Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Hansard source

Thank you, Madam Deputy Speaker. I was just addressing the previous member's remarks and attacks on the coalition.

In August last year the High Court struck down the government's Malaysian people swap because of the failure of that arrangement to satisfy the human rights protections set out in section 198A of the Migration Act. Rather than seek to create a new and more objective test to ensure that human rights protections were maintained for offshore processing, the government simply sought to abolish them. The coalition rightly rejected this approach. Instead the coalition proposed an amendment after the High Court decision to insert into the act a new, more objective test for human rights protections—that any country to be designated an offshore processing country must be a signatory to the refugee convention.

The coalition's amendment to the government's bill provided a clear, objective and universally recognised standard of protection that does not require judicial interpretation. That was the position we adopted for good reason after the decision of the High Court. The member for Lyne claims that the bill before us, the Migration Legislation Amendment (The Bali Process) Bill 2012, incorporates the coalition's amendments to the government's legislation. It simply does not. The coalition only had one amendment to the government's legislation and it is not included in this bill.

The member for Lyne's bill restates the government's bill by repealing section 198A and fails to replace it with a binding human rights protection measure that can be objectively determined, thereby constraining the scope for judicial review, which was a key purpose of our amendment. This is the only objective standard that creates legally binding obligations available to establish the presence of protections. Paragraph 117 of the High Court judgment on the Malaysian people swap makes this position very clear. It states:

What is clear is that signatories to the Refugees Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described.

Paragraph 125 also states:

A country "provides access" to effective procedures for assessing the need for protection of persons seeking asylum of the kind described in s 198A(3)(a)(i) … if it is bound, as a matter of international obligation …

The argument that the inclusion of nonrefoulement and orderly assessment provisions in section 198AB accommodates the coalition's amendment completely fails to understand the purpose of our amendment and indeed the High Court decision. This bill explicitly now states in section 198AB(6) that the protections proposed—or assurances, they are termed—are not legally binding. In addition, the selection of the Bali process as the alternative test to the UN refugee convention fails to understand the role and purpose of that forum. We should know; we introduced it. Participation in that forum creates no obligation on participating members, let alone obligations that are legally binding.

The member for Lyne's claim that this bill provides higher humanitarian standards than have ever existed in Australia before is completely false. The fact is that this bill would allow the Malaysian people swap deal to proceed. That is proof enough. However, as noted, the protections the member for Lyne advocates are not legally binding.

Mr Oakeshott interjecting—

This makes them deficient to the provisions currently in the act that he proposes to abolish that were established by the coalition and that were used by the High Court to strike down the Malaysian people swap. They are also deficient to the coalition amendment, as the UN refugee convention creates legally binding obligations. There are other problems with this bill, and I will be inviting the minister to make his observations on those.

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