves asylum seekers who have been deemed genuine refugees being offered the opportunity to apply for a safe haven enterprise visa. The Palmer United safe haven enterprise visa, which is a five-year visa, will provide the opportunity for genuine refugees and their families to be placed in rural and regional areas across Australia, where they will either work or study for a minimum of 3½ years of that five-year visa. Rural and regional Australia is on its knees. Famers need employees to undertake farm based duties, such as picking, sorting and packing, along with various other business and administration duties. Tourist operators in my home state of Queensland desperately need staff and are having to rely on a transient workforce of backpackers to work in restaurants, resorts and hotels, particularly in rural and remote areas. The Palmer United safe haven enterprise visa will complement this industry sector with people who are available and willing to work.
Australia's banana industry in Queensland is relying on backpackers to work on the banana plantations. Backpackers only work for up to six months at a time as their primary objective is to travel and experience our great country. Rural and regional farmers need to retrain staff on a constant basis. This is both stressful and inefficient for the farmers. While it is wonderful that young people from all over the world are opting to experience our great country, we also need to recognise that the needs of regional rural and regional Australia need to be given priority. In speaking with farmers, there is no doubt they would prefer to have available a more reliable and long-term base of employees. Farmers would prefer to employ Aussie kids, but, for one reason or another, many of the kids today want to move to the city—to the big smoke—to work and do not want to stay in their home country towns and rural centres. The Palmer United SHEV will support Australia's rural and regional communities by introducing into these communities genuine refugees who are keen to build a new life for themselves and their families in our great country. Genuine refugees will be placed across areas where there is support and the infrastructure to facilitate their integration into Australia and where there are jobs and opportunities for work, study and social integration.
Upon completion of the five-year Palmer United SHEV, and subject to meeting visa requirements, SHEV holders will be able to apply for a number of other onshore visas which could provide a pathway to permanent residency. These visas include a number of different opportunities, including study visas and work visas. The Palmer United safe haven enterprise visa provides a clear, genuine and honest pathway to permanent residency for authentic refugees who are prepared to work hard, contribute to the settlement and integration of themselves and their families into our great, generous and welcoming nation, build a future for themselves and contribute to the continuing growth of our wonderful country—just like many of our forefathers, uncles, aunties and other ancestors have done in the past and will continue to do into the future.
It is also important to note that the Palmer United SHEV will also provide access to: work rights and unrestricted study; employment services and mutual obligation arrangements; Medicare; income support; torture and trauma counselling; translating and interpreting services; complex case support; and education for school age d children. The Palmer United safe haven enterprise visa will encourage enterprise through earning and learning , while also strengthening regional Australia.
My dear friend and respected colleague Senator Wang is an example of how Australia can benefit from the wonderful talents and contributions of people from other countries. In 2003, Senator Wang arrived in Australia on a student visa to study urban planning and civil engineering at the University of Melbourne. Senator Wang was a diligent student , and , in 2006 , applied for and received permanent residency in Australia. In 2009, Senator Wang gained Australian citizenship. In 2013 — and again in 201 4— Senator Wang was voted into the Australian Senate to represent his wonderful state of Western Australia. Senator Wang is a shining example of what can be achieved when Australia embraces people from other countries.
In summary, I would like to quote a Japanese proverb: t he reputation of a thousand years may be determined by the conduct of one hour. In this Senate on this day, we have the opportunity to put right the disgraceful way our country has been treating asylum seekers who have suffered greatly at the hands of policy which has seen young children—unaccompanied young children—held in detention on Christmas Island. We have the chance to start to put right our reputation abroad—a reputation which has been tarnished by our treatment of desperate people purely seeking to escape from war-torn countries, famine, disease, evil extremists, torture, fascist regimes and heartless violence. We have the chance to work together to put in place legislation and mechanisms to give clarity to the futures of asylum seekers and to provide real opportunities and a clear pathway for genuine refugees seeking to contribute to our country and their own futures as members of our great nation. W e have the chance to create history which will re-determine our country's approach to human kind. I can not allow young children to be kept in detention. I cannot continue to be part of what is Australia's shame. I cannot allow our international reputation to be trashed any further. And , importantly and most critically, I cannot stand idly by and 22 allow my country — my thoroughly decent country of which I am so , so very proud — to continue to treat people in such a deplorable way. To stand idly by knowing that wrongs are happening without intervening is equal to being party to the wrongdoing.
On behalf of the Palmer United Party I would like to thank the government for relenting to our demands to ensure that Australia meets its international obligations. Specifically, I would like to thank the government for agreeing to Palmer United's demands to fast track consideration of asylum seekers, implementing the Palmer United safe haven enterprise visa, providing real and genuine pathway opportunities for refugees to build a life for themselves in Australia while contributing to the ongoing growth of our great nation, removing children from detention, and demonstrating that Australia is a nation of compassion, of humility, of generosity and a nation which acknowledges, values and appreciates the benefits of migration.
Palmer United has worked hard to develop the idea of the safe haven enterprise visa, and it is pleasing to be here today to see our idea implemented, as the Palmer United SHEV will help to build our great nation while helping to rebuild people's lives.
I recognise that the bill in its entirety is not perfect. I agree that there will be need to make improvements to the bill and these amendments over time. However, the key is ensuring that we get our country moving. We cannot keep people locked up any longer. We cannot keep children locked up any longer. We must do something. We cannot continue to argue about what we must do; we must do something and something that moves our country in the right direction. While people argue, while political parties engage in posturing, while people attempt to point score, human beings including children are being locked up in detention. The Palmer United solution gets people out of detention, gives people hope, gives people a genuine pathway for the future and starts to turn around our badly damaged reputation internationally. This is only the beginning. Once we have ensured the current group of asylum seekers are assisted and the children are removed from detention, we will then start to look at Manus Island and Nauru.
What I do need to let the people of Australia know is that I am personally disgusted by the way our country has treated asylum seekers. What is really concerning is that Australia has been treating asylum seekers this way for years, and I think all of us in this place should shoulder some of the blame. It is unacceptable that Australia has allowed so many asylum seekers—men, women and children—to be kept in detention in such poor conditions.
We cannot send people back to their own countries where they will face harm and persecution. We cannot simply dump them into our society without appropriate support and the opportunity to build a future for themselves so they can become taxpayers and fully participating members of our society. And we cannot lose sight of the fact that our own people need our focus, attention and support as well. We need to move forward, even if we move bit by bit, in the right direction, in the right way.
I would like to assure the people of Australia that I, along with my Palmer United colleague Senator Dio Wang am committed to removing the children in detention from Christmas Island before Christmas. We all should want children in detention to experience the joys of being a kid and experiencing a traditional Aussie Christmas filled with laughter, love and the excitement of opening presents.
I ostensibly rise to move Senator Hanson-Young's second reading amendment. My colleagues have done an excellent job of outlining the Australian Greens' deep concern to this legislation, so I move:
At the end of the motion, add:
but the Senate:
(a) is of the view that there is no impediment to the government processing the claims of the 30,000 asylum seekers who are currently languishing in community and immigration detention; and
(b) urges the government to:
(i) commence processing straight away; and
(ii) release all children from immigration detention immediately.
I rise to close the debate in relation to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I commence by thanking my fellow senators for contributing to this important debate and in particular thank the crossbenchers for the productive and constructive way in which they have approached and engaged with the government.
The measures in this bill provide the government with the necessary tools to tackle the backlog of illegal maritime arrivals, help combat the illegal and dangerous practices of people smuggling by sea and strengthen Australia's ongoing conduct of border security and maritime enforcement operations. The bill deserves the support of all parties. The government is upholding its election commitments to stop the boats and to resolve the legacy caseload, and through this bill these commitments will be met with integrity and with more efficient and effective outcomes for the Australian taxpayer. I commend the bill to the Senate.