Allegra Spender (Wentworth, Independent) Share this | Hansard source

The first priority of this parliament is keeping the community safe. I acknowledge the community's deep concern about the release of detainees from the NZYQ cohort, following the High Court's decision on indefinite detention last year. I share that concern. It's absolutely appropriate for this House to take steps to protect the public from those who have committed very serious crimes in the past and those who may pose a risk to the public in the future. A few of the provisions in this bill go to this kind of community protection, but most do not, and it is on those that do not that I would like to focus my comments.

Having consulted with the legal experts and refugee advocates, I have three key concerns with this bill. First, this bill contains very broad powers which go far beyond the scope of dealing with the people in the NZYQ cohort who have committed serious and violent crimes. The bill creates new powers to forcibly deport a very broad range of noncitizens to unspecified third countries without the need to show that they pose a risk to the Australian people. Noncitizens could be put in detention in Australia until such time as they can be deported. I understand that this could include refugees and people seeking asylum who have lived in and contributed to our community for years. So, understandably, I have been told that this bill is causing widespread concern amongst affected communities.

I'm particularly concerned by the potential impact on people who've been failed by the so-called fast-track process. These people arrived in Australia over a decade ago, and many were genuine refugees whose claims were never properly assessed. Labor has admitted that the fast-track process was neither fast nor fair, abolishing a process and the body that administered it. I have met numerous people in this cohort—numerous honest, hardworking compassionate people—who have been stuck in limbo for over a decade and just want to build their lives. Yet feedback I've received from refugee law experts is that those failed by fast-track could be subject to the deportation arrangements in this bill.

I want to share the story of one of them, which has been provided to me by the Asylum Seeker Resource Centre. Geetha fled Sri Lanka and applied for a protection visa. She was subjected to this fast-track process, and her protection application was refused by the department and the Immigration Assessment Authority without a fair opportunity to present her protection claims, which included experiences of severe gender based violence. After years in the courts, Geetha had sought ministerial intervention in order to lodge a new protection visa application and to raise her gender based violence protection claims. Geetha has been granted a six-month BVE on departure grounds while she waits the outcome of her ministerial intervention request. If the bill is passed, once Geetha's BVE expires she will be exposed to detention and deportation to a third country—including Sri Lanka, from where she fled gender based violence.

Beyond people like Geetha, I'm also concerned about others who may be unfairly affected, including those who have compassionate or compelling reasons to remain in Australia, such as being married to an Australian citizen or having Australian children—surely good reasons for you to stay in this country. Given the delays in visa processing, many of those people have been living in Australia for years and have laid down roots here.

I accept the minister's argument that Australia should have the mechanism to remove people who do not have the right to be here and who have a safe place they can go instead. I absolutely accept that. If an unlawful noncitizen without family in Australia is offered a safe place to live in New Zealand, it is perfectly reasonable for them to be made to take it. But, if a refugee who was failed by the fast-track system and has lived in Australia for a decade and has a partner and child here is being forcibly deported to Nauru, where they may be detained indefinitely with no rights, that's a very different situation.

They are the two extremes that we are contending with in this bill, and the nature of the third-country deportation arrangements is my secondary concern. While we all hope that Australia would enter into third-country agreements only with countries, such as New Zealand or Canada, with strong social safety nets and respect for the rights of refugees and individuals, there are no guarantees in this bill. The government has not provided clear information about which countries it plans to enter third-country arrangements with or about the rights that people will have once they arrive. This has led legal experts to raise concerns that this bill could allow for people to be held in foreign countries with no safeguards to ensure they are treated humanely—all at the Australian taxpayers' expense. They could be detained in places like Nauru, potentially indefinitely, and nothing in the bill requires that a lasting solution is found for them. The harms of Australia's offshore regime on Nauru and Manus Island are well documented, as is the huge cost to Australian taxpayers.

This brings me to my third concern, which relates to the lack of transparency and accountability in this bill. As the member for Indi rightly pointed out, there are no requirements in this bill to publish how much Australia is paying third countries to accept the people that we're deporting. I understand there are not even new requirements to publish how many people we are deporting and which countries they are going to. In an area where past Australian governments have a very chequered history when it comes to the morality of their actions as well as the value for money of offshore arrangements, it is vital that there is transparency over how these new provisions are being applied.

The bill also attempts to stop the government from being sued for any actions that it takes to remove people from Australia or for the subsequent treatment of those people in the third country. This may remove an important accountability mechanism for those transferred offshore, like the dozens of refugees who secured court orders to be brought into Australia to access urgent lifesaving treatment unavailable on Nauru or Manus Island. By shutting the door to future legal challenges, I am concerned that the government would effectively remove one of the few proven checks on its power in this area.

These are complex issues, and there are no easy answers. The bill has come about in part because the government's previous attempts to respond to the High Court's NZYQ decision have been rushed, poorly thought through and given limited opportunity for pulmonary scrutiny. In the end, the High Court found this parliament's rushed attempts to paper over the cracks in Australia's migration laws were unconstitutional, the possibility of which was pointed out by the crossbench on numerous occasions during the debate.

If we had an asylum process that was both fair and efficient, if safeguards were ensuring the safety and rights of people in the countries we were sending them and if we had more transparency over the arrangements proposed in this bill, I would be more willing to accept the minister's assertion that there is no reason why noncitizens without a visa should be allowed to stay in Australia. But history has shown that that's not the case, particularly for those failed fast-tracked visa holders. So I have major concerns with this bill, and I believe it warrants further legislative scrutiny.

The government has already made regulations, which the minister has stated allow him to 'continue to use curfews and electronic monitoring devices' on the NZYQ cohort, so there does not seem to be an urgent reason to pass legislation today. I urge the government to refer the bill for an inquiry and await the inquiry's report before attempting to pass it in either the House or the Senate.

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