Senate debates

Tuesday, 13 November 2018

Regulations and Determinations

Migration (IMMI 18/019: Fast Track Applicant Class) Instrument 2018; Disallowance

5:58 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I move:

That the Migration (IMMI 18/019: Fast Track Applicant Class) Instrument 2018, made under the Migration Act 1958, be disallowed [F2018L00672].

This motion seeks to disallow an instrument that the government is attempting to make which would expand the group of people who are subject to the fast-track application process for protection as refugees. The definition of 'fast track applicant' is set out in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. The term currently includes all unauthorised maritime arrivals. That is, of course, the government's language, not that of the Australian Greens. That group of people are those who arrived by boat in Australia without a valid visa—and I make the observation that there is no offence under Australian law and that these people were acting entirely within their rights under international legal covenants that Australia has signed up to—between 13 August 2012 and 1 January 2014 and were not taken to Nauru or Papua New Guinea for offshore processing. I'm using the government's language here when describing it as 'offshore processing', as anyone who has been watching what has been happening on Manus Island and Nauru will be very clear in their minds that what these people are being subjected to on Manus Island and Nauru is in fact indefinite offshore detention. So the group of people that are currently classed as fast-track applicants had to arrive by boat without a valid visa between 13 August 2012 and 1 January 2014 and were not exiled to Manus Island or Nauru, provided that the minister has allowed them to apply for a protection visa and the person has made a valid application.

The minister can also, by instrument, extend the definition of 'fast-track' to other classes of people seeking asylum—and, in fact, that is exactly what this instrument that we are seeking to disallow today seeks to do. So, not content with the misery, the uncertainty and the injustice to which people who are classified as fast-track applicants have been subjected by this government, the minister now wants to cast his net even further back. The instrument that we're seeking to disallow would, if it were not disallowed, apply the category of 'fast-track applicant' to people seeking asylum who arrived in Australia by boat before 2012, were assessed by the department as not engaging Australia's protection obligations and then challenged the department's assessments in the courts. Now what the government is seeking to do is to deny them the opportunity to fully explore challenges to the department's decision in the legal system. This is a significant denial of natural justice.

The government's instrument that we're seeking to disallow today is not only a significant denial of natural justice but also an undermining of the rule of law in this country. It creates different classes of people in Australia—some who have access to certain legal options and others who do not. It continues the demonisation of people seeking asylum by the Liberal and National parties in this place in order to try to extract electoral and political benefit for themselves.

The Greens are not prepared to take this lying down. That is why we have moved this disallowance motion that we are currently debating. I can put our case to the Senate very clearly. People who end up in the fast-track process are not given a fair opportunity to put forward their case for asylum and to deal with adverse information affecting their application. The fast-track process limits people's right to appeal adverse findings to the Immigration Assessment Authority—which, as Legal Aid Victoria said last year:

Rather than being focussed on providing fairness to people seeking asylum, and on making correct decisions, the IAA can conduct only limited review according to limiting rules.

This is creating situations where people seeking asylum are blindsided by issues and evidence which they had no idea they needed to deal with. And these are profoundly disadvantaged people, in desperate need, colliding with an extremely complex area of law.

That's a neat summary of what the government is trying to do here: to make decisions that adversely affect some of the most disadvantaged people in our country, who are in desperate need and have been enmeshed in an extremely complex area of administrative law. Ultimately, in the view of the Australian Greens, the fast-track process has been set up by a government and ministers who simply don't want people to have a fair chance to apply for asylum in Australia.

We have seen the human costs of this government's policy around people seeking asylum. We know that thousands of innocent people who are guilty of nothing other than fleeing persecution and seeking a better life for themselves, the overwhelming majority of whom have been found to be genuine refugees, have been exiled to Manus Island and Nauru for over five years now. Over five years of their lives have been lost because of this cruel, horrendous policy that has created a humanitarian calamity in our offshore detention system. We've seen murders, assaults, sexual assaults, sexual assaults of children, riots, abuses and the trampling of human rights. This is a humanitarian calamity that is occurring in our offshore detention system. Those who were not exiled to Manus Island or Nauru have progressively had their rights eroded.

The Greens don't support any element of the fast-track process, because we think people in this country should have equal access to the law. You wouldn't think that's a controversial position, but it is for the Liberal and National parties in this place, who want to create two classes of people in this country and two different opportunities to access justice through our administrative and legal system. At every step the Liberals have reduced rights of appeal and procedural fairness and have increased the power of the minister for immigration. They're doing this because the courts are doing a far better job of ensuring human rights are respected in this country than this government ever has. It's an ongoing demonisation of innocent and vulnerable people.

We are seeking to draw a line in the sand tonight and say: 'Enough is enough. You cannot simply go on making more and more punitive laws to deny more and more people access to justice and the rule of law.' The government doesn't like what the courts are doing here. It's worth pointing out that the overwhelming majority of the children who in the last couple of months have been brought from Nauru haven't been brought out of the goodness of the heart of the government, the minister or the Prime Minister; they've been brought here because the courts ordered it. The courts made those decisions and the government had no option other than to comply with those orders and rulings.

We know that there are still $20,000 bribes on the table to try to convince people who were on Manus Island and Nauru to return to face the persecution from which they fled. The Liberals are currently trying to deport people back to North Korea, would you believe it? They've continually sent people fleeing war and persecution straight back to their home countries. In some cases they've handed these people straight into the arms of their persecutors, the people whom they fled, and this government sends them back to goodness knows what fate.

We know that the Liberals want the power to deport children so they can continue to run the racist scare campaign that they're currently running in Victoria. It is worth pointing out that the instrument that we are seeking to disallow here confirms that children of people the government has classified as fast-track applicants will also be deemed fast-track applicants. This instrument that we are seeking to disallow denies children access to natural justice in this country. What the government is trying to do here is an absolute disgrace. It is trying to create a legal framework which supports its own prejudices and its hateful world view.

We are proud to stand against the government this evening. We led the fight in parliament against the Liberals' attempts to reintroduce the White Australia policy by stealth. It was a battle that we won. For the first time in many years the government lost control of the Notice Paper in this place, and the then minister for immigration's hateful changes to the citizenship act were struck from the Notice Paper in this place. We stood up and helped lead the charge against the government when it tried to water down protections against race based hate speech in this country by eviscerating section 18C of the Racial Discrimination Act. We defeated its attempts to restrict family reunion visas to the very wealthy. We will keep on fighting this government until it is thrown out of office and these dreadful laws are struck from the statute book in this country.

If senators want to think about why they should support this disallowance motion this evening—it may come to a vote this evening or it may come to a vote tomorrow evening—I invite them to think about their values. If senators have got values about treating people equally, if senators have got values that support the rule of law as one of the absolute foundations of our civilisation and our society and if senators have got values around respecting people's human rights and treating people as they would wish to be treated themselves, then I invite them in the strongest possible terms to support this disallowance motion.

We as a parliament cannot continue to remove rights from desperate people, from vulnerable people, just because some people in this place think it will deliver them an electoral benefit. We cannot continue to remove fairness from our administrative and judicial systems. We cannot continue to create situations where vulnerable, desperate people are blindsided in the Immigration Assessment Authority by issues and evidence that they had no idea they needed to deal with. We cannot continue to profoundly disadvantage people who, in their hour of desperate need and vulnerability, collide with this extremely complex area of law. People in the fast-track process are not given a fair opportunity to put forward their case for asylum, and they're not given a fair opportunity to deal with the adverse information affecting their application.

The Australian Greens, in putting forward this disallowance motion today, are standing up for some of the most vulnerable, desperate and disenfranchised people who are currently in our country. If you don't look after the vulnerable, if you don't look after the disenfranchised, if you don't look after the desperate, that actually says more about you than it does about them. We want to give this Senate, when this comes to a vote this evening or tomorrow evening, the opportunity to show that the values that so many people claim as Australian—the values of a fair go, of mateship and of reaching out a helping hand to people who are in desperate need of help—are genuinely Australian values and values that are reflected in the parliament, which is here to represent the values of the Australian people and to make sure those values are reflected in our laws and our legislative instruments. That's why we bring on this disallowance tonight: so that every senator has an opportunity to do the right thing and every senator is given every opportunity to make sure that those values are real, true and reflected not just through Australian society but right into this building, into this chamber and into the heart of our democratic system. If we don't reflect those values in here, what does it say about us? I'll tell you what it says about us if we don't reflect those values; it says we're hypocrites and we're not doing our job to represent our nation's values.

There was a time, decades ago, when Australia was a shining light around the world for our global leadership on human rights. We have seen that consistently eroded. We saw that eroded in 2001 when the Tampa hovered over the horizon and, since then, it has been a race to the bottom in this place to try and deny as many desperate, vulnerable people as possible the legal rights that the rest of us enjoy.

We're not going to have a bar of it. We're standing here today and we are drawing a line in the sand. We are saying: 'Enough is enough. Stop demonising some of the most vulnerable people in our community. Stop trying to exploit desperate, vulnerable people for political gain. Stop trying to deny them the appeal opportunities and the review opportunities that the rest of us are lucky enough to have. Stop trying to undermine the rule of law in this country—one of the absolute foundations of our society. Stop trying to work around the courts because you simply don't like the decisions that they're making.' We're not going to stand up to reduce rights of appeal. We're not going to allow this reduction of procedural fairness to occur without fighting it all the way. We're going to stand up and we're going to give this Senate the opportunity to show that we can be better than what the government would like us to be.

We are here to hold this government to account; that is a core part of our job in this place. This vote will be an opportunity for senators to show whether they are prepared to stand up and hold this government to account or whether we are collectively going to roll over and allow this government, in its ongoing demonisation of desperate and vulnerable people who are seeking asylum in this country, to increase the group of people who will have their rights trampled by reducing their opportunities to challenge decisions made by the department with regard to their claims for asylum. I genuinely hope senators will join with the Australian Greens to disallow this instrument.

6:18 pm

Photo of Nigel ScullionNigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | | Hansard source

I have a short statement on behalf of the senator responsible for government business. The government is aiming to resolve the legal error in the previous administrative protection assessments in a way that will facilitate status resolution activities and ensure removal can be affected in a timely manner where an unauthorised maritime arrival is found not to engage Australia's protection obligations.

6:19 pm

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Innovation, Industry, Science and Research) Share this | | Hansard source

I just wish to indicate to the chamber Labor will be supporting this motion. On 5 December 2014, the parliament passed legislation to create what has now been labelled the fast-track assessment process for the protection of visa applications, and this legislation came into effect on 19 April 2015. The fast-track assessment process only applies to the legacy caseload, specifically people who arrived in Australia on or after 13 August 2012 and before 1 January 2014 who have not previously been in a regional processing country. The fast-track assessment process uses a review body which was established by the then Abbott government called the Immigration Assessment Authority—otherwise known as the IAA.

The review body effectively limits the extent to which a claim for protection can be reviewed, especially compared to the previous review mechanism under the Refugee Review Tribunal. We should be clear about this: the successive Liberal governments have failed to treat asylum seekers and refugees living in a shared Australian community with the respect that they deserve. Asylum seekers and refugees are some of the most vulnerable people living in Australia. They have fled persecution, and that's the definition by which they are determined to be refugees. They have faced trauma and torment. With this instrument, this conservative government is trying to force more people who are part of the so-called legacy caseload into the fast-track process.

The government has provided information that the instrument before the Senate effectively affects approximately 108 individuals. It strikes me that this demonstrates that the government is completely out of touch. By forcing more people into the process which limits their rights to have their claims for protection reviewed, the government actually is undermining some pretty fundamental principles of human rights here. This instrument has done nothing with Australia's border security; these are individuals who are already in Australia.

So Labor took a commitment to the last election, as outlined in our national platform, that Labor would abolish the fast-track assessment process. Our national platform also makes it clear the existing fast-track assessment process under the auspices of the Immigration Assessment Authority and the limitation of appeal rights do not provide a fair, thorough and robust assessment process for persons seeking asylum. Labor is committed to ensuring these people found to be owed protection are treated with dignity and respect.

People who have been through the fast-track process and who are found to be owed protection have been placed on temporary protection visas by the current government. A temporary protection visa places refugees in an ongoing state of uncertainty and of limbo as they have their claims reassessed every three years. This prevents meaningful settlement and creates hardships for refugees. It actually denies Australia the benefit of their contribution to our society and to their communities. So Labor has announced that in government we will abolish the temporary protection visas and will place those on TPVs and found to be genuine refugees onto a permanent protection visa so they can be afforded the protection and certainty that they are entitled to in this country. Labor also took to the last election this policy to reinstate access to the Refugee Review Tribunal and abolish the IAA established by the Abbott government.

I note that the instrument was signed by Minister Dutton on 23 May 2018. This was when Minister Dutton was Minister for Home Affairs and Minister for Immigration and Border Protection but before he made that abortive attempt to actually engage in a coup against Prime Minister Turnbull. Let's not forget of course that there was considerable as to whether or not Mr Dutton was even qualified to sit in the parliament, and there still remains considerable doubt even today. That casts legal doubt over the decisions he made as a minister, from cancelling the visas for those actually involved in serious crimes to the signing of such instruments. And so it is apparent that the member's position ought to have been resolved by due process through the legal processes established by the High Court. So I make it clear: Labor will be supporting this disallowance motion.

6:24 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I will be brief. I want to firstly acknowledge and thank the Australian Labor Party for their support for this disallowance. I believe that that means that in fact this disallowance will be successful this evening. I want to put very clearly on the record that, in voting for this disallowance, this Senate is actually doing its job to scrutinise the government. That's one of the primary reasons we get voted into this place: to hold the government to account and make sure that when the government overreaches, which they flagrantly have in trying to put this instrument through the parliament, we exercise our rights as senators to say: 'Stop. Enough is enough. You've gone too far.'

The government has tried to go too far, and the Senate is about to stand up to it and make it very clear to the government that enough is enough. This demonisation, this exploitation of desperate, vulnerable people, has to stop. I hope that in drawing this line in the sand today, which will ensure that life does not get even more difficult for a large number of people who are currently resident in this country, we can see some ongoing improvements in the way that we deal with people who seek asylum in Australia—because one day there will be a reckoning for the way we've treated these people. There will be a reckoning for what's happened on Manus Island. There will be a reckoning for what's happened on Nauru. I'm very confident that there will be a royal commission one day into what's happened on Manus Island and Nauru and the way we've treated people seeking asylum in this country and that when that royal commission is concluded the Australian PM of the day will get up and offer a heartfelt apology for what we've done. Unfortunately, I think it will take the passage of a bit of time before that happens, because the architects of offshore detention—they are in both major parties in this place—will have to leave this parliament before we can come to our collective senses, get the truth out, have the royal commission, make our apologies and hopefully do everything we can to make sure that this shameful period in our country's history never happens again.

We are better than what we have shown over the last 20 years in regard to people who are seeking asylum in this country. We are better than what we have shown over the last 20 years to some of the world's most desperate and vulnerable people. I genuinely believe that support for the way we deal with people seeking asylum is eroding in our community right now. It's eroding because of the kids on Nauru. It's eroding because people in our community are becoming more and more aware of the humanitarian calamity of offshore detention and the denial of basic rights and natural justice to people who are seeking asylum while domiciled in this country. So I thank the Australian Labor Party, I thank the crossbenchers, who I understand are about to support this disallowance, and I commend it to the Senate.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that business of the Senate notice of motion No. 1, standing in the name of Senator McKim, be agreed to.