Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Hansard source

Australia is better than this bill. The legislation before us today undermines our sovereignty, is offensive to our decency and makes a mockery of this parliament. We should oppose this bill because of what it does, because of the motivation which brought it here and because, regardless of any amendments the government might seek to move, the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 is itself irredeemable. As the debate has gone on and we have seen the government go through different permutations and have various briefings of where it wants to take this legislation, we have not known whether to laugh or cry. We do not know whether to laugh at just how ludicrous this legislation is or cry at the very real impact and real pain it seeks to cause some of the most desperate people in the world.

First and foremost this bill proposes to abolish the Australian border. It denies Australian processes and it undoes unanimous reforms that were made last year. Labor used to muse whether the abolition of the border was something that would ever happen. In June 2002 the member for Hotham, when he was Leader of the Opposition, asked the Prime Minister directly: ‘Will the Prime Minister rule out legislating to excise parts of the mainland?’ The response from the Prime Minister:

I want to make it clear that there is no intention—and there never has been—to excise any part of the Australian mainland. That is an absolutely ludicrous proposition.

They are the words of the Prime Minister—it is a ‘ludicrous proposition’ but a proposition so ludicrous it is now before the House of Representatives for debate. It is a proposition that in the name of border protection abolishes our nation’s border. In the name of protecting a border the government has decided to throw its hands up in the air and pretend we do not have one at all.

It is so insane that it has been the subject of comedy sketches. Years ago, in the 1970s, there was even an episode of The Goodies where, at the end, Graeme Garden attached a rope from the mainland to his rowboat and attempted to row the whole of England beyond the five-mile limit. Now we find the Australian government taking the whole of Australia beyond the limits of its own border. As soon as the government got control of the Senate they decided to excise every single offshore island. There are only two bits left: one is called Tasmania; the other is called the mainland. If this legislation is carried they are gone too.

I want to make it clear that Labor supported for very good reason the first three excisions—Cocos (Keeling) Island, Ashmore Reef and Christmas Island—because they were in a very different position to every other offshore island and in a completely different position to Tasmania and the Australian mainland. In about a month it will be the fifth anniversary of SIEVX, when hundreds of people drowned on their way to Australia. This was a people-smuggling operation that took advantage of the desperation of those people, in boats filled largely with women and children, headed not to the Australian mainland but to places like Christmas Island, Cocos (Keeling) Island and Ashmore Reef. Those people-smuggling operations—where people in desperate situations had their life savings taken and their lives put at risk on the high seas—were only occurring because those areas were within the migration zone. Labor supported that excision for one very precise reason: to take action against the people-smuggling operations that were causing such misery and hardship for so many people.

This legislation is not before us because of a people-smuggling operation. It is not a people-smuggling operation when 43 people hop in their own canoe and directly flee persecution. It is not a people-smuggling operation when there is no operator profiting from it. It is not a people-smuggling operation when every single one of those people is subsequently found under Australian law to be worthy of protection. That is an entirely different situation and this legislation denies anybody in that situation the processes of Australian law.

In the last 24 hours we have heard serious reports about people who had applied for Australian protection being deported back into danger. At the first assessment, performed on Nauru, it was believed that these people were not in fear for their lives and not at risk of persecution. They were returned to their country of origin and now it appears they may well have been killed on their return, including some children. It remains to be investigated fully, but those claims show how important it is to get it right. The stakes are incredibly high when you are talking about refugees.

If somebody comes to this country, makes a false claim and is not genuinely fleeing persecution, I am the first to say, ‘Send them back.’ I am the first to say that they should not use refugee principles as a way of bypassing the correct, orderly approach to Australian immigration. But you have to make sure you get that claim right. The Minister for Immigration and Multicultural Affairs has stated many times that a low benchmark is set. When we determine whether or not somebody has a well-founded fear of persecution, the test is not of whether it is beyond reasonable doubt; the test is of whether there is a more than remote chance. That test is put there for good reason: because, if you get it wrong, people will be persecuted. If you get it wrong families may well be slaughtered—and we do not want to be the sort of country that allows that.

What would have happened to the 43 Papuans who caused all of this process to unfold if the legislation before us today had already been in place? If those 43 had arrived when the mainland of Australia had been excised, the outcome for them would have been horribly different. We are talking about individuals who are currently integrating successfully into community life in suburban Melbourne. Had this legislation been in place they would not be there right now; they would be on Nauru. They would be languishing on Nauru with no knowledge as to when they would ever be somewhere else. Instead of these communities being able to welcome these people to Melbourne, they would not even be able to visit them on Nauru because most Australians are denied visas when wanting to get to Nauru. They would be languishing on Nauru, 42 of them having been found to be refugees in need of protection. Those 42 would be waiting indefinitely while Australia went through the fiction of trying to find anther country to take them, knowing full well that no other country would do so—and why would they?

Why would other countries that are currently dealing with refugees arriving on their doorstep in the thousands, particularly from Africa, want to help out Australia when our crisis amounts to 43? We are claiming there is a crisis over 43 people arriving in a canoe and they are trying to provide resettlement for tens of thousands of people arriving from Africa. Understandably they will say: ‘Surely it’s Australia’s responsibility. Isn’t that where they landed?’ To that Australian law will say, ‘No.’ They might have thought they had landed in Australia. They might have come in a boat and gone all the way up Sydney Harbour. They could have sailed underneath the Harbour Bridge. They might have looked around and thought, ‘Gee, this looks a lot like Australia.’ But, no; they discovered, thanks to the Australian government, that they had actually made it to Nauru—and no other country will take them.

Australia knows no other country will take them. What happens then is simple: they will remain in Nauru, languishing, while the Australian taxpayer forks out something that has been averaging $4 million a month to make a loud point—a loud point expressed in terms of human misery. They will wait in Nauru. They would have waited until such time as the Australian government decided that it was politically expedient to let them in. That would have been the case for 42 of them—not for the 43rd. The only reason the 43rd Papuan now has a chance to get a protection visa is that he successfully appealed to the Refugee Review Tribunal. There are no appeals to the RRT if you are on Nauru. So the 43rd Papuan would be in a different position to the others. While the other 42 would be waiting in Nauru and thinking: ‘The Australian government will now take years of our lives and our children’s lives. We’ll be here languishing until they decide it is politically expedient to take us, because we know no-one else will.’ In the interim, some of the 42 will pay, as others have, with the price of their sanity, as has continually happened to people who find themselves indefinitely detained. And the 43rd will be left with no prospect of appealing to the RRT, being beyond the reach of Australian law, which is the entire concept of the Pacific solution. The 43rd will now be weighing up his situation and asking, ‘Do I live the rest of my life in Nauru or do I take the risk and return to what I believed was an incredibly dangerous place where I believed I was being persecuted?’ Under Australian law, somebody who is recognised as being in need of protection would have no choice but to either languish in Nauru or return to the place where he claimed he was being persecuted. Fundamentally, that offends any Australian concept of human decency. Fundamentally, it goes against the reasons Australia become involved in the resettlement of refugees in the first place.

I have heard the Prime Minister describe the refugee convention as a Cold War document. That is true; it was concluded during the Cold War. But it was not put in place because of the Cold War. It was put in place because Jewish people fled Germany and no country would take them. The rest of the world swore they would never let this happen again. Had this legislation been in place at the time the 43rd Papuan arrived in Australia, what position would he have been placed in? He would have been given two choices: languish for the rest of his life in Nauru or be treated in the same way that people were treated in the lead-up to and during the Second World War. Those are the choices this legislation gives anyone in his position in future.

The legislation also undoes the reforms of last year. We do not get that many moments of true bipartisanship in this place. Last year we had a good one. It is easy for me to say, ‘The government didn’t go the whole way towards what Labor stood for,’ but we took a big step in the right direction. Last year every member of this parliament voted for legislation that said: ‘You might be able to get away with some things under the convention, but Australian standards are a bit better. You might be able to get away with detaining children under the refugee convention, but Australia set our own benchmarks and sometimes our standards of decency and our expectations are a cut above the rest.’ Everyone in this place and everyone in the Senate voted for it. We said that children would be out of detention. We said that indefinite detention would end. We said that case managed mental health care would be introduced to people in detention. We said that the oversight of the Commonwealth Ombudsman would be introduced so there was independent scrutiny of how people were being treated.

After that great outbreak of bipartisanship, out of that sense of Australian values and decency being expressed in this place, all it took was 10 months, one canoe and it was all out the window, all discarded. We now find out that this government wants us to believe that Australia has a different set of principles. The new principles are meant to be these: it is wrong to lock children up in Australia but it is not a problem if you do it in Nauru. It is wrong to have people languish their whole lives indefinitely in detention centres but it is not a problem if you do it in Nauru. It is really important to make sure you have case managed mental health care for people within your care if you are in Australia but it does not matter if you dump them in Nauru.

The oversight of the Commonwealth Ombudsman is important but can the Commonwealth Ombudsman reach people in Nauru? He can apply for a visa and the government of Nauru will decide whether or not to grant it. Let us not forget that in recent months ASIO have had trouble getting visas from Nauru and the mental health care team sent over by the Department of Immigration and Multicultural Affairs have had trouble getting visas from Nauru. What chance do we think the Commonwealth Ombudsman, whose only role as far as the Nauruan government might be concerned would be to expose deficiencies in their system, will have to do spot checks whenever he wants to of people who arrive at a moment’s notice? It is entirely in the hands of another country. The starting principle behind the Pacific solution was to put people beyond the reach of Australian law. There are enough problems when you do that in terms of appeals to the RRT, but what you then do in terms of the principles we all said we agreed with 12 months ago is to say that the Australian values that mattered one year ago do not matter one bit now.

And do not believe the amendments. We are meant to believe the amendment that will be moved by the government to its own legislation which says:

The Parliament affirms as a principle that a minor ... will only be detained as a measure of last resort.

There is a problem with that amendment: we do not legislate for Nauru, and we do not legislate for Manus Island. If anyone in this parliament believes in that government amendment, then vote against the bill, because the bill, by its very definition, makes that amendment irrelevant. Australian officials in Nauru have no special status. There is a note in the amendment—a little hint as to how this could possibly be relevant. The note says:

The Minister has the power to direct officers of the Department to take all reasonable steps to work with any country ...

Sure, they can work with a country, and Nauru can say no. But we have one moment of responsibility. We have a moment when we can prevent children from being detained and where we can stop indefinite detention. We have a moment where we can deliver case managed mental health care and we can make sure that the Ombudsman has the sort of access that this parliament believes he should have. The moment for us to do that is now. The moment for us to say that we want to deliver on those things is the moment in which to oppose the bill.

Labor is going to oppose this bill in every way, and we will oppose it at every stage. If the government wants to move amendments that effectively have the impact of changing commas and putting up lobbying letters to Nauru, we are not going to stand in the way of those sorts of amendments, but ultimately they do not matter, because the bill is still wrong—and wrong at every stage. So why are we doing this? Why is it that the Australian parliament, without any pressure from within Australia, has decided to undo every principle that was so important a year ago? The reason we have decided to do that is not because of pressure from Australia; it is because of Jakarta. We all know that that is the reason and that that is the only reason.

The minister is trying to fudge it by saying, ‘No, we’re doing this to clear up an inconsistency, because an inconsistency has arisen where if you land on an offshore island it’s only a couple of k’s from the mainland and you treat it differently from the way you handle it if you land on the mainland.’ How did that inconsistency arise? It arose because the government created that inconsistency when they excised all the remaining offshore islands. That is how the inconsistency got there. You do not say, ‘We now have to have dreadful policy, because we need to complement something really dumb we did a year ago.’ That is how that inconsistency arose. Instead, we replaced it with a new inconsistency, a bizarre inconsistency, which creates a complete change between whether you arrive by boat or by plane. So, if you directly flee persecution and you are genuinely in a desperate situation and arrive on Australian shores by boat, your life is about to be wrecked. But, if you are in a situation where you are wealthier and you want to come over here as a tourist and then claim once you are here, ‘Oh, no, I actually want to seek asylum,’ then you get to stay. You get the protection of Australian law and you get all the appeals mechanisms available to you. If you are a child you will not be locked up and, if you are detained for a length of time, it will not be indefinitely. If you end up with mental health problems, there are significant improvements in how you will be cared for and, if you are being mistreated in any way, the Commonwealth Ombudsman can investigate it and can reach you. Why is the person who comes out here on a plane, lies to Immigration authorities, then tells a new story a few months later and makes an appeal for asylum, more worthy than the person who directly flees in a canoe? That is the inconsistency that I do not understand, and that is the inconsistency that this bill demands.

There is a reason why Indonesia reacted the way it did. Indonesia reacted so vehemently when protection visas were being granted to the first 42 Papuans for one reason: it believed the Prime Minister. In 2001 the Prime Minister said something which was actually never true. In 2001, the Prime Minister said—that famous line—‘We will decide who comes to this country and the circumstance in which they come.’ The Prime Minister actually put out there that this was a political decision. The Prime Minister did not say, ‘We have a process of independent people making these decisions.’ The Prime Minister did not say, ‘We delegate the authority for these decisions to public servants who then make assessments acting on their authority.’ No. He said, ‘We will decide’—and Indonesia believed him. Having believed him, the Prime Minister then said, ‘With regard to these 42 Papuans: no, actually, I didn’t make that decision; the process is made independently.’ Indonesia reacted the way it did because of the great lie that was told in the 2001 campaign. The reason Indonesia believed that this should be fixed by the government is that in that campaign the government said, ‘Yes, this is our decision.’ But it never was and it never should have been in terms of how you make the assessment. The assessment should always be made on the merits of the case, and in the case of those first 42 Papuans it was made validly and made well. I made the mistake of congratulating the government for that. The government responded by saying, ‘We’ll never do this again.’

Indonesia also had a concern about their sovereignty. The people who came here—those 43 Papuans—hold a belief which the government does not hold and which the Opposition does not hold, either. They hold a belief that there should be full separatism for the Papuan province of Indonesia. We do not support that, but that was never the issue in the claim. The acceptance of their claim had nothing to do with the issues surrounding Papuan separatism. The acceptance of their claim was based on the fact that it was independently determined that they had more than a remote chance of having a well-founded fear of persecution. So the outcome was right.

And yet the moment Indonesia responded, the Prime Minister made it clear that what he had said previously was not true. He replaced it with something new. He replaced it with the attitude that Indonesia will decide who comes to this country and the circumstances in which they come. He made it clear that no matter how concerned Indonesia was about their sovereignty, the Prime Minister was going to let that be more important than our sovereignty. Well, the legislation that comes into this place ought to be legislation that is based on the needs of Australia, not on the demands of Indonesia—and there was never a demand from within Australia for this sort of change.

The government decided that they were willing to do anything. We had Senator Ellison coming up with wild ideas and we had talk of turning back boats when people were directly fleeing persecution. We had talk about identifying asylum seekers—ringing up the host country and saying, ‘Guess what? I want to give you the names of the citizens of yours who are claiming you’re persecuting them.’ We then had the claim that there would be a national interest test that would decide whether claims should be assessed purely on their merits. And finally we ended up with this, the most bizarre proposal of all: that border protection would be abolished and replaced with border abolition—that Australia would become a nation without a border.

Indonesia want this law to be passed right now. They have made that clear. I do not know whether they have been told the truth about what it means. After Michael L’Estrange was sent to Indonesia on 22 April to explain the proposal, the Indonesian Foreign Minister, Mr Wirajuda, came out and explained why he was pleased with the change. He used these words:

... even if they would be classified as refugees they would not be accepted in Australia. This is positive for us for the future.

That is not the meaning of the bill as I have been briefed on it. That is not the way the Prime Minister has explained the bill in his comments. So why does Indonesia think that that is what we are doing? If you are concerned about the relationship with Indonesia, think about what will happen in years to come, after these individuals have been robbed of years of their lives by languishing in Nauru, where Australia has no control over the way they are treated. What is Indonesia going to say when we eventually accept them because no other country in the world will have them?

The problems that we have right now with Indonesia will only be revisited because of the approach that has been taken with this bill. The approach that should have been taken is the approach that is normally taken. It is called diplomacy. That is meant to be the job that diplomats do—that is, to treat Indonesia the same way that Indonesia treats us. That is, when we complain about their domestic law they say, ‘Well, it might be your citizens that it is impacting on, but this is our country and our law will prevail.’ That is all we had to do: explain to Indonesia how our legal process works. But instead of doing that, we have gone down the bizarre road of saying, ‘If any other country—one of our neighbours—kicks up enough fuss, Australia will change its domestic law.’

The policy of appeasement only leads to more claims. The policy of appeasement only leads to people saying, ‘Well, if I make a new ambit claim there is a country down south that will change its domestic law for me.’ The sovereignty of this parliament is too important to do that. We do not do that with countries with which we have the closest ties in the world. We do not do that for countries with which we have the deepest alliances. We should not allow pressure that has only come because of the just operation of our law to cause us to surrender our sovereignty and abandon our legal processes. This bill is irredeemable. The amendments that are before the House are largely meaningless.

I started by saying that Australia is better than this bill—and it is. What we did in this parliament last year, across the parties, shows what we can do at our best. And there is a principle. It is a pretty simple Australian principle, which, up until this debate, I thought we held. There will be differences of opinions about people who, before they get to Australia, travel through many countries where they could seek asylum but do not, and there will be differences of opinion when people-smuggling operations are involved. There will be differences of opinion throughout the Australian community about how those situations should be handled. But this is a response to people who directly fled persecution. This situation does not arise often in Australia, but recently it did. And the Australian principle is pretty simple: if you are directly fleeing persecution, then the moment you reach Australia, the persecution must end.

A bill which allows children to be locked up, which turns a blind eye to indefinite detention, and which does not care about case management, health care or proper oversight from the Ombudsman, is a bill that allows some of the most desperate people in the world to have their pain compounded and made worse because of deliberate actions of this government.

I have been asked on many occasions whether I am throwing down the gauntlet to moderate Liberals in this debate. I throw down the gauntlet to every member of this parliament. Explain to me what has changed. Explain to me why principles that mattered 12 months ago do not matter now. Explain to me why you can have one morality in Australia and turn a blind eye to creating a different morality in Nauru. That is what this bill does. The bill before us is wrong—it is just plain wrong. Labor will not have anything to do with it.

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