Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

When the government proposed the excision of offshore islands, the Minister for Immigration and Multicultural Affairs responded to claims that the next thing the government will think of doing is excising parts of mainland Australia. It was said that that was a ridiculous red herring and it was dismissed as unthinkable. Now not only is there an excision of parts of mainland Australia but the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 proposes the excision of the whole of Australia so that persons who land onshore, in any place within this country, are treated as though they did not. That is a gross violation of the fundamental tenets of the refugee convention, which states: ‘Those who come to any country will not be treated with any less degree of concern by reason of the manner in which they arrive.’

I think it is very important to squash at the outset the idea that this is an exercise of the sovereignty of this parliament. The sovereignty of this parliament was exercised some 12 months ago when, as a response to concerns from within his own party, the Prime Minister brought forward a package of legislation which was significant in ameliorating and reducing some of the adverse harsh consequences that had flowed from previous legislation. It meant that families with children would be able to live ordinary lives in society, that any person who was the subject of a refugee claim would be entitled to have an independent review as to the merit of their application and that no person would be detained indefinitely. Those were important steps forward, which were recognised as such—albeit, they did not go as far as many in this House would have wished but, across the whole of this House, they were recognised as significant, important and welcome. That was the will of this parliament. That was expressed as a result of the measures that we passed. The measures we are presented with today are not the act of a sovereign parliament; they are the act of a coward government overreacting to the foreign policy concerns expressed by a near neighbour.

Let me go back and try to address the principal issues that go to the whole area of our responsibility for the protection of refugees. It is not true, as the Prime Minister has said, that the refugee convention is a product of the Cold War. Indeed, it is not. The refugee convention is a product of that violent struggle that consumed all nations in World War II and the experience of those who sought to flee repressive and totalitarian regimes. One of the terrible things that anybody who has followed what happened during World War II will know is the plight of those who sought refuge from Nazi Germany in its neighbouring countries: Jews, communists, homosexuals—whoever they were—fleeing from that regime. If they went to, for example, Switzerland, there are heartbreaking stories of the way in which the Swiss, because of the fear that their neighbour would regard them as acting in a manner hostile to their interests, closed their borders and refused to allow those persons sanctuary or refuge in that country.

The refugee convention came about so that countries would be able to say, ‘This is not an act of hostility towards our neighbour but a recognition of an obligation’—largely, an obligation that is universally undertaken, although there are a number of countries which are not signatories to the convention—‘to extend protection on an objective basis to those seeking refuge and claiming to be the subject of persecution.’ The refugee convention came about so that, when a circumstance arises and people flee, it would not be necessary to make political judgments about the sentiment of the other country. Rather, a country would be able to say: ‘We are acting in accordance with international law and extending protection. We are not making judgments about your sovereignty. We are not making judgments about your status as a national partner. We are not condemning you. But we have a commitment under international law, which we have adopted as an act of our sovereignty, to apply the convention universally—not just to you, but to everyone.’

This act of the Australian parliament—if passed—is a complete reversal of those fundamental premises. It would mean that, when people seek refuge in this country as a first point of asylum—not people who may have had some comfortable place to stay and who have then been smuggled to Australia as boat people through second and third countries—we will change our laws because our neighbour has interpreted our act as a hostile judgment about its sovereignty. It never was that—and nor should it be perceived to be. But we did not explain that. We did not respond in that sensible way. Instead, we permitted ourselves a knee-jerk reaction. We said we would suspend our sovereignty and overlook 50 years of commitment to human rights law because our near neighbour, with whom we have always sought to have a good relationship, has said that the acceptance of a handful of persons from West Irian seeking refuge in this country would be an undermining of its sovereignty. What nonsense!

Let me give you some history on the people and circumstances of West Irian. Across this parliament we accept that West Irian is part of the sovereign territory of Indonesia, but there would hardly be a person in this chamber who would say that the act of free choice that was carried out in West Irian, before it was joined to Indonesia, can justifiably be called a fair act of democratic choice. A handful of persons, headmen, were taken from various parts of West Irian under Indonesian control and placed under enormous pressure. That choice was made on the basis of some thousands of persons who were not representative of the whole country. From day one, there was an indigenous resistance movement, later calling itself the OPM. At various times Indonesia has sought to crack down on that movement. It has had a large transmigration program displacing the indigenous people and there has been conflict on the ground.

This is not the first time there has been a significant refugee exodus from Indonesia. In fact, the handful of people who are the subject of this legislation are only the most recent who have sought to flee from that troubled province of Indonesia. Some four years ago I travelled to Papua New Guinea as part of a delegation from the International Commission of Jurists that included former Chief Justice Elizabeth Evatt and a number of other significant lawyers, including judges. We went to see what was happening with the forgotten refugees along the Fly River—people who had fled from West Papua into Papua New Guinea some decades ago and still trickle across the border from time to time.

It has been said that Australia is a relatively small country with relatively limited resources. But what of Papua New Guinea? In the order of 20,000 people displaced from West Irian still live along the Fly River and in other parts of Papua New Guinea as a result of the earlier displacements. It is true that, at the moment, they have an uncertain status in Papua New Guinea. Some have been accepted for citizenship, but the majority cannot be accepted because of the technicalities that are in their way. But when they fled in various waves—and there have been a number of waves of refugees into Papua New Guinea—the Australian government said to the government of Papua New Guinea: ‘We expect you to protect them as refugees even though you are not a signatory to the refugee convention. We expect you, a country with the most limited of resources, to provide a support network for them and incorporate them into your strained social infrastructure.’

And I have to say that there are real difficulties. Largely, it is the Catholic Church that looks after these people in Kiunga and various parts of Papua New Guinea. There is a degree of goodwill which has meant that those people are able to continue some form of agriculture on land which is the traditional land of the people of the Western Province.

But might I say I suspect that those circumstances are limited in time and that Australia has forgotten those people. The circumstances are limited in time because, when Western Province was first opened up, the life expectancy of people there was in the low 20s. It was the poorest, hardest place to live in the world. Life expectancy has expanded—I think it is in the low 40s now—largely because of the money and the better diet as the community has been able to reap the benefit that has come largely from the mining operations that have occurred. But the population has also exploded as a consequence. The majority of the population is aged below 20. There are huge numbers of young people in Western Province. When the money that comes to Western Province from those mining operations runs out, as it must in the mid-term because the trust fund will cease to be able to provide the backing that it has in the past, we will have a densely overpopulated, immensely poor community trying to support some 20,000 refugees.

So this is not the first time that people have found themselves in these circumstances. It is perhaps surprising that fewer have fled from West Irian or West Papua into Australia directly, but the reason is largely simple. There are cultural reasons why people in the main would prefer, if they could, to travel to an environment where they could be more easily integrated and become part of a society. But you will never stop people needing to leave countries which are in turmoil. An argument that has been addressed to us is that through these measures we can stop people coming to seek refuge. The reason people stop coming to seek refuge is that the circumstances which cause them to flee are removed.

The Indonesian government has done much over the years that have passed to improve the human rights record in West Papua, but nobody, least of all the Indonesian authorities themselves, claims that it is perfect. It is no judgement that I make in relation to these matters; it is simply a statement of fact. People who are the subject of persecution will flee. Some will flee, if they are close to the border, across that border to Papua New Guinea. Others with the means to do so will flee to Australia. We will not stop it. But what this legislation does is say that those who flee here will be treated badly; those who flee here will be treated in a manner inconsistent with the obligations we as a sovereign parliament said we would extend to all those seeking refuge as a part of our act of sovereignty only a year ago.

We will not make certain that families with children will be able to live ordinary lives in the community. That will be removed. We will not make available to them the protections of a right of appeal as to the merits of their application to an independent body under the Australian Constitution. Remember that the Refugee Review Tribunal has set aside 33 per cent of all decisions—and, in the case of Afghanis, over 90 per cent. Of course, in the case of West Irian, in the one instance where the original decision maker refused the refugee status, that was also overturned. Wrong decisions are endemic when they are first made in the hasty process of assessment by departmental officials. But if refugees go to Nauru there will not even be departmental officials. I doubt that the UNHCR will provide that processing. Who is going to do it? Presumably, the government will seek to contract some other body without international status to perform this task, but we do not have the memorandum of understanding. We do not know who will be tasked with doing that. We do not know the care or the standard of decision making that they will apply. It will not be subject to merits review and it will not be subject to the capacity for scrutiny.

The last point is that we will give no guarantees that, even if they are ultimately assessed as refugees, they will be given substantive protection. They may have to wait for years. There are two persons on Nauru who are still waiting, five years after their removal there. There is no undertaking that even those who are assessed as refugees will ultimately be accepted. We have a situation which is completely foreign to the obligations that this parliament said were the minimum standards for humanitarian processing of those who seek refuge in Australia.

I am anxious that this legislation be defeated. It will grieve me if it is not. I draw the attention of members to the platform statements of the Family First Party, made and issued before they contested the last matter regarding asylum seekers. Family First commits itself to the right of asylum seekers to seek judicial review but wants greater efficiency in the appeal system. There will be no judicial review. Family First talks about the relocation of facilities to locations with freely available legal and medical consultations and other community contacts. That will not be available. Family First talks of management of facilities to ensure that conditions are humane and appropriate to asylum seekers who may have suffered traumatic experiences in their home country or in the process of fleeing. That will not be available. The statement talks about full accountability and transparency. Nothing can be less transparent than what we are provided with now.

We are told that the assessment of and dealings with refugees in the future will be the responsibility of the ‘sovereign government of Nauru’. What nonsense! The sovereign government of Nauru is made up of a handful of second-rate incompetents who were the beneficiaries of huge largesse from the Australian government and pissed it up against the wall. They live on an island incapable of being sustained otherwise than through these kinds of malevolent arrangements and are subject to no outside scrutiny through this process. It is a disgrace.

The immigration arrangements for Nauru are effectively conducted through Australia, although notionally undertaken by the Nauruan authorities. It defrauds the Australian public to say that this is an act of our sovereignty. It is an act of surrendering our sovereignty. Family First says:

...once refugee status has been ascertained every effort ... must be given to those applicants who have had their application approved to ensure their transition into the Australian community is managed with sensitivity and compassion.

In this instance it may not happen at all. They may languish for years and years in a detention centre on Nauru. The rights of men, women and children will be grossly abused. It is contrary to our sovereignty, contrary to the parliament’s statement of will through previous legislation, contrary to the Prime Minister’s undertaking to his own party and contrary to his undertakings to the Australian public. It is a disgrace. It should be voted down, and my heart will bleed if it is not.

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