Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

Let us cut to the chase in what has been the worst policy debate for Australian public policy in at least the past 20 years. The truth is that 148 of the 150 members of parliament in the House of Representatives agree that offshore assessment should be an option for executive government. 150 MPs recognise the status and worth of the Bali process as very good bipartisan work done in the regional Asia-Pacific forum. No MPs want lives lost at sea because the 43rd Parliament cannot resolve something that the vast majority of MPs want resolved. So I say to colleagues again: why can't we pass legislation through the House that 148 MPs, at least, support in principle?

I have asked all MPs to read and get to know the principles of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime. They were circulated to colleagues last week. For me, they address the failure of the domestic policy debate in trying to deal with people smuggling via an asylum seeker and refugee debate. That will never provide a suitable answer for sustainable policy on people smuggling. Instead, we should look at the international bipartisan forum that focuses on people smuggling if we really do want to deal with this topic. The Bali process is it. Therefore, rather than questioning bilateralism within a humanitarian framework, we should be actively encouraging it, not just for Malaysia but for many creative and cooperative options. So long as there is a humanitarian backbone in any arrangement, so long as there is oversight by the parliament of any arrangement, we should be encouraging rather than discouraging such regional work.

This bill, the Migration Legislation Amendment (The Bali Process) Bill 2012, does it. It strongly encourages bilateral and multilateral regional agreements on people smuggling and does so within a recognised bipartisan, humanitarian framework. Yet, despite the support of 148 MPs in principle, we need to deal with the straw man in the room. I saw again today that Mr Abbott will not support anything offshore unless it is with UN refugee convention signatories only. This is not the position Mr Abbott and Mr Morrison took to the last election, and they have no mandate for this position. Worse, they are now arguing the complete opposite of what they took to the election and the complete opposite of what is on their own personal websites right now. In my view, they are all at sea on this key point of the importance of signatory status with regard to the UN refugee convention. I will read out several quotes from Mr Morrison's own website. Here is the first one, about the UN refugee convention:

The Convention provides no permanent rights to refugee status at all.

Here is the second:

… the Refugee Convention is not infallible …

Here is another one:

A refugee in one jurisdiction is just as likely to be assessed as an economic migrant in another.

And here is another:

Non-refoulement is the core protection provided by the Convention. This is now a welcome and generally accepted principle of international law, regardless of nation’s signatory status. It transcends the convention.

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

True.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I agree. I am hearing from Mr Morrison that it is all true. I agree with that. But let us not worry about onshore and offshore issues. Let us explore online and offline Scott Morrison and Tony Abbott. Online we see 'sensible Scott', who has just been saying he agrees—

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

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Lyne needs to use people's appropriate titles.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

He has been talking about the principles within the refugee convention and their importance that transcends signatory status. Yet offline, for the press gallery, for talkback radio and for his leader, Tony Abbott, we see the complete opposite. If it is about a truth and values campaign that is being run pre-election and about who said what pre-election and post-election, this cuts to the heart of that position with regard to the coalition on migration policy. I raise this for two reasons. One is to expose the absolute front of the political positioning with regard to this topic. The second is an important one with regard to policy, and that is that online Scott Morrison—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member needs to use the member's title.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

has a sensible position and a position that strongly supports this parliament supporting my bill. The coalition does have ownership of the Bali process. It is a good process. It deserves to be supported. This bill puts the Bali process as the framework for allowing executive government to make decisions to deal with people smuggling in as humanitarian a way as we can, as per the member for Cook's very own website. (Time expired)

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

I am not surprised the member for Lyne would come into this place and seek to attack the coalition. He has done that on many occasions and he has shown more loyalty to the Prime Minister than at least 31 of the Prime Minister's own colleagues, including the member who is at the table today.

Ms Hall interjecting—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Shortland will resume her seat. The member for Cook has five minutes and he will be relevant to the bill or I will sit him down. The member for Cook has the call.

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

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

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

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

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

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

Paragraph 125 also states:

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

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

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

Mr Oakeshott interjecting—

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

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

I do not think that is up to the member for Cook.

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

I am sure that he will be equally concerned about the definition of 'party' within this to the Bali process. The definition is ambiguous and it creates further legal opportunities, I think, to create uncertainty around this issue. Secondly, the bill requires the rules of natural justice to apply. That is something the minister himself in his own bill around this matter sought to have removed. Thirdly, the bill establishes the designation of an offshore processing country as a legislative instrument.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

You've flipped!

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The member for Lyne might be my first throw from the chamber.

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

That means that that would completely put before the parliament complete discretion to enable the parliament to overturn any decision of an executive government, even if it were to accord with the requirement that it be a signatory to the convention.

This bill is no more than a carbon copy of the government's bill. Its attempt to rebirth the Malaysian people swap is no surprise. The member for Lyne is clearly doing the government's bidding, as always. (Time expired)

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to indicate the government's support for the Migration Legislation Amendment (The Bali Process) Bill 2012 moved by the honourable member for Lyne. I also indicate the government's intention to move some amendments based on legal and operational advice to improve the workability of the bill in practice. I welcome this move by the member for Lyne to find a way through the political impasse caused by the negativity of the opposition and their relentless opportunism. I am disappointed that the member for Cook is leaving the chamber because he does not want to be held to account for the inconsistencies in his contribution just a moment ago.

As the honourable member for Lyne indicated in his speech, 148 out of the 150 members of the House of Representatives recognise the need for offshore processing as an effective deterrent for dangerous boat travel to Australia. In fairness to the member for Denison and the member for Melbourne, while we fundamentally disagree with them, they have always held the position that there should not be offshore processing. But 148 other members indicate that they support offshore processing. But only those on the government side and some of the crossbenchers are prepared to put their vote where their mouth is by supporting either the government's legislation or the legislation moved by the honourable member for Lyne.

The opposition has stood in the way of legislation to allow offshore processing. It has ducked and weaved and introduced a spurious amendment designed solely and cynically to ensure that the government's arrangements with Malaysia cannot proceed. The member for Cook, in his remarks a few moments ago, said that we fail to understand the purpose of his amendment. We understand it very well: the purpose of his amendment is to stop the Malaysian agreement proceeding. Why? Because they are scared it will work. They are scared it will provide a deterrent for the dangerous boat travel to Australia. They are scared that a political issue for them will disappear.

We have heard from the honourable member for Cook and others about the importance of the refugee convention. I would be prepared to give the benefit of the doubt to the opposition—that they had reflected on their position and reached a different position after reflection—if it were not for the hypocrisy shown by the fact that it remains their policy to turn boats around to a country that is not a signatory to the refugee convention, Indonesia. Just on the weekend we saw a very significant development in this field. It was the position of the opposition, up until the weekend, that they would turn boats around to Indonesia but that they would negotiate protections with Indonesia, presumably of a similar nature to those in the Malaysia agreement. They would negotiate. The Leader of the Opposition said that it would be fairly easy to negotiate these protections with Indonesia to ensure non-refoulement and other necessary treatment.

We saw the foreign minister of Indonesia in this building on Thursday describe the concept of turning boats around to Indonesia as impossible and ill-advised. He went on to say that that gave a hint of the approach that Indonesia would take to a proposal from the opposition should they ever form a government. What was the response of the Leader of the Opposition and the member for Cook? Their response was to say, 'We don't care what Indonesia says. We'll do it anyway.' So much for negotiating protections; so much for negotiating some sort of mechanism to ensure that people are not refouled or that there is necessary and appropriate treatment for people returned. That has all gone out the window. They are going to turn boats around regardless of what Indonesia says.

This government believes in offshore processing because as part of a proper regional framework, through the Bali process—which ensures that the product that people smugglers choose to sell, which is permanent resettlement to Australia, is withdrawn—offshore processing can play a very important role in providing the disincentive for boat travel to Australia. This is very important. This saves lives. If this bill passes, it will save lives. That is how important it is. It will save the lives of people who are trying to get to Australia. It will enable us not only to implement the Malaysia agreement but also to say to people, 'We do not ask you to risk your life to get to Australia in order to provide you with a permanent visa.' We will be able to increase our refugee resettlement to Australia and we will be able to say to people, 'There is nothing moral or humanitarian about encouraging people to risk their lives to come to Australia.'

I am flagging that I will move amendments. The opposition says that this is a carbon copy and then points out the differences between the bill that I introduced in the House and the bill that the honourable member for Lyne has introduced. But I will be moving a handful of amendments which deal with the matter of assessing who is a participant in the Bali process—I will be moving that that be based on written advice from the Secretary of the Department of Foreign Affairs and Trade—a safety valve to allow discretion for the minister, and some additional checks and balances to ensure that the bill is implemented appropriately. I commend the bill to the House. I commend the member for Lyne for his constructive approach, which is clearly different to the destructive approach taken by members of the— (Time expired)

Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

We need to realise why we are debating, yet again, measures in relation to offshore processing and in relation to stopping people smuggling. When the Labor Party came to office in 2007, they inherited a situation in which the previous Howard government had stopped people smuggling. We need to be very clear about that. We faced this situation at the turn of the millennium—2000-01—when the Howard government took tough but necessary measures that stopped people smuggling dead in its tracks. Once those measures were taken, the message went out loud and clear to people smugglers that Australia was closed for business. Once that message went out, and when the people smugglers tested the government and found that it did not buckle—the government stuck to its guns and insisted that Australia would remain in charge of who comes to Australia—the people smugglers got the message that they were not going to be welcome to practise their evil trade of bringing people into Australia illegally anymore. Once that message was sent, people smuggling stopped dead in its tracks, and the empirical evidence is impossible to argue.

From 2002 to 2007 we had in this country, on average, three illegal boat arrivals per year. Under this government we could have three in 48 hours. What happened once this evil trade was driven from business, was that the Labor Party thought they could come into office and make changes to that robust system of border protection without there being any consequences. So, when the Labor Party came to office, the then Minister for Immigration and Citizenship, Senator Chris Evans, said that the dismantling of those tough measures—that is, offshore processing on the island nation of Nauru, and on Manus Island, PNG; temporary protection visas; and turning the boats back when it was appropriate and safe to do so—was his proudest day in office. That occurred in August 2008. From September 2008, people smugglers literally went back into business. From September 2008, one month after those changes were made, people smugglers again started to bring people to Australia illegally. And the situation accelerated, because the more success people smugglers have, the more the message goes back to the international community that Australia remains a soft touch and that people smugglers are going to be welcome to continue to ply their evil trade. Since that time, since August 2008, when the Labor Party made those quite frankly stupid decisions, we have had almost 16,000 people on almost 300 boats arrive in Australia illegally, courtesy of criminal gangs of people smugglers. That continues today and the problem continues to get worse and worse.

The Labor Party's response has been to adopt every possible policy prescription except one that actually works, and sadly the Migration Legislation Amendment (The Bali Process) Bill 2012, which we are discussing today, brought in by the member for Lyne, is just a continuation of these failed policies. The idea that people want to see us 'compromise'—so-called—on offshore processing negates, I think, what the Australian people are actually looking for when it comes to people smuggling and people coming to Australia illegally. What the Australian people are looking for—what they tell me loud and clear when they raise this issue with me—is a solution. They do not want any more failed plans and they do not want any more of the gymnastics that we have seen from the Labor Party—adopting different positions but never actually adopting one that is going to work. They want the Australian government to adopt a position that is actually going to send the message loud and clear to people smugglers that Australia is no longer a soft touch and our borders are now closed. We will not do that until we adopt the full suite of measures that the coalition has used in the past to stop people smuggling. We need offshore processing but we need it on the island nation of Nauru or in another country which has adopted appropriate human rights protections—that is, a country that is a signatory to the UN convention on refugees—something that the minister, who just came in with his usual bluff and bluster, said not long ago was the right thing to do. In fact, he said it was morally imperative that we process people only in countries that have been signatories to that convention.

We also need to return to temporary protection visas. The product that people smugglers sell is permanent residence in Australia and when you undermine that you undermine that product. We also need to turn the boats back to Indonesia, from whence they came, when it is safe and appropriate to do so. (Time expired)

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

I have pleasure in rising to support this bill as it is to be amended by the government at later stages in discussion of the bill. This is an opportunity for this parliament to actually put its stamp on a solution to a problem and to have a solution to the problem that is apt for the second decade of the 21st century. To hear those opposite yearn for domestic policies of a decade ago without putting them in a regional or global context is sickening.

The member for Cook acknowledges that the Bali process was something put in place by a coalition government. The purpose, of course, of the Bali process was to handle the large influx of asylum seekers and to combat human trafficking in our region. Over 40 countries are members of the Bali process. International organisations such as the IOM and UNHCR are active participants. We are proud that this is a piece of policy, in an international sense, of Australia. Australia and Indonesia chair the Bali process; the steering committee has these two countries being joined by New Zealand and Thailand. What it does is in fact look at many of the issues that have been raised in this debate but, disappointingly, without great imagination by those opposite in the coalition.

One of the purposes of the Bali process is to assist countries to adopt best practices in asylum management in accordance with the principles of the refugee convention. Those opposite tell us that it is too hard to get involved, to sit down with the countries of the region and come up with a process that achieves that. Simply putting a signature on a piece of paper does not mean that that is going to happen. Look at Malaysia. Go to Malaysia. Understand how detention centres there actually operate. Understand how asylum seeker legislation actually operates, because there ain't much asylum seeker legislation.

The UNHCR, by de facto, are in charge of the processing of claims made by people who find themselves in Malaysia. They have gone out of their way to ensure that the dignity of these people is preserved, that they are given opportunities for economic development. Look at the actions of IOM in Sri Lanka, where they are involved in economic processes and projects to ensure that those that would leave a source country like Sri Lanka do not have reasons to leave that source country. We then look at what is happening in Malaysia and Indonesia, which are countries in transit. It galls me that a little over two years ago it was the President of the Republic of Indonesia that had to place on record statements that they have a greater understanding of the problems that confront Australia than the coalition can. He indicated the imperative of the Bali process, which recognises that people smuggling is a regional problem that requires a regional solution involving the origin, transit and destination countries working together. Two years after President Yudhoyono placed that on the record in his speech to the Australian parliament, we had to have the foreign minister of the Republic of Indonesia in a press conference in this place last week yet again remind the coalition of the importance of this cooperative attitude to the way in which we look at the problem of people smuggling throughout the region, and to look at it as a continuum.

In part, this is what this piece of legislation attempts to do. It attempts to recognise that the solution to this is putting in place regional processing centres. Under the agreement between Australia and Malaysia, that was what was to be achieved in Malaysia. This now enacts the legal niceties which would enable that to happen. It would enable that to happen in other places if, in fact, future governments decided that that should happen. That is what perplexes the Australian public. We have a piece of legislation that is being offered to the Australian parliament which would give this government the opportunity to put in place its agreement with Malaysia, and it would give any future government the opportunity to put in place any solution that they thought best fitted. I do not understand why we cannot continue to have this agreement. This piece of legislation enables the Australian parliament to deal with this in a positive manner. (Time expired)

Debate adjourned.