Senate debates

Monday, 23 November 2015


Migration and Maritime Powers Amendment Bill (No. 1) 2015; Second Reading

11:25 am

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | | Hansard source

I would like to say a few words about the Migration and Maritime Powers Amendment Bill (No. 1) 2015. Labor supports this bill which amends two pieces of legislation passed last year that came into effect in December. The first is the Migration Amendment (Character and General Visa Cancellation ) Act 2014, which essentially strengthened the character test and gave the minister greater discretion in removing noncitizens who had committed crimes and could put the community at risk. We supported that legislation and all but one of the amendments in the present bill, which were mostly of a technical nature, relating to it. Therefore we support the bill before us now.

The bill provides consistency in the treatment of deportees who, for whatever reason, have to return to Australia. At present, if a destination country refuses to accept a deportee, that person is lawfully able to return without a visa and, legally, it would be as though the deportee had never left. If a deportee's journey is disrupted for some other reason—such as an unforeseen incident in transit—that person could not return without a visa. This bill removes that anomaly and therefore all returning deportees will have the same legal standing.

The bill also provides for greater consistency in the application of the character test, including requirements for information applicants must provide. Under the original legislation, information had to be supplied upfront. This bill extends that requirement to applications made on behalf of others. That is most likely to happen when the applicant is a minor. In this regard Labor is pleased that the government accepted the Senate committee's recommendation that the explanatory memorandum be amended and that the amendments clarify the operations of the legislation with respect to minors and people with cognitive impairment. The amendment will also explain retrospective provisions in the legislation. These changes remove what would otherwise have been obstacles to Labor supporting the bill.

This bill also amends the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. That legislation had many schedules—one of which had the intent to ensure that Australian vessels act lawfully when they intercept other vessels on the high seas. That schedule is the only remedial provision amended by the bill now before us. This bill provides that any exercise of maritime powers, such as the interception of a vessel at sea, is lawful provided it complies with Australia's international obligation. The relevant international obligations in these matters will also be those set out in the United Nations Convention on the Law of the Sea. This provision of the bill also applies to an Australian vessel passing through the territorial waters of another country. This obviously relates to the government's policy of turning around boats carrying asylum seekers from Java to Christmas Island.

When this bill was being debated in the other place, the member for Corio noted that Labor does not want boats to set out on that journey again. The loss of life over many years was a tragedy, and there is nothing compassionate about standing by while people's lives are lost at sea. The most significant measure to dissuade people from embarking on that dangerous journey was the regional settlement agreement that the Rudd government negotiated with Papua New Guinea and Nauru. Because of the role that that agreement has played in ending deaths at sea, Labor continues to support it. We do not however support the way the government has managed the offshore processing of asylum seekers. There has been a lack of transparency, which has destroyed confidence that the rights of asylum seekers are in fact being respected.

Labor is deeply concerned about the decisions the government has taken with regard to the management of the facilities on Manus Island and Nauru. For too long the medical facilities on Manus were inadequate, leading to the death of Hamid Kehazaei from what should have been a preventable condition. Worst of all, the government delayed completing the construction of the facility on Nauru so that people had to live in tents for much longer than was necessary. Now, the facility is said to be an open centre, but it is unconscionable that the government force people to live in worse conditions than they otherwise could have done. The government must negotiate with the PNG and the Nauru governments to establish independent oversight of the facilities as soon as possible.

I repeat the call made in the other place by the member for Corio that the government must provide an answer to a fundamental question: what is to be the fate of the 2,000 people on Nauru and Manus? A Labor government would not allow these people to be cast into the limbo of the detention centres indefinitely. Yet this is what the current government seems to be willing to do.

In July, Labor committed itself to a series of measures that would allow Australia to re-engage with the international humanitarian efforts on behalf of asylum seeks. Under a Labor government Australia would double its humanitarian intake and would substantially increase its funding to the UN High Commissioner for Refugees. I say these things are important, and it is important that Labor make its position clear on them. We are willing to act in a bipartisan spirit on asylum seeker issues when it is possible to do so without violating the principles that must be upheld, and that is why we support the bill now before the Senate. It remains a matter of deep regret, however, that the government chooses to act on human rights issues in a manner which is inconsistent with the spirit of bipartisanship.

11:32 am

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

I rise today to speak to this bill, the Migration Maritime Powers Amendment Bill (No. 1) 2015. This bill, of course, has been through the regular Senate inquiry process. I think it is important to note at this stage that out of the seven submissions received by the committee inquiring into this bill all but one of those submissions were disfavourable towards this piece of legislation. The only submission saying that this bill should pass was—surprise, surprise—the submission from the government itself and the Department of Immigration and Border Protection. We are becoming quite used to the department ticking off on their own pieces of draconian legislation.

There is a number of aspects to this bill that the Australia Greens are concerned with. Firstly, the provisions that deal with giving the minister more powers to automatically cancel visas on character grounds. I find it somewhat extraordinary that we are here today debating a piece of legislation that will give Minister Dutton more say to cancel peoples' visas—because it has worked out so well so far. We have our detention facilities, particularly the centre on Christmas Island, almost full to the brim with people who have automatically had their visas cancelled. We know the problems that that has caused only in the last couple of weeks.

Of course, even the New Zealand Prime Minister himself, John Key, was forced to raise this automatic cancellation issue with the Prime Minister, Malcolm Turnbull, on his first visit to New Zealand only last month. Here we have a piece of legislation that is going to give the minister more powers to deny people appeal rights in relation to the cancellation of their visas. The extraordinary aspect of this is that it will give the minister additional power to set aside decisions made by the Administrative Appeals Tribunal. I do not see many people spruiking that Minister Dutton of all people should be given the power to determine anything, let alone in a situation where it has become already so delicate in terms of our diplomatic relations—particularly with our cousins over the ditch.

Furthermore, this piece of legislation also has some concerning elements in relation to the impact on children or mentally ill people, who may not be aware that they could not make repeat applications for protection visas and therefore impacting on them significantly. We raised concerns about this provision last year and we are raising it again today. It is incredibly unfair and short-sighted to see that a child, or a mentally ill person, is going to be significantly disadvantaged because of these new provisions.

The other concerning element, which is somewhat different but nonetheless still important, is schedule 4 of the bill, which includes provisions in relation to the breach of international law and undermines Australia's relationships with other states in relation to purporting the authorisation of the turn back of boats in other countries' waters. We already know that the Prime Minister, Malcolm Turnbull, had an uncomfortable conversation with one aspect of this bill when he visited New Zealand. We also know that only a week or two ago he had another uncomfortable conversation with the government in Indonesia, specifically in relation to turning back boats. But it seems that while our Prime Minister is globe trotting there is one set of concerns, but back in the nation's parliament we have been asked to tick and flick legislation which undermines those relationships and the very real concerns of our regional neighbours.

I want to spend some time talking about the amendments which I have circulated in this place in relation to this legislation because I think they are extremely important. We know from time to time, when pieces of migration legislation come up in this place, the government do everything they can to push them through as quickly as possible with very little debate of the impact on the people involved. We saw at this exact time last year a piece of legislation which forced people who were found to be in legitimate need of protection, were found to be refugees, forced onto temporary protection visas. Part of that legislation included deals with a number of the crossbench members in this place in order to have that legislation passed. Part of that deal, may I remind the chamber, was in exchange for releasing children from detention. It seems somewhat saddening to be standing here 12 months later having to move an amendment to this piece of legislation to ensure children are released from immigration detention.

My first amendment will be to ensure that all children here in Australia will be released from detention by Christmas. A number of members of the community have asked me, 'Wasn't that what was supposed to happen 12 months ago?' Yes, indeed it was, but it did not occur. We still have over 100 children locked up in immigration detention here on Australian soil and it is a national shame that we have a government which has sat by and allow those children to deteriorate mentally, physically, emotionally, socially and developmentally over the last 12 months by keeping them locked up as prisoners. We are talking about children as young as just a couple of months old, right through to children of primary-school and high-school ages. No child deserves to be incarcerated through no fault of their own but simply as a consequence of where they were born and the terrors and the torments which they and their parents have had to flee, seeking protection and safety in a country like Australia. All these children have been given in return thus far is to be forgotten, to be locked up and, effectively, for the key to be thrown away. We have an opportunity today to pass an amendment to this bill that would ensure the release of children from detention and would ensure that they can be housed safely in the community, where they can be looked after with their families and where their asylum claims can be assessed fairly and efficiently.

My second amendment to this legislation is one I have spoken of before in this place but I think it is absolutely fundamental. It is about ensuring that there is mandatory reporting of child abuse when it happens inside detention facilities. It is unthinkable, unfathomable, that we have a situation where doctors and nurses can be jailed for two years for reporting crimes in detention; meanwhile, there is no legal requirement for people who work in these facilities to report abuse, harm or violence. We know we need this provision because we have seen the reports over and over again. The Human Rights Commission report reported dozens of cases of child abuse and harm towards children. We saw the Moss review into the detention facility and the detention camp on Nauru reaffirm that children are being harmed inside these facilities. Even the Senate's own recent inquiry into conditions in Nauru showed again that children are being harmed and are suffering abuse inside the detention facilities. It should be, at a basic bare minimum, mandatory for staff or for anyone who witnesses abuse and harm to have to report it independently. We expect those conditions for teachers in our schools, we expect those conditions for doctors working in our hospitals, we expect those conditions for other Commonwealth officers in public institutions, but currently, as it stands under the law, it is not a requirement to report criminal activity and the harm of children but, in fact, it is a crime to report criminal activity to independent authorities. We can get done with that today by ensuring that the amendment that would establish mandatory reporting of abuse be passed by this place.

The third amendment I will be moving today is in relation to media access to detention facilities. We know that the detention camps offshore and the centres in Australia and on Christmas Island are media black holes. Journalists are not allowed in, staff are not allowed to speak out and then we wonder why abuse and harm fester. It is time we threw open the doors and shone the light on what is actually going on inside these facilities. If the government have nothing to hide, they will not have a problem with allowing media to access the facilities to see for themselves what is really going on.

The Australian people spent billions of dollars on this government's detention regime. They have every right to know how their money is being spent and what the conditions are inside these horrible, horrible camps. I have been there and I have seen them, and they are awful. They are places of horror, particularly for the young children who are locked up. But you should not just have to take my word for it—the public has a right to know, and journalists should be able to report fairly on what is going on inside these centres.

The fourth amendment I will be moving to this legislation goes to the issue of the public interest test for those who believe they need to speak out about what they see and about what is going on inside these detention centres. As we know, the Border Force Act, which came into force on 1 July this year, included a provision to threaten staff working in these facilities from speaking out—whether they be doctors, nurses, guards or teachers. Today I am moving an amendment that has been put to this place previously. It is important to reaffirm that there should be a public interest test so that staff who fundamentally believe that they need to speak out, that they need to blow the whistle on what is going on inside these camps, have the protection of the law to do so. Why is it that doctors and nurses feel so intimidated, so threatened, about being able to speak out and even to talk about their clients? It is out of fear that the government is going to prosecute them and hold them to the potential of a two-year jail sentence. It is just abhorrent that we are treating our professionals and our practitioners like this. This amendment will reverse the secrecy provisions under the Border Force Act and will allow for whistleblowers to have their case tested. If it is found to be in the public interest, then they will not have to feel the full brunt of the secrecy war this government continues to embark on.

The fifth amendment, importantly, relates directly to the issues in relation to the cancellation of visas on character grounds. Those who are actually criminals—who have broken the law, who have committed awful crimes and who are being detained in our detention facilities—should not be detained alongside people who have committed no crime at all, who are only seeking asylum in our country. The separation of criminals from people seeking asylum in our detention centres is absolutely vital. We know that the recent riots on Christmas Island were a result of this hideous situation where people who are seeking asylum—people who have fled war and persecution, even people who have been found to be genuine refugees—are being locked up alongside serious criminals. It does not need to be like that, it should not be like that and the government should be banned from locking up refugees alongside criminals. I was doing a little research on these amendments last night, and I found it interesting that even former Liberal leader John Hewson was reported in the last couple of weeks as saying that it is madness and absurd that we are locking up asylum seekers alongside criminals.

We know that the government does not want to talk about the riots on Christmas Island. They would prefer that nobody knew. They would prefer that the black hole and their war on secrecy are continued to Christmas Island as well. But we do know it happened, and we know that one of the main contributing factors was that the government has been keeping serious criminals locked up alongside asylum seekers, putting them at risk of harm. A simple amendment to ban the government from keeping those two groups of people together would go a long way towards ensuring safety, security and good order inside our detention centres.

The amendments have been circulated, so we will move into committee stage and I will deal with them one by one. I want to ensure that the government understands that the reason these amendments are important is that every time this government introduces a new amendment bill to make life harder and tougher and meaner in our detention facilities, it is coming on top of all of the things that are already in place and that are already missing. Let's get those children out by Christmas. Let's ensure that mandatory reporting of abuse happens. Let's not just talk about it, not just say that it is a good idea; let's make sure it happens. To do that we have to amend the legislation. If the government has nothing to hide about what they are doing, then they would let the media in and they would stop the threat to whistleblowers. These are simple amendments, and I hope that my Senate colleagues will look at them favourably.

11:50 am

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

I rise to place a few remarks on the record this morning with regard to the Migration and Maritime Powers Amendment Bill (No. 1) 2015. This bill makes a number of technical amendments to the Migration Act 1958, and one of those amendments also amends the Maritime Powers Act 2013. All but one of the amendments relate to previous amendments made by this government in previous legislation, entitled the Migration Amendment (Character and General Visa Cancellation) Act 2014. Labor supported that then, and we indicate support for this bill and the amendments that have already been put forward by Senator Carr from Labor. I can indicate Labor's support in principle for the amendments that have just been put forward by Senator Hanson-Young, but there will be further amendments brought forward by Labor in committee stage with regard to those Greens amendments. I will speak to that a little later on.

Labor opposed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and there is one amendment which relates to that schedule. The government have assured us though that there is no new policy or policy changes associated with the amendments that are before the chamber this morning, and that their clear intention is to clarify the legal framework in the two acts and ensure that they will be interpreted consistently with original policy intention and operate as intended. Essentially, this bill deals with legislation that Labor have previously supported. I note that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 invokes the United Nations Convention on the Law of the Sea as its basis and that that is of some comfort to Labor.

The bill comprises four schedules. Schedules 1 to 3 really do propose amendments to the Migration Act and schedule 4 to the maritime powers act of which I was just speaking. The explanatory memorandum notes the outcome being sought by schedule 1 in regard to when an unlawful non-citizen is being removed from Australia under section 198 of the Migration Act: until that person enters the destination country, the person can be returned to Australia without a visa and will continue to be barred from making a valid application for a certain visa. Schedule 2 is seeking to improve coherency and consistency in the character related provisions of the Migration Act, which go to the government's stated intention of using this legislation to ensure that the interpretation is consistent and that the legislation operates effectively.

Schedule 3 seeks to ensure that when the Migration Act provides for a visa to cease that that visa will cease whether or not it is in effect at the time, with the exception of visas to remain in but not re-enter Australia. Schedule 3 also seeks to ensure that fast-track applicants who are refused protection visas based on certain character or security grounds can apply for merits review in the Administrative Appeals Tribunal. The last element of schedule 3 is an attempt to clarify that when a protection visa application has been made on a person's behalf—for example, if they are a minor—and that visa has been refused, the person cannot make a further protection visa application, and that is irrespective of the grounds on which a new application would be made and irrespective of the grounds stated in the original application.

Schedule 4 deals with the Maritime Powers Act. This amendment seeks to confirm that powers under this Maritime Powers Act are able to be exercised in the course of passage of through or above the waters of another country in a manner consistent with the 1982 United Nations Convention on the Law of the Sea.

This bill has been given consideration by the Legal and Constitutional Affairs Legislation Committee, who reported to the Senate in November 2015. They did take a number of submissions and gave them due consideration, and I commend the report to the chamber and to Australians who are particularly interested in getting to the truth of this very significant challenge that faces our nation and getting to the truth of the information about the way in which Australia can fairly and consistently apply law, and make sure that children, to which Senator Hanson-Young so passionately referred this morning, are not caught up in the processes of government in ways that would disadvantage them and their wellbeing.

One of the points made by my colleague Senator Carr this morning is that, apart from indicating that Labor will support this bill and its capacity to amend two pieces of legislation that passed last year and came into effect in December, the reality is that this bill did give the minister greater discretion in removing non-citizens who had committed crimes and who could put the community at risk. That legislation was supported by Labor and all but one of the amendments in the present bill, which, as I said, are mainly of a technical nature, relate to it. We do support the bill and it does indeed provide some consistency for the treatment of the deportees who have to return to Australia. What happens at the moment is if a destination country refuses to accept a deportee, that person is unable to return without a visa. That leaves a legal problem where it would be almost as if the deportee had never left. The disruption of a journey by a deportee—such as some sort of incident that might happen while they are travelling—would put the person in a situation where they could not return without a visa. This bill is sorting out that problem. It is removing that anomaly so that returning deportees will have the same legal standing.

In terms of the consistency test and the clarity that this bill seeks to achieve, it does provide for greater consistency in the application of what is a critical part of this process—that is, the character test. It does go to some detail about the requirements for information that applicants have to provide. In the original legislation, the information had to be supplied at the front end of the process, but this bill extends that requirement to applications made on behalf of others as well. When we talk about applications being made on behalf of others, that is most commonly a situation referring to a minor—so a child. That is why Labor are pleased that the government accepted the Senate committee's inquiry recommendation that the explanatory memorandum be amended. If I could go to the report and recommendation 1, which clearly states:

The committee recommends that the Explanatory Memorandum to the Bill be amended to clarify the operation of the retrospective provisions of the Bill and the safeguards around the impact of these provisions on young people and people with cognitive impairment.

This is an important amendment, and I think that we will see the benefit of that down the track. The amendments also explain the retrospective provisions in the legislation, and by doing so they remove what would otherwise have been obstacles for Labor to indicate support for this bill.

The other legislation amended by the bill is, as I have said, the fourth schedule of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. That piece of legislation had quite a number of schedules, and one of those was intended to ensure that Australian vessels would act lawfully if they were intercepting other vessels on the high seas. That is the schedule that is going to be amended before us today, and it is a remedial amendment. I suppose that this bill could also be considered to provide that any exercise of maritime powers, such as intercepting a vessel at sea, becomes lawful provided it complies with Australia's international obligations, and that is an important consideration for Labor in determining to support this bill. Those conventions and understandings—and obligations, indeed—are set out in the United Nations Law of the Sea.

When this bill was being debated—and I think it is very important to get this on the record—over in the House of Representatives, Labor made it very clear that we simply cannot support legislation that would do anything to encourage boats to set out on journeys again. I think all of us in both chambers are very mindful of many years of tragic loss of life, and I think it is absolutely clear that there is no compassion about watching people die at sea and failing to respond to that reality. Obviously, embarking on a dangerous journey is something that asylum seekers are doing right across the world at this point in time. The importance of dissuading people from taking that journey led to the establishment of the Rudd-negotiated settlement with Papua New Guinea and Nauru. We know that, under this government, that settlement in Nauru and in Papua New Guinea looks, sounds and feels nothing like it would have under a Labor government. The standards to which we held those providing that detention would have been extremely different from what we have seen, but the fact that people have not been dying at sea is something we can also not ignore.

What we have seen from this government on every level and in every piece of enactment of policy is a consistent effort to hide what it is doing. This lack of transparency is a common theme across multiple policy areas from this government. We are deeply concerned about the decisions that this government has made with regard to the management of the facilities on Manus Island and Nauru, its continuing obfuscation about what is happening there, its denial of problems and its failure to deal with the reality that people in detention in both Nauru and Manus deserve far better conditions than those to which they have been subjected while this government has been on its watch.

Most telling, I think, of the unnecessary cruelty in the way that this policy has been implemented is the government's decision to delay the completion of facilities on Nauru, so that people were living for extended periods—much longer than necessary—in tents. The facility is an open centre, but it is still a reminder of the attitude of the government to unconscionable conduct that they should have put people in that situation. We clearly believe that the government have to negotiate with the PNG and Nauru governments and they need to, at the earliest possible moment, establish oversight of these facilities. To continue as they are is simply an untenable and unethical position. Labor certainly would not be allowing these people to be cast into limbo as they have been. In particular, the impact on families is something of great concern to Labor members right across the country. Under a Labor government, there would be a very different view about our international responsibilities in this area.

At our national conference, the Leader of the Opposition made a very clear announcement that I think should give succour to people who have genuine interest in this policymaking matter for Australia. Labor committed very clearly to double Australia's humanitarian intake, which is very different from what we have seen from this government once it came to power, and we also indicated that we would substantially increase the funding of the United Nations High Commissioner for Refugees. Currently—and I stand to be corrected on this—my understanding is that the federal government's commitment to this massive task of finding a way for refugees to find places for settlement and safety is a $20 million commitment. In the scope of the Australian federal government's budget capacity, $20 million is an insult to the United Nations, to the millions of people whose lives are affected and to refugees who are seeking asylum and who want to try to go about it in a way that is ethical and authentic and have some sense of the chaos of their lives pulled back into a sense that there is a process and an opportunity for a future for them. That is what we seek. To that end, Labor's policy is vastly different from what is on offer from the current government, because Labor would make a real and genuine commitment of $400 million to the United Nations to enable them to do the work of assessing and providing plans for a future for refugees to enable them to resettle and get on with their lives.

We have the talk of those opposite, and we have the hysteria from somewhere down on the crossbenches frequently, but we need a practical, empowered and funded response that gives authority to the United Nations, that gives power to the United Nations and that gives them the practical capacity to put people where they need to to make a transparent process of the journey from asylum seeker to resettled citizen of another country. Of course, Labor are willing to work in a bipartisan spirit on asylum seeker matters when it is possible to do so without violating essential principles of human dignity that have to be upheld. The demeaning of people seeking asylum that we have seen by this Liberal-Nationals government in coalition will go down in history as a shameful period of marginalisation of people who are already at the edge.

I indicated in my earlier remarks that we support, in essence, the Greens amendments to which Senator Hanson-Young spoke just a little while ago. She spoke about the children who remain in detention. It is very important as we approach Christmas—I remember being in this Senate last year, and there was a highly controversial debate about what would happen and children getting out of detention. We need some facts here. My understanding is that there are about 30 children who are still in detention. The reason, predominantly, that those children are in detention here, onshore, is that they are with their parents. Why are their parents not released? Their parents are not released because in those cases they have had an adverse finding from ASIO. That number was larger, and as time has passed a series of assessments have been undertaken and reviews have happened, and a number of those families have been able to move out of detention and into the community, with no threat to the community. That is one of the things that Labor really think is important. Of course we want to support those children, but we also have to make sure that, in their effort to do all things that look good to the community, the Greens do not create a situation where children are removed from their parents inadvertently. That is the risk of their legislation and the amendments that they are putting here this morning.

Our amendments, I think, are very responsible ones, moderate ones, not full of hyperbole and drama, not full of meanness and shaming and marginalisation but practical, sensible, genuinely compassionate, thought-through amendments that will improve the lives of all who get caught up in this piece of legislation and its impacts. Our amendments, which will be put very shortly when we move into the committee stage, will be to make sure that the minister has regard to national security. Of course, if there has been a negative ASIO finding, that has to be given serious consideration. If you are a child and it is your mum or dad, you are part of that. That needs to be given consideration. The second thing is that we need to think about keeping families together, even if that choice for them is to stay in detention. We need to give respect to that. Finally, we would not support anything that saw the release of people into the community into living conditions that were not at least as good as—in fact, demonstrably better than—those that they are in already. I foreshadow these amendments, and I thank you for the opportunity to participate in the debate this morning.

12:11 pm

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

Those are very fine words from Senator O'Neill, and I think she is genuine about what she says, but for a member of a political party the words just reek of hypocrisy about the approach that the Labor Party has taken to this whole issue. I take issue, of course, with Senator O'Neill's comment that Manus and Nauru would be different if Labor were in power. She at least had the good grace to concede that the situation we are in in Manus Island and in Nauru stems directly from the Labor government of Kevin Rudd. Evidence has been given to this effect at hearing after hearing after hearing. That program was put in by Mr Rudd with undue haste because an election was coming up, and ever since then the officials who had to implement Mr Rudd's policy have conceded that, because of the haste, it was put together poorly, and some of the problems we have experienced in those nations in subsequent times stem directly from Mr Rudd's involvement in and initiation of that scheme.

I am also delighted that the Labor Party are actually supporting the Migration and Maritime Powers Amendment Bill (No. 1) 2015. Again, Senator O'Neill's fine words read well, but if you look at the history, of course, the Labor Party have always been opposed to the tough action taken by the coalition government to stem the flow of uninvited people to Australia, not just because we want to protect our own borders but because we want to protect the lives of those asylum seekers who put their lives at risk by paying people smugglers tens of thousands of dollars to get on leaky boats to come to Australia. I am pleased that the Labor Party's rhetoric is now changing and they are now saying that they have always supported that, when we know they did not. Under the years of the Labor government, of course, the borders were open. It was open slather to anyone who wanted to come to Australia, and I think over 50,000 people took advantage of the Labor Party's porous borders policy and came to Australia without the appropriate qualifications and papers. Whilst I appreciate the Labor Party's support now, we must not forget the history of the coalition government having to fight tooth and nail at every turn to try to close our borders and to bring some sanity, sense and safety to this whole issue.

Senator O'Neill also talked about a funding cameo for refugees. Could I remind Senator O'Neill that Australia punches well above its weight in all aspects of dealing with refugees. In fact, Australia has the highest per capita intake of refugees of any country in the world. We spend far more per capita on refugees than any other country in the world. And, in addition to that, Australia in many other ways—in its foreign aid program across Asia and the Pacific—does a considerable amount to help those less advantaged than itself. So it is good to see Labor now getting on board. I do not want to rub their noses in it, but I do get a bit tired of this latter-day conversion, effectively, to the programs and policies of the coalition government.

I still remember and will never forget the way the Labor spokesman, Senator Conroy, verbally and very directly insulted a senior officer of our Defence Force in charge of Operation Sovereign Borders, who was unable to defend himself. The senior Labor opposition spokesman actually insulted and attacked this senior serving officer for doing what he was instructed to do, which was to stop the boats coming and protect our borders.

I cannot have the same passion about the Greens. At least they are consistent. They are consistent with their opposition to anything that brings sense, safety and stability to our migration program. They have never changed, and in fact in this particular bill I notice they are now proposing a series of amendments. These amendments did not appear in the committee report into this bill. I might indicate that I am chairman of the Legal and Constitutional Affairs Legislation Committee, and we did look at this particular bill and made some recommendations, which I will deal with shortly. The Greens political party simply put in a report saying, 'The Australian Greens recommend that the bill be rejected by the Senate'. There was not a mention of any of these amendments, which I understand have appeared on the desk today and which now they are passionate about. Apparently, they were not so passionate about it in the committee investigation of the report, and their dissenting report makes no mention of these amendments they now find so important. In fact, the basics of the Greens' opposition to this in their report, which I think was actually written by Senator Hanson-Young on behalf of the Greens political party, is that they are concerned that schedule 4 of the bill includes provisions in breach of international law. They then go on to quote the Andrew & Renata Kaldor Centre for International Refugee Law, people who regularly give evidence to my committee in relation to these matters. Every time those issues are raised, the experts in the field, the Commonwealth government department that spends 24-hours a day dealing with these issues, assisted by the very best legal advice available in Australia, have consistently rejected these claims. In fact, my committee's report, at paragraph 2.76, says:

Throughout the inquiry, the committee heard concerns that the Bill potentially breaches Australia's international law obligations. The department assured the committee—most vehemently in respect of Schedule 4—that the Bill does not breach, and is consistent with, those obligations.

The committee accepted this advice and recommended that the bill be passed, subject to one matter that I will deal with shortly. No matter how good the advice and no matter how much the professionals tell the Greens about this, it is still not good enough for them. It is never good enough for them.

Regrettably, we live in difficult times. There cannot be an Australian or a person in the world who is not horrified by what happened in Paris last week. And, whilst this government has been attacked time and time again, particularly by the Greens political party, about the measures it has taken to look after the safety of its citizens, the government continues to do it in spite of the opposition of the Greens political party. There are a lot of measures and laws that have been passed by this parliament in the last couple of years that in normal times—if you can ever remember when normal times were or define them—would never have been countenanced. But we live in difficult times and we are fighting an unseen enemy who does not play by the rules. What happened in Paris last week is a prime example of that.

Regrettably, the government, with the belated but very significant support of the opposition, had to do things to protect Australians, and there has been a series of tranches of bills passed by this parliament, all designed to protect Australians, as a government is obligated to do and as the government would want to do and indeed as all Australians would want their government to do. Sure, at the margins, some people are unhappy about these things. Sure, at the margins, there are some things that in the 'good old days' would not have been contemplated by this parliament. But they are measures that have been carefully thought through. They are measures based on the very best advice of our security and law enforcement agencies, and they are all done with a view to keeping Australians safe and keeping them with the democratic rights and principles that they have come to know and love. They are principles that many countries in the world do not follow. We have a wonderful set of freedoms in this country; freedom of speech, freedom of religion and freedom to congregate and discuss. We have human rights in this country that are second to none, but do we ever get from the Greens political party any support for these freedoms that the measures we take are meant to protect? Never. We are always attacked by the Greens political party on periphery issues which, fortuitously, most Australians do not follow.

I urge the Greens to get on board with their Labor mates and realise that we do live in serious times and that in these tough times tough measures have to be taken. I must say there are some signs of improvement under their new leader, but some of those in the Greens political party will never concede that these measures are measures that had to be taken.

I return to the committee's report. I want to thank those who did make a submission to the committee. The committee did not meet but we did consider the issues raised in all of the bills. All senators had the opportunity to enter into that consideration and put in dissenting reports. I note the Labor party did not but the Greens did and recommended that the bill be rejected full stop.

The evidence to this committee—the same evidence given to this committee on a previous occasion when a similar matter was raised—did give some cameo examples of how there could be unintended consequences so far as the rights of children were concerned where their parents had made an application on their behalf and that had been rejected at the time. I suspect it would often be because of issues relating to the parents rather than the children. The children at a later stage in life would come forward and make an application to get a visa. Under this legislation, as I read it, they would be rejected on the basis that an application made by their parents what could have been many years before had previously been rejected.

The committee, in considering this as we did when we considered much the same issue in the previous legislation that has already been passed and which related to this, were concerned that the government should be very much aware of this. The committee decided to recommend that the bill be passed, and I support that and will be supporting the bill when it is voted upon, but the committee did recommend that the explanatory memorandum to the bill be amended to clarify the operation of the retrospective provisions of the bill and the safeguards around the impact of these provisions on young people and people with cognitive impairment.

These issues were raised in the previous hearing and indirectly in this hearing. I understand that the department and therefore the government understand these concerns and the retrospective nature of these rules. As I recall the evidence to the previous committee inquiry into this, the department has assured the committee that there are ways that these issues can be addressed. I seek in the minister's final comments or in the committee stage some comment about how the department will deal with these issues should they arise if this bill is passed. I support the bill.

12:26 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | | Hansard source

I thank my fellow senators for contributing to the debate on the Migration and Maritime Powers Amendment Bill (No. 1) 2015. This bill is a technical omnibus bill that deals with a number of unrelated matters. The bill fixes a number of legislative gaps and clarifies the government's policy intention on a range of matters in the Migration Act 1958 and the Maritime Powers Act 2013. The bill amends the Migration Act to strengthen and clarify the legal framework to ensure that it will be interpreted consistently with original policy intention.

Firstly, the amendments in schedule 1 of the bill will amend the Migration Act to ensure that, when the department attempts to remove someone from Australia, if that removal is aborted for any reason up until the point the person successfully enters the destination country, the person can be returned to Australia without a visa. The amendments will also ensure that certain visa application bars will continue to apply to those persons. That means that, when an unlawful noncitizen's removal from Australia is aborted—for example, it could be refusal of entry by a transit country—and that person needs to be returned to Australia, that person can re-enter Australia lawfully without a visa.

Secondly, the amendments in schedule 2 of the bill strengthen and clarify the legal framework established in December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 and ensure that the character cancellation provisions operate effectively as intended. It does this by ensuring that confidential criminal intelligence that is critical to decision-making under certain character provisions can be appropriately protected. It does so by inserting a new removal power to put beyond doubt that a noncitizen whose visa has been mandatorily cancelled will be available for removal from Australia at the end of the process and aligning the definition of 'character concern' with the character test to ensure that the department is able to identify noncitizens who have a criminal history or who are of character concern. By aligning the definition of 'character concern' in the Migration Act with the changes to the character test, people of character concern will now include, amongst other things, references to noncitizens who have been suspected of or involved in conduct constituting an offence of people smuggling or human trafficking and the crime of genocide regardless of whether the noncitizen has been convicted; convicted or found guilty of child sex offences; or charged with such an offence even if the noncitizen was discharged without conviction. Thirdly, the amendments in schedule 3 to the bill will ensure that, when the Migration Act provides for a visa to cease, that visa will, with one exception, cease whether or not the visa is in effect at that time.

These amendments clarify that a person who has previously had a protection visa application made on their behalf, where the grant of that protection visa has been refused, cannot make a further protection visa application claiming to satisfy different grounds or criteria for the grant of the visa. This is a technical amendment to fix an oversight and gives effect to the policy that was originally intended when the provisions barring further protection visa applications were inserted by legislation passed by parliament in 2014. The intention is that, if a person's protection visa has been cancelled or refused, they cannot avoid or delay their departure by making repeated protection visa applications.

The amendments will also ensure that fast-track applicants who are refused protection visas on certain character or security grounds can make an application for review of that decision to the Administrative Appeals Tribunal under the existing provisions in the Migration Act. Character determinations can be evidentially and legally complex and the AAT has particular expertise in this area. By allowing the AAT to review those decisions, the government is ensuring a consistent, rigorous—but fair—and expert process. This is also a technical amendment to give effect to the original policy intention that this cohort have access to specialist merit review by a tribunal.

Amendments in schedule 3 to the bill will also clarify that when a protection visa application is made on behalf of a person who is a minor or is mentally impaired, and where that person is then refused the visa, the person cannot apply for a further protection visa regardless of whether the application is made on the same or different grounds from the original application. This will ensure that the protection visa application bar in section 48A applies consistently across all protection visa applications. Finally, schedule 4 to the bill amends the Maritime Powers Act 2013 to confirm that powers under that act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the United Nations Convention on the Law of the Sea.

I now want to turn to the matters raised by the Senate Legal and Constitutional Affairs Legislation Committee in their consideration and report on this bill. Firstly, I thank the committee for their report on the bill. The committee reported on the bill on 10 November 2015. The committee recommended that the bill be passed, subject to the explanatory memorandum clarifying the operation of the retrospective provisions of the bill and the safeguards around the impact of these provisions on young people and people with cognitive impairment.

I can advise the Senate that, in line with the committee's recommendations, the government tabled an addendum to the explanatory memorandum to the bill on 12 November 2015. This addendum provides further detail on certain amendments made by schedule 2 and schedule 3 to the bill and relates to the retrospectivity of the measures as well safeguards for minors and vulnerable persons. I trust that this detail assures the Senate that, in relation to retrospectivity, the amendments are aimed at remedying drafting oversights and inadvertent omissions in legislation that was passed by parliament in 2014. They simply clarify what has always been the government's policy intention and are not expected to have an undue impact on individual cases.

I also want to pick up the point that Senator Macdonald made as the chair of the Legal and Constitutional Affairs Legislation Committee about how Senator Hanson-Young has, in her usual manner, come into this chamber today and dropped amendments on the table. These amendments relate to issues she did not bother to raise when the Legal and Constitutional Affairs Legislation Committee was considering these bills, so she obviously did not think that they were important at that time—yet she is now prepared to come into this place and grandstand about them. So, Senator Hanson-Young, I really have to question your bona fides here. You have clearly written the dissenting report of the Greens in the Legal and Constitutional Affairs Legislation Committee's report—Senator Macdonald referred to that—but you did not see fit to include any reference to this issue whatsoever. Senator Macdonald may well correct me on this, but I do not even think that you led any evidence, or that there was any evidence raised, in relation to the matters that you are now trying to put through the Senate by way of your amendments. It just goes to show, Senator Hanson-Young, that you will take any opportunity—any time or any place—to grandstand about these issues. If you thought they were so important, you would have raised them at the Legal and Constitutional Affairs Committee—not turned up this morning and just dropped the amendments so that you could have another opportunity to gasbag in this chamber on these matters. It really does, I have to say, go to your bona fides on this particular issue.

In summary, this bill deserves the support of all senators and I commend the bill to the chamber. But, before concluding, can I just put some facts on the record, because facts are things that the Greens and those opposite do not always refer to: 'Why let a fact get in the way of an argument?'

Senator Kim Carr interjecting

I will go particularly to some of the comments that were made by Senator O'Neill. I have the benefit of having spent many years as a government lawyer. Those opposite come to this place and criticise the coalition on our record. Cast your minds back to who instituted mandatory detention in this country. Who instituted it? It was those opposite. So go back, Senator Carr. Some of us have a long record and some of us have spent a lot of time dealing with legal issues pertinent to the time when you opposite instituted mandatory detention in this country. So do not come into this place and preach to us about people in detention. You need to go back into history and have a look at your record in this space before you come and preach to us.

Let me also put some other matters on the record. Senator O'Neill started to lecture us on what we are doing in the humanitarian space. I remind those opposite and the Senate that we take 13,750 people under our Humanitarian Program every year. That figure will go up to 18,750 by 2018-19. We are now taking 12,000 people as a one-off, and we are taking them as permanent residents. We are taking them in addition to our current Humanitarian Program. We have a good Humanitarian Program. Indeed, we have one of the best settlement processes in the world. That is not to say that there is not room for improvement, and I have made comments in relation to some potential improvements. But we do it very well compared to the rest of the world.

I also remind those opposite that, when the Howard government left office in 2007, there were only four illegal maritime arrivals in detention. None of those were children. So, Senator Hanson-Young, do not come into this place and preach, because, without policy foresight, Labor proceeded, with your help, to tear down the successful Howard government border protection policies. They tore them down. They changed program after program after program, and what did that result in? That resulted in 50,000 people arriving, on over 800 boats, and 1,200 deaths at sea. At the height of this absolute policy disaster, July 2013, there were over 10,000 people in detention, including almost 2,000 children. Labor were forced to open 17 detention centres to deal with the influx of illegal arrivals, all of which resulted in an $11 billion border protection blow-out. This government is using strong and consistent policies, which include turn-backs when it is safe to do so, offshore processing and temporary protection visas. All of this has ended Labor's chaos and has restored integrity to Australia's immigration system. As a consequence of this, we have halted the abhorrent people-smuggling trade and we have ended the deaths at sea.

Australia is a migration country that has been very successful. Why? Because, when you have an ordered migration process, people respect it. People respect ordered migration processes.

Senator Hanson-Young interjecting

Clearly, Senator Hanson-Young, when you rabbit on this way, you have absolutely no idea. That is why millions of people have come to this country. Since 1945, 7.5 million migrants have come to this country, including over 825,000 people under our Humanitarian Program. Under successive coalition governments, we have run good and ordered migration processes. I am a daughter of migrants to this country. My parents came to this country in the proper way. Millions of people have come to Australia in the proper way. That is what has made this such a successful country. That is why it is important that you have a good and ordered migration process, and that is why this legislation that we are up putting before the Senate today—

Senator Hanson-Young interjecting

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party) Share this | | Hansard source

Order! Senator Hanson-Young, the minister has the call. Your interjections are now getting a bit overwhelming.

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | | Hansard source

They are not overwhelming; they are a nuisance. The reality is that this is a noncontroversial bill, but this morning the Greens have decided to come into this place and put in a few amendments which absolutely have nothing to do with what is really a technical bill. They did not raise these matters before the committee. The Labor Party—correct me if I am wrong, Senator Macdonald—have agreed to passage of this legislation, or are not opposing this legislation. Now we come in here and we find ourselves faced with these amendments which bear no resemblance to the legislation before us, just to give Senator Hanson-Young the opportunity to prattle on a little bit more and make absolutely no sense whatsoever. Let us get back to the matter at hand. Let us get back to the piece of legislation that is before us. It is purely a technical bill. It seeks to remedy minor matters. Let us get on with it and just pass this piece of legislation.

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party) Share this | | Hansard source

The question is that this bill be read a second time.

Bill read a second time.