Bob McMullan (Fraser, Australian Labor Party) Share this | Hansard source

in my party with regard to this matter. I have never had to face the challenge which my colleagues on the other side face because my party never introduced a piece of legislation like this and the issue has not arisen in the periods in which we have been in government to confront me in this manner. I am not saying we did not do anything wrong when we were in government, I think we did, but they were not on matters of controversial legislation while I was in the parliament. It is not easy.

I welcome the fact that on this occasion—and I am glad that he is in the chamber—the shadow minister for immigration, the member for Watson, has given a lead on this matter which has been strong and principled and which I have been comfortable in supporting and endorsing. I thank him and congratulate him for that.

Let us go to the essential character of this legislation. The three principal characteristics of it that I find totally unacceptable are those which effectively overturn the 2005 legislation as it relates to the incarceration of children, the denial of review and indefinite detention. There has been some attempt made to pretend that this legislation does not have that effect, but we all know that it does and it will not achieve the purpose that the member for Blair was lauding unless it does. If people in Nauru are to be treated exactly the same way as they would be treated in Australia, the legislation could not do what the member for Blair claimed. It can only have that effect if we treat them worse, and it is deliberately designed to do so. It cannot be both. It cannot be both what I heard my ACT colleague Senator Humphries saying it was on radio this morning—merely a continuation of the existing policy with regard to these matters—and the deterrent that the member for Blair is talking about. It cannot be both those things.

This matter does not occur in isolation. It is part of a long history in Australia of the easy appeal to fear. Australia has had a long history of seeing ourselves under threat: that somehow or other the force of gravity is going to make people sweep down from the north into our country. It goes back to the White Australia policy and the formation of the Labor Party, when our party was very much committed to the White Australia policy on the ground of fear as to what would happen as the hordes came sweeping in. It took a long time for all of the major parties to change their policies and fundamentally they all have, but, because of that underlying element in Australia about the hordes that may come flooding down, it has always been the easy political option in Australia to appeal to fear and it has always been the hard political option to resist that and appeal to the better angels of our nature.

That is always harder politically, and in recent history the easy option has been a temptation to which the government has succumbed with enthusiasm, particularly since 2001, when we had images of a flood, which was of course minor by international standards. But most significantly, given this bill before us, the number of people, even in that so-called flood, who were coming by boat always was a very distinct minority of asylum seekers. If the intent of government policy had been to deter asylum seekers, everybody seeking asylum would have been treated the same way. But it was only those who were seeking asylum and were on the front page of the Daily Telegraph who were treated this way. It was not a policy about border protection. It was not about protecting Australia from people seeking asylum; it was about protecting the government from the Daily Telegraph. It had bad photos on the front, so something had to be done and we dealt with the minority who come by boat with draconian legislation but kept exactly the same rules for other people who sought asylum.

The government’s own figures show that in the last four years boat arrivals were three to four per cent of all unauthorised arrivals. In 2003-04 they were about 1½ per cent. In fact, in 2004-05 there were no individuals seeking asylum arriving by boat. But, even at the peak of the political controversy in 2001, slightly more than 25 per cent but less than 26 per cent—almost exactly a quarter—of asylum claims were by boat arrivals, yet we had draconian legislation about those people and nothing about the rest. I do not think we should have done about the rest what we did about the boat people, because I did not agree with what we did about them. It was the height of hypocrisy; it was double standards of the first order, compounded by the fact that the high point of the debate was that the people concerned ‘would never set foot in Australia’.

What is the result? About a year ago we got to the situation—and I cannot tell you the exact situation today, because my latest data is almost a year old—where, of the 958 refugees processed on Nauru, 559 had been resettled in Australia, some of them in my electorate. I am very happy to have them. I met here in this building a young man who was not the last person to leave Nauru, because some of them were single individuals, but was in the last family to leave Nauru. He was learning English at the Secondary Introductory English Centre, which is in my electorate. He was with people who came to the parliament for a familiarisation course. I spoke to them in the public gallery. He is a very fine young man who is very welcome in my community. But in the election he was never going to ‘set foot in Australia’—and I can tell you that he is living in Watson and is doing very well. So all of that was a political stunt for the times, because the legislation would have had to have other character and other consequences had it been genuine.

I have another concern, which is the implications of this legislation for Australia’s standing as it relates to the refugee convention. I am a bit of a critic of the refugee convention. I think it is out of date and needs fundamental review. I certainly do not think that Australia should implement bad laws merely because an international convention says we should. I am not one of those who think we should be a slavish adherent. There are some elements of some international treaties which I would not wish to see in Australian law. If it were up to me, I would be seeking internationally to review the refugee convention.

But there are some bedrock elements of the refugee convention that must not be changed, and they are put at threat by this legislation, in particular article 33(1), which says you do not return people who may face human rights abuses. That is at the very core of the refugee convention; without that you do not have one. There are elements about how it should be dealt with that I think are out of date. They were written for the Cold War period and are no longer as relevant to the nature of the refuge that people seek as refugees these days. But those concerns which I have do not go to this legislation, because this legislation goes to the core of what the international community, including Australia—including this government, which says it adheres to the refugee convention—say that we think that the fundamental principles of the refugee convention are: the fundamental humanitarian obligations of every nation and that we should never return people who may face human rights abuses. I do not say that the government would deliberately set out to do that; I am sure that it would not. But this legislation removes the protections for people who may face that.

I will go now to the detail. We have had a controversial report from the Edmund Rice Centre about concerns with regard to people who might have been sent back to hazardous circumstances in Afghanistan and Iraq. What have they got for their troubles? Abuse. I know some of the people associated with that organisation. I do not agree with everything that they say, but they are fine and principled people and they would not have made that allegation lightly. I hope those allegations are examined seriously. Even if you do not accept the concerns they have expressed, let us have a look at the consequences for people who are denied—as people under this legislation will be—access to the refugee tribunal.

The Refugee Review Tribunal has overturned decisions by the Department of Immigration and Multicultural Affairs to send 3,200 people back to Iraq and Afghanistan. Those 3,200 people would have been sent back had they not had access to an appeal. That might make some people unhappy—they might wish that they had gone back. But what that means is that an independent tribunal appointed by this government concluded that those people would be genuinely at risk if they were sent back to Afghanistan and Iraq. Let us say that the tribunal is 90 per cent wrong—I do not think that they are, but let us say that they are. That then means that 320 people have been saved from being sent back to the risk of persecution. I would not support a law that sent one person back. I am not saying that other people in this House would callously do that. I know many of the people speaking on the other side of this debate and they are people of goodwill, but they have to look at the consequences of what they do, whatever the motivation. And the consequence is that in the future the next 3,200 people, were they to be subject to this law, would not have access to that review and would be sent back. That goes to the very heart of why we offer refuge: so that people will not be sent back if they may face human rights abuses. There are allegations that we have done so. In this legislation there is a removal of the protection that will prevent us from doing so in the future.

What this shows is that the process concerns that people on this side of the House, people on the other side and people in the public debate have been raising are not just the technical legal obsessions of lawyers about process. The checks and balances of our legal system and our system of administrative review are not there for fun; they are there because, although Australia is very well served by its public service, we all know that public servants, like everybody else, can make mistakes, and we need a process of review. It is especially important here because in this area of administration the consequences of getting it wrong can be tragic. To consciously set out to deny review of a decision can have profound consequences. To put it generally, the consequence could be being sent back to human rights abuses—but it could be more stark than those mere words ‘human rights abuses’ indicate; it could mean torture or death, as in the allegations raised recently here in Australia.

My concern is that the legislation is profoundly unfair. It is totally unnecessary. The amendments that are being contemplated cannot save it. I say to the government and to the people who are considering how they might vote—not just the four who have said so but also the others who are considering how they might vote—do not go down this path. The parliament and the processes of government in Australia are under challenge. This is happening not just in Australia but in every Western democracy, because people think that opportunism is sometimes prevailing over their interests. Sometimes people think that and I think they are wrong, sometimes people think that and I think they are right; but it does not matter. We need here to take a stand. This is an important stand. I welcome the fact that the opposition has taken it. I welcome the fact that the minor parties are supporting it. I hope Family First does too. I particularly congratulate on their courage the people who have taken the decision to say that they will not support this legislation. I hope they are joined by others, because I profoundly wish that Australia does not go down this path and that we seek a positive role in the future review of refugee arrangements, not the negative role which we have played in recent years and which is reflected in this legislation.

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