Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

Australia is better than this bill. The legislation before us today undermines our sovereignty, is offensive to our decency and makes a mockery of this parliament. We should oppose this bill because of what it does, because of the motivation which brought it here and because, regardless of any amendments the government might seek to move, the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 is itself irredeemable. As the debate has gone on and we have seen the government go through different permutations and have various briefings of where it wants to take this legislation, we have not known whether to laugh or cry. We do not know whether to laugh at just how ludicrous this legislation is or cry at the very real impact and real pain it seeks to cause some of the most desperate people in the world.

First and foremost this bill proposes to abolish the Australian border. It denies Australian processes and it undoes unanimous reforms that were made last year. Labor used to muse whether the abolition of the border was something that would ever happen. In June 2002 the member for Hotham, when he was Leader of the Opposition, asked the Prime Minister directly: ‘Will the Prime Minister rule out legislating to excise parts of the mainland?’ The response from the Prime Minister:

I want to make it clear that there is no intention—and there never has been—to excise any part of the Australian mainland. That is an absolutely ludicrous proposition.

They are the words of the Prime Minister—it is a ‘ludicrous proposition’ but a proposition so ludicrous it is now before the House of Representatives for debate. It is a proposition that in the name of border protection abolishes our nation’s border. In the name of protecting a border the government has decided to throw its hands up in the air and pretend we do not have one at all.

It is so insane that it has been the subject of comedy sketches. Years ago, in the 1970s, there was even an episode of The Goodies where, at the end, Graeme Garden attached a rope from the mainland to his rowboat and attempted to row the whole of England beyond the five-mile limit. Now we find the Australian government taking the whole of Australia beyond the limits of its own border. As soon as the government got control of the Senate they decided to excise every single offshore island. There are only two bits left: one is called Tasmania; the other is called the mainland. If this legislation is carried they are gone too.

I want to make it clear that Labor supported for very good reason the first three excisions—Cocos (Keeling) Island, Ashmore Reef and Christmas Island—because they were in a very different position to every other offshore island and in a completely different position to Tasmania and the Australian mainland. In about a month it will be the fifth anniversary of SIEVX, when hundreds of people drowned on their way to Australia. This was a people-smuggling operation that took advantage of the desperation of those people, in boats filled largely with women and children, headed not to the Australian mainland but to places like Christmas Island, Cocos (Keeling) Island and Ashmore Reef. Those people-smuggling operations—where people in desperate situations had their life savings taken and their lives put at risk on the high seas—were only occurring because those areas were within the migration zone. Labor supported that excision for one very precise reason: to take action against the people-smuggling operations that were causing such misery and hardship for so many people.

This legislation is not before us because of a people-smuggling operation. It is not a people-smuggling operation when 43 people hop in their own canoe and directly flee persecution. It is not a people-smuggling operation when there is no operator profiting from it. It is not a people-smuggling operation when every single one of those people is subsequently found under Australian law to be worthy of protection. That is an entirely different situation and this legislation denies anybody in that situation the processes of Australian law.

In the last 24 hours we have heard serious reports about people who had applied for Australian protection being deported back into danger. At the first assessment, performed on Nauru, it was believed that these people were not in fear for their lives and not at risk of persecution. They were returned to their country of origin and now it appears they may well have been killed on their return, including some children. It remains to be investigated fully, but those claims show how important it is to get it right. The stakes are incredibly high when you are talking about refugees.

If somebody comes to this country, makes a false claim and is not genuinely fleeing persecution, I am the first to say, ‘Send them back.’ I am the first to say that they should not use refugee principles as a way of bypassing the correct, orderly approach to Australian immigration. But you have to make sure you get that claim right. The Minister for Immigration and Multicultural Affairs has stated many times that a low benchmark is set. When we determine whether or not somebody has a well-founded fear of persecution, the test is not of whether it is beyond reasonable doubt; the test is of whether there is a more than remote chance. That test is put there for good reason: because, if you get it wrong, people will be persecuted. If you get it wrong families may well be slaughtered—and we do not want to be the sort of country that allows that.

What would have happened to the 43 Papuans who caused all of this process to unfold if the legislation before us today had already been in place? If those 43 had arrived when the mainland of Australia had been excised, the outcome for them would have been horribly different. We are talking about individuals who are currently integrating successfully into community life in suburban Melbourne. Had this legislation been in place they would not be there right now; they would be on Nauru. They would be languishing on Nauru with no knowledge as to when they would ever be somewhere else. Instead of these communities being able to welcome these people to Melbourne, they would not even be able to visit them on Nauru because most Australians are denied visas when wanting to get to Nauru. They would be languishing on Nauru, 42 of them having been found to be refugees in need of protection. Those 42 would be waiting indefinitely while Australia went through the fiction of trying to find anther country to take them, knowing full well that no other country would do so—and why would they?

Why would other countries that are currently dealing with refugees arriving on their doorstep in the thousands, particularly from Africa, want to help out Australia when our crisis amounts to 43? We are claiming there is a crisis over 43 people arriving in a canoe and they are trying to provide resettlement for tens of thousands of people arriving from Africa. Understandably they will say: ‘Surely it’s Australia’s responsibility. Isn’t that where they landed?’ To that Australian law will say, ‘No.’ They might have thought they had landed in Australia. They might have come in a boat and gone all the way up Sydney Harbour. They could have sailed underneath the Harbour Bridge. They might have looked around and thought, ‘Gee, this looks a lot like Australia.’ But, no; they discovered, thanks to the Australian government, that they had actually made it to Nauru—and no other country will take them.

Australia knows no other country will take them. What happens then is simple: they will remain in Nauru, languishing, while the Australian taxpayer forks out something that has been averaging $4 million a month to make a loud point—a loud point expressed in terms of human misery. They will wait in Nauru. They would have waited until such time as the Australian government decided that it was politically expedient to let them in. That would have been the case for 42 of them—not for the 43rd. The only reason the 43rd Papuan now has a chance to get a protection visa is that he successfully appealed to the Refugee Review Tribunal. There are no appeals to the RRT if you are on Nauru. So the 43rd Papuan would be in a different position to the others. While the other 42 would be waiting in Nauru and thinking: ‘The Australian government will now take years of our lives and our children’s lives. We’ll be here languishing until they decide it is politically expedient to take us, because we know no-one else will.’ In the interim, some of the 42 will pay, as others have, with the price of their sanity, as has continually happened to people who find themselves indefinitely detained. And the 43rd will be left with no prospect of appealing to the RRT, being beyond the reach of Australian law, which is the entire concept of the Pacific solution. The 43rd will now be weighing up his situation and asking, ‘Do I live the rest of my life in Nauru or do I take the risk and return to what I believed was an incredibly dangerous place where I believed I was being persecuted?’ Under Australian law, somebody who is recognised as being in need of protection would have no choice but to either languish in Nauru or return to the place where he claimed he was being persecuted. Fundamentally, that offends any Australian concept of human decency. Fundamentally, it goes against the reasons Australia become involved in the resettlement of refugees in the first place.

I have heard the Prime Minister describe the refugee convention as a Cold War document. That is true; it was concluded during the Cold War. But it was not put in place because of the Cold War. It was put in place because Jewish people fled Germany and no country would take them. The rest of the world swore they would never let this happen again. Had this legislation been in place at the time the 43rd Papuan arrived in Australia, what position would he have been placed in? He would have been given two choices: languish for the rest of his life in Nauru or be treated in the same way that people were treated in the lead-up to and during the Second World War. Those are the choices this legislation gives anyone in his position in future.

The legislation also undoes the reforms of last year. We do not get that many moments of true bipartisanship in this place. Last year we had a good one. It is easy for me to say, ‘The government didn’t go the whole way towards what Labor stood for,’ but we took a big step in the right direction. Last year every member of this parliament voted for legislation that said: ‘You might be able to get away with some things under the convention, but Australian standards are a bit better. You might be able to get away with detaining children under the refugee convention, but Australia set our own benchmarks and sometimes our standards of decency and our expectations are a cut above the rest.’ Everyone in this place and everyone in the Senate voted for it. We said that children would be out of detention. We said that indefinite detention would end. We said that case managed mental health care would be introduced to people in detention. We said that the oversight of the Commonwealth Ombudsman would be introduced so there was independent scrutiny of how people were being treated.

After that great outbreak of bipartisanship, out of that sense of Australian values and decency being expressed in this place, all it took was 10 months, one canoe and it was all out the window, all discarded. We now find out that this government wants us to believe that Australia has a different set of principles. The new principles are meant to be these: it is wrong to lock children up in Australia but it is not a problem if you do it in Nauru. It is wrong to have people languish their whole lives indefinitely in detention centres but it is not a problem if you do it in Nauru. It is really important to make sure you have case managed mental health care for people within your care if you are in Australia but it does not matter if you dump them in Nauru.

The oversight of the Commonwealth Ombudsman is important but can the Commonwealth Ombudsman reach people in Nauru? He can apply for a visa and the government of Nauru will decide whether or not to grant it. Let us not forget that in recent months ASIO have had trouble getting visas from Nauru and the mental health care team sent over by the Department of Immigration and Multicultural Affairs have had trouble getting visas from Nauru. What chance do we think the Commonwealth Ombudsman, whose only role as far as the Nauruan government might be concerned would be to expose deficiencies in their system, will have to do spot checks whenever he wants to of people who arrive at a moment’s notice? It is entirely in the hands of another country. The starting principle behind the Pacific solution was to put people beyond the reach of Australian law. There are enough problems when you do that in terms of appeals to the RRT, but what you then do in terms of the principles we all said we agreed with 12 months ago is to say that the Australian values that mattered one year ago do not matter one bit now.

And do not believe the amendments. We are meant to believe the amendment that will be moved by the government to its own legislation which says:

The Parliament affirms as a principle that a minor ... will only be detained as a measure of last resort.

There is a problem with that amendment: we do not legislate for Nauru, and we do not legislate for Manus Island. If anyone in this parliament believes in that government amendment, then vote against the bill, because the bill, by its very definition, makes that amendment irrelevant. Australian officials in Nauru have no special status. There is a note in the amendment—a little hint as to how this could possibly be relevant. The note says:

The Minister has the power to direct officers of the Department to take all reasonable steps to work with any country ...

Sure, they can work with a country, and Nauru can say no. But we have one moment of responsibility. We have a moment when we can prevent children from being detained and where we can stop indefinite detention. We have a moment where we can deliver case managed mental health care and we can make sure that the Ombudsman has the sort of access that this parliament believes he should have. The moment for us to do that is now. The moment for us to say that we want to deliver on those things is the moment in which to oppose the bill.

Labor is going to oppose this bill in every way, and we will oppose it at every stage. If the government wants to move amendments that effectively have the impact of changing commas and putting up lobbying letters to Nauru, we are not going to stand in the way of those sorts of amendments, but ultimately they do not matter, because the bill is still wrong—and wrong at every stage. So why are we doing this? Why is it that the Australian parliament, without any pressure from within Australia, has decided to undo every principle that was so important a year ago? The reason we have decided to do that is not because of pressure from Australia; it is because of Jakarta. We all know that that is the reason and that that is the only reason.

The minister is trying to fudge it by saying, ‘No, we’re doing this to clear up an inconsistency, because an inconsistency has arisen where if you land on an offshore island it’s only a couple of k’s from the mainland and you treat it differently from the way you handle it if you land on the mainland.’ How did that inconsistency arise? It arose because the government created that inconsistency when they excised all the remaining offshore islands. That is how the inconsistency got there. You do not say, ‘We now have to have dreadful policy, because we need to complement something really dumb we did a year ago.’ That is how that inconsistency arose. Instead, we replaced it with a new inconsistency, a bizarre inconsistency, which creates a complete change between whether you arrive by boat or by plane. So, if you directly flee persecution and you are genuinely in a desperate situation and arrive on Australian shores by boat, your life is about to be wrecked. But, if you are in a situation where you are wealthier and you want to come over here as a tourist and then claim once you are here, ‘Oh, no, I actually want to seek asylum,’ then you get to stay. You get the protection of Australian law and you get all the appeals mechanisms available to you. If you are a child you will not be locked up and, if you are detained for a length of time, it will not be indefinitely. If you end up with mental health problems, there are significant improvements in how you will be cared for and, if you are being mistreated in any way, the Commonwealth Ombudsman can investigate it and can reach you. Why is the person who comes out here on a plane, lies to Immigration authorities, then tells a new story a few months later and makes an appeal for asylum, more worthy than the person who directly flees in a canoe? That is the inconsistency that I do not understand, and that is the inconsistency that this bill demands.

There is a reason why Indonesia reacted the way it did. Indonesia reacted so vehemently when protection visas were being granted to the first 42 Papuans for one reason: it believed the Prime Minister. In 2001 the Prime Minister said something which was actually never true. In 2001, the Prime Minister said—that famous line—‘We will decide who comes to this country and the circumstance in which they come.’ The Prime Minister actually put out there that this was a political decision. The Prime Minister did not say, ‘We have a process of independent people making these decisions.’ The Prime Minister did not say, ‘We delegate the authority for these decisions to public servants who then make assessments acting on their authority.’ No. He said, ‘We will decide’—and Indonesia believed him. Having believed him, the Prime Minister then said, ‘With regard to these 42 Papuans: no, actually, I didn’t make that decision; the process is made independently.’ Indonesia reacted the way it did because of the great lie that was told in the 2001 campaign. The reason Indonesia believed that this should be fixed by the government is that in that campaign the government said, ‘Yes, this is our decision.’ But it never was and it never should have been in terms of how you make the assessment. The assessment should always be made on the merits of the case, and in the case of those first 42 Papuans it was made validly and made well. I made the mistake of congratulating the government for that. The government responded by saying, ‘We’ll never do this again.’

Indonesia also had a concern about their sovereignty. The people who came here—those 43 Papuans—hold a belief which the government does not hold and which the Opposition does not hold, either. They hold a belief that there should be full separatism for the Papuan province of Indonesia. We do not support that, but that was never the issue in the claim. The acceptance of their claim had nothing to do with the issues surrounding Papuan separatism. The acceptance of their claim was based on the fact that it was independently determined that they had more than a remote chance of having a well-founded fear of persecution. So the outcome was right.

And yet the moment Indonesia responded, the Prime Minister made it clear that what he had said previously was not true. He replaced it with something new. He replaced it with the attitude that Indonesia will decide who comes to this country and the circumstances in which they come. He made it clear that no matter how concerned Indonesia was about their sovereignty, the Prime Minister was going to let that be more important than our sovereignty. Well, the legislation that comes into this place ought to be legislation that is based on the needs of Australia, not on the demands of Indonesia—and there was never a demand from within Australia for this sort of change.

The government decided that they were willing to do anything. We had Senator Ellison coming up with wild ideas and we had talk of turning back boats when people were directly fleeing persecution. We had talk about identifying asylum seekers—ringing up the host country and saying, ‘Guess what? I want to give you the names of the citizens of yours who are claiming you’re persecuting them.’ We then had the claim that there would be a national interest test that would decide whether claims should be assessed purely on their merits. And finally we ended up with this, the most bizarre proposal of all: that border protection would be abolished and replaced with border abolition—that Australia would become a nation without a border.

Indonesia want this law to be passed right now. They have made that clear. I do not know whether they have been told the truth about what it means. After Michael L’Estrange was sent to Indonesia on 22 April to explain the proposal, the Indonesian Foreign Minister, Mr Wirajuda, came out and explained why he was pleased with the change. He used these words:

... even if they would be classified as refugees they would not be accepted in Australia. This is positive for us for the future.

That is not the meaning of the bill as I have been briefed on it. That is not the way the Prime Minister has explained the bill in his comments. So why does Indonesia think that that is what we are doing? If you are concerned about the relationship with Indonesia, think about what will happen in years to come, after these individuals have been robbed of years of their lives by languishing in Nauru, where Australia has no control over the way they are treated. What is Indonesia going to say when we eventually accept them because no other country in the world will have them?

The problems that we have right now with Indonesia will only be revisited because of the approach that has been taken with this bill. The approach that should have been taken is the approach that is normally taken. It is called diplomacy. That is meant to be the job that diplomats do—that is, to treat Indonesia the same way that Indonesia treats us. That is, when we complain about their domestic law they say, ‘Well, it might be your citizens that it is impacting on, but this is our country and our law will prevail.’ That is all we had to do: explain to Indonesia how our legal process works. But instead of doing that, we have gone down the bizarre road of saying, ‘If any other country—one of our neighbours—kicks up enough fuss, Australia will change its domestic law.’

The policy of appeasement only leads to more claims. The policy of appeasement only leads to people saying, ‘Well, if I make a new ambit claim there is a country down south that will change its domestic law for me.’ The sovereignty of this parliament is too important to do that. We do not do that with countries with which we have the closest ties in the world. We do not do that for countries with which we have the deepest alliances. We should not allow pressure that has only come because of the just operation of our law to cause us to surrender our sovereignty and abandon our legal processes. This bill is irredeemable. The amendments that are before the House are largely meaningless.

I started by saying that Australia is better than this bill—and it is. What we did in this parliament last year, across the parties, shows what we can do at our best. And there is a principle. It is a pretty simple Australian principle, which, up until this debate, I thought we held. There will be differences of opinions about people who, before they get to Australia, travel through many countries where they could seek asylum but do not, and there will be differences of opinion when people-smuggling operations are involved. There will be differences of opinion throughout the Australian community about how those situations should be handled. But this is a response to people who directly fled persecution. This situation does not arise often in Australia, but recently it did. And the Australian principle is pretty simple: if you are directly fleeing persecution, then the moment you reach Australia, the persecution must end.

A bill which allows children to be locked up, which turns a blind eye to indefinite detention, and which does not care about case management, health care or proper oversight from the Ombudsman, is a bill that allows some of the most desperate people in the world to have their pain compounded and made worse because of deliberate actions of this government.

I have been asked on many occasions whether I am throwing down the gauntlet to moderate Liberals in this debate. I throw down the gauntlet to every member of this parliament. Explain to me what has changed. Explain to me why principles that mattered 12 months ago do not matter now. Explain to me why you can have one morality in Australia and turn a blind eye to creating a different morality in Nauru. That is what this bill does. The bill before us is wrong—it is just plain wrong. Labor will not have anything to do with it.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

I am pleased to speak on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. This bill today is a significant bill because unless this legislation is passed through both houses of parliament the status quo will remain. There are a number of things which the member for Watson opposite said that I will deal with in the time I have allotted. One of them is the fact that his rather impassioned rhetoric fails to be honest in addressing the fact that this bill with its amendments will give to offshore settlement exactly the same conditions that were negotiated 12 months ago for authorised arrivals on excised territory. That is the whole nub of this. He has been dishonest when he has said that this bill does not do that. The amendments to this bill offer offshore arrivals the same terms and conditions as have been offered to those coming to Australia from excised offshore places already, negotiated last year, as the member said—and, as he said, it was a bipartisan approach.

This bill actually does make the distinction between the offshore excised places and those who reach the mainland and that is the effect of the bill. Why do we have to have this bill? We have to have this bill because Australia’s legal system cannot deal with unauthorised arrivals on the mainland. I will explain that in detail later but at the moment let us just be clear about it. There are people in Australia who have been here for 17 years through a succession of appeals where they can go to every court in this land. They have access to every advocacy group to make sure that they get access to the highest courts in this land and eventually, through the use of Australian taxpayers’ moneys, they can be here for up to 17 years. What is the problem with that? The problem with that is that after 10 years a child born to those people in this country automatically becomes an Australian citizen. If that child becomes an Australian citizen, we then have a problem of whether we send the parents offshore, if they are deemed not to be legitimate arrivals, leaving only the child here. This is the conundrum we are faced with in this parliament today: do we address this legislation because of the failure of the Australian legal system? We know that our Attorney-General, Philip Ruddock, has endeavoured to negotiate, through the legal system, opportunities to deal more expeditiously with appeals as is done in many other countries, such as the US, where there are two appeals and that is it. But he cannot negotiate it through, even with his endeavour to use the privative clause, because we do not have the support, firstly, from the opposition and, secondly, through the courts of Australia. There is the separation of powers and we cannot impose ourselves on that. So this is the alternative arrangement that has been made.

Just as a short reflection, let us remember who initiated mandatory detention in this country. It was under the Keating-Hawke Labor government; it was Gerry Hand. I have mentioned in this place before—even though I have a growing fondness for the member for Fremantle—that, when I was in Western Australia, before becoming a member of this place, the member for Fremantle, then the state Premier, was the Premier when the Port Hedland detention centre was opened with glee to detain unauthorised arrivals in Western Australia. So let us not have this cant and hypocrisy about how, on the one hand, we support you and how, on the other hand now, shock horror, this is terrible. Essentially that is it. We have to assign Australia as a designated unauthorised arrival zone because if people arrive on the Australian mainland then they are treated differently than the legislation provides for now.

I will go to the amendments demonstrating that we are going to give people the same terms and conditions. Not only members of the Labor Party but also some members of the Liberal Party have told us they dissent from this legislation sought last year. I say to those people in my party who call themselves dissidents et cetera that your electorates do not support you on this. I know this because people come and tell me by the droves. In fact, the vast majority of Australians support what the government is doing in toughening up the legislation in this area. They come to me and say things like, ‘Mr Randall, how come these people have unfettered access to the courts when we as parents going through the Family Court, for example, can’t get legal aid? We have problems getting support on unfair dismissal et cetera; we can’t get legal aid in those areas. Yet these people have unbridled access to legal representation and are not even Australian citizens.’ These same people are housed in centres where, compared to some of my constituents in Western Australia, they have first-class accommodation, ensuites, halal food, education and health care, all at no cost. The people in my electorate say to me, ‘Why does this happen to people who aren’t deemed to be lawful Australian citizens and yet I, as an Australian, can’t get this?’ Politicians, particularly in my party, want to think about this because their electorates are asking them the same question. That is something they might want to ponder rather seriously.

We do know that we had to excise territories previously because Ashmore Reef, as the member opposite said, became almost a stop-off point for anyone who could reach it. If they made the Cocos Islands, for example—and we know many Sri Lankans made the Cocos Islands—they saw that as Australian territory and they were then able to seek all the terms and conditions that refugee status gave them in Australia. It was the same if you made Christmas Island. So those islands and territories were excised, as they should have been, and that stopped much of the flow. What we do know is that before the infamous Tampa incident, from 1997 to 2001, something like 10,893 people arrived here unlawfully. Since then, post-Tampa, there have only been 114. What does that tell you? That the legislation and our strong border protection measures are working and that is the message that we have to send to the rest of the world. The rest of the world would love to have our strong border protection measures. I recommend to those here in the parliament an article in the West Australian by Ben Harvey, on 30 May last year, which says ‘UK groans under its soft refugee system’. It says:

When The West Australian told a Home Office official that some Australian politicians were lobbying to abandon the policy of detaining asylum seekers, she was stunned.

“The Government should hold its nerve on that one,” she said.

“In a few years time we will have the courage to introduce a policy of detention.

Don’t let them weaken. Britain is seen as an absolute soft touch.

Italy is the same. It has a porous border. When I visited a detention centre in Italy last year, they pointed out clearly to me that one of their prime objectives was to put people in detention centres briefly and then send them on through to Germany, because Germany is such a soft touch. They actually help finance their transport and rehabilitation to head towards Germany. One of the reasons why Germany is running into such problems is that it has this huge out-of-control itinerant illegal migration into its country. That is affecting its economy.

The offshore processing centres on Nauru that are being designated have previously been highly successful in determining the status of people seeking asylum, determining whether they are refugees or not, and I will go into figures shortly. It has been made quite clear that those going to Nauru will have special purpose visas which give them status. They are not actually detained as such but they do have a visa to be on Nauru. The status of this visa has been determined by both the court of Nauru and the High Court of Australia, so I would think that that makes it quite legitimate. The accommodation on Nauru will be first class, because we are currently in negotiations, if this legislation goes through, to get probably the best accommodation on Nauru, in a former weightlifting village, and to make sure that it is built to such a level that it will accommodate families with children in particular in air-conditioned accommodation with all the mod cons that many Nauruans would seek for themselves.

One of my colleagues, the member for Cook, said yesterday that when he went to New Zealand last year the Tampa distribution of refugees was only 35, and I said I would correct the record. I would like to put on the record that this is how the 433 asylum seekers aboard the Tampa were distributed: 131 were sent straight to New Zealand without any assessment and the remaining 302 were placed in offshore processing centres in Nauru. There were 301 assessed by the UNHCR and one by DIMIA. Of those who were taken to Nauru, 101 were found to be refugees and resolved as follows: 28 have been resettled in Australia, 63 in New Zealand, seven in Sweden, two in Norway and one in Canada.

Of those taken to Nauru after New Zealand had taken its 131, 201 were found not to be refugees. Of those 201 who were found not to be refugees, 186 were voluntarily repatriated. In other words, they got their $2,000 and went home. The families got $10,000 per family and went home. But 186 of them were voluntarily repatriated. They did not have to go by boat. They went home via plane in all the conditions that brings. Fourteen were resettled in New Zealand, one died of natural causes and we know that there are two who are still on Nauru because there are security concerns about these people, who have been assessed as security risks to come to Australia. So I might say to the member for Cook: what have we got? New Zealand took 131 and then another 63. There are almost 200 of them that New Zealand took.

This is one of the things that our colleagues are saying that they are not happy with: if people wish to come to Australia as refugees by choice, and if they are found to be refugees, can they stay in Australia? The answer is no, because under the UN protocols Australia is not obliged to do that. The 1951 United Nations Convention relating to the Status of Refugees and the protocols quite clearly state that the refugee convention does not set down any particular process and it does not create a right for people to select a preferred country for processing their claims or the country in which the protection will be provided if they are found to be refugees. That is the UN protocol. So the fact that they might want to come here does not mean to say that they can come here if they are deemed to be refugees. As we know, many of them are not, particularly from the figures I have just given you in relation to the Tampa.

Can I say that Australia’s generosity towards refugees is outstanding. We are the third most generous country in the world in terms of taking refugees and humanitarian entrants. In fact, in the last few years we have consistently taken close to 14,000 people on the humanitarian and refugee register. Compare that to the figure for New Zealand, which champions itself as being this great country of humanitarianism and taking so many refugees. It takes somewhere between 700 and 800 a year. If you put that into proportion with New Zealand’s population, it is nowhere near the generosity of Australia. If New Zealand had anywhere near the generous disposition that Australia has towards humanitarian refugees, it would be taking 2½ thousand refugees or humanitarian entrants a year. So do not tell us that you have a mortgage on compassion, New Zealand, because we outdo you almost four to one. As a result, our compassion stacks up against that of anybody else in the world.

Our orderly migration system is something that we should be very proud of and, as I said previously, is the envy of the world. We can actually track who comes into this country. We know who comes to Australia, whether they come in the skilled migrants stream or otherwise. There are thousands coming to Australia in the orderly skilled migration stream, there are thousands coming in under the family reunion system and there are thousands coming in under other visa subclasses, such as those visiting as tourists and students.

So Australia is a great destination for many people wanting to visit or migrate, but people do it in an orderly fashion, and that is one of the outstanding things that Australia can do. We can track the people who come here, we do know where they are and we do know when they are coming and going, which makes Australia unlike Britain and many other countries of Europe and the rest of the world, as we have seen just recently in the US. Unlawful arrivals crossing their borders have become a huge issue. We do not have a porous border, and this is one of the reasons why the mainland has been designated in this legislation as an area for unlawful arrivals. The reason for that is that one of the great pull factors is that now, if you can bypass all the islands and run up onto a beach somewhere in Australia, you get treated quite differently.

The amendments to this legislation are quite extensive and have been negotiated with a range of people, but particularly with those in our party and in the government who want to see the same conditions, as the member for Watson said, that were negotiated last year. The conditions we are offering are the same and in many respects better—that no children will be detained in detention. He says, ‘But how can you guarantee this in Nauru?’ We organise memorandums of understanding, whether it be through free trade agreements or any other international agreements, with countries all over the world. Why can’t we do it in this case? For some reason he thinks that immigration cannot be negotiated. Nauru has made it quite clear that it is willing to negotiate on the terms and conditions.

One of the sticking points was about children in detention. They will not be detained. They will be given residential housing, as they are in Port Augusta now. I visited the Port Augusta residential housing facility and all I heard was laughter from children. They were happy. They had people coming in after school to do a huge number of activities with them. They go out into the community, to the beach and to the schools there. They were very happy and they were very pleased to be in Australia. What is the matter with the residential housing in Nauru that is on offer, with a 90-day turnaround for those seeking to be assessed? We know that is even better than in Australia now. At the moment, there is no-one in detention in Australia who has not had a primary assessment and yet we are saying, ‘We are going to make it even faster on Nauru and have a 90-day turnaround and, if you are not happy with the decision, we are going to give you a 90-day turnaround on your review,’ suspected to be carried out by former officers of the Refugee Review Tribunal.

Those detained offshore will receive legal representation. The minister has put that offer in her amendments. The Commonwealth Ombudsman will have an overarching ability to examine the whole process. It is happening in Australia. People were happy with the amendments made for those under Australian terms and conditions. Why would they not be happy if the Australian Ombudsman was given permission to do the review on detention in Nauru? This is a fatuous argument coming from the opposition.

There will be an independent review of the whole process after two years. I thought that was very reasonable. There will be a sunset provision after five years. After five years, we will look at this and ask, ‘Is this working or not and what can we do to improve it?’ You cannot offer more than that. That is better than what was being offered in last year’s arrangement. Again, for those offering criticism, you are being disingenuous and you are being hypocritical in your attack on this because it is politically expedient to do so. You are doing it not because it is right but because of political opportunism. This is particularly so of those opposite but also of some of those in our own party who either do not understand this or see it as an opportunity to take a different stance, for whatever reason. I am sure they will tell you those reasons during their contributions to the debate today.

As I said, Australia is incredibly overgenerous. On the business about Australia bringing this legislation in just because of the Papuans, this is legislation that we should have had for some time. There was an argument that the Papuans could only come to Australia. They could have gone straight across the border into New Guinea, yet they did not. They chose to come to Australia because they were being organised by refugee advocacy groups who we know met them and accommodated them as soon as they got here. It was staged well in advance. What is the matter with having a good relationship with Indonesia? That is one of the reasons why Indonesia is no longer a staging point for all those illegal immigration people smugglers, as it was previously.

If this legislation is not passed, we will have what we have now. It is not as if this legislation is going to wipe out anything that we have now. If it is not passed, it is inferior legislation that will be in place. We are offering people who come unlawfully to Australia superior legislation for offshore detention. It is a bill that should pass both houses of parliament because it is good legislation and it is about time that we showed the courage, as we have done so before, to protect Australia’s borders to make sure there is orderly migration to this country. I support this bill. (Time expired)

Kim Beazley (Brand, Australian Labor Party, Leader of the Opposition) Share this | Link to this | Hansard source

There is not much integrity and honour about the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. There is not much national spirit about this bill. This is a piece of craven legislation and I will outline the reasons why we would argue that. This is not one of the honourable moments of the House we happen to be going through. This is a pretty supine piece of work by a pretty ordinary old soul running a pretty ordinary old government. It is obviously the case that not all people on the other side of the House are at all comfortable with it.

We oppose the bill and we will vote against it. I say to those on the other side of the House: come on over; come on over and vote with us to uphold Australian sovereignty; come on over to vote with us to protect our borders; come on over and join with us today in the national interest. Your vote is your own. It is not for the Prime Minister to tell you that you ought to abstain if you disagree with him. Come on over and support a stand for Australian national sovereignty and a stand for basic human decency.

The bill removes asylum seekers from the process and protection of Australian immigration laws. It is as simple as that. There is no question about that. There is nothing in the amendments that can change the underlying reality: once you move people to another country to be processed, they are beyond the reach of Australian law. Australian law stops. Any principles of fairness and decency that underpin our law will not automatically be applied, because Australian law cannot be enforced in other nations—very properly so. We oppose the legislation on the grounds that we are an independent nation. We must frame our laws independently and in our national interest. We should do that without acquiescing to pressure from foreign governments, particularly when that pressure happens to be based on misinformation and poor understanding. Children should never be held in detention and no-one should be held indefinitely in detention. Those two principles are impossible to enforce in another country. It is as simple as that.

Australia has a responsibility to meet its refugee obligations. We also oppose this legislation because it removes the direct oversight of the Commonwealth Ombudsman. For example, a visa will be required if the Ombudsman wants to enter Nauru. It is not necessarily the easiest thing in the world to get a visa to enter Nauru. It is not our business that Nauru decides from time to time to make visas difficult to get; it is their sovereign territory. But the simple fact of the matter is that what it means is that the Ombudsman will attend to affairs there if the Nauruans say that is okay. Therefore for anyone picked up under this legislation there is no automatic protection from the Ombudsman in the situation that will pertain once folk are located outside the direct area of Australian sovereignty. There will no longer be any case managed mental health care, and the bill imposes a ludicrous situation where the government’s approach to border protection is to redraw the map so, for the purposes of migration, Australia has no borders at all. We have heard about that marvellous organisation originating in France, Doctors Without Frontiers, but it becomes a bit absurd when we have a piece of legislation which says that we are Australians without frontiers.

It is bad legislation. Its principles are flawed because it is motivated by appeasement, not the national interest. We should not change our laws to suit any other country. As well, it is a backflip from the government’s position last year. The government’s position last year moved close to Labor Party policy. Last year’s changes meant an end to children being held behind razor wire, an end to indefinite detention and also the introduction of appropriate case managed mental health care. This bill completely reverses those reforms, abandoning the interests of asylum seekers to further the interests, in the government’s mind, of another government—not the Australian national interest but interests elsewhere. Last year the Prime Minister described our current immigration policy of mandatory detention as ‘mandatory detention with a softer edge’. Where is the soft edge to holding kids in detention in Nauru? How can it be wrong to lock up children in detention in Australia but right to lock up the same children in detention in Nauru? How can it be wrong to remove oversight of the Ombudsman in Australia but effectively right to do it in Nauru?

I want to talk a little bit about the relationship with Indonesia in this regard because that actually is what underlies this bill and why we are having this discussion. We are having this discussion not because of anything intrinsic or long term or longstanding in the relationship that we have as a country with our neighbour but because of the specific aspect brought to it by the character of the Australian Prime Minister and his practice in relationships with Indonesia. Others writing about this matter have talked about the Prime Minister being hoist with his own petard. I like that expression in relation to this, speaking as the person who had to debate him in the 2001 election. I like in one sense the notion of the Prime Minister being hoist with his own petard, but unfortunately that is not the case. It is not the Prime Minister who is hoist with his own petard; it is Australia that gets hoist with the Prime Minister’s petard in this situation.

Indonesia is a fascinating country at this moment. What is happening inside Indonesia is an inspiration in many ways. Here we see a fabulous nation of vast diversity, one extraordinarily geographically dispersed, making the effort in the most difficult circumstances to produce a democracy. It has not been a nation that has in its experience, in its period of time since the independence struggle of Indonesia, which we strongly supported—the Labor government of the time strongly supported it while the Menzies-led opposition opposed it—enjoyed an untrammelled experience with democracy. It has not enjoyed a continuum of inevitable progression to a closer and closer understanding of what is meant by the rule of law. That thing has not been Indonesia’s experience, but it is now dealing with that and it is struggling to deal with it as effectively as anyone can. Those of us who visit Indonesia frequently, and I am one of those, can never fail to be impressed by the efforts that the Indonesians are putting forward in that regard.

Nevertheless, there is a legacy in Indonesia of a comprehension of political power untrammelled by the rule of law so that, when a person of authority in a political process—a Prime Minister, a President or whoever—stands up and says, ‘I will decide who comes to this country; I will decide the circumstances in which they make landfall,’ it rings like a bell in the historical experience of our neighbour. ‘Yes,’ they say, ‘that must be true because that is what we have experienced over the years in the structure of our government.’ Whatever the status of judges and whatever the status of parliamentary legislation, there is almost invariably going to be a set of circumstances where the person of power can override the consequences of law and ensure that their will is imposed. When they were megaphoned by the Prime Minister during the course of the few months prior to the 2001 election, when he hectored and lectured them on the requirement on their part to stop sending on refugees for whom they were the first point of call and we were the second point of call, they were engaged intensely by the Prime Minister hectoring them to change their practice of permitting people to come on.

All that reinforced the impression that in Australia you had a situation where there was no rule of law, that in Australia you had a situation with which they are wholly familiar. The law might be there on the statute books, with forestloads of trees being chopped down in order to be able to print vast numbers of them and circulate them around the country, but what it actually said was not necessarily so: it was an issue of who you knew and it was an issue of who actually had the numbers at any point in time. That is the impression, created by the Prime Minister of Australia in his relationship with Indonesia, of the nation of Australia. They did not have emanating in anything from a presentation to them by the Australian government that there was in fact a tradition in this country, centuries old, of the rule of law, that ministers and prime ministers are not unencumbered by broad legal principles, that ministers and prime ministers govern within the framework of laws which are passed by the nation. Those laws are, supposedly and probably, interpreted by the courts within the framework of the meaning of those laws as opposed to what might be the political preferences of any in power when the laws are applying to a situation with which they are very directly involved.

So when the asylum seekers from West Irian came ashore in Australia, the Indonesian government absolutely believed that, were they to stay in this country, they would stay only if the Prime Minister of the day wanted them to, that they would be accepted as refugees only if the Prime Minister of Australia agreed that they were refugees, and that they would exist in Australia only if the Prime Minister and government of the day harboured in their hearts a view that the constitutional situation of West Irian within Indonesia was wrong. Whether we like it or not, that is a product of many aspects of an Indonesian interpretation of what Australian political processes have conjured up. The Prime Minister, in his conduct, in his personal relationships, in his behaviour in the internal political processes of this nation, has created a distinct impression in this, our most important of neighbours, that we somehow do not accept their legitimacy as a state, that we somehow wish to undermine them and that we somehow take the view that refugees are only refugees where we politically agree with the source of their refugee status or the cause of their refugee status. Therefore, there is no dispassionate law in this country; there is only a preparedness to insult our neighbours. That is the impression given; that is what all of this emanates from. That erroneous view in Indonesia, directly influenced and created by the Prime Minister’s ineptness as a leader of this nation, has created the circumstances in which we are now dealing with a piece of legislation which, quite frankly, is a nonsense, is absurd and is a disgrace to any nation interested in and covetous of its sovereignty. This is an absurd piece of legislation which we should have nothing to do with.

What should have happened when these issues arose between us and the Indonesians is that we should have gone into an all-court press with Indonesia to explain the character of those laws. It might have been useful if the Prime Minister had said: ‘It is conceivable, Mr President, that you have been misled by my behaviours in the past. Understand that there is an Australian political process in which it suits our interests to simplify things, to create impressions of robust defences here and there. In fact, it is done within a framework and that framework includes very robust law and very robust legal practice. So, while I might look like a man of great mana and power, the truth of the matter is that I am bound by law and bound by legal processes.’

The laws in relation to refugees are laws which are based on a definition of refugees that in no shape or form reflects any approval of the political causes which may have created their refugee status. In fact, in all likelihood, it is the opposite. In many of those instances the political circumstances that create that refugee status are, on the other hand, in Australia, political circumstances and commitments that they have assumed and of which we would disapprove. But the point is that their adoption of those positions has created a set of circumstances in which an objective judgment must be entered into by an independent body, an independent person, an independent tribunal or official, subject to judicial testing subsequently, in which the status of the level of threat to the individual’s wellbeing is assessed. On those grounds only is a refugee created.

That is what we needed to do with Indonesia. When you are acting in the Australian national interest, every now and then you actually have to sit down and have a difficult conversation. I have had to do it myself a few times as a minister. I had to do it when I was changing the structure of the Australian defence policy back in the 1980s. I knew that in shifting Australian defence forces to Darwin and Western Australia I would create alarm in the minds of the Indonesians, and I did. I created a great deal of alarm in the minds of Indonesians. Before I introduced that white paper, I went to Indonesia and sat down with my counterpart, who was the Minister for Defence, and explained all the things that I was going to do. I explained how important their unity as a nation was to us and explained also that a sensible appraisal of Australian strategic geography would tell them that there is nothing other than this that we could do if we were sensibly planning for the defence of the nation. They did not like it. They did not like it at all, and it did not stop them from attacking me when the white paper was brought down. But I did learn over time that they respected the fact that I treated them with decency at that point of time by assuming that they would have a problem and that they would have an explanation and that the explanation would not necessarily change Australia’s position—we are not going to determine our defence policy on the basis of how another nation might feel about it. Nevertheless, there were ways of doing this which were respectful and ways of doing this which were insulting, and we should always act respectfully.

So when problems arose over this I would not have expected the Prime Minister to megaphone the Indonesians about how mistaken they were in their interpretations. They were entitled to a prime ministerial visit. They were entitled to several prime ministerial visits. They were entitled to a detailed explanation. They were entitled to words of comfort in relation to how we saw the Indonesian nation. They were entitled to statements from the government and from everybody else that we are not in the business of dissolving Indonesia. They were entitled to all of that. What they were not entitled to was a rewrite of the Australian laws. That is what they were not entitled to.

The problem—and I know this well from dealing with these folk—is that they now believe, because we are changing the laws like this, that what we were doing was wrong. Many in the Indonesian political process now believe that, yes, in subterranean fashion in the Australian government there are many people who feel that the people from West Papua are legitimate refugees not because they are threatened but because we agree with their cause and that they have cunningly tumbled us, exposed us and forced us to change. It is so erroneous, it is so wrong and it leaves inside the Indonesian administration the seeds of further trouble as a result of what we are doing here.

I will conclude because there is no further evidence I need to give to my Indonesian friends than the fact that the vast bulk of the refugees from the Tampa went through Nauru, were assessed as refugees and ended up here in Australia, so anybody who is processed in that way will probably end up here as well. I could go through all of that; but I do not want to because, apart from the fact that this is exceptionally bad foreign policy and exceptionally bad in terms of building a relationship with our neighbour, it is also exceptionally bad in humanitarian terms. This is so totally dumb and wrong. All I can do is end up where I started off and say to those on the other side of the House: come on over and join us and defend our national sovereignty. (Time expired)

Kay Elson (Forde, Liberal Party) Share this | Link to this | Hansard source

I am very pleased to rise today in support of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. It is a bill that without doubt strengthens our government’s positive and successful border protection policies. In effect, this bill will treat unauthorised arrivals who enter the Australian mainland by sea, or by air after attempting to enter by sea, the same as unauthorised entrants to excised offshore places. This surely makes good sense. It means that all illegal entrants will be treated in the same way whether they happen to make it to the mainland or to an offshore island. It is a very positive outcome whereby in recent years we have managed to dramatically decrease the number of illegal entrants to our shores. In fact in 2001-02 there were just 1,277 illegal arrivals on seven boats. The following year—the year after our strong border protection measures were introduced—there was not one unauthorised arrival by boat. In 2003-04 there was just one boat carrying 53 people.

Of course the case of 43 West Papuans who arrived at Cape York in January this year has received much media attention. I do not believe that this legislation is any sort of knee-jerk reaction to that particular situation, as many in the media and on the other side have tried to assert. I do not believe that at all. Rather I think that case exposed an inequity and a loophole in the current system which this legislation will close. Personally I think any regulation that makes it tougher for people to enter our borders illegally should be strongly supported. I know that the vast majority of people in my electorate of Forde certainly support and appreciate the tough stand that the government has taken on this particular issue.

I want to make a distinction here today in this debate. Decreasing the level of arrivals of illegal entrants to our shores does not in any way mean we are diminishing our responsibility as global citizens to take our share of genuine refugees. This is where the critics of the government’s tough border protection measures get it all wrong. In 2004-05 a total of 13,178 visas were granted under our humanitarian program. This included a 50 per cent increase in the number of allocated refugee places. So it was a 50 per cent increase in the number of refugees that we accepted as a nation.

Having recently visited a refugee camp at Kakuma in Kenya, on the Sudanese border, I know what circumstances these unfortunate people face. I know the huge impact it has when they are given the news that they have been accepted for migration to Australia. These are people living in dire conditions. Many of them wait for a number of years before being accepted by another country. They cannot afford to travel through various nations. They cannot afford to pay people smugglers to get them where they ultimately want to end up. They are genuine and they are working through the international framework that the United Nations High Commissioner for Refugees has put in place. These are the people who rightly ought to be the focus of our humanitarian program.

Why should anyone who happens to be able to get illegal passage to our mainland or to an excised island be subject to less stringent guidelines? Why should they have access to more legal channels of appeal? Why shouldn’t they be processed in accordance with the UNHCR? The fact is that our streamlining of the system in Australia has made it fairer for genuine refugees around the world. It is precisely because of the strong measures we introduced in September 2001, particularly in relation to offshore processing, that we were able to afford to increase our refugee intake by 50 per cent last year. That is surely a worthy humanitarian outcome. Those who decry our strong approach ought to be taking a look at the bigger picture. They ought to be looking at the conditions in which people are living in places like Kenya. I am sure very few of those who like to portray our government as heartless have ever visited a genuine refugee camp. I heard the member for Brand inviting government members to ‘come on over and support Labor on this bill’. I invite him to go on over to the refugee camps in Africa and see the conditions they live in there. They are absolutely appalling. They live in these conditions while they are waiting to come on over to Australia, but they are pushed further down the queue each time queuejumpers in Australia arrive on our shores illegally.

The other positive thing about those who are processed offshore is that on Nauru or in Papua New Guinea they are not subject to mandatory detention as they are on the mainland or on Christmas Island. Surely that has to be a positive outcome. The same people who object so strongly to mandatory detention are the ones who complain bitterly about our offshore processing, but the fact is that offshore processing means that people are not subject to mandatory detention. Isn’t that exactly what they want?

I also want to note in today’s debate the changes that were made to this legislation on 21 June to help address the concerns that some of my colleagues had about the original legislation. For the record, I did not share their concern and I was happy to support the original proposal. But I note that the changes include a five-year sunset clause, a review process and the inclusion of a provision to affirm the principle that minors will be detained only as a measure of last resort. These measures do no significantly alter the original legislation, and I am pleased that they have allayed some of the concerns that people may have had. In this context, I reiterate that the government does not take these steps lightly. Contrary to what some people might think, we are a compassionate government and we do believe that detaining minors should always be a measure of last resort.

This is a complex issue. The nature of ‘illegal entry’ means that many people arrive without any documentation and it is totally appropriate that we thoroughly ascertain the suitability of anyone entering this country. To do otherwise would pose a potential security risk to our nation in these uncertain times. It should also be remembered that people who enter our nation illegally, even those claiming refugee status, are breaking the law. It is totally appropriate that they are dealt with in a manner of our choosing, consistent with community standards and expectations. As I said before, the vast majority of people in my electorate support the strong and successful border protection policies that our government have put in place.

This legislation further strengthens our border protection and national security. As we see it, illegal entrants to either the mainland or an excised area are now rightly processed under the same international regime as those unfortunate people seeking asylum in refugee camps in Africa. Why should someone who can afford to pay a people smuggler or have the opportunity to make the decision to attempt to enter Australia illegally have access to the Australian Refugee Review Tribunal or the Australian courts when a Sudanese refugee, waiting in a refugee camp for many years and desperately wanting to come to Australia, does not have access to these bodies? Where is the injustice in treating these individuals in the same manner under the UNHCR guidelines?

The truth is that Australia, an island nation, must be vigilant in this matter. We simply cannot afford to be seen as a soft target in any way. The majority of Australians support the strong stance the government has taken on this issue. They recognise that the Australian ideal of a ‘fair go’ is undermined when people can queue jump or try backdoor measures to get what they want. Australians also know that, in this day and age, border security is more important than ever and illegal entrants have to be strictly dealt with, especially as many do not have any identification papers.

I do not wish to take up an inordinate amount of time in today’s debate. To me, this legislation makes sense and is entirely equitable. As I said at the outset, I am sure members opposite will deride this bill as a knee-jerk reaction to West Papuans seeking asylum. That merely highlighted the inequity in the way claims are processed on the mainland versus on excised islands. This bill closes the loophole. It makes our successful border protection policies even more effective as a deterrent to people smugglers. I am pleased to support this legislation.

Ann Corcoran (Isaacs, Australian Labor Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

On 13 April the Minister for Immigration and Multicultural Affairs announced the government’s intention to introduce legislation that will see all so-called unauthorised boat arrivals subject to forcible removal to offshore processing centres either in Papua New Guinea or on Nauru. I want to quickly say that, whilst I will be using the word ‘unauthorised’ where I cannot easily avoid it, as it has come into common usage, it is actually a derogatory term. I do not like it. It is part of this government’s campaign of using language to denigrate those who come here seeking our protection.

The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 means that all persons arriving on mainland Australia in an unauthorised manner by sea—even those airlifted to Australia at the end of a sea journey—on or after 13 April this year will now be treated as though they have not landed in Australia at all. These asylum seekers will then have any applications they make for protection processed under laws that exist on Nauru or in PNG, not under Australian law. They will not have access to legal assistance or review that is provided in Australia.

This bill has been listed on the Notice Paper for debate and then withdrawn a number of times since the April announcement, because a number of people within the Liberal Party room have struggled with this bill. To their credit, they have been prepared to stand up and argue that what this bill sets out to do is wrong. It is to the government’s shame that this bill has only now been brought on for debate. Whilst media attention has recently been on government members who are standing up for decency, I make the point that this bill reverses some of the changes that everyone in this House and in the Senate agreed to about 12 months ago. For instance, 12 months ago, everyone in this parliament voted to ensure that kids are no longer held in detention. This bill will put children back into detention.

Let us just step back for a moment and have a look at the background of asylum seekers in Australia. Refugees living in Australia have come here in one of two ways. The vast majority have been resettled here through our humanitarian offshore resettlement program. These people have fled from their homes to another country, have been assessed by the UNHCR and have been found to be refugees. These people have been resettled in one of a number of countries, one of them being Australia. Our intake of refugees under this process is notionally around 12,000 per year. The second way in which people become refugees living in Australia is by coming here one way or another and, once here, seeking protection—in other words, seeking asylum. Of this second group of people, some come here with paperwork—for instance, a visitors visa or a student visa and, once here, claim asylum. Others come here without paperwork, usually by boat, then claim asylum. It is this last group of people that the government describes as unauthorised.

In doing some research for this speech I tried to get an idea of the number of people involved. I tried to find out how many people are currently in the country and have applied for asylum. I tried to find out how many of these people arrived with a visa of some sort and how many arrived without paperwork. It is very hard to get solid stats in this area. The DIMA website notes that 3,200 people applied for a protection visa in Australia in 2004-05. All of these must have arrived by air as there were no boat arrivals in that year. I understand that about 1.5 per cent of those seeking asylum in 2003-04 arrived by boat. On 9 May 2006, Minister Vanstone stated that unauthorised boat arrivals—people without a visa—in the last four years represented three to four per cent of all asylum seekers. The highest period of recent unauthorised boat arrivals was in 2001, with 4,137 arrivals. In the same year, 12,355 asylum claims were lodged onshore in Australia. The point I am making is that, even at its height, the number of people arriving by boat was always a small proportion of those who came to Australia and then claimed asylum or sought our protection.

This bill focuses on those who arrive here by boat. I cannot see the logic of using the means of arrival as some sort of justification for treating asylum seekers in different ways. Once initial investigations and tests have been carried out—health checks, security checks et cetera—why distinguish between those who arrive by boat and those who arrive by aeroplane? The only way of seeing any logic in this bill is by looking at it from the point of view of what it does to appease our neighbours—and I will talk about this further in a few minutes.

I want to set out for the sake of completeness just what a refugee is. The United Nations 1951 convention, to which Australia is a signatory, defines refugees as people who are outside their country of nationality or their usual country of residence; are unable or unwilling to return to, or to seek the protection of, that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and are not war criminals or people who have committed serious non-political crimes.

People who claim asylum and are processed offshore are treated differently to those processed onshore in the following ways: obviously, the first difference is that, under the new arrangements, those who arrive by boat—and, therefore, by definition, are treated as offshore claimants—are forcibly removed to a declared country such as Nauru or Manus Island, while those processed onshore are detained on Christmas Island or in a mainland detention centre; detention in offshore centres is discretionary under the act and is subject to the memorandum of understanding between Australia and the host country and any visa conditions issued by the host country—detention in Australian centres is subject to the Migration Amendment (Detention Arrangements) Act 2005; those processed offshore have no access to legal assistance, the Refugee Review Tribunal or the Australian courts for judicial review; recognition of refugee status does not automatically qualify an applicant for an Australian visa—refugees can be resettled in a third country; and people processed offshore receive no professional assistance with their applications and may receive limited or no access to legal advisers, media, visitors and charitable or religious assistance.

Jennifer Pagonis, spokesperson for the United Nations High Commissioner for Refugees, has raised serious concerns that these new measures will see asylum seekers ‘taken offshore for assessment of their claim, with Australia’s responsibilities to bona fide refugees deflected elsewhere’. Ms Pagonis also recently pointed out that Article 35 of the 1951 refugee convention obliges the government to consult with the UNHCR on all policy development relating to refugees. The first time the high commissioner saw this legislation was the day after it was tabled in this chamber.

The human rights implications of the bill are perhaps best summed up in a statement released by John von Doussa QC, the President of the Human Rights and Equal Opportunity Commission, and the Human Rights Commissioner, Graeme Innes. I think it important to read at length from their statement, which states:

The commission is concerned that the proposed changes breach Australia’s obligations under the Convention on the Rights of the Child including the obligation to act in the best interests of the child (Article 3(1)) and the principle that children should only be detained as a measure of last resort (Article 37(b)).

…            …            …

The proposed changes do not address the possibility of excessive or indefinite detention. There is no set time for offshore processing of claims for asylum and no set time in which a person who is determined to be a refugee must be resettled in a third country.

This potential for asylum seekers to be detained for an excessive period raises serious concerns about arbitrary detention, in breach of Article 9(1) of the International Covenant of Civil and Political Rights. It may also result in Australia being in breach of its obligations under Article 31 of the Refugee Convention which requires that asylum seekers are not penalised for arriving illegally.

It also states:

The practical effect of the present Bill is that children, once again, will be detained in conditions which endanger their well-being and mental health. Being held in an offshore processing centre is, without doubt, a form of detention.

And there is no argument here. Let me restate what this bill will do. This bill will see women and children back in detention; it will see people potentially facing indefinite detention. This bill will deny asylum seekers who arrive by boat any access to community or religious groups and the moral and practical support that these groups can give. This bill will deny asylum seekers access to proper legal assistance and the Refugee Review Tribunal. I am aware that the government is moving amendments to this bill, but the only acceptable change to this legislation would be to throw it out completely.

I said earlier that it is difficult to see the logic of this bill unless one looks at it from the point of view of appeasing our neighbours. On 18 January this year, 43 West Papuans arrived in Australia by boat, directly from West Papua, and claimed asylum. By March 2006, 42 of the 43 had been granted a protection visa by the Department of Immigration and Multicultural Affairs. The 43rd asylum seeker was initially denied a protection visa but was granted one just recently after he appealed the decision.

It is clear that this policy was hastily developed in response to Indonesian displeasure at Australia’s acceptance of the 43 asylum seekers. I fully recognise the importance of our relationship with Indonesia. However, we need to remember that the strongest foundation of that relationship is mutual respect. Just as Australia has respected the laws and policies of Indonesia in recent legal cases such as Schapelle Corby and the Bali Nine, so too must Indonesia respect Australian law as it exists in relation to asylum seekers, regardless of where the asylum seekers come from. Setting aside the glaring inhumanity of this policy momentarily, it is extraordinarily bad foreign policy to allow another nation to shape our approach to such an issue. It seems quite clear to me that that there are people in West Papua or, as Indonesia calls the area, the Papuan Province who are being persecuted. The evidence is in the success of the 43 West Papuans who in a fairly short time frame have recently been granted refugee status in Australia.

Amnesty International reports that operations by the Indonesian security forces have resulted in gross human rights violations, including extrajudicial executions, disappearances, torture and arbitrary detention. I think that we should deal with the essential problem, not try to find ways around it. As unpalatable as it may be, we should be talking to our Indonesian friends and encouraging them to stop their people from persecuting others. By ignoring the guts of the problem—the violation of human rights by some Indonesian security forces—and simply trying to work around the problem by denying asylum seekers from West Papua, or anywhere else, the chance to seek refuge in Australia, we are not contributing to any real or lasting solution in West Papua. We are not helping anyone in the long term by ignoring the real problem and simply seeking to work around it by dealing with the fallout of the problem.

The government knows just how detestable this legislation is. The government knows that it is turning its back on decency here and it simply does not care. Once again, it has employed the cynical tactic of rushed policy development, introduced with virtually no consultation with relevant stakeholders. I collected over 200 signatures in my electorate in just a few short days from people who want this legislation voted down. Amnesty International Australia has sent a petition with over 10,000 signatures stating that remote and offshore detention is not acceptable, children should not be held in immigration detention, persons deemed by Australia to be refuges should be given protection in Australia, this responsibility should not be passed to other countries and the Australian Navy should not be used to return asylum seekers to places where they may face persecution.

A Just Australia has sent a letter to me and, I assume, all MPs, pointing out the federal government’s document Values for Australian Schooling. A Just Australia asks us to test this legislation against these stated values. The values that this government has set out for Australian schools to adopt are: ‘care and compassion’—care for self and others; ‘doing your best’—seek to accomplish something worthy and admirable, try hard and pursue excellence; ‘fair go’—pursue and practise the common good where all people are treated fairly for a just society; ‘freedom’—enjoy all the rights and privileges of Australian citizenship, free from unnecessary interference or control and stand up for the rights of others; ‘honesty and trustworthiness’—be honest and sincere and seek the truth; ‘integrity’—act in accordance with principles of moral and ethical conduct and ensure consistency between words and deeds; ‘respect’—treat others with consideration and regard and respect another person’s point of view; ‘responsibility’—be accountable for one’s own actions, resolve differences in constructive, non-violent and peaceful ways, contribute to society and to civic life and take care of the environment; and ‘understanding, tolerance and inclusion’—be aware of others and their cultures, accept diversity within a democratic society and be included and include others. These are excellent values, but how can we reconcile these values with what this legislation is trying to do? How can we stand up in front of our kids and teach these values and then turn around and pass this legislation? Like A Just Australia, I cannot reconcile this legislation with these values.

I know from listening to those who work closely with refugees that there is a high incidence of mental health problems amongst detainees. This is bad enough in itself, but think about the ramifications this has for how these people can live and contribute to society once they are released from detention, whether that society is ours here in Australia or another society in another country. It is not humane or sensible to put people into a situation where they are likely to suffer mental health problems.

This morning I and a number of other MPs—including you, Mr Deputy Speaker Quick—had breakfast with the Royal Australian College of GPs. As I was leaving I had one of those very quick conversations that you wish you had the time to explore more deeply. It was with a doctor who is interested in this bill. She is appalled at the thought of sending asylum seekers to places like Nauru. She told me that the health facilities on Nauru are just not good enough. She told me that, if an asylum seeker there gets appendicitis, they are not flown out for proper treatment—they just do not get treated properly. If the government is not convinced about the immorality of sending asylum seekers away from our shores, then it should consider the health issues. We should not deliberately put people into a situation where we know that their health will suffer when we can quite easily do a whole lot better.

I would like to take a moment to respond to those who question my opposition to this bill when the ALP supported the excision of Christmas Island and other islands in 2001. Those places are Australian territory but are geographically a long way from Australia. They are close enough that, to a desperate asylum seeker, they appear reachable by boat from Indonesia. They represent a very different proposition to trying to reach the Australian mainland. At the time when these areas were excised, which was a move supported by the ALP, the boat operators—people smugglers—were at their busiest. These people smugglers were not necessarily interested in the plight of the asylum seekers, but they were aware of an opportunity to make a quick profit. They were not above offering a leaky boat to people desperate to get away from very difficult circumstances. A number of asylum seekers were succumbing to the temptation. They were probably aware that Christmas Island is a lot closer to Indonesia than Australia but probably did not fully appreciate the distance involved and were putting their lives seriously at risk. So there was some logic to that excision.

I am utterly disgusted by this legislation. I am embarrassed and ashamed to see our once proud reputation for upholding principles of human rights further sullied by this amoral government. Australia’s program of taking refugees through UN processes has an excellent reputation. We offer a range of settlement programs, but this fine reputation is being spoilt by our dreadful treatment of those who come here to seek asylum. I condemn this bill completely and urge all members to look into their consciences and their hearts before voting on it.

Petro Georgiou (Kooyong, Liberal Party) Share this | Link to this | Hansard source

Thirty years ago, after a long and hazardous journey, a small group of Vietnamese refugees landed on a remote beach in Northern Australia. In today’s parlance they were ‘unauthorised arrivals’. These Vietnamese inaugurated Australia’s modern era of boat people. There were shockwaves. The new arrivals were Asians and the White Australia policy had only recently been abandoned. The Fraser government decided that the refugees would be accepted and helped to settle successfully. But then, in 1992, the Keating government introduced a policy that the Fraser government had rejected—the mandatory detention of asylum seekers. Later, further stringent measures were implemented by the Howard government to prevent and deter asylum seekers from arriving here. Temporary protection replaced permanent protection, more punitive reception centre procedures were introduced and, in 2001, with the agreement of the opposition, parliament legislated to excise some Australian territory from the ambit of the Migration Act. Further excisions followed.

The rationales advanced for the harshness of these policies were that asylum seekers were being transported for profit by people smugglers—smugglers who were cruelly indifferent to the fate of their desperate passengers—that asylum seekers had passed through other countries and not sought protection en route to Australia, and that asylum seekers were not fleeing persecution but seeking economic benefit.

I do not disclaim responsibility for the measures adopted by the Howard government. Whatever my reservations at the time, I voted for them. The rationales for harshness, however, have been undermined in recent years. The overwhelming majority of asylum seekers have been found to be legitimate refugees. A combination of factors has led largely to unauthorised arrivals ceasing. The disturbing consequences of the mandatory detention regime became more apparent. It was recognised that vulnerable children, women and men had been harmed, that they had been physically and mentally damaged. It became transparent that people who had committed no crime were being detained for years with no certainty of them ever being released. The fact that the policy itself was open to abuse progressively became exposed. Revelations about the treatment of Cornelia Rau shocked us all. Other revelations have continued to shock us.

Public attitudes shifted. Australians who had once accepted the policy as being necessary came to see that it was cruel and wrong. These were not the usual suspects; these were the people who said: ‘I believed in the policy at the time. Now I know what the consequences are and I think it’s wrong.’ Fewer Australians felt threatened by or hostile towards the new arrivals. More Australians believed that we should treat asylum seekers with greater compassion. The government, to its credit, did respond. A year ago the Prime Minister announced a program of significant measures. He said:

The broad framework of the Government’s approach is unaltered.  ... There can however be significant improvements which will mean that current policy is administered with greater flexibility, fairness and, above all, in a timely manner.

These changes were long overdue. Under the government’s broad framework, people who sought asylum on our mainland—and Tasmania—were all assessed under Australian law and granted protection in Australia if they needed it. There was no difference between an asylum seeker who arrived by boat or one who arrived by plane. Within that broad framework the improvements were, as the Prime Minister stated, significant. In fairness, the improvements did not go as far as some of us wanted, but the improvements were significant.

The most important reform was that families with children were no longer to be detained in detention centres while their applications for refugee status were considered. Instead, families with children would be permitted to live in the Australian community and conditions would be set to meet their individual circumstances. Where they were found to be refugees, they would be given protection visas in Australia. Our monitoring and supervision systems were strengthened. Those improvements which required legislation were promptly enacted by parliament in a spirit of bipartisan consensus.

The reforms have generally been successful and, I believe, welcomed by the community at large. Asylum seekers in Australia are now treated more humanely and efficiently than has been the case for years. This was exemplified in the fair and timely processing of the West Papuans who arrived in Australia in January. It is a matter of sadness that, within months of the most recent piece of reform legislation being enacted, parliament is now being asked to approve a new and severely regressive measure. Barely having overcome our fears and introduced a more decent system, we are asked to turn back.

The Migration Amendment (Designated Unauthorised Arrivals) Bill is the most profoundly disturbing piece of legislation I have encountered since becoming a member of parliament. The bill proposes a radical change to the broad framework that the government committed to a year ago. If parliament agrees, the consequences will be draconic. The whole of Australia—and, in deference to you, Mr Deputy Speaker Quick, Tasmania—would be excised from the refugee protection regime afforded by the Migration Act for people seeking asylum who arrive on our mainland by boat. These asylum seekers will be sent to Nauru.

In a number of key respects the treatment of asylum seekers who come to Australia by boat will be unacceptably worse than at present. This remains the case despite a number of improvements the government has agreed to regarding the bill as initially introduced. I will focus on three issues. First, families with children will not live in ordinary community settings either while their claims are being processed or after they are found to be refugees. If Nauru agrees, the government will establish what it calls a village where women, children and families can live so that they are not in the processing centre. The village will have a fence around it. The government says that the fence will be a non-intrusive one to ensure the security of the refugees or the asylum seekers. In the evening, again for their safety we are told, the residents will be required to stay in their accommodation and the village will be patrolled by private security personnel. The residents may be confined to their homes for as many hours a day or days of the week as the Nauruan government determines at various times. The Australian government insists that this is not detention.

A second major difference between the current situation and that proposed under this bill is that asylum seekers on Nauru will not have available the protections that exist in Australia. For example, they will not have a right of appeal to an independent statutory body against decisions by departmental officers on the merit of their applications.

To understand the importance of this, one has to look at how many departmental decisions the Refugee Review Tribunal has overturned. In 2004-05, for example, the statutory Refugee Review Tribunal set aside 90 per cent of decisions on application from Afghanis, over 90 per cent relating to Iraqis and 33 per cent of all decisions. To dampen concerns about the absence of an independent review, the government says it will consider establishing a panel of non-departmental decision makers to review failed applications. But there is to be no statutory basis for this critical function. Panel members will be making decisions that could mean life or death for applicants without a legislated framework of accountability.

The third and most disquieting thing is that people found to be refugees may remain on Nauru indefinitely. This is not a fanciful prospect; look at the historical record. The excision of islands around Australia was introduced in order to deny protection in Australia to asylum seekers who landed on the islands. These asylum seekers were sent to places like Nauru. In the event, even though the refugees’ claims for asylum were sustained, few countries were willing to take them off Nauru, and we ended up resettling around 60 per cent in Australia. We resettled some of those after a number of years when we could no longer ignore a situation in which their health, their mental health and their ability to subsist and exist on Nauru were seriously being put at risk. Today there seems to be even less possibility of finding other countries prepared to take refugees whom Australia refuses to accept.

In evidence to the Senate Legal and Constitutional Legislation Committee’s inquiry into the bill, the representative of the UN High Commissioner for Refugees said:

I do not see any likely candidates. I think the countries who do accept resettlement of refugees ... would see this legislation in its current form as being a deflection of Australia’s responsibilities to provide solutions on its mainland, therefore adding to the resettlement burden of the other countries in the world.

The Australian government has said that it would consider taking people who would not be resettled otherwise, but even this vague, non-binding offer comes without a timetable. Would consideration start after a year, three years, 10 years? The majority report of the Legal and Constitutional Legislation Committee recommended that the bill should provide an obligation on Australia to resettle refugees who could not be resettled elsewhere. But the government’s amendments provide only that the minister have a non-compellable, non-reviewable power to grant a visa if this would be in the public interest, a term which is not defined.

According to the Indonesian foreign minister, the Australian government has assured him that West Papuan refugees will not be allowed to settle here. So far as we members of parliament are concerned, the only certainty is uncertainty. If we approve the bill, we do so knowing that it will result in refugees who are transferred from Australia to Nauru remaining there for an indefinite period. This will apply to children as well as to women and men. It has been suggested that the government is simply asking parliament to rectify an incongruous situation which came to light when a group of unauthorised people landed on the mainland in January this year. The incongruity was that people landing on the mainland were being treated differently from people arriving on excised islands. In fact, the difference between the mainland and the islands is well known. The decision to have different asylum regimes applying to the mainland and to largely uninhabited islands was quite deliberate. The government’s primary concern, which was shared by others, was that people smugglers who might take the risk of landing their passengers on the islands would be reluctant to venture to the mainland where the risk of detection was greater. The possibility of unauthorised arrivals coming to the mainland was noted and discussed in the parliament, and the government rejected any proposition about excising the Australian mainland.

So why has this heretofore rejected policy become an important strengthening of Australia’s border control measures? There is no new threat from a criminal gang of people smugglers trying to penetrate our defences. Earlier this year, 43 West Papuans came directly, not through other countries, and they have been determined to be refugees fleeing persecution. They were only the second group of boat arrivals on the mainland since July 2003. One vessel with seven West Timorese arrived in November 2005, and that event did not cause the government to change its views about what was needed to protect us.

The Indonesian government has protested at Australia’s granting of refugee status to the Papuan asylum seekers. The Indonesian government’s complaint is understandable. Of course, it does not like being accused of persecuting its own citizens and, of course, Australia should be sensitive to the feelings of its neighbour. But we should not sacrifice Australian law. When Australians criticised Indonesian laws, our governments reminded us that we must respect Indonesia’s right to determine and apply its own system. That was right—as was the decision made on the 43 Papuans. The decisions were made properly by Australian officials acting properly in accordance with our law and policy and appropriately reviewed by the Refugee Review Tribunal. From what we know of the situation in West Papua, the decision was not perverse. There is substantial evidence to support claims of persecution which, under the Migration Act, entitle people to receive protection in Australia—for example, the US State Department’s report on the human rights situation in Indonesia.

The general human rights situation in Indonesia has improved in recent years, and I think we all welcome that. I am pleased that Australia is providing assistance to further that process, but, clearly, the problems have not all been resolved. As a supportive neighbour, we should make clear to the Indonesian government that we support its territorial integrity, that we do not support separatist movements and that if victims of persecution come to our door and ask for asylum we should not turn them away.

The act of taking in a stranger in need is an ancient and universal virtue. It was well captured in the acceptance speech of the UNHCR, when it was honoured with a Nobel Peace Prize in 1981. Throughout the history of mankind, people have been uprooted against their will. Time and time again, lives and values built from generation to generation have been shattered without warning. But throughout history mankind has also reacted to such upheavals and brought succour to the uprooted. Be it through individual gestures or concerted action and solidarity, those people have been offered help and shelter, and a chance to become dignified, free citizens again.

Through the ages, the giving of sanctuary has become one of the noblest traditions of human nature. Communities, institutions, cities and nations have generously opened their doors to refugees. The ancient and universal tradition of providing sanctuary to those in danger is part of our refugee regime in Australia today, and it is demonstrated by the community at large when Australians respond generously to the suffering of others, both at home and abroad. The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 does not reflect this tradition. It does not uphold the deeply held Australian values of giving people a fair go, and of decency and compassion. I regret that I cannot commend this bill to the House and I will be voting against it.

Peter Andren (Calare, Independent) Share this | Link to this | Hansard source

I applaud the member for Kooyong for that contribution, and say to other members and senators that no preselection and no perceived populist position will ever justify immoral and unconscionable policy like this. The member for Kooyong’s electorate seems to have acknowledged that, and so, too, eventually—if not right now—will most Australians if they get the leadership the member for Kooyong and some of his colleagues have shown.

As with ‘work choices’, ‘mutual obligation’, ‘fair dismissal’, and ‘electoral integrity’, here we have another use of Orwellian doublespeak in a bill from his government: ‘designated unauthorised arrivals’. Let us cut the nonsense; it is the ‘appease Jakarta bill’. The minister said so, on the 7.30 Report in June, when she admitted she was taking into account the concerns of the Indonesian government.

The bill again turns people who are running in fear for their lives into unwelcome ‘illegals’—a familiar catchcry from the Howard government—with just a few of the more compassionate members of the coalition backbenches speaking out against this policy.

Recommendation 1 of the government majority Senate Legal and Constitutional Committee’s report says it all: the bill should not proceed. I support the overwhelming number of submissions to the Senate inquiry which detail how this bill is fatally flawed. People who have a fear of persecution have a right to seek asylum and should never be punished for the way they arrive in Australia. That obligation remains true for those who sought our help in the years up to and after 2001, and for those asylum seekers who arrived here from West Papua in recent months.

This obligation cannot be outsourced to a third nation, as this legislation intends doing. It is no good to say that we will be paying for the infrastructure and processing; it will clearly be breaking our international obligations to receive and process those who seek our protection. Under this legislation, asylum seekers and confirmed refugees will face the possibility of being indefinitely detained in a remote and isolated island camp.

The reason for this is documented in the minister’s press release of 13 April: that the government’s priority in this policy is not to grant those found to be genuine refugees protection in Australia but to transfer them to any third country that will take them. This would require an attempt to bind a third country in a solid agreement to take over our responsibilities. This process could be as drawn out as you like, with no guarantee that any agreement will be reached. And what countries do we have ready to take these people? None. We only have countries which have said that they do not want a bar of this policy: New Zealand, Fiji, even Papua New Guinea and Nauru. They may process our asylum seekers but are not prepared to take on our responsibilities.

You cannot get a more indefinite situation than this, and it will only mean uncertain futures, complete with psychological damage on top of trauma, for those we remove offshore. They will be without ready access to support, especially legal advice. Children will again be detained—however this detention is dressed up—in breach of our international obligations. It makes a mockery of the Palmer inquiry’s recommendations.

The government’s minor concessions—a 90-day time limit on processing a review and having the Ombudsman oversee actions of DIMA officers—might look reasonable to some at first sight; however, the minister is not bound by the Ombudsman’s recommendations. In supposedly reinforcing the universal obligation that children be detained only as a measure of last resort, the government will seek to provide hostel type accommodation on Nauru. Yet such accommodation is still, at the end of today, on a remote Pacific island thousands of miles from proper access and scrutiny by legal representatives and other support and advocacy services.

This legislation is a complete buckling to the wishes of the Indonesian government. It is an immoral caving-in to the agenda of a country that has, sadly, a record of systematic human rights abuses over many years. By default we are endorsing those abuses through legislation like this. President Yudhoyono may indeed be showing positive signs of cracking down on the excesses of the Indonesian military. The outcome in Aceh, tragically precipitated by the tsunami disaster, gives room for hope of a more responsible and caring administration, but we have not yet reached anywhere near that situation in West Papua, despite an apparent willingness of independence activists to lay down their arms in the hope of genuine negotiation.

The tragedy of East Timor was a tragedy the world, particularly Australia, turned its back on until we could not ignore it. We have not been prepared to properly supervise the transition to true stability and democracy and we have been party to exploiting the fledgling nation’s fair share of natural resources in the Timor Gap. Such indifference must never be allowed to happen again in West Papua where already, since the sham vote of self-determination in 1969, there have been, on some estimates, a further 200,000 deaths under Indonesian control.

Only the escape of 43 asylum seekers to our shores has heightened world and local awareness of the West Papua situation and perhaps prompted a recognition by Jakarta that changes are demanded in its West Papua approach. But such awareness will be stifled if refugees are shipped out of sight, out of mind, outside our zone of conscience. Instead of buckling to Indonesia’s demands that we sign a treaty forever recognising their formal sovereignty, we should make the genuine and lasting reform of Indonesian military practice in the province a precondition for any acceptance of Indonesia’s sovereignty over West Papua. That rule should be conditional upon an internationally sanctioned process to deliver real autonomy within the wider Indonesian republic to the people of West Papua and a guarantee of a proper share of the resources of the province.

To stand up now and announce that he has no trouble with the demands of Indonesia does the Minister for Foreign Affairs no credit and belittles this nation in the eyes of the world and, I would suggest, the eyes of the majority of Australians. We should ask the US and other nations to call on the Indonesian government to genuinely engage in talks leading to a resolution of the legitimate grievances of the West Papuans and we should, along with other countries, insist on open access to West Papua for the world media. It is one thing for the foreign minister to say:

... the last thing we want to see is the disintegration of the Republic of Indonesia.

It is quite another thing to hide behind that concern and to conveniently ignore human rights abuses in any country, let alone one just 250 kilometres from our shores from which many Papuans would flee and indeed should flee if the cruel and oppressive behaviour of the Indonesian military and Indonesian authorities continues.

A majority of Australians were not, at the time, behind those who argued that the refugees and asylum seekers on board the Tampa should be processed in this country. A large part of that reaction was because of the obscene hysteria created around those people by the likes of former minister Peter Reith and others. Indeed, they were demonised as potential terrorists arriving by leaky boat, one of which, the SIEVX, sank with the loss of 350 lives as we did nothing. Another part of the Australian community’s animosity towards the Middle Eastern refugees was the fact they were coming from countries of first, second or even third refuge—Malaysia, Thailand, but usually Indonesia.

None of that applies with the West Papuans and yet here we have this government prepared not only to send primary movement refugees who have reached Australia, the country of first asylum, to another country for processing but to then seek another country to take them once their genuine asylum status has inevitably been ascertained. What does our Minister for Immigration and Multicultural Affairs say? She says, ‘We can’t allow these people to come here to conduct political campaigns.’ Is a call for an end to abuse and persecution, wherever it occurs on the planet, a political campaign? How about a cry for help? What’s next? Is the government considering reviving the Pacific Islands Labourers Act 1901, which deported any of our South Pacific neighbours already in the country?

Our immigration laws over the years have at times been shamefully racist. In this case, we are debating a bill that deliberately is designed to do everything possible to hamper those who might try and flee oppression from our nearest offshore neighbour and others who will still and justifiably flee oppression in other countries—the Middle East, Asia and Africa. A European Commission asylum policy officer, Sandra Pratt, has criticised this bill thus:

We could not and would not do that in Europe ... we take very seriously the international conventions ... I think we have an experience of persecution in Europe still ...

I repeat: asylum seekers should be housed on the mainland with access to appropriate medical, legal and other support services. They should retain their right to timely review by the Refugee Review Tribunal and judicial review in the courts here, not on someone else’s territory 4,000 kilometres away in the mid-Pacific. The position paper of the Refugee Council of Australia bears out the importance of access to the merits review process. It said:

Since February 2003 the number of judgments setting aside RRT decisions or involving orders remitting matters by consent is somewhere in the range of 500 to 750 cases. The risk of wrong decisions being made with fatal consequences of refoulement will be magnified in the proposed system which has no checks and balances.

In other words, with proceedings conducted 4,000 kilometres from our shores and without access to proper merits review, what hope will a genuine asylum seeker have with one shot at an offshore and potentially underresourced process, when the fully resourced departmental and RRT processes have such a track record for error here?

Article 33 of the refugee convention contains the non-refoulement protection obliging countries not to return people to their country of alleged persecution. Shipping asylum seekers to Nauru, which is not a signatory to the 1951 convention, does not uphold this obligation and neither does transferring refugees to a third country or, worse, turning them back at sea. Any use of our Navy to turn back boats that have made it into Australia’s territorial waters would definitely breach our obligations under article 33. I do not want to see a repeat of the notorious ‘children overboard’ affair, leading up to the 2001 election, when our armed forces were used for blatantly political purposes and which placed our defence personnel in an unconscionable moral dilemma.

Indeed, these proposed amendments breach not only article 33 but article 32, that a state should not expel a refugee, save on grounds of national security; article 31, that states should not impose penalties on account of illegal entry on refugees coming from a state where their life or freedom is threatened; and article 3, that a country should not impose penalties on the basis of race, religion or country of origin. This is indication enough that this bill is aimed squarely at what the government would no doubt call its ‘West Papua problem.’ For our closest West Papuan neighbours Australia will accept no obligations towards any refugees under this bill other than to see whether a third country will take them. This will inevitably lead to indefinite and protracted detention, out of sight, out of mind of government perhaps, but more and more Australians are appalled at such a policy, especially now it impacts on West Papuans who might seek our help as a country of first refuge. In effect, all of the Australian territory is excised in this bill, and all claims by people such as the West Papuan asylum seekers will have to be made outside the Australian legal and immigration systems.

Add to this the cost, $195,000 per asylum seeker, for those refugees who have been detailed on Nauru alone since Pacific solution mark 1—a massive cost used to bribe a cash-strapped Pacific country, with outsourced security and detention contracts further hidden from public scrutiny. No-one objects to internment until the asylum claims of these people are investigated and their status confirmed, but it should occur on our shores, on our territory. To adopt this offshore policy—or, more appropriately, the ‘buy-off of a poor island’ policy—for immoral foreign policy purposes is to trash our international obligations. I call on those members and senators who are no doubt appalled by this piece of inhumane Realpolitik to stay firm behind the findings of the Senate inquiry’s No. 1 recommendation and fight for the position won from the Prime Minister a few short months ago in the wake of Palmer.

This bill is about discouraging dissent and the seeking of legitimate asylum. This is not about border protection; it is about supporting oppression. It is about discouraging, even denying, the most basic of human rights—the right to live without fear for your life—and the duty we as members of the world family have to honour our international obligations to the powerless in the face of the powerful. This bill is aimed fairly and squarely at disadvantaging people who are fleeing well-documented persecution—persecution that will be encouraged by these very changes.

Under the bill, refugees will be shipped to Nauru under the surveillance of Nauruan law. Nauru is not a signatory to the international human rights conventions. In the event that the DIMA people make a mistake—remember there have been 500 to 700 cases overturned in Australia after DIMA has got it wrong—there is nothing under Nauruan law that allows a review. The people are effectively isolated from appeal and could remain incarcerated even if they are legitimate refugees.

The government admits in the prime ministerial statement of 21 June that Australia cannot legislate offshore detention access for the Ombudsman because of sovereignty issues. Persons in offshore detention centres are not detained under Australian law. In fact, anyone allowed out of a camp on Nauru will only be out on a Nauruan visa. Such are the legal complexities the government says can be blithely dealt with by a memorandum of understanding. There are huge legal contradictions between Nauruan law and Australian law. For instance, in April 2004 the uncle of Nauru’s justice minister was nominated to represent asylum seekers the day after the Nauruan justice minister barred an Australian legal team from entering Nauru. Such an incident could, of course, happen again, especially if Australian lawyers again attempt to question the validity of legal processes in Nauru. In fact, our High Court has confirmed the validity of the Nauruan visa process whereby visas are issued to each and every detainee, lawyer, visitor and indeed ombudsman who enters Nauru.

There are millions of dollars worth of income for cash-strapped Nauru at stake in this. Both the Nauruan and Australian governments have a huge interest in sustaining this legal limbo, which, unlike Guantanamo Bay, will not allow even military lawyers. The refugee victims of this legislation are being thrown into a legal vacuum. You cannot confer jurisdiction over another sovereign nation, whatever the bribe. The promises on processing in Nauru are technically unenforceable and outside any law.

Finally, we have the Edmund Rice Centre’s disturbing report on the apparent disappearance and suspected death of 12 Afghan detainees who returned to Afghanistan, assured the country was safe. We hear of Yolanda and Rona, aged nine and six, killed by a bomb planted under their home because of their returned father’s former political connections. Their father’s own mother and granddaughter were also killed.

When I dared suggest at Christmas 2003 that, on my reliable advice, several returnees from Nauru to Afghanistan had been killed, I was threatened with legal action by the Afghan diplomatic representatives here in Canberra, as were any others who made what the Afghan authorities claimed were ‘reckless and unwarranted’ allegations. It was claimed by the embassy that returnees were monitored after their arrival back in Afghanistan—but only, according to the Afghan embassy website, while they were in Kabul. Then the returnees left for various provinces in different parts of Afghanistan and the monitoring ceased.

It took the Edmund Rice Centre to go there, have a look and find the facts about some of those disturbing cases, which happen because, I would argue, of a policy that is akin to refoulement. Whatever the compensation or the resettlement money offered, these people were under duress in most cases when they accepted that compensation. They were in effect, de facto, forced back to Afghanistan, and I firmly believe that we have responsibility under all of those circumstances, when they have arrived as genuine asylum seekers, whatever the circumstances of the outcome, given the state of affairs in Afghanistan and elsewhere where these people are coming from. It is our responsibility, if we turn them away, even with a cheque for a couple of thousand bucks, to ensure their safety—and that includes the responsibility of the Kabul administration and the new Afghan government.

Finally, I say: all power and all courage to those members and senators who are considering their position on this bill. Theirs is a position that I believe Australians will support more and more, and they certainly have turned around since that day in August 2001 when I said my electorate perhaps did not support me but that I did not care at that point because I knew and felt in my heart of hearts that I was correct. I think circumstances have proved exactly that. If Family First means that—family first—then how could its senator not join other fair-minded members and senators in rejecting this bill too?

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

The path I take today I did not choose. This path chose me. I cannot simply walk away from the agreement reached and legislated nearly 12 months ago. The founder of the Liberal Party, Sir Robert Menzies, built the party on a foundation of the plural traditions of free thought and individual conscience. Free thought and individual conscience are not things to be used frivolously, nor taken lightly, but are freedoms that are embodied in the traditions of our party.

The decision I have taken to oppose this legislation, the decision to follow my conscience and vote for the first time, and I hope the last time, against the government of which I was elected as a member, is made because it is in the long-term national interest of this the great south land to continue to be a compassionate protector of the rights of refugees irrespective of the importance of a close relationship between Australia and one of our neighbours.

There is no doubt that the changes introduced in the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 are being made as a reaction by the Australian government to Indonesian concerns about the correct and honourable decision by Australia to grant asylum to 43 refugees from West Papua. In his second reading speech, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs offered no reason for the changes the legislation seeks to make beyond an assertion that:

It seems incongruous that an unauthorised boat arrival at an excised offshore place is subject to offshore processing arrangements, while an unauthorised boat arrival travelling, in some cases, only a few kilometres further to the Australian mainland is able to access the onshore protection arrangements ...

Yet the only actual example of this so-called incongruity he could find was ‘the landing on mainland Australia of a group of unauthorised boat arrivals from Indonesia in January 2006’. The parliamentary secretary’s speech highlighted not the incongruous outcome he spoke of but the sacrifice of what is right and what is in Australia’s national interest.

I recognise the Indonesian government’s concerns. I assure them that as a partner in our region we honour and respect our neighbours. We support our neighbours in times of trouble. We may not always agree with their laws, but we do respect their right to enact their laws. We desire good relations. We do not question their sovereignty in any province or region.

The Howard government has demonstrated a proactive and decisive approach to the challenge of border protection and national security. Since the tragic episodes in 2001 that changed the way we look at the world, the government has implemented more than 100 measures and injected funding in excess of $6.7 billion to fight terrorism and to improve national security. The 2006 budget builds further in this direction by providing over $1.2 billion to fund additional national security related measures. In total, the Howard government has now committed $8.1 billion in new spending on national security since 2001-02. Included in these important budget measures is $20.2 million over the next four years to support the delivery, management and administration of the changes made last year to the Migration Act 1958 following the detention arrangements agreement. This comes on top of the $9.3 million provided in 2005-06 to enable the detention of families with children to take place in the community and the introduction of processing time limits on the determination of primary protection visas.

I cannot fathom why we would spend over $30 million implementing these measures only to turn around and abrogate them. We cannot let our high regard for Indonesia override our obligations under the Refugee Convention. As a signatory to that convention, we are charged with determining whether people who arrive on our shores have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and, among other things, are not war criminals or people who have committed serious, non-political crimes. That is the independent process we followed with a group of a unauthorised boat arrivals from Indonesia in January 2006. It was determined that they did have a well-founded fear of being persecuted and were thus treated as refugees and given visas to stay in Australia. That was as it should be. Australia should not bow to influences that would fundamentally change our laws or the way we process asylum seekers.

Perhaps if there was any incongruity in Australia’s position, it comes from the decision in 2001 to create an excised offshore place subject to offshore processing arrangements. That decision was made as part of the government’s complete and determined approach to border protection to stop trafficking by criminal people-smugglers, which was reaching considerable proportions. It has been an effective deterrent. In 1998-99 there were 921 onshore boat arrivals and the number jumped to 4,175 in 1999-2000. In the following year there were 4,137 arrivals before a decline became evident in 2001-02 with 1,277 arrivals. In 2002-03 there were no arrivals whatsoever. In 2003-04 there were 53 arrivals, which was still lower than all the recorded numbers throughout the 1980s and 1990s. In 2005 four men, one woman and two children arrived by boat in Australian waters on the Kimberley coast. It is therefore wrong to say that the current legislative and cooperative measures in place have not been effective in protecting our borders. The measures have worked, and for that this government can take great credit.

The Howard government should be further praised for the flexibility it showed in amending the Migration Act to deal more compassionately with asylum seekers in the light of the fact that the system was working. The Prime Minister said of the changes of that time:

The broad framework of the government’s approach is unaltered. There can, however, be significant improvement, which will mean that current policy is administered with greater flexibility, fairness and above all, in a timely manner.

This legislation of last year came out of protracted and difficult negotiations. The agreement was then put in writing, announced by the Prime Minister, cleared and accepted by the party room, confirmed in two pieces of legislation before the parliament and then widely embraced by the Australian community. The package included four key elements. It provided for new arrangements to move families with children out of detention into the community. It set a time limit of three months for primary protection visa decision making, it allowed for review by the Refugee Review Tribunal and it provided for oversight by the Commonwealth Ombudsman.

Importantly, the legislation required the minister to table in the parliament any assessments or recommendations from the Ombudsman. These reforms have been highly successful and the system is more flexible, fair and timely. Not only did they work, but they did so whilst ensuring we met our humanitarian obligations as a signatory to international conventions and as a compassionate nation. How could you possibly consider that the same outcome could be achieved by sending asylum seekers to Nauru? Australia has proved that strong border protection and human rights are not incompatible. In essence, they seek to assure the same values: that the innocent will be defended and that those who seek to do harm will be deterred. It is the very success of the existing measures that makes this proposed legislation so disappointing.

This bill excises the whole of Australia from the migration zone. In doing so, it also excises the safeguards and rule of law our judicial system provides under our statutes and regulations. Under this bill, the agreement reached last year would be made redundant. The bill amends the current act to allow a DIMA officer to take a designated unauthorised arrival to a ‘declared country’. Because Nauru and Papua New Guinea are not bound by the Migration Act 1958, the rule requiring that a determination of protection visa applications for detained asylum seekers occur within 90 days would not apply. Even an in principle attempt to construct a non-enforceable time limit would not be legally binding, as is the case in Australia. Provision for judicial oversight and transparent scrutiny by requiring reports from DIMA to the Commonwealth Ombudsman on persons being held in detention for more than two years would be irrelevant in Nauru. A private contracting firm would organise the accommodation on Nauru and PNG. But would the Nauruan government, which is not a signatory to the 1951 Refugee Convention, oversee asylum seekers’ welfare, or would that responsibility fall to Australian officers operating under UNHCR guidelines and outside the reach of our legal system?

If the bill is passed, asylum seekers processed offshore will not have access to independent review by the Refugee Review Tribunal, or judicial review under Australian law. This bill has been roundly criticised by two agencies that deal with human rights and refugees. The United Nations High Commissioner for Refugees and the Human Rights and Equal Opportunity Commission both made submissions opposing the legislation to the Senate Legal and Constitutional Affairs Committee inquiry. That committee, in its report tabled in June this year, made the primary recommendation that the bill should not proceed. In the event the bill did proceed, the committee recommended a long list of qualifications that would have the same effect. The former senator, vice president and President of the United States, Lyndon Johnson, once said:

You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.

I believe there is a potential for this bill to cause serious harm to the progress we have made on this issue as a nation and to the vulnerable people it would affect. I will be voting against these amendments knowing that there are some in my party who do not agree with the ‘plural tradition’ of the Liberal Party and its principles of free thought and individual conscience. Some warn that any dissent is a form of political death. I am no stranger to defeat. I have suffered defeat four times, but I have also been elected to this House three times. It is not the office of the federal member that is important; it is what you do when in office. I take comfort in the words of Dr Martin Luther King:

The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.

This bill is an issue of challenge and controversy. I had a letter recently from, Di Potter, a constituent in McMillan, expressing her anguish at this bill. She said:

I thought my letter writing days were over—

I, too, thought her letter-writing days on this issue were over; finished. I note her broken-hearted response to the form of words used to describe asylum seekers in the legislation. I note her concern that this means Australia is no longer a place of refuge.

The Australia I know is a place where dreams come true, where the impossible becomes the possible and the probable becomes the inevitable. It is where people find a sense of belonging and it is a place of hope for generations of new immigrants. If I am to die politically because of my stance on this bill, it is better to die on my feet than to live on my knees.

Honourable Members:

Hear, hear!

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

We are suffering a drought in this nation and it is my fervent prayer that the rains would fall to fill our rivers and streams, our lakes and our dams so that each raindrop would form a mighty flood that is so full of compassion and justice that it would not only soften the parched earth but also soften the nation’s heart. It is with regret that I cannot support this bill, and I will vote against it.

Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Link to this | Hansard source

I want to acknowledge the contributions made and positions taken by the member for Kooyong and the member for McMillan and the comments made by the member for Calare in this very important debate in the parliament. On 23 March of this year the Department of Immigration and Multicultural Affairs granted protection visas to 42 out of 43 West Papuans who had arrived by sea on 18 January. The next day, the Indonesian government withdrew its ambassador to Australia. Within a month, the National Security Committee of Cabinet had determined that all future so-called unauthorised arrivals to the Australian mainland would be transferred to an offshore processing centre, namely Nauru.

The Minister for Immigration and Multicultural Affairs, Minister Vanstone, was not a member of this committee. On 11 May the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, this bill, was introduced into the House and the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs defended the changes, saying that sound border management requires flexibility and that the changes contemplated the preservation of Australia’s sovereignty. That is the view of the government: that excising our borders to accommodate the wishes of another country is an act of preserving our own sovereignty. That is toxic word spinning that has been a feature of this government. Its conduct of this portfolio is of the very worst kind. Four days later, when the Indonesian foreign minister stated that he had been assured Australia would not accept individuals processed on Nauru, even if found to be refugees, and the Australian Minister for Foreign Affairs reported that Indonesia was pleased by these changes, the about-face was complete.

This debate is not about the Indonesian government or its people, who are one of our nearest and clearly most important neighbours; it is a debate about the way in which the Howard government manages that relationship and manages immigration. It is a debate about our role as a regional state and about Australia’s fidelity to the international principles of human rights as enumerated and contained within our own laws and regulations. The crux of this debate is moral integrity and national purpose as weighed against political expediency. Additionally, as we are hearing, it is a debate about the true convictions of members of the Liberal Party under Prime Minister Howard.

The government has now got itself into a situation where it is compounding the already serious flaws that are a recognised feature of its conduct of immigration and the policy it has introduced. This is a policy whose dismal execution has been the subject of two special reports, both highly critical of DIMIA—now DIMA. This is a policy that costs Australian taxpayers dearly and which in its first instance, when it first came into the public and political domain, was driven by fear and hysteria and by the Prime Minister’s expert manipulation of the emotions of Australians. We need to be crystal clear that the government does not have the support of the Australian public or many in the parliament, including a number of members on its own side, for these changes. Nor does it have the support of senators who considered this matter in some detail and who recommended that the bill not proceed in the form that it came to them. It says volumes that the only submission in favour of the changes came from the discredited department itself.

The Leader of the Opposition, when he spoke earlier, reflected on how important our relationship with Indonesia is and the way in which the debate on this bill touches that relationship. It is worth remembering that Prime Minister Howard staked his reputation in his early term as Prime Minister on a point of differentiation in foreign affairs with the claim that under previous Labor governments Australia had been too close to Indonesia, yet now he is willing to change the laws of Australia—the very legislative framework within which our immigration system operates—to accommodate that same country. This sends conflicting and confusing messages to the region. They imply that there can be dictates that emanate from the top and that these dictates can alter—at will, it seems—existing Australian institutions. We deeply wish that were not the case.

It is a matter of public record that there are West Papuans already facing extreme abuse and threat of persecution, and this bill would see them removed from Australia. This legislation is at odds with the philosophy and decent instincts of a number of members of the government. It is contrary to the principles embedded in our own law that people should not be detained without the opportunity to be charged before a court. It seeks to avoid our international obligations and it renders the government’s earlier promise not to detain children in detention a hollow sham.

In the words of former Liberal leader Malcolm Fraser—and there will be hear, hears from this side of the House at least—‘Compassion is not an attribute of the Howard government.’ Regrettably, neither is accountability to its own decisions and statements nor to the humane exercise of its laws. In fact this bill is the latest instalment in the long-running saga of a government that drenches us in talks of values but has long given up holding any values of real worth itself. Just as in 2001 people fleeing persecution in other countries were exposed and left to drown, now people coming across the sea to Australia will be diverted to a remote island and left, where they will not be subject to the laws of Australia and where they will be isolated from the range of legal and social services that are a basic requirement of those seeking asylum.

But this government always says one thing and does another. And on values, which are the bedrock of democracy, the government is the great masquerader. It puts material into the schools, the government’s own ‘Values for schooling’ material. I want to read to the House and to the public what these values are. These are values the government wants Australians to live by, and they include: ‘Care and compassion, doing your best, respect, freedom, integrity, where character is destiny.’

What exquisite hypocrisy! The government espouses and calls on young Australians to live by these values but is itself unwilling to follow them. In this case it is young people in particular who will bear the brunt of the government’s response to refugees. In fact the values embedded in this bill are the values that have been on clear display in the past 10 sorry years of this government’s conduct of immigration policy: appalling treatment of refugees; well-documented policy failures; a culture of compliance; intimidation and manipulation; values of expediency and of taking political advantage at the expense of human rights; values of demonising the less powerful; and, now, the value of failing to stand and defend Australia’s sovereign capacity to make soundly based decisions on matters that come before it.

These are the values on offer in the bill that is before the House. What an extraordinary action: to try to please the government of another country, instead of taking the time and effort to engage in moderated diplomacy and engage in serious and fruitful dialogue, to simply bend the legal framework of this country into a contorted shape. This bill exposes the government on two fronts: nervousness in that Mr Howard and Mr Downer lacked the confidence to defend the Australian decision-making process or to engage in fruitful discussion with our Indonesian neighbours; callousness in that the government was prepared to abandon the existing laws and frameworks and to abandon asylum seekers and the integrity of our own legal system along the way simply because it was panicked by the Indonesian reaction.

It is little wonder that the government’s decision and this bill in the parliament have attracted so much attention and caused so much angst amongst decent people of all political persuasions, including many from my electorate of Kingsford Smith. There has been a gathering in the parliament over the past couple of days to talk about the Christian faith; there are many in this House who hold a Christian faith and I include myself as one of them. I note that the churches have been speaking out. I note that Newcastle Christians for Peace have released correspondence to the Minister for Immigration and Multicultural Affairs, urging her to remember Australia’s obligation to assist those fleeing persecution.

At the beginning of this debate, the Social Issues Executive of the Anglican Diocese of Sydney addressed the content of the bill. I think it is fair to say that this is a diocese whose politics are measured; we might even say they are conservative. But the diocesan Social Issues Executive have given thought to the proposed amendments under this bill and found it wanting. They urged Anglicans to contact their MPs and urged them to oppose the bill, and their reasoning was sound. Article 14 of the Universal Declaration of Human Rights states: ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’ The UNHCR in its submission to the Senate Legal and Constitutional Legislation Committee inquiry said:

UNHCR is concerned that the proposed off-shore processing measures will detract from Australia’s responsibilities, as a State party to the 1951 Convention relating to the Status of Refugees (“the 1951 Convention”), to put in place a system which reliably identifies refugee status and protection requirements, as well as offers timely opportunities for proper and appropriate solutions.

It is a principle of international law that everyone has a right to seek asylum in a safe country so as to escape persecution, and Australia is a signatory to the refugee convention which sets out the necessary measures that should apply. If someone makes a claim on the soil of a convention signatory, such as Australia, then the convention applies. Australia is a signatory; Nauru is not. It is the case that following the Tampa incident in 2001, which saw the refusal of the government to allow into Australia over 400 asylum seekers, mainly Iraqi and Afghan, Australia provided an aid package to Nauru in return for its taking the refugees. We traded aid for proper process and compassion.

The Howard government then decided to process asylum seeker claims offshore if people were intercepted and not carrying valid documents, but people who arrived on the mainland would be processed under Australian migration law. Come by ship, out; come by plane, in—very poor policy. Nauru and Papua New Guinea, through Manus Island, its designated site, agreed to detain asylum seekers in centres run by IOM, International Organisation for Migration; hence, the Pacific solution was born. And it is expensive: the 2001 MOU with PNG for Manus Island costs us about $700,000 a month but, up until May 2004, very few—I think only one detainee—had been held there.

Then we get to November 2003 when the government excised 4,000 islands from Australia’s migration zone. Any so-called unauthorised person arriving by boat and landing on any of these places would also not be able to apply for an Australian visa. Fast forward to last year and, following intense public anxiety, significant criticism from Labor and unease by some government members about the impact of the policy, there was some change, including the release of all children from mainland detention centres and the Ombudsman to review cases of those held in detention for more than two years.

But in early 2006, after nearly all the Papuans and subsequently one other Papuan, were rightly judged to be genuine asylum seekers and following the Indonesian government’s response, an announcement was made to extend the Pacific solution. Many speakers will point out that features of the Pacific solution are undesirable. Importantly, the centres are not governed by Australian migration law. They are places where Australian government policy sort of operates but it sort of does not as well. The extraordinary lengths that the government has gone to to hide the deficiencies in the Pacific solution have not prevented members from its own side recognising that it is no solution at all. Significantly, asylum seekers will be denied access to a fair and impartial review process via the Refugee Review Tribunal.

We must note that, between 1993 and the start of 2006, the Refugee Review Tribunal had overturned 7,885 decisions of DIMA to refuse asylum seekers refugee status. In other words, without the appeal process, all of those people, including families, may have been removed from Australia to situations where they could have been at grave risk. That is something we now know to be the case with the news this week of the fate of people who returned to Afghanistan.

Mary Crock, associate professor at the law faculty at Sydney university points out that the Pacific solution produces fewer successful refugee claims. That is one of its effects. Notwithstanding the appalling conditions that many children faced in detention centres in Australia, at least they got to stay. But of those who were detained on Nauru, around half were sent back.

There is a long history of investigation into the number of Australians who have been illegally detained. There are the cases of Cornelia Rau and Vivian Alvarez Solon, and we have the Comrie report. We have an extraordinary history of the conduct of Immigration in this country, which speaks very poorly to the government and to its ministers—in particular, the former immigration minister and now Attorney-General, and the current immigration minister. In fact, the only action of any worth that I can identify by the current minister is when she admitted on the 7.30 Report some months back that it was an indisputable fact that the government was responding to Indonesian pressure on the decision to grant refugee status to 42 of the 43 Papuans who had arrived in Australia on 18 January. I think one or two days before that, the Prime Minister said that the bill had nothing to do with listening to Indonesian politicians. Who are we to believe?

But what of those people who are genuine refugees, who experience persecution, violence or intimidation and who come by sea? Are they to be denied the same rights and opportunities to be consistently and properly processed that would otherwise be the case and, in this instance, simply because they hail from Papua. This is a callous and contradictory policy. It was framed on the run, as represented in this bill, by a government unsure of how to prudently manage a critical relationship but willing to add to its already disgraceful track record in immigration and to escape, for the time being, the consequences of its actions.

But I have some confidence that Australians will not tolerate for much longer a government for whom principles and compassion have no meaning. It is a government that lacks the confidence in its institutions, in its own laws and in its own officials to allow events to take their course, as they ought. It is a government that lacks confidence in what its proper place in the region is. It is a government that has no idea of what Australia’s primary values are—a commitment to equality before the law, a commitment to respect human rights and a commitment to give those who seek sanctuary a fair go within the accepted, identified and legally consistent instruments, laws and regulations that exist in this country and that have served us well. A government that so betrays its own values is a government that is no longer worthy of representing the people of Australia. This bill must be opposed.

Judi Moylan (Pearce, Liberal Party) Share this | Link to this | Hansard source

I begin by paying a compliment in particular to my colleagues the member for Kooyong and the member for McMillan for their contributions to outstanding debate in this parliament today. The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, amending the Migration Act, is not a matter between conscience and patriotism, for surely each one is worthless without the other and ethical principles should inform them both. The stranger that stumbles upon our shores has a claim on both our conscience and our patriotism and, when he or she arrives with credentials uncontaminated by smugglers and pleading a case that, at the very least, is worthy of a fair hearing, the qualities that constitute fairness are not those that visit unmitigated sequestration and inhumanity upon the stranger.

This is complex legislation because it places people seeking refuge on our shores out of reach of Australian domestic law and, by our hand, places them within the borders of a country that is not a signatory to international conventions protecting asylum seekers. It is incongruous that unauthorised boat arrivals are treated any differently from unauthorised plane arrivals. People coming by boat, unlike those arriving by plane, will be forcibly removed to Nauru and denied access to a properly constituted statutory Refugee Review Tribunal and to Australian courts for judicial review—this in a system that unlawfully detained Ms Rau and Ms Solon.

Further, asylum seekers arriving by boat will be denied those standards of public scrutiny that have been recommended and implemented in Australian detention centres since the release of the Comrie and the Palmer reports that arose from the Solon and Rau cases. Church leaders, non-government organisation representatives and others, including the fourth estate, have been refused visas to visit refugees held in offshore processing centres. The memorandum of understanding between Australia and Nauru in relation to this bill is not publicly available, so we cannot access details about the future care of asylum seekers on Nauru or take any comfort that visas will be accessible in the future. The government has admitted that it has no control over the sovereign state of Nauru and its laws. How will we know what is or is not being done in our name? We must therefore search our consciences and ask if these unduly harsh measures are warranted. These amendments seek to broaden the scope of offshore processing, which means that families with children will once again be placed in fenced compounds, under guard and out of the range of Australian public scrutiny and support and the law.

I may not have shared many of Chief Justice Sir Owen Dixon’s personal views, but he was known for his strict adherence to legal principles and a view that the rule of law is the assumption on which the Australian Constitution rests. The rule of law is a conservative principle. It is the foundation of democracy. It requires, as a minimum, access to judicial review of administrative action, the right to a fair trial, the right to private communications with a lawyer and access to the courts. This bill removes or diminishes each of those rights. Who or what is to protect these people from processing errors, of which there have sadly been so many in recent times? Future asylum seekers arriving by sea could be held offshore for indefinite periods of time.

Despite the first memorandum of understanding with the Nauru government aiming to remove people from the island within six months and despite earlier assurances by the Minister for Immigration and Multicultural Affairs to that effect, many people remained on Nauru for long periods, some spending four years on that island. Detention without hope of release has been identified as the prime cause of the mental health problems in asylum seekers, including self-harm and suicide. These long periods of uncertainty have clearly exacted an unacceptably high human cost.

Less than 200 unauthorised boat arrivals have reached Australian shores in recent times, amongst them 43 West Papuans fleeing from political oppression and human rights abuses. They arrived in small canoes, were not organised by smugglers and were unarmed. They did not proceed through interim countries but came directly to Australian shores. The majority of fair-minded Australians were relieved when 42 of the 43 West Papuans were given asylum. Since that time, the 43rd West Papuan, originally refused asylum, has had that decision overturned by the Refugee Review Tribunal. Such an appeal to a properly constituted statutory refugee review tribunal will be denied others under this legislation.

Following the successful claims of the West Papuans for asylum and complaints by the Indonesian government, including the withdrawal of their ambassador, the government announced the introduction of this amendment bill, to take effect retrospectively at the time of the cabinet decision. Following the decision to grant asylum to the West Papuans, the minister for immigration said:

Australia has always made decisions in relation to protection claims on the basis of the merit of the claim and this has to be the case whether we’ll upset one or other of Australia’s friends and allies.

It stands to reason then that Australia should not fashion its refugee policy to assuage the Indonesian government. Indonesia and its president may not have received nearly enough credit for the achievement of democratic institutions in a country so populous, so geographically complex and so variegated in its cultural affinities. But, given all that and given all the respect that these aspirations and achievements rightfully engender, that is the point beyond which our self-respect must give us pause.

One can understand concerns by the Indonesian government about the possibility of civil unrest generated by an independence movement in West Papua. But our government has been crystal clear in stating that it does not support an independence movement. Yet, cleaving as we do to basic freedoms of worship, speech and political association, it is axiomatic that we cannot condone explicitly or tacitly the persecution of people because they express dissenting political views. In such cases where asylum is sought, we have obligations to hear the claims and make a dispassionate decision free from political interference.

Our relationship with Indonesia must proceed on the basis of mutual accommodation and consistency in our argument of the paramountcy of the sovereign rights and laws of each nation. Most Australians are appalled at the release of Abu Bakar Bashir but understand that, regardless of how repugnant that decision is, Indonesian law will almost certainly prevail.

Pressure that Indonesia has brought to bear over the West Papuan asylum matter is offensive to our style of democratic government and to the rule of law which underpins it. If we allow interference in the proper legal processing of asylum seekers, no matter where they come from, then where is the end point? We must ask the question: will there be further backdowns and compromises in the face of future threats by Indonesia?

Indonesia and Australia have worked cooperatively in building constructive dialogue and strong people-to-people links in trade, regional security and border protection. The goodwill we have built up between our two countries is beneficial to the people of both nations and to the region. Exercising our domestic and international legal obligations is insufficient reason for fracturing a mature relationship.

It is hoped that the Indonesian government recognises and addresses the issues underlying the current unrest referred to by Indonesia’s Minister of Defense, Dr Sudarsono, in February this year when he said:

I grant that there have been incidents of some brutality and torture and rape involving some of our troops, but there has been a tendency to blanket all of this into a notion that all of these efforts are systematic and institutional.

When these brutalities cease, then the desperation that drives people to risk their lives to cross the open sea in canoes will cease to exist, and there will be no reason for Indonesia to ask Australia to choose between its good relations with Indonesia and the legal and just applications of its own laws. It is surely safe to assume that West Papuans share the same aspirations as people everywhere: for food, shelter, health, education and access to the common pool of prosperity—40 per cent of West Papuans survive on less than $6 a week. Given that Freeport is said to be the biggest earner of foreign currency in the country, that aim should not be too difficult to achieve.

Speaking in international forums, our Attorney-General, the Hon. Philip Ruddock, has observed that the focus of Western democratic states should be on helping to prevent refugee situations at source so as to ease the burden on countries of first asylum. Thus the primary hope is that West Papua should be a comfortable home for its citizens so that they have no reason to seek refuge elsewhere. The achievement of that goal remains solely within the prerogative of the Indonesian government, but I would venture to say that there are many in this country—indeed, in this House—willing, in the spirit of friendship and common humanity, to lend a hand, just as they have been all too willing in the recent past to lend a hand when our neighbour was beset on tragic occasions by natural disaster. However much history and arduous exertion have given Indonesia the right to insist on its own standards and laws, we in Australia are no more or less entitled to do precisely the same.

Last year this parliament unanimously endorsed important changes to the Migration Act. For me there was no more important change than to release families with children from behind the barbed wire and to place them in community housing, and that policy and process have gone smoothly. There have been no complaints. There have been no problems. So why, I ask, did we ever place children in prisons behind barbed wire fences?

Australia is a big country. The Australian people have big hearts. I cannot believe that they would condone a bill that is so regressive, a bill that sends asylum seekers to a place that puts them outside the reach of community support and outside the reach of domestic and international law.

In considering this legislation we need to ask these questions in this place: what value do we place on the rule of law? How can we in all conscience legislate to consign people to a place where they are out of sight and ostensibly out of mind? Do we assume that nothing culpable by way of mistakes and misdemeanours can possibly befall them? Why is this legislation before the House today, when a majority government member Senate committee recommended that the legislation be scrapped or, at the very least, amended?

This is virtually a declaration of infallibility, which is absurd, not to say dangerous. It flies in the face of that essential principle of democratic governance that there should be visible, credible checks and balances. I cannot believe that the citizens of this sovereign country would ever cease to wonder, nor would they ever forgive, were we in this House to acquiesce in silence to pressure from a neighbour on a matter so much at the heart of our principles of justice. I for one cannot remain silent.

Kate Ellis (Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the sentiments that have just been put so eloquently by the previous speaker, the member for Pearce, and to voice my own opposition and indeed my disgust at the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. As I will outline, I oppose these harsh and unfair measures on a number of levels. I am opposed to their motivations, I am opposed to the sheer lunacy of the proposals, I am opposed to their violation of international law and I am opposed to their disregard for human rights. I would like to first make one point very clear: if the government think that this legislation only affects asylum seekers who arrive on our shores by boat, they are sorely mistaken. This legislation affects all Australians. This legislation affects who we are as a nation. It is being done in our name.

I had an encounter recently at one of my regular street corner meetings. I was approached by a young man who stated that he did not have one particular issue to raise with me. He did not come to raise a Centrelink or immigration case or to seek assistance on any other individual matter. He came to the meeting just to tell me of his disillusionment. He told me how he did not feel that this government was representing his views. He did not believe that the core beliefs at the heart of this country were being represented or indeed promoted by government policy. I believe that this bill is a classic example of this. This appears to be a common sentiment within the Australian electorate and certainly within my local community. Let me be clear: I do not think that we should all vote against this legislation just to make us all feel better about ourselves; I think that we should vote against it because it will permanently scar vulnerable human beings, because it is both unjust and illogical and because it is cruel and inhumane and out of step with Australian values. I will also say this: the great privilege of being in government—the reason why we all aspire to sit over there—is that you have the wonderful opportunity to improve our country. You have the opportunity to make Australia a fairer and more decent place. You have the chance to make us all feel prouder to be Australian. Yet sadly this legislation, like so many other government proposals, does the precise opposite.

On Wednesday, 14 June this year, 32,000 signatures were tabled in the Senate opposing this migration legislation. I have checked the website of the Getup campaign, and the current number of signatures received in opposition to this legislation is 87,347. I am afraid that the government is not representing public sentiment on this issue. A recent Newspoll found that 74 per cent of respondents disagreed with this bill, especially its motivation of appeasement. Males, females, singles, marrieds, young and old, low-income earners and the unemployed all opposed this bill overwhelmingly. Many Australians do not want to see children in detention centres. They do not want to see ridiculous laws that abolish Australia’s borders. And most importantly, they do not want to see the important changes to Australia’s migration legislation achieved last year dispended in the name of flawed and confused ‘diplomacy’, if we can even call it that at all. This proposal highlights a government which has no respect for Australia’s sovereignty, no respect for international law, no respect for the protection of human rights and no respect for any notion of fairness or decency.

I would like to talk about the sheer lunacy of this legislation. As of 13 April 2006, all Australians arriving by boat will be treated as though they arrived in an excised place. This will effectively excise the whole of Australia from our immigration zone. The government’s approach is ridiculous. It is absolutely absurd. We cannot approach border protection by pretending that we have absolutely no borders at all. So let us be perfectly honest about this: this legislation is stupid. This is not just my view. It is the view of many who have looked at this legislation. Let us study the words of the Senate Legal and Constitutional Legislation Committee’s report on this bill. Their first recommendation stated:

… the committee recommends that the Bill should not proceed.

This legislation is absolutely extreme. How do you possibly justify that locking children up is not okay in Australia but is okay in Nauru? The basic truth is that you cannot. This was the sentiment overwhelmingly conveyed to the Senate committee, which found:

Overwhelmingly, the view among those who provided evidence to the committee was that the Bill should be opposed in its entirety. Indeed, the committee notes that every submission and witness, besides the Department, expressed opposition in absolute terms to the Bill and its broader policy objectives.

However, it was not just the valuable committee process that highlighted the lunacy of this legislation. The Prime Minister himself did so. Let me take you back to Monday, 17 June 2002, when he stated:

I want to make it clear that there is no intention to excise—and never has been—any part of the Australian mainland. That is an absolutely ludicrous proposition.

Although it is unusual, on this occasion I agree with the Prime Minister wholeheartedly: this is indeed an absolutely ludicrous proposition.

By now we are all aware that this government does not much care for international law, but I would like to speak on the human rights conventions that this bill could violate if it passes through this parliament. The Office of the United Nations High Commissioner for Refugees issued a press release on 19 April which expressed this opinion:

If this were to happen, it would be an unfortunate precedent, being for the first time, to our knowledge, that a country with a fully functioning and credible asylum system, in the absence of anything approximating a mass influx, decides to transfer elsewhere the responsibility to handle claims made actually on the territory of the state. This is even more worrying in the absence of any clear indications as to what might be the nature of the envisaged off-shore processing arrangement. If it is not one that meets the same high standards Australia sets for its own processes, this could be tantamount to penalising for illegal entry.

This legislation could breach many different examples of international law. It could breach the Convention on the Rights of the Child, including the obligation to act in the interests of the child and the principle that children should only be detained as a last resort. It could contravene the International Covenant on Civil and Political Rights, as it fails to act in accordance with the principle of nondiscrimination, breaches the rights of the covenant and exposes asylum seekers in offshore processing centres to the risk of arbitrary detention. It may violate the Convention Relating to the Status of Refugees, in particular article 31 of the refugee convention, which provides that asylum seekers should not be penalised for arriving illegally. Offshore processing disrespects the cornerstone of this convention, even if it is not found to be illegal.

This legislation could undermine the fundamental human rights principle of nonrefoulement by not allowing for any form of independent merits review. As I mentioned earlier, the bill is likely to breach Australia’s obligations under the Convention on the Rights of the Child. Article 37(b) of this convention states:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

Furthermore, it may undermine other obligations relating to the rights of the child including, to name but a few, article 3—in all actions concerning children ‘the best interests of the child shall be a primary consideration’—and article 20—unaccompanied asylum seeker children are to be given special protection and assistance by the government—and article 22, which says children seeking refugee status are to receive ‘appropriate protection and humanitarian assistance in the enjoyment’ of their applicable rights under the Convention on the Rights of the Child.

This is an example of even more international conventions being ridiculed by the Howard government. Yet it is already clear that this is not something that overly troubles this government. Sadly we now live in an era of government complacency where issues affecting international law and even the basic principles of humanity seemingly cease to matter to those sitting opposite me. The government’s readiness to violate these principles is absolutely appalling. What makes it appalling are the consequences. Let us all be clear: people will suffer as a result of this legislation, people’s lives will be shattered, they will be permanently scarred and many will pay with their sanity. This is what is at risk.

I would like to read some excerpts from correspondence I have received from various constituents on the issue of human rights. I think that their words express Australia’s outrage more eloquently than mine ever could. One wrote:

I would like to see Australia become a global leader and promoter of human rights and I am concerned that these proposed changes may do just the opposite ... Sadly, with the Liberal Government in power it seems human rights are under constant attack.

Another wrote:

Please, on my behalf as my elected spokesperson in Parliament, do not let these new changes pass without fighting for justice, compassion and humanity.

Yet another said:

As a nurse and a parent I find this proposal cruel, draconian and in contravention of our human rights obligations. As an Australian I also find it embarrassing to belong to a country which manages such important issues in such a petty, narrow minded and ignorant manner.

And yet another said:

Accepting human rights abuses in order to improve our regional relationships goes against the values that the Howard Government wants new migrants, school children and the general community to live by—respect, decency, compassion and the strength to stand up and defend our values.

I want to turn now to an issue that this parliament deliberated on just last year. I have spoken on many occasions in this parliament about my beliefs that children do not belong in detention and that Australia should not tolerate a system inclusive of indefinite detention. What this bill effectively says is that it is not okay to hold children indefinitely in detention on Australian soil but it is okay to be responsible for their detainment offshore in places like Nauru. I would like to express my own belief, and the belief of many within my electorate, that children should not be detained. The important changes to the government’s immigration policy won last year will be lost. Labor was so pleased to see that children would not be placed in detention again, but now these amendments are on the line. Children can be held in detention again, indefinite detention will return and case-managed mental health care is over. These changes are all appalling. The soon to be moved amendments mean that the bill will now state:

(1A)   The Parliament affirms as a principle that a minor ... will only be detained as a measure of last resort.

and also that:

Note: The Minister has the power to direct officers of the Department to take all reasonable steps to work with any country ... with a view to having this principle upheld.

The sad truth is, though, that this amendment does not actually mean anything in practice. Australian law is not enforceable in a foreign country. Australian principles do not actually equate to anything at all in Nauru. The minister already has the power to direct her officers and department, but she and her department have no power on Nauru. The only way to ensure that this is carried out in practice is to process asylum seekers under Australian law in Australia.

We here who will vote on this bill are making a very important decision. Each individual in this House must decide whether or not we abandon the principles that we upheld 12 months ago. This House decided 12 months ago that Australia values mental health and that people in detention should not be made to forsake their sanity because of poor mental health conditions. We decided that people should not be detained indefinitely and we decided that children should not be locked up. The members who vote in favour of this bill are saying that those values do not matter anymore. The members prepared to vote in favour of this bill are therefore prepared to compromise some of the core values of our nation, and I certainly will not be joining them.

One could be baffled as to why the government is willing to set such a harsh precedent when so few asylum seekers enter Australia by boat. Unauthorised boat arrivals attract more attention than any other form of migration, but individuals seeking asylum within Australia in 2003-04 who arrived by boat were approximately 1.5 per cent of total unauthorised arrivals. In 2004-05 no individuals seeking asylum arrived by boat. Yet the government is prepared to risk Australia’s human rights record and sovereignty, and all for what?

I would like to turn to the real reasons why the government is introducing this bill. The government is gutlessly attempting to appease Indonesia at the expense of asylum seekers and Australia’s broader human rights record. When Australia has objected to Indonesian criminal law in the past, Indonesia indicated that it was their legal system and so Australia respected their sovereignty. But when Indonesia objects to Australian laws, this government just changes them. We modify our legal approach to asylum seekers to appease just one nation. Australia should not change its laws just to please Indonesia or any other country. The Prime Minister has shown a weakness the Australian people find deeply upsetting. Many of my constituents have written to me on this particular issue. I would like to share what one of them had to say. They wrote:

This proposal sends a clear signal to foreign powers that Australia is willing to change the laws governing its refugee protection system when pressure is applied to it by a foreign nation. The Australian Government causes us to hang our heads in shame at the very thought that our country could be so gutless and ingratiating.

I could quote many pieces of correspondence carrying the same sentiment. Australia must respect our neighbour to the north, but it is about time we encouraged respect for our own nation and our own laws. The introduction of this bill just shows that our immigration policy is not being run from Canberra; it is being run from Jakarta. Labor believes that immigration is an especially important portfolio of the federal government. Conversely, the government seems happy to outsource the formation of these policies to Indonesia. I for one can never vote in support of that.

I absolutely believe that Australia must encourage a strong relationship with Indonesia and that it is in all of our best interests to do so. But this relationship must be strong, honest and based on a mutual respect. Australia does not have to be an inferior partner in that relationship. As sovereign and strong independent states, Australia and Indonesia should be able to maintain a relationship that encourages respect and allows for differences in opinion. I believe respect must be the foremost foundation of our relationship, but such respect requires a certain degree of autonomy and the willingness of Australia’s government to stand up and fight for what is inherently right.

I would like to briefly turn to the issues of scrutiny raised by this bill. Over the past few months we have heard claims of sexual abuse, mismanagement and drug abuse taking place within Australia’s detention centres. Now is surely not the time to be abolishing an important overseer and scrutineer of Australia’s immigration. The minister’s department has been embroiled in one bungle after another. Sadly, this legislation represents what is one of the largest bungles of all.

There is not a single change that can be made to Australian law that will allow the government to change the way a policy is implemented in another country. That is, once you start with the proposition that you are going to put people in another country, it is all over. Australian law stops.

Although the Immigration Ombudsman will be able, theoretically, to investigate an action regarding an immigration matter regardless of the location of the action, the ombudsman will first need a visa to enter Nauru. This is a significant limiting factor that can prevent the scrutiny that we require. I would also add that a huge number of my own constituents regularly visit detention centres and offer another form of scrutiny. They hear when there are cases which are alarming and bring them to each other’s attention. I do not think many of them will be able to undertake that role in Nauru though. The whole idea of offshore processing is that you put people beyond the reach of Australian law.

The only conceivable reason this bill is being introduced is to appease Indonesia. This is not how any good government should run foreign affairs. It will cast asylum seekers beyond the reach of Australian law and reinstall children’s detention and indefinite detention. The safeguards that have been installed to try and make the government’s policy more humane—most importantly, case-managed mental health care and a Commonwealth Immigration Ombudsman, as well as safeguards regarding children in detention and indefinite detention—will sadly be completely stripped away. I must strongly reaffirm that I for one absolutely cannot support these changes.

I was recently at a forum of high school students, where somebody explained leadership in a way that was so articulate that I would like to repeat it here today. She stated that leadership was about standing up and being the voice that you long to hear, standing up and being the voice that you and your community long to hear. The community have made their views on this bill very clear. The academics and the experts have all made their views very clear. Now every member of this House has a stark choice: do they stand up and vote against a proposal which has the wrong motivations, which is indecent and inhumane by its very nature and which is clearly absurd, or do they instead vote for legislation which most people cannot even bring themselves to argue in favour of? Will members choose to be true leaders of their local communities or instead blindly follow the Prime Minister down this ridiculous path? I am clear that I will continue to absolutely oppose this legislation and I encourage all members to do likewise.

Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

I rise to support the sensible amendments to our migration system. Protecting our borders is one of the most successful policy initiatives of the Howard government. It was a policy I strongly supported during my 2001 campaign to gain election to the seat of Stirling. It is a policy that has the overwhelming support of people in my electorate. They recognise that by taking a strong stand Australia was able to send an appropriate signal that we are not a soft touch for illegal immigrants, and consequently the flow of illegal arrivals ceased. Not everybody agrees, of course. I have had several people contact me urging me to oppose these amendments. I have had quite a few more who have expressed to me the view that we need to do more.

I want to start today by addressing some of the broader issues that arise when this parliament discusses border protection. I think there is a lot of woolly thinking associated with this debate, and there is also a fair bit of moral vanity—a pretension that sees you believe that you are far more compassionate and caring than people who oppose your point of view, that you somehow have a mortgage over what is good and right, and that your opponents do not care about human rights, do not care about the suffering of others, do not care about women and do not care about children. I strongly support the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 and I completely and utterly reject the idea that that somehow makes me less caring or less sensitive to the suffering of the world’s refugees.

If a generous program of allowing humanitarian arrivals is coupled with a weak regime that encourages illegal arrivals to take those places, that is completely against the interests of the most desperate people in the world. I say this as a representative of an electorate that accommodates more of these humanitarian arrivals than any other electorate bar one in Australia. In the north metropolitan region of Perth, which I represent, from January 2001 to December 2005, close to 3,000 African migrants have resettled. I am in regular contact with them and with representatives from their communities. They are people who have come here from the Sudan, Somalia, the Congo and Sierra Leone. They are people who in many cases have suffered, and suffered enormously, and who have now been granted refuge under one of the most generous programs operated anywhere in the world. They are enthusiastic new Australians and they are eager to grab all the benefits that this country has to offer and to create a better life for themselves and their families. I wonder how anyone could say to them that their claim of refuge in Australia is less valid than that of someone who has the money and the wherewithal to make it to Australia via a people smuggler or via some other means.

If you are growing up in a refugee camp on the Sudanese border, you will never be able to make it illegally to Australia. You will have to wait in the queue and hope that the UNHCR will judge you desperate enough to qualify for a visa to Australia, one of the few nations that offers places for refugees. So if you agree with the proposition that Australia can only take a limited number of refugees—and, obviously, it would be impossible for Australia to accommodate the millions of people who sadly find themselves with this status—then it follows that you have to make a judgment on where these refugees will come from. You have to prioritise need, however hard that is.

Currently, Australia does this by following the guidance of the UNHCR as to where the greatest areas of need are at any given time. For the last few years the UNHCR has identified the Horn of Africa and other parts of that difficult continent, particularly the areas that are involved in vicious civil wars which have displaced large amounts of their populations. Citizens of these countries will never make it to Australia by boat. They do not have the resources and they obviously do not have the geography working in their favour. I do not believe that that makes them less worthy candidates for asylum. If Australia is to maintain control over who is allocated places under Australia’s refugee program then we require effective control of our borders. That requires continued vigilance. We need to respond to new challenges as they arise if we are to continue to effectively control who immigrates to Australia.

Having listened to earlier contributions to this debate, it is obvious that not all of my colleagues agree with all the amendments in this bill. But, contrary to some of the speculation and commentary from the opposition, I do not consider this to be such a terrible thing. The idea that we in a political party agree on everything all the time is plainly ridiculous. In the Liberal Party we are free to think for ourselves. Liberal members of parliament are allowed to exercise their vote according to their own conscience, and members in this chamber have done so on many occasions. This is in stark contrast to opposition members who are required by their party to vote along party lines. In fact, any Labor member of parliament who votes against their party will be automatically expelled from the Labor Party. They are not allowed a voice of dissent within Labor. Stalin would have been proud of the rules that govern the ALP. Labor members who have made so much of the fact that some Liberal MPs may vote against these amendments should remember that they have the option to do so. That is a poor reflection on people who do not and a poor reflection on the allegiances of the members of the ALP in this chamber when their party insists that loyalty to the ALP takes precedence over every other loyalty. I would never subject myself to that insistence and Liberal members of this parliament are not required to do so. So, if members on this side of the House vote against the bill, I hope it reminds the Australian people that only one political party in this country allows its members the latitude to do so.

I hope this does not happen, because this bill is an important piece of the architecture that protects our orderly migration system. The bill will amend the Migration Act to expand the offshore processing regime, successfully introduced by the Howard government in October 2001, to all people who arrive illegally in our waters. It will end this ridiculous distinction: if you can make it to mainland Australia then you will be treated differently from someone who has only managed to make it to the outlying islands. Strong decisions made now on this legislation will further strengthen the control over our borders, as well as preserve Australia’s obligations to refugees.

This bill will stop people who arrive illegally in Australian waters from accessing the visa application process. They will be subject to resettlement in another country, provided that country meets the strict standards that have been set out by the Australian government. It will mean that all persons arriving on mainland Australia unlawfully by sea, retrospective to 13 April this year, will be treated in the same way as though they had landed in an excised place. This legislation will not affect the visa status of any persons who arrived in Australia before 13 April this year, and any visa applications lodged in Australia by such persons will continue to be processed in the normal manner. In many respects, this is a logical progression of the offshore processing arrangements that have been in place since October 2001 which, I remind the House, have been extremely successful in ensuring the integrity of our borders. It makes absolutely no sense that an unauthorised boat arriving at an offshore place is subject to the offshore processing arrangements, while an unauthorised arrival arriving only a few kilometres closer on the mainland can access Australia’s onshore protection arrangements.

This bill will eliminate that ridiculous distinction between unauthorised boat arrivals at an excised offshore place and those who reach the mainland. The changes will apply to all unauthorised boat arrivals, regardless of nationality. The changes will not only correct these inconsistencies but send a clear message to people who may risk their lives by travelling to Australia illegally. It is important to remember that our strong stance on border protection has already stemmed the flow of illegal and unauthorised arrivals. I do not want to see a return of unsafe boats attempting the dangerous journey to Australia, filled to breaking point with people who are little more than easy money to people smugglers, who have managed to put a price on human lives. We do not know how many people have lost their lives attempting this voyage but we must not pretend that, by encouraging them to do so, this is a compassionate approach.

Australia has maintained two offshore processing centres on Nauru and on Manus Island in PNG since late 2001. Since that time, 1,547 people have been processed offshore at these centres. Every one of those persons has had access to the refugee assessment process through the United Nations High Commissioner for Refugees or by trained Australian officials. Not one person found to be a refugee in the offshore process was forced to return to their home country.

David Hawker (Speaker) Share this | Link to this | Hansard source

Order! It being 2 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.