Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

I rise to speak in relation to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I want to start by putting on record my thanks to the Minister for Immigration and Border Protection and the managers of business, both government and opposition, and including the whips offices, for allowing this debate to occur now—for a range of reasons which I do not need to go into—and for enabling me to participate in what is, obviously, a very significant debate within this portfolio area. I would like my thanks recorded.

This is perhaps the most significant piece of legislation which has been put to the parliament since the election of the Abbott government in respect of immigration and asylum seekers. It is a bill which has many parts to it—some we agree with and we see as being sensible; some we do not agree with. As always, the politics in this bill is highly leveraged. There is much in this bill which is, in effect, a legislative response to actions of the judiciary. Some of that is understandable, but some of it is occurring where, really, the courts ought to be allowed to do their work. Whenever we are in the space of balancing the relationship between the legislature and the judiciary, balance is the key word. That certainly forms part of the judgements that we have made in respect of how to approach this piece of legislation.

Labor will be opposing this legislation in the House of Representatives because there are elements to it which we disagree with. Of course, how the legislation has been bundled is not of our making, but there are elements to this which we disagree with. That said, we will be seeking to move amendments in the Senate to give expression to those parts of this legislation that we agree with and those that we do not agree with. In addition, we may well end up moving amendments in the Senate to take into account the outcome of the inquiry that is being undertaken by the Senate and is due to be completed on 24 November. That said, my intention now is to go through the bill in detail and articulate to the House exactly what Labor's position is in respect of every component of the bill so that there can be no doubt about what we support and what we do not and what will then eventuate in terms of the amendments that ultimately arise from us in the other place.

The first schedule of this bill—there are seven—has been characterised by the minister as, in a sense, being a legislative decision in this place in respect of the question of turning back asylum seeker vessels. Let me be very clear in relation to that position up-front. Our view about the question of turning back asylum seeker vessels is simply this: we are open to any measure which saves lives at sea. Labor has been completely committed to doing everything we can to seeing an end to the human tragedy which unfolded on our borders. That is why we put in place the PNG arrangement, which has done an enormous part of the work in seeing an end to the flow of asylum seeker vessels. We understand that that needs to happen in order to end that human tragedy, and, touch wood, we are in a place now where we hope that we have seen the last of the deaths at sea.

We retain two anxieties in relation to the question of turning back asylum seeker vessels. The first is in respect of the impact that that policy has on our relationship with Indonesia. This is clearly a policy which the Indonesian government does not accept. This is clearly a matter which has been eroding our relationship with Indonesia rather than building it. If we are to have a policy in place which does not just have an impact on the flow of asylum seeker vessels over the course of the last few months but also resolves this issue over the course of the next few decades, then we need to have a relationship of co-operation between ourselves and our nearest neighbour—the country from which the bulk of the asylum seeker vessels emanates. So it is plain common sense: we must have a hand-in-glove relationship with Indonesia in respect of dealing with asylum seeker vessels. That is what existed when Labor was in government. Our concern about the policy in relation to turning back asylum seeker vessels is the impact that it has on that relationship over the long term.

Our second anxiety in respect of the policy of turning back asylum seeker vessels is the question of safety at sea. Previously, we have had advice from Navy to this parliament about the question of safety at sea. It is, to be honest, difficult to have that question answered openly in this parliament in circumstances where the conduct that is occurring on our high seas is said by the government to be one of an operational matter and, therefore, the details are not made public.

Having any sense of public confidence then in the safety of these operations is simply an open question. We do not know. And we need to know, from the point of view of Labor, in order to have our support for a position of turning back boats at sea. Given there has been a history of advice to this parliament that there is danger in this, we need to be satisfied that this is a policy which can be carried out safety. They are our two issues in relation to the question of turn-backs—firstly, our relationship with Indonesia; secondly, the question of safety at sea. That is where we stand. I reiterate, our mind is open to any measure which seeks to save lives at sea.

The minister has sought to characterise schedule 1 as being, in essence, a vote on this question. It is not. Schedule 1 is about the government dealing with a case currently on foot in the High Court—the case of CPCF v Minister for Immigration and Border Protection and Others. That was being heard in the High Court last week. In essence, what this legislation seeks to do is to scuttle one High Court case. It deals with each of the elements which are being put forward by the applicants in that case and, in a sense, were it to be passed through this parliament, would render the precedent value of that case redundant. It is a case which is fundamentally about the Maritime Powers Act. To be sure, the outcome of that case may well have an impact on the government's ability to conduct its turn-back policy.

If it is the case that we now have a situation by virtue of this legislation that raises the question of the legality of turn-backs, that is a point which the government must be clear about. In that context, it is important to say now that the rule of law matters. The High Court has a role to play. Were this schedule to be passed, it would make the role of the High Court redundant. In our view, that is inappropriate. It is inappropriate to be walking down this path right now when there is a case before the High Court. If, after the High Court has made its decision, the government believes that it requires legislation in order to empower it to do what it seeks to do, at that point it can come back to this parliament, it can come to the opposition and talk through what that proposal is.

What we have before us is a schedule which seeks to, in effect, scuttle a High Court case which is on foot right now, and in our view that is not an appropriate way to proceed. On that basis, we have a position of opposing schedule 1. That should not be read simplistically as a statement about our position in relation to turn-backs and that is why I spent some time articulating what that position is. But we do not think it is appropriate to be using this place, right now when this matter is before the High Court, to make a matter before the High Court redundant. The High Court should be allowed to continue the work that it has to do. That is our position in relation to schedule 1.

Schedule 2 deals with the question of temporary protection visas and a new visa class which will be called temporary safe haven enterprise visas. In relation to temporary protection visas, Labor's position is well known. We oppose temporary protection visas and, therefore, we oppose that part of this schedule and indeed those components of this schedule which are consequential on a reintroduction of temporary protection visas. Our view, very simply, is that people who come to Australia who are found to have invoked Australia's protection obligations ought to be provided with permanent protection visas from our humanitarian program and provided assistance in settling within our community as quickly as possible, so that they are off the government tab as quickly as possible and become constructive and contributing members to our society as quickly as possible.

Rather than keeping these people in a state of limbo through temporary protection visas, which in effect would mean this, any decision that these people would take in their lives that would be longer than three years in duration—three years being the duration of the temporary protection visa—would effectively be a decision that they cannot take. Taking out a personal loan, taking out a mortgage, going to university, falling in love—none of these decisions that we all make in our lives which are about being a member of this society, being a settled member of this country, will be on offer to people who are here on temporary protection visas because they do not know whether they will be here after three years.

But let us be clear, the vast majority of these people will be here for the rest of their lives. That is the experience that we saw during the Howard government when, in effect, temporary protection visas were abandoned. We saw that after the first period of review, people were able to convert their temporary protection visa to a permanent protection visa. The vast majority of people were able to do that.

What we would have with this legislation would be this situation: where people's circumstances back in the countries from where they have come have not substantially changed, they will be able to spend the rest of their lives here but they will have to do so on this three-year rolling basis of limbo and that will prevent them from contributing to our society in a way which we would want to see. That is therefore not in our interest as a nation and certainly not in their interest as individuals. That is why we oppose temporary protection visas.

This schedule also puts in place, just, temporary safe haven enterprise visas. I say 'just' because all the legislation does is name the visa class. It makes clear in the explanatory memorandum that next year regulations will be developed which will put meat on the bones, but right now all this legislative package is doing is putting a name in the act. This comes about, as we have heard, from the minister's statements and through discussions and an agreement between the Palmer United Party and the government in relation to this bill. It would seem that the Palmer United Party are concerned to have in place, to deal with some of the issues I have just addressed, a mechanism whereby people have a pathway to permanency. That, as an objective, is one we support. We think it is a good thing to have a situation, for all the reasons I have just described, where those people who are found to invoke Australia's protection are able ultimately to have a pathway to permanency and ultimately to have a pathway to citizenship. I do not think you could say right now that this legislative package guarantees that—far from it. In that respect, the Palmer United Party ought to be concerned with the fine print of the deal they have struck with the government.

We support conditionally the proposal of safe haven enterprise visas but in saying that we will be seeking to move amendments in the Senate which absolutely clarify that this visa class will provide a pathway to permanency pursuant to what we understand was the objective of the Palmer United Party when they entered into the agreement with the government. Accordingly, those provisions of schedule 2 which are consequential to the introduction of safe haven enterprise visas we would also support.

Schedule 3 is an important and technical machinery provision being proposed for the act. We support this. It would seek to clarify the relationship in respect of named visas between how they are described in the act versus how they would be described in the migration regulations. That makes sense. We would make the point that this says that, if there are no regulations which back up the way these visas are described in the act, then the visas will not be operative. One of the visas which are named is the safe haven enterprise visa. Of course, it is absolutely essential, therefore, that regulations ultimately be made for the safe haven enterprise visas or else they will not be operative. We do accept that there should be a clear alignment between the way in which eases are described in the act and in the regulations and that there should be a consistency in the way in which they are dealt with. So on that basis we support as a sensible reform those measures which are set out in schedule 3 of this bill.

Schedule 4 of the bill relates to the refugee assessment process. There are two aspects to this. Firstly, the bill seeks to speed up the process of assessing a person's refugee claim for those people who I might describe as being in Australia in an unauthorised way—that is, they are here either through an overstay on their visa or they are here having come by plane or sea and not having appropriate paperwork. For people who are here in an unauthorised way this will seek to fast track the assessment process for them. We are not sure how that will operate because regulations need to be developed for that and we are told they are coming. We will be opposing the entirety of schedule 4. The fast track process is the first part. The second part of this schedule, which is perhaps more concerning, is the establishment of what is described as the Immigration Assessment Authority, which would displace the role of the Refugee Review Tribunal in respect of those who are here in an unauthorised way and mean that for those people their assessments would have only a limited review right in relation to an adverse decision made about them.

We have, in this place, since the Abbott government was elected, supported much legislation which has come through the parliament and sought to make more robust and to strengthen the refugee assessment process. That was something which, when in government, we also sought to do. There is work which can be done to ensure that the processes of assessing people's protection claims are as robust as possible and to make sure that the ability to game the system is reduced as much as possible. What we have in schedule 4, in our view, goes well beyond that. This becomes something of a gutting of the assessment process. When talking about the limiting of people's review rights to the extent contained in this schedule, we cannot go there. Equally, the fast-tracking process would seem to us to not achieve much in terms of time but would go a long way in reducing people's rights. That is particularly the case in the timing of assessment processes when later on the government is seeking to remove the obligation which requires a decision to be made in respect of an application within 90 days. In any event, for all those reasons we would oppose schedule 4.

Schedule 5 has two components. The first is to seek that the removal powers of the act be seen and read separately from the refugee assessment process and without regard to the refugee convention. We support this. This is a situation where people have gone through their assessment process, having sought to invoke Australia's protection obligations, may take their case, if they get leave, all the way to the High Court but ultimately, having been found not to be a genuine refugee, in the normal course of events the removal powers of the act would then take effect and those persons would be facilitated back to the country from which they came. The act has been read through a number of court decisions as giving effect to the refugee convention in each and every one of its parts and therefore there has been ability for people to effectively relitigate their assessment claim in the context of the exercise of the removal power. We do not think that it is appropriate or reasonable and therefore we do support what the government is seeking to do here in making it absolutely clear that the removal power sits separately from the question of assessing a person's protection application and considerations of the refugee convention. It does not mean that the refugee convention does not apply to people when they seek to invoke Australia's protection obligations; of course it does. But it does in the context of their assessment as a refugee, not in the context of whether or not they ought to be removed, having had that assessment fail through the system of decision making and review that we have under the Migration Act.

The second component of schedule 5, we do not support. This is a component which seeks to remove any reference to the refugee convention within the act and, as the government would say, to codify the obligations which exist under the refugee convention into the act and indeed codify the state of Australia's law in respect of the refugee assessment process into the act. There is no good reason for this.

The stated reason by the government is that they would want, as jurisprudence develops in this area, to have Australian courts' decisions determine the progress and path that our law takes, rather than the decisions of international courts and other countries. I do not think, even if this were to pass the parliament, it will achieve that end. If you are using a set of words which are used in other countries—in other Commonwealth countries—inevitably, our courts are going to refer to decisions that they make in trying to work out how you interpret those words within our own system. It is clear from the minister's second reading speech that we remain a party to the refugee convention, and the Migration Act is the way in which we give a legislative effect to that. I do not think this will achieve the objective that the government seeks to achieve anyway, but there is no good reason for it.

Our concern is that, in seeking to codify the law in this way, mistakes can be made. There is, for example, a requirement that would be inserted into the act that, if persons are able to alter their behaviour reasonably, then they would not be able to seek protection in Australia. There are cases, which currently are being dealt with in the Australian legal system and decisions that have been made in the past, which do give effect to a version of that. Once you write it down, it raises a whole lot of questions, which will become more complicated. Would, for example, somebody who seeks protection on the basis of sexual preference be denied that protection on the basis that an alteration of their behaviour could result in them not being persecuted or harmed in their home country? I am not suggesting for a second that that is the intention of the codification which is being put in place here, but the moment that you walk down that path is the moment that those sorts of issues will arise. There is no good reason for codifying the act here other than through in a sense false nationalism about saying that we do not want international courts to have a say on the development of our law—they will anyway, because our courts will refer to them, even if this were to pass this parliament. In any event, we oppose that part of schedule 5.

Schedule 6 deals with the question of the children of unauthorised maritime arrivals and goes to the matters which are being dealt with in the case of Plaintiff B9/2014 against the Minister for Immigration and Border Protection. This is known as the Baby Ferouz case, and it is clear that this legislation will not specifically apply to the participants within that case. It will be prospective but it deals with the substance of the matters that come from that.

We support the government in respect of this schedule. We accept that the underlying principle throughout our immigration system is that children inherit the immigration status of their parents. If a parent is an unauthorised maritime arrival, then it is appropriate that children, no matter where they are born, inherit that same immigration status. That applies throughout our system with the one exception: permanent residents living in Australia giving birth to somebody in Australia would become an Australian citizen. Australians born overseas are Australians. Children born to persons holding a temporary visa of any kind in Australia will have a temporary status in this country. Consistent with that, we think schedule 6 is an appropriate piece of legislation and we support it.

Finally, schedule 7 relates to the question of the ability for the minister to put in place caps in relation to the protection visa stream. This comes by virtue of the case of Plaintiff S297/2013 against the Minister for Immigration and Border Protection. We support the right of the minister to have an ability to cap the protection visa program, just as the minister has a right to cap visas throughout our entire migration system. It is hard to see how you could manage this appropriately without the minister having that power. We absolutely support that. We do so on the basis that actions the minister took last year in seeking to cap the protection visa program at the number of visas which had been issued to the point in time when the government's attempt to introduce temporary protection visas had been disallowed by the Senate. We saw that as an effective abuse of process that was in effect the substantive decision that was litigated through the court system, and the government lost that case. To be completely clear about this issue: we want to make sure that the 6,000-odd people for whom the bar had been lifted and that case applied would be able to seek a permanent protection visa, and so we will be pursuing an amendment to that effect in the Senate.

The final part of schedule 7 deals with the question of the 90-day rule, which was an important part of the case that was litigated. The government is seeking to remove the 90-day rule. We oppose that. The 90-day rule is an important accountability measure of any government about the speed with which it handles the decision-making load in relation to protection visa applications. It was, as I understand it, a rule that was introduced under the Howard government. At the time of the last election, when Labor left government, about half the decisions that were made in relation to protection applications were made within the 90-day rule. In the last report on the government's performance against the 90-day rule it has been found that only 14 per cent of decisions are being made within the prescribed 90 days. The 90-day rule is an important accountability measure and, accordingly, we would oppose any attempt to remove that from the legislation.

That outlines in detail our position on this bill. I reiterate that what we will seek to do is give expression to those positions, as well as any other amendments that may arise by virtue of the Senate inquiry, through amendments that we will move in the Senate. We will be opposing this bill in its entirety in the House by virtue of those components of the bill which we disagree with here.

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