Thursday, 25 June 2015
Migration Amendment (Regional Processing Arrangements) Bill 2015; In Committee
Before question time I raised some issues with Senator Brandis and during question time I gave Senator Brandis a list of questions. I understand that the government has had an opportunity to consider those matters. If that is correct and the minister does have answers, would it be possible to have those questions dealt with at this time?
I am happy to do that. I thank Senator Carr for his cooperation. Indeed, I thank the opposition for their cooperation in expediting the passage of this important bill. The way in which Senator Carr and I thought we might do this, if I can get through it in 15 minutes, is that I will read onto the record both the questions and the answers. So the questions come from Senator Carr and the answers come from the government.
Question 1: Can the minister confirm for the benefit of the Senate that this bill does not change or in any way expand the current situation in regional offshore processing?
Question 2: In relation to proposed new sections 198AHA(2)(a) and 198AHA(2)(c) can the minister clarify exactly what is meant by the phrases 'any action' and 'do anything else'?
Answer: The provision is intended to ensure that all aspects of the Commonwealth's actions in relation to regional processing arrangements are captured. In terms of arrangements with regional processing countries, the government has entered into MOUs with the governments of Nauru and PNG relating to the transfer to and assessment and settlement in these countries. The Commonwealth has also entered into administrative arrangements with Nauru and PNG. The administrative arrangements underpin the MOUs. The administrative arrangements set out, with some degree of particularity, the various arrangements in respect of expenditure and costs for the transfer process from Australia to regional processing centres, arrival in regional processing centres, arrangements at the regional processing centres themselves and refugee assessment processes et cetera. The intention of section 198AHA(2)(a) and 198AHA(2)(c), therefore, is to ensure that clear statutory authority is provided to cover the full gamut of the Commonwealth's conduct in connection with regional processing arrangements, and the actions which the regional processing centre countries themselves take in connection with their regional processing functions.
Question 3: In relation to proposed section 198AHA(5)(b), an action will include an 'action in a regional processing country or another country'. If the minister's previous answer is correct, and this bill makes no changes or expansions to offshore processing, why is the phrase 'or another country' in this clause?
Answer: The purpose of the provision is to ensure that clear statutory authority is provided in relation to all actions the Commonwealth takes in relation to regional processing arrangements in a regional processing country. The phrase contemplates that statutory authority is provided for any actions taken by the Commonwealth and its officers that happens not to take place in a regional processing country itself. For example, the Commonwealth entering into an arrangement with Transfield to provide services at the regional processing centres was conduct that occurred in Australia. The phrase is not intended to cover a situation where the Commonwealth enters into an arrangement with a country not designated as a regional processing country.
Question 4: Can I—that is me, Senator Brandis—as the minister, confirm the status of this bill with respect to the Cambodian arrangement?
Answer: The provision is not intended to provide any authority in respect of arrangements with third countries not designated as a regional processing country. It has no application to any arrangement with Cambodia.
Then there are a series of questions in relation to amendments circulated by Senator Leyonhjelm.
Question 5: Does this bill provide any legal immunity for any person acting on behalf of the Commonwealth for any breach of Australian or state or territory law?
Answer: The intention of the bill is to provide clear statutory authority for the Commonwealth and its officers acting within the ambit of their powers or duties to take certain action in relation to an arrangement with a regional processing country, or the regional processing functions of a country.
Question 6: Is the definition provided in section 198AHA(5) for regional processing functions a new definition, or does it replicate a definition used elsewhere in the legislation?
Answer: 'Regional processing functions' is a new definition.
Question 7: If new, how does the introduction of this definition interact with other provisions of the legislation?
Answer: This definition does not limit the initial process of designation provided for in the Migration Act—see section 198AC, or section 198AD—but the ongoing performance of the country's role as a regional processing country. The only condition for designating that country as a regional processing country is that the minister must think that it is in the national interest to do so. Therefore, once the minister has designated the country as a regional processing country, the definition will work to give effect to the ongoing performance of the country as a regional processing country.
Question 8: Assuming the definition is a new definition—and I have said in answer to question 6 that it is—given the definition provided in the amending legislation for regional processing function seems to hinge on the role of the country in the regional processing country, is the role defined elsewhere in the legislation? If not, how would this definition work practically in defining the scope of action contemplated in subsection 198AHA(1).
Answer: The role of the regional processing country is not defined elsewhere in the legislation. The definition will work practically, as it gives effect to the ongoing performance of the regional processing country. Any action undertaken by the Commonwealth can only occur when the minister has designated a country as a regional processing country, and the Commonwealth has entered into an arrangement regarding the functions of the regional processing country.
Those answers were provided, I should say, by the Minister for Immigration and Border Protection, Mr Dutton, and I seek leave to have them incorporated into Hansard.
The CHAIRMAN: You have just read them into Hansard. Maybe it would be better to table them.
I will be guided by you, Mr Chairman.
The CHAIRMAN: Thank you. They are tabled.
Before we broke before question time, I had spoken to amendments (1) and (7) on sheet 7738 in relation to stopping the detention of children in the Nauru detention centre, and children who were born here in Australian being transferred from Australia to Nauru. I seek leave to have those two amendments moved together.
The CHAIRMAN: The question is that Greens amendments (1) and (7) on sheet 7738 be agreed to.
by leave—I move Greens amendments (8) and (2) on sheet 7738 together:
(8) Page 4 (after line 5), at the end of the Bill (after proposed Schedule 2), add:
Schedule 3—Mandatory reporting of abuse
Migration Act 1958
1 After section 197BA
197BAA Mandatory reporting of reportable assaults
(1) If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:
(a) the alleged assault; and
(b) the grounds on which the person has formed the belief that the alleged assault occurred.
(2) A person commits an offence if:
(a) the person is required to make a notification under subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
(3) Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).
(4) In this section:
designated person means:
(a) an authorised officer; and
(b) a person appointed or employed by, or for the performance of services for:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority of the Commonwealth, a State or a Territory; and
(c) a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.
relevant authority means:
(a) in any case—the Department and the Australian Federal Police; and
(i) the victim of an alleged reportable assault is a child; and
(ii) the alleged assault occurs in a State or Territory;
a relevant authority of the State or Territory that has functions relating to child safety; and
(i) the victim of an alleged reportable assault is a child; and
(ii) the alleged assault occurs in a foreign country;
a police force of the foreign country.
reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:
(a) unlawful sexual contact;
(b) sexual harassment;
(c) unreasonable use of force;
(d) any other assault.
(2) Clause 2, page 2, at the end of the table, after proposed table item 3, add:
4. Schedule 3 Immediately after the commencement of Schedule 1 to the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Act 2015.
These amendments provide that child abuse and assault inside detention facilities, when it occurs, would have to be reported to the police—both the Federal Police and the local police at the location of the facility—and, of course, to the department. They are basic mandatory reporting requirements. They mean that, for any staff member engaged in these facilities or any person who is contracted by the Commonwealth or subcontracted by another contractor, if you work inside the facility and you see child abuse, you must report it.
You would think that this type of mandatory reporting would go without saying, but it does not. We know it does not because months and months of evidence has come forward to show that the exact opposite is occurring inside Nauru. Children are suffering at the hands of child abusers; women are being raped and sexually assaulted and harassed; yet there is both underreporting of these incidents internally and no independent reporting as a matter of course.
The culture of secrecy inside these detention camps provides for a lack of reporting to an independent authority. That is wrong. It should not be the case that staff and asylum seekers are intimidated into staying quiet. They are not prepared to put their hand up and say what is going on. It must be a requirement of people engaged by the Commonwealth to report when they see things happening that are wrong. There is nothing worse than seeing a child sexually abused and saying nothing about it. It is wrong.
This amendment puts the onus on the staff member, on those engaged at the centre, to report these incidents. If they do not, it is a fine of $10,000 and a criminal offence. Basic mandatory reporting requirements are expected and widely accepted across other institutions and agencies. It should not be a hard thing to introduce here. It should make sense. I would argue that everybody across all sides, regardless of your political stripes, would understand that mandatory reporting should happen. It does not now. This amendment will make sure it must occur and it will give staff, in particular, not just the signal that they must report it, but the encouragement that it is the right thing to do. They will be abiding by the law and ensuring that they report these awful and insidious incidents of abuse and sexual assault. They are the amendments, and they are pretty basic.
Senator Hanson-Young, once again may I remind you that you do not have a monopoly on virtue. Every member of this Senate, every member of this chamber, is as horrified—
Senator Hanson-Young interjecting—
The TEMPORARY CHAIRMAN: Order, colleagues, the minister is on his feet.
Senator Hanson-Young, would you mind not screaming. You have raised a very important issue, and I am explaining why the government will not be supporting your amendment. I would appreciate the courtesy of being listened to in silence. Senator Hanson-Young, every senator feels as strongly about the issue of child abuse as you do—every single senator. The reason the government is not supporting this amendment is that it has nothing to do with the bill. This bill is a functional bill that is merely declaratory of existing arrangements. The amendment that you have moved bears no relationship to the topic of the bill.
The Labor Party have asked a series of detailed questions about the purposes of this bill and the government's intentions in regard to the bill, and we have indicated to the chamber that we thank the government for their responses. As a consequence of the statements made in the second reading speech, and the answers to the questions that have been asked today, we are satisfied with the government's assurances in regard to the operations and purpose of this particular piece of legislation.
It is well known, though, that we do not condone the way in which Manus Island and Nauru detention facilities have operated during the time of this government. As we have indicated, we do not in any way endorse abuses of people detained by the Commonwealth of Australia, either in this country or offshore. This bill, however. is not about the government's management of the offshore processing facilities. While we acknowledge the importance of what Senator Sarah Hanson-Young has said in terms of the issues themselves, this is not the time to prosecute those particular arguments.
I want to make this point clear to Senator Hanson-Young. We are prepared to consider carefully and with some sympathy the issues that you raised in regard to the maintaining good order bill. We appreciate the spirit in which you have raised these matters, but we will not be supporting these measures in the consideration of this bill. We have made undertakings that we will support this bill unamended. I am satisfied that the assurance the government have given us meet our concerns, and that goes for other amendments that are being proposed today. I will not feel the need to repeat this proposition on every occasion. I indicate to the chamber that it is the opposition's position that we will not be voting for any amendments.
Senator Marshall, I made clear the government's abhorrence which is shared, as I said, by all members of this chamber. In relation to the mandatory reporting issue, that is something I would have to consult my colleague the Minister for Immigration and Border Protection about.
Senator Marshall, I am not going to be offering observations about legal propositions, and what you have asked me, which strictly speaking is against standing orders, is to offer an opinion about the law. I have been asked to manage this particular bill, which, as I explained to Senator Hanson-Young, has no bearing on the issue of mandatory reporting of child abuse.
I understand what the minister says in that respect, but, given the historical nature of child abuse that we have seen throughout our own history in Australia in many areas, there is the fact that, if mandatory reporting had been available to us during those times, I do not think we would be confronting some of the enormous upheavals that we are seeing in our institutions at the moment. Given that this is an area where there have been many, many allegations made and given some of the difficulties and some of the secrecy that surrounds some of the activities in detention centres, why is the government reluctant to include mandatory detention in this bill and, if not in this bill, some other bill?
Senator Marshall, as I explained to Senator Hanson-Young, this bill has nothing to do with the issue of whether there should be an arrangement for mandatory reporting of child abuse. It has absolutely no bearing on the bill. The bill is a declaratory bill in relation to existing functional arrangements.
The difficulty I see with this is that you are asking the Senate to vote against a proposition that there should be mandatory reporting of child abuse. I see it that these children are in our care. In fact, I think everybody in a detention centre is vulnerable, but children are even more vulnerable. Again, given some of the historic problems that we have raised—covering things up and making it difficult for people to feel that they can report some of these things—and given the nature of the secrecy that surrounds these detention centres—why doesn't the government think that it is appropriate that, at the first opportunity, regardless of what you say about whether this is the appropriate bill or not, this bill could include those provisions. Why isn't the government moving to ensure that there should be mandatory reporting of child abuse?
Senator, as you rightly say and as, in fact, your relevant shadow minister, Senator Carr, who has the opposition management of the bill, has indicated, we are of the view—which we understand we share with the Australian Labor Party—that this bill is not the appropriate vehicle to deal with that matter. In relation to the government's policy intention, that is a matter for the minister to say.
Minister, you are here representing the government. Why can't you give an undertaking on behalf of the government that you will move to legislate, in whatever is the appropriate bill, the mandatory reporting of child abuse in detention centres?
Senator Marshall, you have me at a disadvantage because I am here not representing the minister; I am here only to manage this bill, which bears no relationship with the issue that you have raised. However, out of courtesy to you, Senator Marshall, I will raise the question with the minister.
Minister, is it possible to get someone who could actually speak on behalf of the government in relation to this matter?
Senator Marshall, we are very close to being not relevant to the question before the chair. This bill has no relationship to the issue of the arrangements for mandatory reporting of child abuse. Senator Marshall, you may ask me about that policy matter, but all I would be able to do is convey to you my assurance, which I have already given, that I will raise the matter with the minister, whom I do not represent in this chamber.
Part of the question before the chair is that amendment (2) be agreed to. Amendment (2) clearly goes to mandatory reporting of child abuse. In some of your remarks you rightly said that every senator in this place would abhor the abuse of children. You said that on your own behalf too. If that is the case and if these are not just mere words, why cannot the government do something about it to ensure that there is mandatory reporting, so that we say more than words and actually do things, and do things by legislation, to ensure that there is mandatory reporting of these atrocities?
Senator Marshall, you have asked me that question several times now and I have indicated that I am not in a position, for reasons you will well understand, to announce policy decisions on behalf of a minister whom I do not represent.
by leave—I move Greens amendments (3) and (5) together:
(3) Schedule 1, page 3 (before line 4), before item 1, insert:
1A Subsection 198AB(2)
Repeal the subsection, substitute:
(2) The only conditions for the exercise of the power under subsection (1) are:
(a) that the Minister thinks that it is in the national interest to designate the country to be a regional processing country; and
(b) that subsection (4A) has been complied with.
1B After subsection 198AB(4)
(4A) The Minister must not designate a country to be a regional processing country unless the country has given Australia assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD:
(a) the Australian Human Rights Commission;
(b) the Commonwealth Ombudsman;
(c) journalists (within the meaning of the Evidence Act 1995).
(4B) The assurances referred to in subsection (4A) need not be legally binding.
Note: However, the Minister must revoke a designation if the country does not comply with those assurances, see subsection (5A).
1C After subsection 198AB(5)
(a) the Minister designates a country under subsection (1); and
(b) the country has given written assurances under subsection (4A); and
(c) the Minister becomes aware that the country has not complied, or is not complying, with those assurances;
the Minister must revoke the designation.
(5) Schedule 1, page 4 (after line 5), at the end of the Schedule, add:
2 Application—written assurances relating to access
The amendments made to the Migration Act 1958 by items 1A, 1B and 1C apply in relation to the designation of a country as a regional processing centre on or after the day on which this Act receives the Royal Assent.
3 Application and transitional—regional processing countries designated before Royal Assent
(1) This item applies if the Minister designated a country to be a regional processing country under subsection 198AB(1) of the Migration Act 1958 before the day on which this Act receives the Royal Assent.
(2) As soon as practicable, but no later than 3 months after the day on which this Act receives the Royal Assent, the Minister must revoke the designation unless the country has given assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD of that Act:
(a) the Australian Human Rights Commission;
(b) the Commonwealth Ombudsman;
(c) journalists (within the meaning of the Evidence Act 1995).
(3) If the assurances under subitem (2) are given, subsection 198AB(5A) of the Migration Act 1958, as amended by this Schedule, applies in relation to the designation on and after the day the assurances are received, as if the designation were made under section 198AB of that Act as amended by this Act.
These amendments go to the issue of access to the detention facilities. This bill is retrospective in nature. It allows for the funding of billions of dollars to run the Manus Island and Nauru detention centres and, of course, retrospectively allows for the government to detain individuals in these facilities. With the Australian taxpayer spending billions of dollars on contracts to private operators to run these facilities, we want to make sure that these facilities are actually being run properly, that they are being run humanely, in a decent way, with people being treated with dignity and respect, that the money being spent is worth it and that the facilities are, indeed, up to scratch.
If we are going to spend billions of dollars in running these facilities, you would want to make sure they are being run properly. All of the evidence that has come from the Moss review, the Human Rights Commission previously and, of course, the parliament's own Senate inquiry into the Nauru detention centre indicates that they are not being run properly. We have no idea what is going on inside except for when whistleblowers speak out or, indeed, things get so bad that the information leaks. It would be prudent for any government that wants to run these facilities and spend billions of dollars doing it, that they in fact have some element of transparency and that there is independent oversight of what goes on in these places.
These amendments allow for media access to these facilities, access for the Human Rights Commission and access by the Commonwealth Ombudsman. Both the Human Rights Commission and the Commonwealth Ombudsman have access to Australian based detention centres, and those on Christmas Island. This set of amendments gives those two bodies access to any other facility in relation to the offshore network. That, of course, means those on Manus Island and Nauru.
The element of allowing journalists to access these facilities is absolutely important. There is a reason that this government has kept journalists out. It is because the things that are going on inside are horrendous. The reason there is a media blackout on detention centres is that if the public knew how terrible things were inside and how awful it is for the children in there, the government knows that the Australian people would not accept it. Yet we have the Abbott government saying they are all big supporters of free speech and that they have nothing to hide. Well, if you have nothing to hide, open the gates and let the media in. Open the gates and allow the Human Rights Commission to investigate and inquire. Allow the Commonwealth Ombudsman the oversight of the cases in relation to these facilities.
This amendment specifically says that if we are going to spend billions of dollars of Australian taxpayers money we have to make sure we know what is going on inside. I look forward to hearing why the Labor Party and the government are prepared to keep the public in the dark, keep the gates locked and keep the independent watchdogs out.
Without accepting any of the rhetorical flourish, Senator Hanson-Young, there is a reason and it is a very simple reason. It is really a point I ought to have made in relation to your earlier amendments, as well, because it applies to all of your amendments. The regional processing centres are run by the regional processing countries. The Australian Parliament cannot make laws for the Republic of Nauru and the Australian Parliament cannot make laws for Papua New Guinea. We cannot legislate for what goes on in another country.
Just to clarify, we are being asked in this place today to rush through legislation to approve the spending of Australian taxpayers money to fund these places. What this amendment says is that we will only fund these places if we allow the watchdogs in—if we allow media access in. It is absolutely within the responsibilities of this parliament to make sure we know where money is being spent, how it is being spent and how the people are being treated with the money that is being paid.
Even if your point were right—and I do not accept it—there is no way in which it is possible for the Australian Parliament to pass a law that operates in a foreign country.
The TEMPORARY CHAIRMAN: The question is that amendments (3) and (5) on sheet 7738 moved by Senator Hanson-Young be agreed to.
by leave—I move Greens amendments (4) and (6) on sheet 7738 together:
(4) Schedule 1, page 3 (after line 19), after subsection 198AHA(2), insert:
(2A) Despite subsection (2), the Commonwealth must not:
(a) take, or cause to be taken, any action; or
(b) make any payment, or cause any payment to be made; or
(c) do anything else that is incidental or conducive to the taking of such action or the making of such a payment;
to the extent that the action, payment or anything else will result in, or enable, the restraint over the liberty of an individual for longer than 3months.
(6) Schedule 1, page 4 (after line 5), at the end of the Schedule, add (after proposed item 3):
4 Application—detention beyond 3 months
Subsection 198AHA(2) of the Migration Act 1958, as amended by this Act, applies in relation to an action, payment or anything else that is done by the Commonwealth on or after the day on which this Act receives the Royal Assent.
These amendments go to putting a three-month time limit on the detention of individuals inside our offshore detention centres. We keep being told that these facilities are processing centres—that they are for the purpose of processing people's claims for asylum, whether they are in Nauru or whether they are in Papua New Guinea. Billions of dollars are being spent detaining individuals for months and years on end, without any real progress on processing their applications for protection. It is time we stopped wasting that amount of money detaining all of these individuals for such long periods of time. We sent a signal to the bureaucrats that there must be a time frame that the processing needs to happen by.
We know that it is long-term detention and the indefinite nature of detention that is the most damaging to people's mental health while they are detained in these facilities. The facilities are harsh—the United Nations Committee Against Torture has described them as akin to inhumane and torturous conditions. Amnesty International has also described the facilities as akin to torture. And yet, we keep people locked up indefinitely for months and months and years and years on end.
It is a waste of Australian taxpayer money. It is a waste of people's lives. Keeping people indefinitely incarcerated is ruining our international reputation. It should be possible to process their claims much faster than this. If claimants are found to be refugees, we will resettle them. If they are not found to be refugees, we will send them home. We must get them out of this hellhole and this awful limbo that they are currently stuck in.
To be honest, I would be more than happy to negotiate and talk about what length of time would be most appropriate. I have gone with three months, because the previous decisions and recommendations from committee after committee in this place, and in joint committees, have settled on 90 days—three months—as the appropriate length of time to get through applications. I think it could be done much faster than that. Perhaps the government or the Labor Party thinks that it could be a bit longer, but we have to have some limit.
The indefinite incarceration of any individual is wrong. Just because they have sought asylum and protection does not mean they deserve to be indefinitely incarcerated and locked up. The bill before us today, brought into the House last night and rushed through to this place, gives the government the authority to remove people's liberty no matter what. I do not think that is good enough. I think there should be a limit on how long people are detained for.
There should be a limit on how much money the Australian government is allowed to spend detaining an individual. Currently, it costs half a million dollars per year per person detained in Nauru. It costs $500,000 per person—man, woman or child—detained for a year in Nauru. That is what the government's own budget papers show—half a million to keep somebody locked up for 12 months on Nauru. It is a waste of money. It does not need to be that expensive. It does not need to be for 12 months. Of course, we know that the hundreds of people detained on Nauru and the hundreds more detained on Manus Island have been in detention for over two years—$1 million per person to keep these people locked up indefinitely. There is currently no end point.
We have to put some restrictions and limits on how far we are prepared to push people's humanity. These people deserve some hope. The worst part about mandatory detention, particularly in offshore facilities, is the indefinite nature and the lack of hope. That is why people turn to self-harm. That is why the attempted suicide rates in detention centres at the moment are higher than they have ever been before. That is why we have children witnessing for themselves and then acting out self-harm. That is why we see dozens and dozens of antidepressant pills handed out every morning, every afternoon and every night in the Manus Island and Nauru detention centres. People have gone mad. These places drive people crazy. The lack of hope kills their souls. Let us put some limits on how long these people have to live in these places without any hope. Process their claims. If they are not refugees, send them home; if they are, get on with it. Stop killing them slowly. I look forward to the amendments being debated.
The government does not support these amendments, essentially for the reason I explained before—they are a complete legal nonsense. Australia does not detain anyone on Manus Island or Nauru. The governments of those nations detain those people in their own centres conducted by them. Senator Hanson-Young, the management of a regional processing centre on Nauru or Papua New Guinea is entirely a matter for the government of Nauru and the government Papua New Guinea. We cannot legislate for the way in which they manage regional processing centres.
I move amendment (1) on sheet 7740 standing in my name:
(1) Schedule 1, page 3 (lines 20 to 22), omit subsection 198AHA(3), substitute:
(3A) To avoid doubt, subsection (2):
(a) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action; and
(b) does not authorise or empower an individual acting on behalf of the Commonwealth to take, or cause to be taken, any action outside Australia that, if the action was taken in Australia, would contravene a law of the Commonwealth, a State or a Territory.
[limitation to lawful action]
Last year the government hastily drafted a national security bill which Labor supported. The bill provided an immunity to officers involved in special intelligence operations. I pointed out that the immunity would apply even if the officers engaged in torture. The government said it had no intention of authorising torture, but it nonetheless eventually amended the national security bill so that the immunity did not cover torture. This year, the government has hastily drafted an immigration bill which Labor supports. The bill states that the Commonwealth may 'take, or cause to be taken, any action' in relation to a regional processing arrangement or the regional processing functions of a country. The bill fails to rule out action that would contravene a law of the Commonwealth, a state or a territory if the action were done in Australia. The government may have no intention for this bill to authorise action that would constitute an offence here, but the stated intentions of the current government and the law of the land are two different things. So my amendment, I propose, would ensure that the bill does not authorise action that would contravene Australian law if the action were done in Australia. The amendment is modest. It has no effect on the law of the land as it exists here and now; it only affects the new section to be enacted by the law, proposed section 198AHA. My amendment states that the new section:
… does not authorise or empower an individual … to take … any action outside Australia that, if the action was taken in Australia, would contravene a law …
I acknowledge that the actions authorised by the bill must be actions in relation to a regional processing arrangement or regional processing functions, but this does not limit authorised actions to actions that would be legal in Australia. A regional processing arrangement is simply defined as:
… an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
All that is said about regional processing functions is that they include:
… the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
My amendment I consider to be necessary and prudent, and I seek the support of the minister and my colleagues.
Senator Leyonhjelm, I can give you my assurance that your amendment is entirely unnecessary. The arrangements for regional processing centres provided for by the Migration Act are subject to that act. No law can authorise what is, independently of that law, still an illegality under Australian law. There can be an exemption from liability, which was the special operation provision that we discussed in this chamber last year, but that is not this case. This case merely clarifies that existing powers have sufficient amplitude, but the existing powers must always be exercised lawfully. So your amendment, Senator Leyonhjelm, is unnecessary. I understand and appreciate the spirit in which you move it but, for the reason I have explained, the government will not be supporting it.
I point out that the opposition accepts the assurance of the government that this amendment is unnecessary. I was particularly concerned about the issue that had been raised in terms of this amendment, and that is why I asked a direct question of the government:
Does this bill provide any legal immunity for any person acting on behalf of the Commonwealth for any breach of Australian or state or territory law?
The government has advised:
The intention of the bill is to provide clear statutory authority for the Commonwealth and its officers acting within the ambit of their powers or duties …
This is the operative point here: within their powers and duties. So this measure does not in any way provide a legal immunity for breaches of the law of this country. I might also point out that, in regard to the laws of another country, we do not have jurisdiction. There have been concerns regarding the behaviour of some staff working in the offshore processing facility, and these are matters that are currently the subject of another Senate inquiry and will be reported back to this chamber for consideration. But it will not change the substance of these measures before us today, and the opposition will not be supporting this amendment.
The Australian Greens support this amendment. While it seems quite straightforward to suggest that people should not be breaking the law, the fact is that the government's bill is so broad. We have seen the government today vote down requirements to report child abuse. We have seen the government vote down the ability of watchdogs to access the facility. We have seen the government vote down media access to these facilities. We have seen the government vote down the limits on detention. We know that there is abuse going on inside Nauru. We know that people were illegally beaten to death in Manus Island. Staff members did that. People employed on the taxpayer purse have done those things. People should not be breaking the law when they are employed or subcontracted by the Australian Commonwealth. Of course they should not. But they are, and this amendment simply says very clearly that if you are engaged in these operations offshore you must act within the law of Australia. I think it is a pertinent and important amendment, and the Australia Greens support it wholeheartedly.
I do support this amendment. I think that it goes beyond simply the spirit in which it has been put, in terms of the minister describing it. This is a good amendment because it puts beyond any doubt whatsoever what would happen if any individual acting on behalf of the Commonwealth takes any action, even if it occurs outside Australia, that would contravene a law of the Commonwealth, a state or a territory. Jurisdictionally, it puts beyond doubt that, if there is no reach, that conduct should not breach what would ordinarily be the laws of Australia. The minister says it is unnecessary. There is an argument that this particular bill is unnecessary insofar as the Commonwealth is confident that it would win the High Court case. The government is taking, I think—for want of a better word—a belt and braces approach to absolutely guarantee that there is no ambiguity and no doubt in terms of the government's approach to the payment of offshore processing centres.
What Senator Leyonhjelm is doing that the government is rejecting is effectively the same belt and braces approach, saying, 'Let us make sure that there can be no illegality and that we do not countenance, in terms of the funding of these centres, any illegality,' notwithstanding that it may be lawful, for instance, in another country. So I think that this is a belt and braces amendment that is very worthy, and I congratulate Senator Leyonhjelm for moving this. It puts beyond doubt, in the same way that the government is intending to put beyond doubt, the funding of these offshore processing centres. That is my position in respect of this.
If I can go back, with your indulgence, Mr Acting Chair, I asked questions of the Attorney earlier in the debate, about five or six hours ago, in terms of the issue of legal costs because it is something I have raised with the minister's office. I appreciate how busy Minister Dutton's office has been in respect of this, and maybe they contacted us and I did not know about it. It seems that the goalposts have been shifted. I understand why. It is to remove any ambiguity. But insofar as legal costs have been incurred and insofar as those parties that have instituted this challenge could now be subject to quite significant cost orders against them, what is the attitude of the Commonwealth in respect of that? Will they now be pursuing, with the inevitable defeat of any action, those parties that have issued proceedings to date, which now, it seems, will have absolutely no chance of succeeding in the High Court once this bill is passed?
Senator Xenophon, I follow your argument that Senator Leyonhjelm's amendment is out of abundant caution. But, Senator Xenophon, it is entirely unnecessary. There is all the difference in the world between a provision in a statute that creates an immunity and a provision in a statute that confers or, as in this case, declares a power. The bill that we are debating is a bill that declares a power. It does not create immunity. Immunity provisions are read down very narrowly by courts so that if the government wished to create an immunity it would be necessary to do so in clear and explicit terms. The fact that there is no immunity provision created here, because to do so effectively it would be necessary to express it in clear and explicit terms, is really the answer to your concern and to Senator Leyonhjelm's concern.
In relation to the question of costs, Senator Xenophon, I think we are getting ahead of ourselves. We do not know how the High Court will resolve the proceedings before it. We do not know, in the event that the Commonwealth were to be successful, on what ground the Commonwealth would succeed. Whether that success would depend upon this bill or depend upon the pre-existing state of the law we just do not know. So it is not appropriate for me to, and I am not in a position to, give you any assurances in relation to the question of costs if the Commonwealth is successful.
If I can go to the latter matter first, the whole reason for this piece of legislation is to put beyond doubt the legality of the funding arrangements for offshore processing, and, in terms of what Senator Hanson-Young said, it has been rushed through, and I understand it. I supported it being dealt with expeditiously because of the concerns of the Commonwealth. I understand that. But insofar as it now appears on the plain reading of this legislation that the challenge to the bill, in terms of the point that has been taken in the High Court decision in Williams, I would have thought that it is pretty much a lay-down misere that there will be cost consequences against those parties that have brought this action.
In terms of some intrinsic fairness, does the government acknowledge that the parameters of such a case have been shifted as a result of this piece of legislation? And will the government at least acknowledge that it will take that into account in terms of seeking, at the very least, cost orders against those parties who issued proceedings at a certain point in time when the law was as it was, but it now will be changed in a way that will make it fairly clear that such a challenge could well be futile as a result of this piece of legislation?
Senator Xenophon, you are a braver man than I am—or perhaps a more reckless one—to say that any proceeding in the High Court of Australia is a lay-down misere. It is the case that the Commonwealth believes that, under the pre-existing law, it is on strong legal grounds. It is also the view of the Commonwealth that this legislation will strengthen and further undergird the Commonwealth's legal position. But I really do not have anything more to say to you about the cost issue than I have already said in answer to your previous question.
My colleagues have unkindly said I am reckless, and that is probably right. In respect of that, will there be some transparency in terms of whatever the outcome of this case will be? Presumably the Commonwealth's chances of succeeding will be greater as a result of this legislation, but we will leave that to one side. Will there be some transparency in terms of whether recovery of costs will be sought against those parties? Is that something that as a matter of course we would get to know about, for instance, through the Senate's question time, questions on notice or indeed the estimates process?
Where the Commonwealth is a party to a litigation, like any litigant, ordinarily costs follow the event. In the event that the Commonwealth were to be successful, ordinarily it would seek to recover its costs from the other party. There are exceptions to that: where a party is litigating to test a public interest issue, there are sometimes exceptions. This is not one of them. Of course you can ask at the appropriate time, whether through estimates or by question on notice or without notice but, for the reasons I explained before, I am not in a position to commit the Commonwealth to a position other than the normal position, nor would it be appropriate for me to do so.
Bill agreed to.
Bill reported without amendments; report adopted.