Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I move:

That this bill may proceed without formalities and be now read a first time.

Question agreed to.

Bill read a first time.

I seek leave to move a motion to exempt this bill from the bills cut-off order.

Leave not granted.

Pursuant to contingent notice standing in the name of the Leader of the Government in the Senate, Senator Abetz, I move:

That so much of standing orders be suspended as would prevent me moving a motion to provide for the consideration of the matter, namely a motion to give precedence to a motion to exempt this bill from the bills cut-off order.

As I indicated in my contribution on the motion relating to hours, the offshore processing arrangements are central to the government's efforts to protect our borders. We place a very high premium as a government on the protection of our borders. We are seeking exemption from the cut-off in order to enable this legislation to be debated and resolved today. The government is clearly of the view that it is important to that it is important to ensure certainty and a robust legislative basis for offshore processing. In seeking to move exemption from the cut-off, we are not attempting to do anything other than what has frequently been done in this place for bills which are time critical.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I am scratching my head about why this is so critical today because we are told that it is important to rush this legislation through, that it is absolutely critical that we bypass the ordinary procedures of the Senate to ensure there is certainty around the law. I go back to a question asked by my colleague Senator Hanson-Young of Senator Brandis yesterday where she asked whether the government was ramming this through the Senate because the actions of this government have indeed been unlawful

Senator Brandis said:

No, that is incorrect, Senator. The government is of the view that the offshore processing arrangements are lawful. That is the view of the government. … and I understand the former Labor government also believed—that the offshore processing arrangements were lawful.

You cannot have it both ways. Either Senator Brandis was misleading the parliament yesterday when he put his position forward that these arrangements are lawful, or this legislation is necessary because they are unlawful. Only one of the two is correct.

If we are to accept that Senator Brandis did not mislead the parliament yesterday, there is absolutely no need to do this. There is no need to bypass the ordinary procedures of the Senate. There is no need to ram through this legislation; there is no need to do it without any scrutiny; there is no need to bypass the courts; there is no need to trample on the democratic institutions this country is founded on. There is no need to do it. Senator Brandis made it crystal clear: in his view, in the view of the government, existing arrangements are lawful. So why are we having the debate? What is the reason for doing this? There is none. Or perhaps there is a reason. Perhaps Senator Brandis was misleading the parliament.

We will give him the opportunity to correct the record. If he indeed does believe, and if he is certain, that the arrangements are not legal, then I am sure the Labor Party would agree that we can assume that this is totally unnecessary and that what we are doing here is wasting the parliament's time. If, on the other hand, the government feels the urgency to support this motion, again with the support of the Labor Party, then I expect that Senator Brandis will correct the record, and he will correct the response that he gave to Senator Hanson-Young in question time.

This is a disgraceful abuse of the parliament. We have a system of detention where there is some contention. It is the job of the High Court to resolve that; it is not the job of this parliament to bypass the law. We do not support the motion. We think it should go to committee for further scrutiny. We think that it is critical that a decision of this importance—effectively saying that the court needs to be bypassed by the actions of this parliament in a last minute rush on the verge of a long break—is not appropriate. We will not be supporting the motion. We think that the Labor Party and the crossbenchers should join us in opposing this abuse of the parliament.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the motion to suspend standing orders, moved by Senator Fifield, be agreed to.

Question agreed to.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I move:

That a motion to exempt this bill from the bills cut-off order may be moved immediately and have precedence over all other business today until determined.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the bill, allowing it to be considered during this period of sittings.

I move:

That the question be now put.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that that motion—that the question be now put—be agreed to.

Question agreed to.

The question now is that the cut-off motion be agreed to.

Question agreed to.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I table a statement of reasons justifying the need for this bill to be considered during these sittings and seek leave to have the statement incorporated in Hansard.

Leave granted.

The statement read as follows—

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2015 WINTER SITTINGS

MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS) BILL

Purpose of the Bill

The bill amends the Migration Act 1958 to provide express statutory authority for actions undertaken by the Commonwealth in relation to an arrangement with a regional processing country or the regional processing functions of a country, including expenditure related to those arrangements or functions.

Reasons for Urgency

This bill should be introduced and passed in the same sittings as it makes critical amendments to the Migration Act 1958 which will ensure that there is a robust legislative basis for regional processing and related expenditure.

Proceedings have been commenced in the High Court which challenge aspects of the Commonwealth’s regional processing arrangements. The amendments in this bill seek to address the issues raised in these proceedings. As it is desirable for these amendments to be in place prior to the High Court Hearing, this bill must be passed as a matter of urgency.

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS) BILL 2015

I move that this Bill be now read a second time.

The Migration Amendment (Regional Processing Arrangements) Bill 2015 amends the Migration Act 1958 to provide express statutory authority which applies where the Commonwealth has entered into an arrangement with another country with respect to the regional processing functions of that country.

The amendment solely goes to:

1. Enabling payments; and

2. Enabling the fact of regional processing.

The legislation does not change or in any way expand the current situation in regional offshore processing.

The amendments made by this Bill strengthen and put beyond any doubt the existing legislative authority to give practical effect to the substantive regional processing provisions inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

This is achieved by providing clear express statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries. This also extends to the expenditure of Commonwealth money on these arrangements.

The substantive regional processing provisions came into effect on 18 August 2012. It provides for the transfer of illegal maritime arrivals, who arrive in Australia by boat without a visa, to be transferred to another country for assessment by that country of their claims to be refugees. The only condition for the designation of a country is that the Minister thinks that it is in the national interest to make the designation. Currently, the Republic of Nauru and the Independent State of Papua New Guinea are designated as regional processing countries.

The current regional processing framework was introduced by the Labor Government. The amendments were made to the Migration Act 1958 by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 to:

Migration Act 1958

On 10 September 2012, the then Minister for Immigration and Citizenship designated Nauru a regional processing country.

On 9 October 2012, the then Minister for Immigration and Citizenship designated the Independent State of Papua New Guinea a regional processing country.

The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.

The Bill only seeks to ensure that there is express legislative authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries. It does not purport to have any effect in itself on the rights of those persons.

The Bill applies where the Commonwealth has entered into an arrangement with a person or body in relation to the regional processing functions of a country. 'Person' includes a 'body politic' and therefore a country

Specifically, the Bill provides statutory authority for the Commonwealth to:

In this Bill, "regional processing functions" includes 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.

The Bill also makes clear that an arrangement is a very broad term, and can apply to arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

The term "action" explicitly includes exercising restraint over the liberty of a person. I wish to make it clear that Australia does not restrain the liberty of persons in regional processing countries. To the extent that the liberty of persons taken to regional processing countries is restrained in those countries, this is done by those countries under the respective laws of those countries.

These amendments do not otherwise provide authority for any restraint over the liberty of persons. The lawful authority for any restraint over liberty arises under the law of the relevant regional processing country.

To avoid any doubt about the intention of these amendments, the Bill includes a provision to clarify that these amendments are intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action. The purpose of this provision is to assist readers to understand the purpose of these amendments, which are limited to providing the Commonwealth with express legislative authority to take action to assist foreign governments in regional processing countries.

These amendments will apply from 18 August 2012. This has the effect of retrospectively and prospectively authorising Commonwealth actions and expenditure in regional processing countries. 18 August 2012 is the date on which the existing legislative framework for regional processing under the Migration Act commenced. The retrospective operation of these provisions will provide authority for all activity undertaken in relation to regional processing arrangements for the entire period these arrangements have been in place.

The Government wishes to ensure that there is a sustainable and solid framework for Australia's role in regional processing arrangements. To ensure the long term viability of regional processing, the amendments in the Bill seek to strengthen the existing legislative framework for regional processing activities.

There is no question that the regional processing arrangements are important to Australia's strong border protection policies. Specifically, regional processing arrangements help combat people smuggling. Offshore processing removes the attraction of engaging a people smuggler and taking a dangerous boat journey. Anyone who comes to Australia illegally by boat without a visa will never be settled in Australia. Regional processing is therefore an important regional solution for maintaining Australia's strong border protection policies.

The Government does not want the sustainability of regional processing weakened. The Australian people do not want to see a surge in people smuggling ventures again. Nor do we want people's lives put at risk. We want a sustainable and solid framework for processing claims in regional processing countries. The Australian population deserves greater confidence in the integrity of the regional processing framework.

Regional cooperation is a key element of the Government's approach to the protection of our borders. This Bill will ensure that Australia is able to continue to provide the necessary support and assistance to regional processing countries to carry out these arrangements.

I trust this Bill will have the support of all members, most particularly those with an interest in ensuring the continued success of regional processing arrangements.

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

This government seeks this chamber's support to deal with an urgent bill which it introduced yesterday, the Migration Amendment (Regional Processing Arrangements) Bill 2015. It would be comforting to say that this level of disorganisation was unusual for this government, an aberration to its otherwise smooth and efficient running of policy and parliamentary processes. That would be comforting but it would not be true. This is a government that is characterised by chaos and dysfunction. I do not think I have seen anything like this in my 22 years in this chamber, where a government has had matters before it—as has been indicated—since February and discovers, on the second last day of a session, that as a matter of urgency it must resolve this question within 24 hours.

We of course acknowledge there are occasions when governments do have to act quickly, but the government has had these matters—this court case—before it since February and has only resolved to act in the last 24 hours of this session. That strikes me as gross incompetence. But it does not change the fact that there is a major problem that requires resolution, and, despite the fact that those opposite have never provided the level of support that they are now seeking from us—they never provided that when we were in government—we will offer that support today. We will help the government out. This urgent bill does require the support of this chamber, and the opposition will be doing all that it can. Despite the gross misrepresentations that this government has made of Labor's position, despite the extraordinary attempts to manipulate, divide and polarise the community around these issues, we will be supporting these measures, because we are better than them when it comes to these questions.

We could retaliate in exactly the same way as the Prime Minister, when he was Leader of the Opposition, acted when the High Court took steps on the Malaysia agreement. When Prime Minister Gillard wrote to Mr Abbott seeking his support for legislative change, what did Mr Abbott say? He said, 'This is a problem that you have created and it is your responsibility to solve it.' Just imagine if Mr Shorten responded to the Prime Minister's request in exactly the same terms. Where would we be? Of course, the reality is we will not be responding in those terms. We will not be responding in the way Mr Howard acted on the Tampa issue or Mr Reith acted on the 'children overboard' issue. We will not be presenting to the people of this country a proposition that the government wants to roll out the red carpet to people smugglers and terrorists. We said that there are substantive issues of principle that we need to deal with in a proper and peaceable way. That is the approach we will be taking.

We have accepted the assurances put down in the second reading speech by this government that this bill does not seek to go further in the introduction of new policy in regard to regional processing. It seeks only to enable payments to be made at law. That is the basis on which we are acting. We accept the assurances put down in the second reading speech that the purpose of this legislation is quite specific.

We acknowledge that regional processing is necessary. We reintroduced regional processing in government. We did so on the clear understanding that it was a mechanism that was necessary to stop the criminal syndicates sending people to this country, endangering their lives and exploiting their misery. There was no question that that policy was successful. The number of boats that came immediately after the introduction of that policy dropped by 90 per cent. But in no circumstances did we ever sign up to the proposition that the establishment of regional processing centres meant that we were going to legitimise the brutalisation and mistreatment of people who were detained. At no point have we signed up to that. That is the substantive question that I have no doubt we will want to explore here today.

There is no excuse whatsoever for a country like Australia to abandon its responsibilities at law, on international terms or in terms of basic morality. We have a duty of care when we detain people, and they have not been treated properly. Under the current arrangements, we cannot even guarantee people's security let alone assure them that they will not be mistreated by people who we pay to protect them.

The proposition we have before us is a very simple measure, but there are circumstances on which I believe firmly there need to be some answers. Labor senators will be pursuing that. What the opposition leader put yesterday is that these are circumstances in which the government comes before the parliament where trust is in short supply. This is a government that has managed to take a political advantage out of every circumstance here. This is a government that has, as I have indicated, since Peter Reith and John Howard had the firm belief that it can appeal to the most xenophobic and racist elements of our community and that it can seek to win votes by being more brutal about these issues than anybody else.

If anyone even raises a question, it is presented in a dog whistle way that the person asking the question lacks legitimacy. That is a proposition we reject. It is our responsibility to defend our country's reputation, to make sure that people who are detained by this country are treated properly and humanely. We will be supporting this legislation on the basis of what the government has said, but we will not stop criticising the way in which this government has behaved when it comes to the gross political exploitation of these issues. We acknowledge that there should be no confusion between the need to stop criminal syndicates exploiting human misery and the need to act properly, humanely and compassionately. That is the basis on which we will proceed on this question.

There are genuine refugees. The proposition that the government seems to advance is that that is an alien concept. There is a notion in this government that rejects the idea that people have any rights to appeal for refugee status in this country. Why else would the government constantly refer to these people as 'illegals'? They do not even acknowledge the legal right that people have to seek political refuge.

What we have at this time throughout the world is probably the greatest period of social distress and displacement of people that we have seen since the Second World War. There are more displaced people, more asylum seekers and more refugees on the planet today than at any time since the extraordinary upheavals of 1945. Our response calls upon us to acknowledge that there is a huge crisis throughout the world. Our response should not be to draw up the bridges and say, 'We don't want to know anything about that.' Our response should be to engage through the international community and the regional processing arrangements to ensure that Australia does its bit to end the human misery.

That is why we have committed to the highest numbers ever for humanitarian settlement. That is why we have committed to ensure that people are treated properly. We also have to acknowledge that desperate, downtrodden people will do desperate things. We have to stop that occurring when it endangers their lives. We are supporting this bill because we acknowledge that people's safety comes first—much before any partisan advantage that politicians can derive on human rights.

We know that the regional processing arrangements work. The government is acknowledging that in the fact that it has brought this legislation forward. We know that the agreements that have been negotiated with Papua New Guinea and Nauru are very important in stopping the actions of those criminal syndicates. We also note, however, that there is no reason why those actions in themselves should legitimise the mistreatment of people as part of a deterrent.

This issue was first raised through the Malaysia agreement. I have already mentioned Tony Abbott's response to that, but I have not forgotten the fact that the Greens and the Liberal opposition at the time came together to stop that. I can understand that the conservatives in this country would play politics hard on these issues. We now know, though, that the real reason they did it was not because the agreement was not any good. I can remember Joe Hockey in tears. Do you remember that? There were extraordinary scenes of Joe Hockey in tears. He said he would not send unaccompanied kiddies across to Malaysia. Yet he has sat in a cabinet of a government that has done the sorts of things that this government has done to people on Nauru. We know that the real reason the Liberals opposed the Malaysia agreement was not that they thought it was morally objectionable. They opposed it because they thought it might work and take away from the Liberal opposition at the time a major political weapon that they could use against the Labor government.

Yesterday the Leader of the Opposition reminded the government of another truth about this country. It is probably one of the single most important truths about this issue. That is that this country as a nation has been made great because of migration. It has been made great because of multiculturalism. It has been made great because of our diversity. We are a country that should believe—and I believe the overwhelming number of people do believe this—that we are great because we embrace every faith, every flag and every culture. It is our good fortune that people are attracted to this country and are able to live lives that do not call upon them to turn their backs on other cultures. That is at the heart of multiculturalism.

Multiculturalism is so vital to the prosperity of this nation. Yet, since 2001, we have seen this issue be exploited by the most racist and xenophobic in this country, tearing at the fabric, the very idea, of a multicultural Australia. We are saying that we as a nation need to move beyond that. We need to turn our backs on that sort of division and help this community reach an understanding of how important it is not only to honour our international obligations but to demonstrate that we are not a soft touch but that we are a country that acknowledges the strengths of diversity and understands the importance of a national consensus around multiculturalism.

Labor's approach is founded on that principle—that is, our obligations to the international community, international conventions, international treaties and international human rights. Our approach is to ensure that this nation is welcoming of people of all faiths, and there is a demand that we place upon them of the shared respect and tolerance of other faiths. And our approach is that we have to find a place for the most vulnerable in the world; they should be able to come to this country safely and they should come legitimately. On that basis, we are saying that we will support the government in its efforts, but we will not endorse the dehumanising, inflammatory language or the vicious attempts to divide and to shame those that take a different view or those that seek to exercise their rights to approach this country for the purposes of political asylum.

Some hope that this bill might be an opportunity to change the terms of political debate in this country. I am not quite certain that that will occur; but we could at least proffer the idea that, as a country, we should be calling on this parliament to enact laws for a nation that is compassionate, that is strong, that is generous, that is secure, that is safe and that is fair. I look forward to that actually happening.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise today to speak in opposition to the Migration Amendment (Regional Processing Arrangements) Bill 2015. I have already raised my concerns about the way this bill has been rushed into the parliament without any real justification by the government. We really have to get to the heart of what this debate is about.

Back in 2012 under the Gillard government there was an agreement between Julia Gillard as Prime Minister and Tony Abbot as the Leader of the Opposition to pass legislation in this place to reopen the detention camps on Manus Island and Nauru. The Greens strenuously opposed that at the time and we spent hours in this place debating the legislation and running through amendment after amendment. Back then we questioned the wisdom of pushing through legislation that would not have significant safeguards for conditions inside the Nauru and Manus Island detention centres, the fact that there was no independent oversight of these centres, the fact that there was no media access, the fact that there was no time limit on the detention of any person held in these places, let alone those who are most vulnerable, including children and minors who arrive here on our shores all on their own. Every single one of those amendments was opposed at the time by both the Labor government and the Abbott opposition.

What we have seen since then, unfortunately, despite being told, 'It will all be okay, Joe—trust us; we will run these places properly' is the exact opposite. These places have turned into camps of hell. Children have been detained for over two years; young men have been detained for three or four years. There are children who are now suffering in Nauru after being sexually abused and assaulted. One young girl, five years old, was swallowing razor blades because of her level of depression and mental health—a five-year-old child swallowing razor blades. That is what is going on in the Nauru detention camp.

Last year explosive evidence was brought forward in relation to child sexual abuse in Nauru, with women, mothers, being forced to exchange sexual favours so that they could get more time in the shower blocks to clean their children. Witness account after witness account, through the Moss review, the Human Rights Commission report and now this chamber's own parliamentary inquiry, shows that the conditions inside the Nauru detention centre are toxic, are seedy and are inhumane, and it is simply unconscionable for this parliament to not act in order to clean this up.

The bill that we have before us today has been brought forward in a rush, in less than 24 hours, because there is a case before the High Court that involves a number of families. One of those families has had a baby, born here in Australia—a little baby born here in an Australian hospital. In any other world, that child would be considered an Australian, considered to be able to have access to Australian citizenship. That family, in any other circumstance, would be able to celebrate the birth of that child and think about how they would be providing for that child, what school that child would go to, what a great Australian that child would grow up to be. One of those families is one of the claimants in this case, and they are horrified and scared about being sent back to indefinite detention in Nauru.

There are two parts to this case. The first is that the government has not had the legal authority to pay contractors and the Papua New Guinea and Nauru governments the billions and billions needed over the last three years to run these camps. This bill would give legal authority to keep paying billions of Australian taxpayer dollars to keep these camps, that are being run atrociously, operating. The second aspect of this legal challenge is the authority to keep these people in detention, the authority to transfer that newborn baby from Australia to Nauru and to lock her up indefinitely and to lock up the other 80 children who are here in Australia that the immigration minister wants to send to Nauru. There are 80 children here in Australia who have been told they are on the next plane to Nauru, to be locked up in these hellhole conditions indefinitely. I have heard the government's comments on this bill and I have heard the statements made by members of the Labor Party. I want to make it very clear that this bill does more than just give the power to pay contractors. This bill specifically goes to allowing the Commonwealth to do several things, the first of which is:

To take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country; …

It is unfettered power as to how they want to run these places; it is an action that is defining this piece of legislation as legislation that permits the exercising of restraint over the liberty of a person. This goes to the heart of the lawfulness of indefinitely detaining a person, whether it is a man, woman or child, in these places.

This is not just about plugging a loophole. These detention camps have been getting worse by the day for the last three years. Now we find they have been run illegally; they have been paid for illegally. You could probably fix those things pretty simply, sure, but the only way to clean these things up is to put some constraints on the government's power to detain people. That is why we will propose a number of amendments in the committee stage. I do not agree with offshore processing; I do not agree that the 'do whatever it takes' attitude means locking children up in an island prison indefinitely. I do not agree that keeping people in squalid conditions in the vain hope that they will give up on seeking protection and just go home to a war zone to face their torturers is what we should be doing. I do not agree that Australia should just legislate away our legal, international and moral obligations and responsibilities. I do not agree with any of those things—but these hellholes exist.

This government and the Labor opposition are rock-solid on keeping these places going. I wish that was not the case. While they are open, Australian taxpayers are going to be spending billions and billions of dollars—one contract for Transfield Services to keep Nauru open for 20 months costs the Australian taxpayer $1.2 billion, and yet there is no running water in these camps. There is not enough food for the children. There are not any toys in the camp. Two years ago hundreds of Australians donated toys to my office to send to Nauru because there were no toys for the children locked up in this place—yet the contractor is paid $1.2 billion of Australian taxpayer money. What is it being spent on? It is not being spent on running a camp that is humane, that is well functioning or that is safe. Staff employed by these contractors are abusing children, are raping women, are sexually assaulting people, are intimidating people detained there. We know this because the evidence has come forward over and over again, and particularly in recent months, to this Senate chamber's own parliamentary inquiry into the matter.

We have to put some restrictions on how these places are run. There need to be some time limits. Why do we think it is okay to fly somebody to Nauru and lock them up forever without trial, without ever being able to see a judge, with no legal protection, with no access to a lawyer—lock them up and effectively throw away the key, all because they had the courage to flee a war zone with their family? Australia's asylum seeker policy is an international disgrace. We have to be doing things better. I do not think anyone can argue that the detention of a child is worth this; that robbing a child of their childhood simply to send not a message to the people smugglers—let's get real—but a political message in the midst of what has become an ugly, ugly debate in this country is worth it.

The Human Rights Commission has no access to the Nauru or Manus Island detention centres, and neither does the Commonwealth Ombudsman, despite the fact that billions of Australian taxpayers' dollars are spent funding these. One of the elements of this court case that the government wants to scuttle is that these facilities are Australia's responsibility. We sign the contracts. The Australian government sets the rules. They sign the cheques. They train the staff. They decide who goes in, who comes out and how long they are there for. These places are run by the Australian government. This government and the previous government put these places in Nauru and PNG so that they could be out of sight, out of mind and out of the hands of what we would normally expect in Australia to be the rule of law. But they are still Australian. These are still Australia's camps that are locking up men, women and children—punishing them for fleeing torture, abuse and war.

There are a number of Syrian families detained in Nauru. There are also 68 people who are Rohingyans who have fled the torture camps in Burma and then in the jungle in Malaysia and Thailand. There are 68 of them locked up in Nauru. We have seen, over recent weeks, the footage of how these people are treated. We have seen the world, the international community, condemn the treatment of these people by both the Burmese government and of course the people smugglers who tricked them. And yet, rather than dealing with the problem at the source, we are punishing those 68 people by keeping them locked up indefinitely in a hellhole in Nauru. That is wrong.

Those people have not committed any crime. There is nothing in Australian law that says that it is illegal to come here as a refugee—nothing. There is a law that says: 'For administrative purposes, you must be detained,' but nothing that says: 'It is illegal to seek asylum.' It does not matter how you get here; that is not what the Australian law says. It does not matter how many times the government wants to use the word 'illegal'. It does not matter how many directions the minister gives his public servants to use the word 'illegal'. It is not illegal in Australian law, let alone international law, to seek asylum or to be a refugee.

This would have been and this is today an opportunity for us to try and fix things. And I appeal to the crossbench and to the Labor Party. I have on the record my views and the Greens' views. We do not support offshore processing. But we will do whatever we can to make it a less cruel place. The dozens of children and women who have suffered at the hands of abusers in the Nauru detention centre over the last two years deserve that. They deserve some help. They deserve to have their suffering acknowledged, heard and acted upon. Today is an opportunity to do that.

We could have spent a good amount of time going through the legislation and working out if there was anything else that needed to be done. If we are going to spend Australian taxpayers' money running these places, let us make sure that they are being run properly, because we know that at the moment they are certainly not.

The private contractors that are making hundreds of millions and billions of dollars' worth of profit out of the people's misery on Nauru do not even want to answer basic questions. We saw that in the recent Senate inquiry. They do not want a bar of it. They want the Australian government to take responsibility. And then we have the Australian government saying, 'We don't want to take responsibility; it's all Nauru's and PNG's fault.' No—what the case before the High Court and the Australian government's response today, of rushing through legislation, shows is that the responsibility lies squarely at the feet of the Australian government, the immigration minister and his department.

So this is where we have to fix it. Let us get some time limits on detention. Let us stop children who are being born in Australia having to be deported back to Nauru. Let us ensure that people who are employed in these places have a legal requirement to report abuse and suffering, just as we would in any other government institution or agency. There should not be an explosive decision for this chamber today to make to ensure that if staff, who are employed to care for individuals, children and families who are locked up, see abuse happening, they must report it—and that cannot just be to the immigration department, because we know that, in 2013, two years ago, children were being sexually abused, the department knew about it, and nothing was done to remove those children from the centre. We know that because that is the evidence that has been given. We know that because some brave staff who work in these places have had enough—enough of the secrecy; enough of the cruelty—and have been prepared to stand up. And now is the time for the Senate to do the same. I urge the Labor Party to act with courage.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, your time has expired. Were you intending to move your second reading amendment?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I should also add—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I do not need you to add anything; I just need you to move the second reading amendment.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I move:

At the end of the motion, add “but the Senate notes:

(a)    the findings of the review by Mr Phillip Moss into conditions in Nauru and the evidence currently before the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru that women and children have been suffering rape, sexual assault, child abuse and severe physical and mental trauma associated with the conditions in Nauru; and

(b)    the United Nations Subcommittee on the Prevention of Torture found the conditions on Nauru to amount to torture and trauma”.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Thank you very much.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

I have long advocated the rights of refugees. I support those who seek asylum, who flee persecution, war, uncertainty. Before coming to this place, I actively worked with refugee organisations on processing claims and I continue to donate to refugee organisations. In some ways, the work that I did on behalf of refugees was easier than being in this place and having to make decisions in the best interests of our country—having to make the difficult decision to support this legislation. I take this opportunity to set out why I support this legislation and to make it very clear what I do not support.

I do not support the Abbott government's continued demonisation of refugees and asylum seekers. They began this attack in opposition and they have ramped up this attack in government. I will never forget, during the election campaign, the billboards demonising refugees which sprang up in Western Australia. With those horrendous billboards all over the city and on the backs of trucks, there was nowhere you could go in the metropolitan areas of Perth and ignore them. That a political party thought it was okay, in Australia, to make the plight of people fleeing persecution an election issue is a disgrace. That it continues this attack, almost on a daily basis in this place, on those fleeing persecution shows the depths they will go to to ensure their political survival.

My reservations about this bill go to the fact that, like many in the Australian community, I do not trust the Abbott government. It has betrayed the trust of the Australian people by breaking its election commitments—its promises. So, when the government comes to Labor for support of this bill at the eleventh hour, my suspicions are aroused. The Abbott government, if it ever had any morals, has certainly lost its way on the issue of asylum seekers and refugees. The Labor opposition opposed this bill and demanded assurances, and we demanded that they be in the second reading speech. So the government set out assurances, in the second reading speech, that the amendments in this Migration Amendment (Regional Processing Arrangements) Bill 2015 solely go to enabling payments and enabling the fact of regional processing, and that the legislation does not in any way change or expand the current situation with regional offshore processing. Labor have been given the commitment that this bill does not empower new conduct and that nothing in it is the basis for new action. That was set out in the second reading speech.

Our leader, Bill Shorten, summed up the feelings of the Labor Party on this proposal by the government in his speech on this bill. He said:

When Labor were asked to support this amendment there was some considerable recollection in my party of Labor's first regional resettlement policy that centred on the Malaysian arrangement. Because of the High Court's decision in that case, the fate of this plan was left in the hands of the parliament, just as we are being entrusted now. It was a debate that captured, for all to see, the poisonous, obstructionist negativity of the Abbott opposition. We remember that, after years of slogans and scaremongering, they suddenly sought to lecture us on the rights of refugees. We remember the then shadow minister for immigration, the member for Cook—

Mr Scott Morrison—

the man who said in 2011 that allowing relatives of asylum seekers who drowned at sea to attend the funeral of their loved ones and, for some, the funeral of their own child was not a reasonable use of money—lecturing us about being humane.

…   …   …

We will never forget that when Prime Minister Gillard wrote to Tony Abbott asking for bipartisanship, seeking cooperation to reach a solution, he wrote back saying: 'This is a problem that you have created and it is your responsibility to solve.' That was his idea of leadership: 'This is your mess, you fix it.'

We will never forget the deal that the Liberals and the Greens did in teaming up to defeat the Malaysia arrangement. We will never forget the 689 souls that were lost after that vote. My fear is that the truth is that the coalition opposed the Malaysia arrangement not because they thought it would not work but precisely because they were afraid it would work. They played their politics hard.

It is precisely because we remember that that Labor are determined to be better. When confronted with the same facts as Mr Abbott was when he was Leader of the Opposition, our leader and our Labor caucus did not draw the same conclusion that he did—that it was his mess and he needed to fix it.

The Moss review, the Human Rights Commission and the Senate select committee on Nauru have all reported on the inhumane treatment of refugees, the alleged sexual abuse of children, the alleged rape of women, and on mental illness and poor health. What is the response of the Abbott government? They bury their heads in the sand, they ignore the truth and they continue to demonise those who seek asylum.

Questions about the death of Reza Berati remain unanswered. I remember how the then minister, Scott Morrison, in his initial response, blamed asylum seekers for protesting and creating a dangerous situation—again, using the tragic death of this young man as an opportunity to demonise and blame asylum seekers. Where is the justice for Reza Berati? Where is the pressure on the Papua New Guinean government to undertake a thorough and transparent inquiry? There is no pressure being applied by the Abbott government for the truth to be told, because their agenda is about the demonisation of those who seek asylum and those who seek refuge.

Under John Howard our notion of a fair go country was under attack. He went too far, and it was his changes to industrial relations which finally turned Australians against him. Not only was the Howard government voted out of office—he lost his seat. The Prime Minister was unseated. Now we are seeing the same attacks by the Abbott government—our fair go once more under attack. I would hope that the treatment of those who seek asylum is one of the issues which ensures that the Abbott government are voted out of office at the next election. The Abbott government is turning Australia into a small, mean, closed-border country. No longer do we see words or actions from our government that we are a global player on any issue, let alone see or hear the Abbott government acknowledge that displaced persons and refugees are a global issue. We are becoming the outlier—a country which says that refugees are anybody's problem but ours.

There is no doubt that as a Labor senator I will be criticised by refugee advocates for supporting this bill. My support for this bill in no way legitimises the inhumane way in which the Abbott government are treating refugees. There is no doubt that the situation on Nauru and Manus Island is horrendous. No matter how much the Abbott government tries to cover up, to hide the truth, to hide behind national security, to hide behind border protection, to hide behind on-water matters, the truth always comes out. I want Australia to take its responsibilities for refugees seriously. I want Australia to be a global player, to take its global responsibilities seriously. I want to see the humane treatment of refugees. I want to see timely and fair processing and giving people who seek asylum the opportunity to rebuild their lives. There is a world refugee crisis. Australia needs to be part of the solution to that crisis. In my view that does involve regional processing, but it does not in any way involve the sorts of actions and inactions that we are seeing from the Abbott government when we see what they are doing on Nauru and Manus Island.

The reality is that there are refugee camps all over the world. There are people living on the borders of Turkey; there are people fleeing into Jordan and other places. All over the world there are people seeking refuge, seeking a safe place. There are displaced people everywhere, and it needs a global solution.

What we want to see from the Abbott government is the timely and fair treatment and processing of asylum seekers—not holding people in camps for years and years and years; not picking the cheapest contractor, who does not understand that people are traumatised and need to be treated fairly and humanely. That is what I want to see from the Abbott government. But I do not believe that I will see that. I know in my heart and my head that it suits the Abbott government to continue to demonise asylum seekers, to call them illegals, to give them numbers, to deny their humanity. That is not good enough, and I am working, every day that I can, to expose the inhumane treatment of the Abbott government, the way it treats people in asylum. Any one of us, depending on where we were born, could have been faced with that situation. I know that if my family were under threat I would do everything that I could to remove them from that threat. We want to see asylum seekers, no matter where they land, being processed quickly and being treated fairly and humanely. I do not believe we will see that from the Abbott government.

This morning, before coming down here, I took a call from a refugee advocate who was in tears at the treatment of children. She told me many stories. Of course we all know those stories are there, yet they fall on the deaf ears of the Abbott government and we have no response. How many more times do reports have to come before this parliament, have to be published, that talk about the inhumane treatment of refugees on Manus Island and Nauru? How many more times do those things have to be reported before the Abbott government finally steps up to its responsibility? I fear that for the term of this government they will continue to ignore those pleas.

My take is that in detention camps, wherever they are run, people need to be processed humanely and fairly. Of course that is not what this bill is about, but those emotions become aroused when we talk about Australia's treatment of refugees. I certainly will continue to condemn, in this place and in other places, the inhumane treatment of refugees. It reflects on all of us, whether we are elected politicians in this place or members of the community. The way the Abbott government is treating refugees in our name is a reflection on all of us. And I know that this is gaining currency in the Australian community. You can only demonise asylum seekers so far. When ordinary Australians actually meet people who are fleeing persecution they can imagine themselves in exactly the same situation. Any of us in this place would do exactly the same thing—take action to protect ourselves and our families.

The legislation before us today is an opportunity for the Abbott government to step up to the plate, to start treating asylum seekers humanely, to stop calling them illegals or illegal boat arrivals, to stop using refugees as some kind of political football. But I suspect that will not happen in this place today. During the committee stage we will be questioning the government and seeking further assurances on just exactly what their intentions are. Despite the bill setting those intentions out, we have no trust in the Abbott government and what they put forward as legislation. We will be assuring once again that they are very clear about particular causes in the amendment they are seeking today. We will hold them to account on this bill and any other bills they bring before this place. I can only urge them today to look at their own actions, to look at their poor, unjust, unfair, inhumane treatment of those seeking asylum. I can only urge them to get on with the processing, to give people the opportunity to rebuild their lives, to give people their humanity back and to treat people fairly.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak against this bill. This bill is really an acknowledgement that the operation of our detention centre network is illegal. This bill is an acknowledgement that the abuse and atrocities that have been committed in detention centres have been committed under an illegal framework. Far from asylum seekers being illegal, it is the actions of this government that are illegal. Yesterday we heard assurances from Senator Brandis that what is occurring in our offshore detention centre network is legal, lawful and within the rule of law. But a government that is confident that what it doing is within the law does not rush through legislation like this at a minute to midnight. A government that is confident that what is going on in its name is within the law does not bypass the parliamentary processes that need to be scrutinising bills like this. This is an acknowledgement that what is going on in detention is going on illegally.

The case that has triggered the response from the government was brought on by the Human Rights Law centre. It involves a number of families, some members of whom are children born here in Australia, who are being deported. Their stories and their families represent the stories and families of many other thousands of people who are suffering in detention in our name. We recently had 40 people transferred from a detention centre near Darwin. Many of those people were going back to Nauru after reporting sexual abuse in that detention centre. They were returning to a place where they have suffered horrific abuse. There were allegations of rape and people being denied antenatal care or decent medical care and children exposed to violence being forced to self-harm. That is what this bill is about. It is about changing the law to allow these things to happen within the law. It is about changing the law to allow the continued abuse, rape and violence that our system of detention centres now represents.

This is part of a worrying pattern from this government. Far from being a conservative government, this is a radical and extreme government that is prepared to trash the very foundations of our democracy. It has used bribes to turn back boats on the high seas in an effort to aid people traffickers. It has implemented gag orders to prevent doctors, nurses and teachers from disclosing what is happening in detention centres. It has referred journalists to the Australian Federal Police. It has engaged in surveillance, going as far as to spy on a senator in the Australian parliament doing nothing else but her duty in ensuring that we get access to what is going on in these facilities. It is a government that across so many other areas is trashing the rule of law. In the very unedifying debate around citizenship, we saw a government that is prepared to deny people a very basic and fundamental right. This is a government that is lawless, that is out of control and that needs a check. That check should be the Australian parliament, the Senate, and yet here we are forced to rush through this legislation with the support of the Labor Party. The government will argue that all of these actions are justified because it has stopped the boats. In the words of the Prime Minister, 'that is all that matters'. Well no, Prime Minister, that is not all that matters. What matters is respect for our democratic institutions. What matters is respect for the separation between executive government and the courts.

We are paying a huge price. Stopping the boats is not difficult. The question is: what price are we prepared to pay for it? Are we prepared to trash the institutions that all of us have fought so hard to protect? Are we prepared to justify the epidemic of mental health issues that are occurring inside detention? Are we prepared to justify young children self-harming? At a time when the nation is asking itself about how we could allow child sexual abuse to occur in our national institutions, are we going to turn a blind eye when that occurs in those institutions that are dealing with people who are fleeing torture and persecution and doing nothing other than coming to us for help? What is the economic cost of what we are engaged in? What is the economic cost? The billions of dollars that are necessary to sustain this immoral, illegal policy of offshore detention comes at a huge economic cost. I cannot help but wonder if that money were invested in resettlement in our regional communities what sort of contribution they could be making to the nation right now. We would be a richer, better, more decent nation for having offered them assistance and for allowing them to do what they want to do, which is to contribute, to give their kids a decent education, to become citizens of this nation and to contribute in a way that generations before them have been able to do.

I think of the cost in terms of our international reputation and the relationship we have with our nearest neighbours, like Indonesia. We recently met with the Indonesian ambassador, and it is very clear that they are hurt, angry and disappointed in the way we have responded to this problem by isolating ourselves from the rest of the world and by not recognising that what we are confronting is a global issue that requires a global response. We must engage at a regional level with Indonesia, with Malaysia and with our neighbouring countries to ensure that we all work together to resolve what is a diabolically difficult issue.

What we will hear from the government, and from good people on all sides, is that we have to do this to stop the boats and to stop the drownings at sea. But this response started long before the issue of people drowning at sea entered the public consciousness—it started with language like 'queue jumpers' and 'illegals'; that we were being 'swamped'; we need to 'protect our borders'; we have to 'keep terrorists out'. That is the language in which this debate started. Not for a moment do I believe that this is driven by any concern for drownings at sea—not for a moment.

We need to ask ourselves: by stopping the boats are we keeping people safe? If people do not drown in Australian waters but die elsewhere, does that mean that they are safe? If we, through our policy of deterrence, condemn someone to remaining in an environment where they are being tortured, where they are being raped, where they are suffering tremendous abuse, and where they are at risk of being killed for their religious beliefs or their sexual orientation, that does not mean they are safe. It means that we have outsourced the problem to someone else.

The issue here is that we have a political debate dominating what really is a moral question. The politics have become so toxic in this debate that political self-interest is motivating the actions of this government and governments before them. There is a different way. We saw bipartisanship in the early 1980s in response to the wave of South-East Asian refugees. There was a compact back then that we would not play the race card. There was a compact that said that we as a rich, prosperous, decent nation would play our part in resettling people who are fleeing horrendous circumstances. We did that through leadership, and we brought the Australian community with us. We can do that again, but what we are engaged in now is a race to the bottom—it is a political race to the bottom because we have one party that knows no boundaries on this issue. It will gag people from speaking out. It will pay people traffickers. It will bring in legislation at one minute to midnight to allow what is an unlawful policy to continue to operate, which means more abuse, more torture and more children being driven to self-harm. That is what is being allowed to happen in this parliament today.

I say to the Labor Party: this is a race you cannot win because with each step this government will take us further away from what is decent, from what is right and from what cannot be justified in any way. There are no perfect solutions; I readily admit that. It is a diabolically difficult problem. There is no perfect solution to this issue, but what we are doing cannot continue. No matter what the problem is, forcing young children to self-harm and condoning abuse within detention centres can never be a solution—it can never be a solution. There has to be another way. Through this debate, we will introduce a range of amendments that, while not perfect and while not going far enough, will improve what is a terrible situation.

Let me talk to some of those amendments. We have to have time limits in detention. We cannot continue to operate a system that deprives people of all hope, and that is what we are doing right now. We cannot have forced deportations of young children who are being born here in Australia and sent away to the hellholes that are the Nauru and Manus Island detention centres. We cannot continue to allow that to happen. We have to lift the cloak of secrecy that exists within our detention centres. Journalists should get access to what is going on there and we should be forced to witness it with our own eyes. We cannot continue to keep this 'out of mind, out of sight'. The whole edifice depends on the Australian community not knowing what is going on in detention—because the moment that we connect with people in there as people, with children in there as children, we know that what goes on there cannot continue. We have to lift the veil of secrecy that sustains this inhumane policy, and that is why journalists must get access.

There must be mandatory reporting of child abuse. How can we have a situation, as reported, where a four-year-old girl is exhibiting behaviour consistent with a child who has been sexually assaulted:

… including sexualised dancing and pulling her pants down to invite adults to insert their finger into her anus. Despite child protection workers assessing her to be at "high risk of ongoing sexual abuse", … the immigration department did not remove her from detention.

That is a report from The Guardian. How can we allow that to happen? At this time, we are questioning the issue of institutional childhood sexual abuse, where we are hearing horrific stories of people whose lives have been damaged right across the nation. We have a royal commission and we are asking ourselves that singular question: how could we let this happen? Yet here we are with people going through what we have accepted as a huge tragedy and a wrong that needs to be addressed. So we must have mandatory reporting of sexual abuse. We have to give access to the centres to the institutions that are a check on the executive, like the Human Rights Commission. Rather than denigrating the human rights watchdog, which is doing nothing other than speaking truth to power, we should be allowing it access to these institutions so that we know what is happening in our name.

There is another way. This is an opportunity for the Labor Party to stand up with us and for the crossbench to stand up with us and say to the government, 'Enough is enough.' This cannot continue, it must stop and this bill cannot be supported.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to contribute to the debate and oppose the Migration Amendment (Regional Processing Arrangements) Bill 2015. I want to make it clear that I support the principle of offshore processing of illegal immigrants, as long as it is done according to the law of our country and the countries which are being paid to process illegal immigrants trying to travel to Australia. I am pleased that the boats have been stopped and that the deaths at sea and the exploitation of those illegal immigrants by Indonesian government officials and people smugglers have been severely curbed. I am happy that our boarders have been secured and I will not be supporting any Greens amendments to undermine the principle of offshore processing.

However, having said that, it is clear that this legislation is nothing more than a get-of-jail-free card for the government. Before any legislation is passed through this parliament, we should wait and hear what our High Court has to say. We should learn the valuable legal lessons that the High Court challenge will provide. The possibility still exists that this legislation is overreach and not needed. The manner in which this legislation is being brought into the Senate, with no community consultation and in a blind panic, smells of political fear. Because of a High Court challenge to the Migration Act by the Human Rights Law Centre, both the Liberal Party and the Labor Party have agreed to rush legislation through this parliament at a dangerous, rude and unseemly speed, in order to justify expenditure on offshore processing of illegal immigrants at Nauru.

According to a media report written by Shalailah Medhora in The Guardian, the Human Rights Law Centre:

… also claims that the government does not have jurisdiction to detain people offshore. Constitutionally, Australia has authority to lock people up onshore, and deport people. The HRLC—

the Human Rights Law Centre—

maintains that Australia does not have specific legislative authority to lock people up in another country.

If this media report turns out to be true, then both the Labor Party and the Liberal Party in this place have a lot of explaining to do. Why wasn't this legislation fixed in the first place? If it is proven to be defective, who will be held accountable? Labor will have been the culprits to have introduced dodgy migration laws and the Liberals will have been the ones to turn a blind eye to them and operate under them.

Isn't it strange to think that yesterday I delivered a speech to the National Press Club in Canberra, where I defended independent crossbench senators from the claim by this government that we had caused chaos in this parliament? And here we are today debating dodgy government legislation which was rushed through the lower house and into the Senate yesterday in two hours, in order to carry out a pre-emptive political strike on a future High Court decision which may find that the Australian government has broken the law and made illegal payments to host countries participating in our offshore processing and detention of illegal immigrants. Of course, all this comes after our Prime Minister refused to answer questions about credible allegations that his government has also arranged for international criminals who smuggle illegal immigrants to be paid $30,000 worth of bribes.

The definition of chaos is when a government rushes dodgy legislation through parliament in order to make a pre-emptive political strike on the rule of law, while paying international criminals $30,000 worth of bribes. What we have before us is proof of chaos and dysfunction within the present Liberal government and an example of the lingering chaos and dysfunction from the old Rudd-Gillard-Rudd Labor government.

More examples of chaos and dysfunction can been seen by the disclosure, yesterday, of the PM's stage-managed trip to ASIO headquarters and subsequent media coverage that illegally disclosed the location of terrorism hot spots. For his own political survival, this PM is milking the terrorism threat for all it is worth—for every single, last, little drop. His deliberate media strategy of overly focusing on the threat of terrorism is covering up the cuts to the entitlements of pensioners and veterans.

We do not need new terrorism laws. We already have laws of sedition and treason that will protect us from those who assist and help our enemies in any way whatsoever. We just do not have politicians who will allow our law enforcement authorities to properly apply the laws of sedition and treason which must be approved by the Attorney-General.

Another example of this Prime Minister milking the threat of terrorism for all it is worth is the deployment of Australian troops to the Middle East. There is absolutely no military sense in basing our troops in the Middle East and exposing them to threats of insider attack, abduction and attack by gas. Our allies, the Americans, by their own standards with only 3,000 troops in Iraq—about one-third of the number of US forces in Afghanistan—are guilty of flying the flag with a token force. The main purpose of our troops' presence in the Middle East is so that the Liberal backbench will not revolt and overthrow their own PM. Our troops' presence in the Middle East provide a great backdrop for our Prime Minister's next staged-managed press conference.

As Mr Abbott's popularity drops, and the Liberal backbenchers plot, he will continue to milk the terrorism threat for all it is worth and fly to the Middle East to visit our troops. Mr Abbott will shamelessly pose with our diggers, the people he has taken money from, yet he still denies them back pay and a fair pay rise of a full three per cent not, effectively, a two per cent pay cut. Back home, according to last year's budget papers, his government spends $20 million on culturally appropriate residential aged care to Arabic-speaking communities in Western Sydney, which is one of the places, according to yesterday's ASIO maps, that is a terrorism hot spot. How about that!

As I have indicated in this place before, if you want to address and defeat the threat from Islamic State, accept the fact that Iraq, Syria and Libya should be allowed to organise itself into three ethnic and religious groups—the Kurds, the Shiites and the Sunnis—and then fund and provide resources to the Kurds. They are the only effective democratic force on the ground against the Islamic State brutes, and with 40 million people in the Middle East the Kurds are a stateless nation deserving of our support. They deserve our support and that is where we should be sending our resources. This is who we should be assisting.

The government's official explanation of the bill in their explanatory memorandum reads:

The Bill provides statutory authority for the Commonwealth to:

This Bill provides statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries, including the expenditure of Commonwealth money on these arrangements. The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.

The amendments in the Bill will have retrospective and prospective effect.

Everyone knows that retrospective law making is extremely bad law making. It breaches fundamental human rights, democratic and legislative standards, and must be avoided at all costs. Yet this government expects the people of Australia to accept these retrospective laws.

You do not have to search far to find quotes which describe the kind of legislative madness and chaos that the Liberal government has created by introducing the retrospective element. If you look at the Attorney-General's website it will tell you—and I quote:

Where does the prohibition on retrospective criminal laws come from?

Australia is a party to seven core international human rights treaties. The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The Australian Law Reform Commission said in one of its papers on retrospective laws, at paragraph 7.5:

Retrospective laws are commonly considered inconsistent with the rule of law. In his book on the rule of law, Lord Bingham wrote:

'Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence'.

At paragraph 7.6 of the paper the Australian Law Reform Commission also said:

Retrospective laws make the law less certain and reliable. A person who makes a decision based on what the law is, may be disadvantaged if the law is changed retrospectively. It is said to be unjust because it disappoints 'justified expectations'.

How many Australians today with disappointed justified expectations would like the opportunity to retrospectively cast their vote at the last election now that the truth about the dysfunction and chaos besting this Liberal government is starting to emerge?

While the Liberal government seems as if it is prepared to use bribery to reward and stop people smugglers from sailing into Australian waters, I believe there are better solutions to target people smugglers and take them out of business permanently. That way we would not have to rely so much on the threat of offshore processing to deter illegal immigrants from trying to breach our border protection.

People smugglers, wherever they are in the world, must be treated like international criminals and referred to the International Criminal Court, the ICC. A Parliamentary Library study I commissioned says:

While the ICC—

the International Criminal Court—

has jurisdiction over "crimes against humanity" and these could include people smuggling type offences ...

There's a couple of different ways that the ICC could be tasked by the UN—

the United Nations—

to target people smugglers.

It is sitting here! Further, it says:

1) Australia could ask the UN Security council to refer cases of people smuggling to the ICC. If that request was granted by the security council, then the ICC would be officially authorized to Compulsory jurisdiction and against people smugglers.

2) The ICC statute or the Rome Statute, Australia signed on the 9th of December 1998, establishes a permanent international Criminal Court to try individuals accused of the most serious of crimes to the International community as a whole, namely genocide, crimes against humanity, war crimes and the crime of aggression.

3)    The Rome Statute contains obligations on the State parties to co-operate fully with the ICC. The Rome statute applies to natural persons irrespective of whether they are government officials (eg Heads of State, Government and parliamentary officials)

4)    No statute of limitations applies to crimes within the ICC's jurisdiction

5) The ICC is empowered by its enabling statute to sentence an offender to a term of imprisonment (not exceeding 30 years) a fine and to order forfeiture of assets and property derived directly or indirectly from e crime.

Wouldn't a few Indonesian people smugglers think twice about bringing illegal immigrants to Australia—raping and murdering them along the journey—if they and their government accomplices or travel agents organising the trip knew they all could receive a long jail sentence, heavy fines and have their assets seized after the ICC investigated them and hauled them before an international court? The involvement of the ICC must be seriously considered by the Australian government. Once again, I call on—and will continue to call on—the foreign minister to make the appropriate representations to the UN on our behalf.

Another method of deterring people smugglers and having fewer people transferred to offshore processing facilities is to decrease our foreign aid budget to Indonesia every time our forces detect people-smuggler boats. Our foreign aid budget to Indonesia is currently over $300 million a year and over the forward estimates it is worth $1.2 billion. If Indonesia allows people smugglers to fill their boats and leave their ports bound for Australia, then, for each boat our Customs and Navy vessels intercept, let's take away a minimum of $5 million worth of foreign aid to Indonesia. Let's put our foot down. I am sure they would get the message very quickly. The money could be spent on looking after our serving diggers, our pensioners and our veterans who are being unfairly targeted by this government with cuts to their pay, entitlements and pensions.

I note that this matter was supposedly dealt with on 21 September 2011 when the then Minister for Immigration and Citizenship introduced amendments to the immigration act in response to another High Court challenge. During the debate, Minister Bowen said:

The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.

This is a power that was thought to exist until 31 August this year, when the majority of the High Court decided that transfers under section 198A of the Migration Act could only take place to countries legally bound to provide protections equivalent to those offered by Australia.

Subsequent legal advice has made it clear that the High Court's decision has thrown into significant doubt the ability of governments—present or future—to effect transfers to a range of countries in our region who are prepared to offer protection from refoulement, and will allow processing of refugee claims to be made, including Papua New Guinea and Nauru.

So today the government is introducing amendments to the Migration Act to make parliament's intention absolutely clear.

The questions I pose to the Senate after considering Mr Bowen's speech are the following. Why didn't both the Liberal and the Labor parties have a good look at the immigration legislation four years ago after the High Court raised the red flag? The red flag was raised so high you could not miss it. Will we be going through the same chaotic rushed process in another three or four years? Surely a properly measured, thoughtful, independent review of our immigration laws would be a good idea.

In closing, I again repeat my introduction. While I oppose this legislation, I support the principle of offshore processing of illegal immigrants as long as it is done according to the law of our country and the countries which are being paid to process illegal immigrants trying to travel to Australia. I am pleased that the boats have been stopped and the deaths at sea and the exploitation of the illegal immigrants by Indonesian government officials and people smugglers has been severely curbed. Before any legislation is passed through this parliament, we should wait and hear what our High Court has to say. This parliament must show respect to our High Court. We must do that. We should learn the valuable legal lessons that the High Court challenge would provide. The possibility still exists that this legislation is overreach and not needed.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I rise to sum up the debate. I am bound to say that I did not hear most of the debate. I will reply to you in a moment, Senator Lambie. From what I heard of the contributions made by the Greens, we heard nothing more than the usual platitudes and insincere objections to a series of measures that has saved hundreds, if not thousands, of lives, and it is disgraceful.

Senator Lambie, I did hear your contribution. May I answer the question that you put directly at the end of your contribution—when the High Court, some four years ago, struck down what was then called the Malaysian Solution of the previous government, why the Migration Act was not amended at that time. That, of course, Senator Lambie is a question for those who were then the government—the Labor Party. It was a Labor scheme that, at the time, was opposed by the coalition of which you speak. But, nevertheless, and to be fair, the issues in the Malaysian Solution case—and I have, of course, studied carefully the judgements in the Malaysian Solution case—were not about offshore processing. So the issues addressed in this legislation are completely unrelated to the issues that were before the High Court in the Malaysian Solution case. And, of course, Senator Lambie, it goes without saying that we respect the High Court. Nobody knows that better than I, as a person who used to practice before the High Court.

I will dealing with bill itself. The amendments provided for in the bill give the Commonwealth express statutory authority to take certain action to give effect to regional processing arrangements. The amendments apply where the Commonwealth has entered into an arrangement with another country with respect to the regional processing functions of that country. The current regional processing framework was introduced by the Labor government. It provides for the transfer of unauthorised maritime arrivals, who arrive in Australia by boat without a visa, to another country for assessment by that country of their claim to be refugees. The bill strengthens and puts beyond doubt the existing legislative authority for the Commonwealth's regional processing arrangements provided for by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012. As I said to Senator Lambie a few moments ago, this is an act of the previous Labor government. But this government believes that that act has a sound legal foundation. The fact that we are introducing this legislation and passing it through the parliament today does not mean we do not consider that the act already has a sound legal foundation. But, as honourable senators would be aware, it is the subject of challenge in three proceedings before the High Court at the moment and is to be disposed of, as I understand it, in the second half of August.

Regional processing arrangements are important to Australia's strong border protection policies to ensure the long-term viability of regional processing. The amendments in the bill strengthened the existing legislative framework for regional processing and activities so as to put it beyond doubt. The amendments in the bill are necessary to ensure that the legislative framework for regional processing remains solid, as it is—but, as I said, to put it beyond doubt. The bill confirms the ability of Australian officials acting on behalf of the Commonwealth to take action to assist the foreign government in the regional processing country, consistent with the law of that country.

The bill ensures that there is express legislative authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries. It does not purport to have any effect in itself on the rights of those persons. In other words, the bill is declaratory. It does not change the law; it provides additional legislative support for the existing law. It represents neither a change of law nor a change of policy.

Regional cooperation is a key element of the government's approach to the protection of our borders, consistent with the Australian government's responsibility to maintain strong border protection policies. The bill will ensure that Australia is able to continue to provide the necessary support and assistance to regional processing countries to carry out these arrangements. It deserves the support of all parties, and I acknowledge and thank the opposition for both their support to the bill and their willingness to facilitate this passage through the parliament today. I commend the bill to the Senate.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy President, I seek your advice in ruling in respect of the second reading amendment moved by Senator Hanson-Young. Senator Hanson-Young's amendment does refer to evidence that is before a Senate committee, which, although not specifically, may include evidence that has been received by the committee in confidence. It has always been my understanding that matters before the Senate should not be further adjudicated on by a vote of the Senate before they are ready. That may not be the correct technical term, but it has always been my understanding that was the case. I just wonder whether this second reading amendment is actually in order. I seek your guidance.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

There is no such rule and, therefore, I do not rule in favour of your point of order. The second reading amendment will stand, and that is now the question before the chair.

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

Mr Deputy President, could you advise the chamber on the status of the second reading amendment, such as the one that we have before us, in terms of the overall bill.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The status, as I understand it, is that, if passed, it will be noted in the Journal of the Senate.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to amend the second reading amendment.

Leave granted.

Obviously, I want to be able to get through this legislation today in the most constructive way, despite the fact that I have very strong feelings about this legislation. I want to make sure that I am, at the outset, providing an opportunity of goodwill in this place. I would just like to amend the second reading amendment to end after the words, 'The findings of the Review by Phillip Moss into conditions in Nauru and the evidence currently before the Senate Select Committee into conditions in Nauru.' Therefore, I move:

but the Senate notes:

the findings of the Review by Phillip Moss into conditions in Nauru and the evidence currently before the Senate Select Committee into conditions in Nauru.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The second reading amendment of the Greens has been amended in the terms outlined by Senator Hanson-Young.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Can I seek clarification on that. So, Senator Hanson-Young, when you say there will be a full stop after the word Nauru, where it appears in the second line of the amendment, everything thereafter is deleted. Is that right?

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

That is also my understanding of the amendment. The question now is that the second reading amendment, as amended, moved by Senator Hanson-Young be agreed to.

Question agreed to.

The question now is that the second reading motion, as amended, be agreed to.