Kylea Tink (North Sydney, Independent) Share this | Hansard source

I rise to speak on the Migration Amendment Bill 2024. Just on 12 months ago, the High Court of Australia handed down a unanimous judgement in a case that is now known as the NZYQ case, confirming that detention is a form of punishment and indefinite detention of people is unlawful and unconstitutional. Given Australia's long history of political bipartisanship around the horrendous offshoring of those seeking refuge in our country, the court's finding was welcomed as a watershed moment in Australian legal history.

It could have been a watershed moment for immigration policy and this nation, more broadly. It could have been a critical juncture to interrogate the double standards that this country places on citizens compared to noncitizens, brown and black people compared to white. It could have been a moment to reflect on our treatment of noncitizens. Eleven years after reopening Australia's offshore processing regime, this could have been an opportunity to ask ourselves, how can we do better? Instead, the NZYQ case saw this government thrown into panic, rushing so-called emergency legislation to reinstate the status quo, and bowing to the opposition's political attacks and misleading narrative of community safety—I'm sorry, I'm going to start again, if I may.

Just on 12 months ago, the High Court of Australia handed down a unanimous judgement in a case that is now known as the NZYQ case, confirming that detention is a form of punishment and indefinite detention of people in this country is unlawful and unconstitutional. Given Australia's long history of political bipartisanship around the offshoring of those seeking refuge in our country, the court's finding was welcomed as a watershed moment in Australian legal history. It was a moment that should have seen our immigration system called more broadly to account and our government take the opportunity to reconcile itself with over 30 years of significant human rights breaches. Yet, rather than use this critical juncture to interrogate the double standards this country places on citizens compared to noncitizens, or to reflect on our treatment of noncitizens, immigrants and refugees, and the way politicians and the media have raged a campaign of relentless demonisation against them, the government, kowtowing to the opposition's political attacks and misleading narratives around community safety, was thrown into a state of panic and rushed through so-called emergency legislation to reinstate the status quo.

So 11 years after reopening Australia's offshore processing regime, we find ourselves yet again with a government determined to legislate its way around a legal finding. When it comes to almost any issue related to immigration in this country, the rhetoric that pours from the mouths of the people on both sides of this parliament is frequently abhorrent, and deliberately intended to support the ongoing operation of an egregious system that suits a political duopoly determined to frighten the masses into submission.

The laws introduced in response to the NZYQ case again attempt to criminalise and control people released from indefinite detention, forcing them to wear ankle monitors and follow curfews. Here we are again, with the High Court just last week ruling that these conditions are also an unlawful form of extrajudicial collective punishment. I know we shouldn't be surprised that, rather than accepting the legal finding of the High Court, we are here yet again debating a government's rushed attempt to ensure they can continue to impose their own political will, rather than abide by international law.

This bill not only seeks to reinstate monitoring conditions, including ankle monitoring and curfews, but also introduces sweeping power to deport thousands of people. According to the Kaldor Centre for International Refugee Law, this bill would allow the government to send more people to third countries, give the government sweeping immunity from being sued by people harmed when deported, allow it to revisit protection findings—meaning people previously found to be refugees could be returned to their home country—and impose harsh visa conditions for those who do stay.

To be clear, the safety of the community should always be top of mind. As such, this nation urgently needs stronger measures to address violence both broadly and specifically against women. But we must not lose sight of the human rights considerations. We need sustainable, long-term solutions, not reactive and rushed responses that feed off fear, equate foreign bodies with criminality, danger and distrust and ultimately embed inequity, continuing to support an us-versus-them mindset. The way we protect the community from the risk of individuals who have committed serious violence or sexual offences should be the same whether those people are citizens or not.

With all of that said, the fact of the matter is that this bill uses the latest High Court finding to go even further in introducing wide-ranging powers. It creates powers for the minister and other officials to collect or share details of a person's criminal history, including sharing that information with foreign countries. To be clear, this is illegal. In fact, the bill overrides the state and territory laws that make it illegal and validates any unlawful sharing of information that may have little to no relevance to the current situation, as the offence may have been committed in the distant past. While the government pats itself on the back for recently reforming privacy protection, it is at the same time granting itself the powers to invade the privacy of noncitizens.

Additionally, the bill enables the government to enter arrangements with foreign countries that would see us pay them to accept deported bridging visa R holders. Under this system, the person's bridging visa R would automatically be cancelled as soon as they have permission to enter and remain in a third country. In context, there are more than 200 people in Australia on BVRs, many of whom were released from detention following the High Court's decision. Yet, for this arrangement to be pursued by the government, there is no requirement to prove these individuals pose a risk to the community. There's no requirement for a person to have any permanent right to reside in the country they are sent to; there's no guarantee of their safety. In fact, the third country could legally detain people or even return them to their home countries to face serious harm or persecution. All of this will be conveniently paid for from our public purse.

We know how horrific the conditions in detention centres like Nauru and Manus Island have been. In fact, Betelhem Tibebu, a human rights activist and former refugee in Nauru, described it as a place with no privacy and no safety. She lamented the fact that she could not see her family, and she had no hope for the future. Another former detainee declared: 'It's not offshore detention. It's not a processing centre. It's a suicide centre.' A recent study found that refugees detained offshore for any amount of time face a 20 times greater risk of PTSD and other mental health problems compared with asylum seekers who are detained onshore for less than six months. Ultimately, as someone who has long argued for our nation to not only abide and uphold but champion international humanitarian law, I and my community firmly believe that Australia's law should leave no room for the possibility of prolonged detention here or offshore. That is why I moved a private member's bill last year to limit immigration detention to 90 days and why I continue to call for an end to this inhumane practice.

I recently spoke to a group of refugees who have been failed by the government's fast-track system. One of them, Milad Makvandi, fled Iran 12 years ago to escape from an oppressive regime that puts its citizens' lives at risk. He's worked as a truck mechanic since coming to Australia, paid his taxes and employed others. Despite his contribution to the community, his asylum application has been rejected several times, and he is still awaiting the decision of the Federal Court. People like Milad deserve to be given a clear pathway to permanent residency. Instead, many on bridging visas fear they could have their visas cancelled or not renewed at any moment. Under this new legislation, they could even be transferred to a BVR, leaving them vulnerable to deportation to a third country, where they could suffer detention or other harms. Even if the government doesn't intend to use these powers against people like Milad, the fact is that this bill makes it possible.

The bill also grants powers to revisit and overturn protection findings for 'removal pathway noncitizens'. The definition of this group would initially apply to refugees on certain bridging visas but could also be extended to other visa classes in the future, threatening people who have been living in our communities for years. Refugee status should be durable and lasting, and not open to reversal at a government's whim. To add insult to injury, the bill contains measures that would give the government and immigration officials immunity from civil liability for their actions in deporting people. To be clear, these provisions protect the government against accountability for the harm that people suffer when they're sent offshore. That means, for example, that if someone was sent to Nauru and was assaulted, they would have no recourse to hold our government to account.

People held in offshore detention have limited options to have their voices heard and legal rights tested. One of the few paths available to them is the tort law system. As a consequence, refugees have rightly used tort law to hold our government to account for damages and breaches of duty of care. This includes the largest human rights settlement to date, which happened in 2017, between Manus Island detainees and the federal government, following claims of negligence and unlawful detention. In addition, dozens of refugees have secured court orders to be brought to Australia to access urgent life-saving treatment unavailable on Nauru or Manus Island. I've heard from legal practitioners in this area about cases where a former minister refused to act on medical advice to bring to Australia people who were at serious risk of death. Civil liability claims were often the only way to secure these people's transfer to Australia, where they received the medical care they needed. Many were hospitalised, not just for weeks but for months after they were transferred, and many are still ill now.

Human rights organisations have warned that the provisions in this bill would close the door to these pathways for legal recourse and even necessary medical care. It's telling that the government feels the need to ensure immunity from being sued by people harmed when deported. I can't help but feel that the government is the last public entity I would ever want to give complete immunity to.

Ultimately, this legislation raises a number of human rights issues. The bill's own statement of compatibility with human rights references infringements against the rights to liberty and freedom from arbitrary detention, the right to an effective remedy, rights relating to equality and discrimination, and many more. The statement of compatibility with human rights also explicitly mentions Australia's obligations arising from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3 states:

No State Party shall expel, return … or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

It is frankly astonishing to see this passage being used in referencing a bill that the government is trying to rush through this House. In fact, many of the other rights listed, from privacy to equal treatment, would be equally trampled on by this legislation. The conclusion of the statement of compatibility says:

To the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system and protect the safety of the Australian community.

Numerous human rights and refugee law experts in my community of North Sydney would argue otherwise. The measures contained in this bill must be thoroughly examined and debated to ensure Australia's immigration policies are just, humane and legal—an ambition that we would have to say is well beyond our reach in the current circumstances.

While it's good to see this bill being referred to the Senate Legal and Constitutional Affairs Legislation Committee, it is unreasonable to expect that committee to report back on it within just one week, given the substance and potential ramifications of this bill and the current workload of this parliament. The bill deserves proper scrutiny, and the government needs to be held to account. Ultimately—let's be clear—we need real, long-term solutions for the challenges we face as a nation when it comes to managing migration. I fear that those things are not contained in this legislation, and I am almost certain that, 12 months from now, the parliament will be back on its feet debating yet more flawed legislation, which will result from the court challenges to this latest iteration. Our community deserves better.

See this speech in context