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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wyatt Roy (Longman, Liberal Party) Share this | Link to this | Hansard source

I think the shadow minister in his contribution on this bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, said something very telling. He said that the politics of this issue is highly leveraged—and he is right. I have sat in this parliament over the last four and a bit years and watched as the politics around this issue has become highly leveraged. Perhaps it was a sense of naive optimism that I thought that this issue could rise above partisan politics. But, unfortunately, that has not been the case.

One of the things that has amazed me the most in my time in this place is the hypocrisy of the left on this issue. The left like to tell the Australian people that they take a humanitarian position. The left try to tell the Australian people that they are on the right side of this issue and it is the humanitarian standpoint that drives whatever policy position they hold on whatever day of the week it is. But let us talk about the reality of the situation and strip away the partisan politics.

Dr Leigh interjecting—

The member opposite laughs. I hope he listens to this contribution, because I am going to make a very simple point here.

Andrew Leigh (Fraser, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

You just made the most partisan start you possibly could. Don't pretend otherwise.

Wyatt Roy (Longman, Liberal Party) Share this | Link to this | Hansard source

In 2007 four people were in detention centres—no children. Over the time of the previous Labor government 1,100 people—that we know about—drowned at sea. The Labor members still laugh and still make partisan points but the reality is this: 1,100 people, that we know about, drowned at sea as a result of the decisions that they put in place.

This year I was fortunate enough to go up and spend time with members of the Defence Force who are implementing the policies that we are talking about here today. I want to pay tribute to their professionalism, to their dedication and to their compassion. The member for Fraser is leaving the chamber, but I hope he listens to this point. The first thing they say to you is that—

Andrew Leigh (Fraser, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Mr Deputy Speaker, I ask whether the member for Longman will yield to a question.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Is the member for Longman willing to yield to a question?

Wyatt Roy (Longman, Liberal Party) Share this | Link to this | Hansard source

I will yield to a question.

Andrew Leigh (Fraser, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Did the member vote for the Malaysia agreement, which would have saved lives at sea, or did he vote against it?

Wyatt Roy (Longman, Liberal Party) Share this | Link to this | Hansard source

I did not vote for a nation that was not a signatory to the Human Rights Convention. I would also make the point that throughout this entire debate a set of policies that are known to save lives and stop people going into detention centres has been on the table. Throughout the entire period that the member opposite was in government, they knew that these policies worked because they worked under the former government.

As I was saying, the first thing that members of the ADF who are implementing these policies say to you when they meet you—and I hope the member for Fraser listens to this; he is leaving again—is, 'Thank you for implementing policies that stop us lifting dead bodies out of the sea.' That is the first thing that members of the ADF say to you. When you think about it: 1,100 people, that we know of, drowned at sea and it was the responsibility of the ADF members to get those bodies out of the sea. That has a very significant professional and personal toll on the members of the ADF. I cannot understand what is a humanitarian standpoint when you implement policies that saw 1,100 people, that we know about, lose their life at sea and that saw 30,000 people arrive.

When we came back into government in 2013, there were not four people in detention centres and no children—I will not tell you what the figure is for all the people in detention—there were 1,400 children in detention centres. When we left government there was not one child in a detention centre and there were only four people in detention centres. So I cannot understand what it is that the left are saying is humanitarian about putting children into detention centres because of their policies. Those children are there because of their policies. I cannot understand what is humanitarian about 1,100 people drowning at sea.

There is no denying that these policies are difficult for us to grapple with as a nation. They are tough. But the result is that they have stopped the deaths at sea and they have stopped people going into detention centres. When we do that we actually free up the humanitarian dividend as a nation. We allow ourselves to get people out of detention centres and to take refugees from the most dangerous places across the globe and give them a safe haven and a new life here in Australia. If we do not have control of our borders, we do not have the ability to do that.

I want to talk about some of the successes of this government not only at saving lives at sea but also getting people out of detention centres. This is a figure that I am proud of and I particularly want to commend the Minister for Immigration. The latest figures that I have show that, since we came to government, the number of children in detention centres is down by 40 per cent. Because we have stopped people coming into detention centres, we can get them out and there are now more than 516 children who are no longer in detention centres, compared to when we came to government and inherited 1,400 children sitting in detention centres.

This legislation seeks to resolve that legacy by reintroducing temporary protection visas—something that we know works. It creates safe haven enterprise visas and it seeks to reinforce the government's ability to conduct maritime turnbacks. I know from talking to members of the ADF who do those turnback operations that they have a significant impact on people smugglers—people smugglers who, let us remember, are trading in a service or product that they know will kill a lot of people. What more evil trade can there be than one that trades in a service that they know will kill a lot of people? Turnbacks stop that trade. Particularly important in this legislation is the introduction of procedures that will speed up and streamline arrangements to get people out of detention centres and to process them, to deal with that legacy of 30,000 people that we inherited from the Labor government.

When you do these things—when you stop the deaths at sea, when you stop people coming into detention centres—you free up a significant humanitarian dividend for our nation. We know already that we are saving $2.5 billion with the measures that the government has already implemented, and we are getting children out of detention centres. I would say that once we deal with this legacy and the case load that this bill seeks to address, as a nation we should use that humanitarian dividend to offer new opportunities to people who are facing persecution across the globe, and rather than seeing them pay tens of thousands of dollars to risk their lives we should offer them safe haven and a new life here. Already we have seen the government do this, and I want to again thank the Minister for Immigration, the Prime Minister and this government for doing that. Because we have dealt with the asylum seekers coming by boat, because we are dealing with the issue in detention centres, this government has created 4,400 places in our intake for Christians and Yazidis from northern Iraq and Syria who, as President Obama said, are facing potential genocide. We could not do that if we did not implement the measures in this bill.

I think it is a great thing that we as a nation can say to 4,400 people who are facing the persecution from Da'ish, ISIL and its affiliates in northern Iraq and Syria, 'We can offer you a new life here in Australia', and that is the great thing about our nation: we are a successful migrant nation that has offered that new hope to people. But unless we stop the trade in people that people smugglers seek to sell, we do not have the ability to offer that greater generosity.

I would say that one of the great tragedies of modern politics is that it has become not only increasingly partisan but also increasingly short term. We do not talk about what our nation can do over 10, 20, 30, 40 or 50 years; instead we talk about what happens tomorrow. In this bill and in other measures that the government has taken, I can see green shoots appearing for what we can offer to the rest of the world over the coming decades. I think it is an appropriate time to start a discussion as a nation: if we get the measures in this bill right, what can our nation offer to people who face persecution across the globe? We know that today we take 13,750 refugees a year—and I am incredibly proud that that is something that we can do. As I said, there are 4,400 extra places that we can offer to Christians and Yazidis. Given that we are dealing with these issues, given that we are saving $2.5 billion over the coming decades, once this caseload has cleared I believe we should have a serious debate about lifting that refugee intake. I might suggest a figure of double that 4,400 places, with appropriate settlement services, over the long term. That would be the humanitarian dividend of these bills, and what could be better for our nation than to do that? But if we do not deal with these issues, that is something that we simply cannot offer to people who are facing persecution across the globe.

Nothing has amazed me more than the noise that has developed around this debate. I cannot understand how people on the left can say that it is a humanitarian standpoint to change policies day to day, to change political leader day to day, and see a situation where 1,100 people have drowned at sea. We sent our service men and women—some of the most professional, capable, dedicated and compassionate people in this country—out to pick bodies out of the sea as their contribution to this policy. This government has changed those policies, and people on the left can criticise us, they can say that we are 'evil' people, as they often like to say, but I would simply say to them: have a look at the facts. Have a look at what has actually happened. The Minister for Immigration, who is a bit of a pariah to the Twitterverse and to people on the left, has probably done more to save lives than any other parliamentarian in this country in the last few years. Let us be honest about that. He has done more to get people out of detention centres than any other politician in the last few years. I would say to those people who seek to criticise the government and the Minister for Immigration: remember the 1,100 people who drowned, and their families and their children. They were inevitably somebody's father, brother, sister or friend. I would say to them: remember the 516 children who are no longer in a detention centre as a result of the policies of this government. Remember the 1,400 children who were sitting in a detention centre when we came to government in 2013 as a result of the Labor Party's policies. What is humanitarian about that? What is compassionate of us as a nation about that? In 2007, there were only four people in detention and not a single child.

As this debate draws to a close, can I say that undeniably this government inherited a very significant mess on our borders from those opposite, but the resolve, in the face of significant adversity, of the Minister for Immigration and Border Protection, of the Prime Minister, of the Minister for Foreign Affairs and of this government has seen a complete and utter turnaround on this policy front. The Labor Party said, for the six years that they were in government—and particularly for the three of those years that I was in this parliament—that this could never be achieved, that this could never happen. Well, today we stand here, just over a year after we came to government, and we are saving lives at sea. The boats have stopped. People are coming out of detention centres and being processed through that. We are not seeing children coming into that system, which I think was probably the worst part of this debate. And it is a result of policies that we knew worked. A member opposite put a question to me about voting for one of the policies that the Labor government put forward on one day of the week. But, throughout this entire debate, we have known that there have been a set of policies that worked, because they worked under the former coalition government. We have seen the evidence, as we have implemented these policies once again, that they have worked, that they have stopped the trade in people's lives. They have stopped people coming into detention centres and they have delivered a humanitarian dividend.

Andrew Giles (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

It is pleasing to see such interest in my contribution to this debate.

Josh Frydenberg (Kooyong, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

It doesn't often happen!

Andrew Giles (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

No. I am very excited, particularly to see the Parliamentary Secretary to the Prime Minister here, because I might touch on matters of interest to him.

The member for Longman, in his contribution, which was a contribution I was pleased to be in the chamber for, started by talking about the need to rise above partisan politics in this debate—an interesting statement, having regard to the 14½ minutes that followed. He also spoke at some length of the hypocrisy of the Left. This was interesting too, because all he really spoke of—and we have a very large bill before us—was the politics of the asylum debate. I am not sure if, in the course of his contribution, he referred to any particular provision of this important piece of legislation which is before us. He merely painted with a very broad brush across the politics of this. The allegations at the heart of the member for Longman's contribution need to be drawn out, because they are so very extraordinary in light of the history of this debate in this place and in the Australian community since 2001. It was just extraordinary to receive such a lecture from a member of this government in such terms.

There is no doubt that the policy challenges we face—and all developed and, indeed, many developing nations face—in respect of the world's problem of displaced people and refugees, people seeking asylum, are vast. They are vast, and there is no room in this place, from any of our perspectives, for the sort of triumphalism we heard from the previous speaker. This is not a problem which has been solved. This is not a problem which has been solved by Australia or indeed by anyone else. The policy questions are hard. The politics need not be. That is why it is so disappointing, when we are considering an important bill which raises some very significant issues, to have a contribution so long on rhetoric and so short on the serious questions before us now, as well as unmindful of the context within which this debate takes place globally and in our region.

I am pleased to join the shadow minister in opposing the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I am very pleased to put my opposition to the bill on the record. It is legislation of familiarly narrow purpose but which carries very wide-ranging consequences—for our approach to securing human rights and for the operation of our democracy. It goes very significantly to the way in which big decisions—decisions affecting lives—are made and how those decisions are to be scrutinised and those making them held to account.

I was interested, just as I was walking to the chamber, to notice that The Guardian today has reported on actions of the minister to issue conclusive certificates removing rights of appeal, on grounds of national interest. Again, we see here the action of a member of the executive to step around the inconvenience not only of the approach of the High Court but the inconvenience of going through the legislative process in terms of exercising his powers. What a stark contrast that makes to the remarks of the former minister Chris Evans, who was deeply troubled by the obligations imposed upon him to play God. Here—and this bill sets it out just as much as the issuing of the conclusive certificates does—we have a minister who is very, very well prepared for, and seems to wear lightly, the burden of determining people's futures himself.

This is a very complex piece of legislation, and it warrants very close attention. This complexity is compounded not only by the wide range of matters dealt with across its seven schedules but also by the extensive provision for regulations yet to be seen but which would do very significant work to enable the operation of the bill. I note that many organisations and academic experts have expressed significant concerns. As I said when this parliament last debated amendments to the Migration Act, I think it would have been preferable for there to be more time to consider these views, which go to the operation of what is a very technical piece of legislation that we all know has been the subject of very extensive judicial review, particularly in circumstances where the effect of recent judicial review clearly in significant part led to the bill before us.

This legislation, if enacted, would take Australia to a new and uncomfortable place in relation to our international obligations and, I believe, our international standing. I am mindful of the attitude the United Nations High Commissioner for Refugees has taken to the bill. In a statement dated 26 November, the UNHCR refer to serious questions going to the interpretation of the refugees convention, a matter dealt with in schedule 5 of the bill. The statement reads:

UNHCR considers that any policy and legislation relating to the protection needs of asylum-seekers, refugees and stateless persons, must fully respect and comply with international refugee, statelessness and human rights obligations, and not unduly restrict these as some of the provisions appear to do. At a time when unprecedented numbers of people are compelled to flee persecution, serious human rights violations and armed conflict, a full and inclusive interpretation of established protection principles is essential for the integrity of the global system. The need for cooperation and reponsibility sharing both regionally and globally is crucial.

It is a powerful statement and a statement all of us in this House should have regard to when we think about the effect of the jurisprudence here and internationally which is being thrown overboard—when we think simply about meaning what we say when we sign up to important international instruments. It is also a reminder of the tricky way in which this government through this legislation seeks, in effect, to weasel out of meeting obligations we have assumed and maintain we ought to continue to assume internationally. But it is also a reminder of the wider context of the world in which we now live.

That is not the context of the press releases issued by the minister and the member for Fairfax prior to this legislation being produced in the House. They are very different questions. It is troubling to me that the minister, who seems to be so very proud of the border protection part of his title seems so unconcerned by the state of the world beyond those borders. Australia must do better than this.

I said at the start of this speech and suspect I will have the opportunity to say again that the challenges of policymaking in this area are vast but the challenge Australia faces as a rich and free country to lead by example should not daunt us from rising to those challenges. In the uncertain world in which we now live we have got a choice available to us to take a high road and not always reach for the lowest common denominator. So, whatever else we must do, we must be an exemplar of human rights protections and recognise that this is a precondition to better regional engagement, to finding the real regional solution that Labor reached towards in government and which is a precondition to making meaningful progress solving these problems at a regional level. This sleight of hand replacement of references to the refugees convention with this so-called new independent and self-contained statutory framework setting out our version of what our convention obligations ought to be is just one of many troubling elements in this bill.

The shadow minister has gone through the many provisions in the seven schedules of this bill in some detail. I will touch only on a couple of aspects which I find particularly troubling, in particular those provisions set out in schedule 4 which restrict and in some cases remove the capacity for merits review of protection and decisions. In schedule 4 of the bill there is provided for a new scheme of fast-track assessment for protection schemes and a new path 7AA of the act. This would apply to specified categories of asylum seekers, in particular to those who arrived on or after 12 August 2012 and who have applied for protection visas.

Let me be clear about this: we in Labor support the prompt assessment of claims. Of course we do. That is part of minimising harm and doing justice to individuals. But, again, having regard to the determinations that we are talking about here cannot involve expedition at the expense of getting the decisions right. The process must be both credible and robust. I am conscious standing here that a very similar regime was put in place in the United Kingdom and was found there to have been unlawful in July of this year, and this was as I understand it on broad unfairness grounds that may well apply to the regime set out in schedule 4.

This regime consists substantively of a new merits review body—the Immigration Assessment Authority—within the Refugee Review Tribunal which would have the objective of providing a mechanism of limited review that is efficient and quick in place of present recourse to review via the RRT proper. It sets out the manner in which the Immigration Assessment Authority would operate, although the details of this fast-track process are not provided for and remain presently unknown, going further to the concerns I set out in relation to the similar process in the UK.

I note that the explanatory memorandum states that natural justice requirements are to be provided for by regulation. Adverse initial decisions would be referred to this new body, which would be under no duty to accept or request new information or to interview applicants, which goes to concerns other members and I raised with regard to changes to protection arrangements in another bill debated recently in this House. Unhelpfully, this term is not defined in the bill. I do note the parliamentary secretary at the table on our second red tape repeal day. The government's enthusiasm for reducing the legislative burden does not seem to extend to the area of immigration law.

New information is only to be considered by the IAA in 'exceptional circumstances'. This should be an important provision; and, unhelpfully, this term is not defined in the bill, again going to these significant unfairness considerations. While it is the case that judicial review remains available, recourse to merits review is clearly very significantly restricted through this process. I also note that for certain people termed in the act to be excluded fast-track applicants will be denied any recourse to merits review. This scheme set out in schedule 4 of the bill before us would deny applicants a fair assessment of their protection claims. It raises a real risk of refoulement of people Australia is under an obligation to protect from serious harm. Ministerial discretion is no cure for concerns of this nature.

I turn very briefly to schedule 1, which would grant power to the minister to detain people and transfer them at sea, including on the high seas. It would appear that this relates to issues that are presently before the High Court. I note that we have a separation of judicial from executive and legislative power in this country, and we have it for good reason. I think we should be first considering what the High Court has to say and then considering whether legislative action is warranted rather than going about this the other way around. The High Court should be more than an inconvenience to this or, indeed, any government. It has significant responsibilities which we should all have regard to. As the shadow minister said, Labor members remain open to any policy that saves lives at sea.

However, we do have significant concerns about the safety at sea of personnel, as well as significant concerns going to the maintenance and the quality of our critical relationship with Indonesia—a matter I touched on earlier in the context of the broader desirability, indeed necessity, of achieving a meaningful regional understanding of how these issues can be progressed. I note and am mindful of the advice of the Kaldor Centre, which have advised that the provisions here grant extraordinary powers to the minister to detain people at sea and to transfer them. They also note that there are significant constitutional questions, further to my broader comments about the appropriate role of the High Court.

Finally I turn very briefly to the issue of temporary protection visas. I note that talk about this bill, particularly commentary by the member for Fairfax, raised some hopes and sparked some useful discussion about how we can do greater justice to people in need. Labor members here stand as being open to pathways to permanency. But a pathway to permanency is not before us; instead, what we see here is a return to the sorts of arrangements where we keep people in limbo—barring people from ever holding a permanent visa and denying them rights to family reunion, something that is so critical to maintaining mental health. Labor has a longstanding policy of opposing TPVs, for good reason—they do not provide a sustainable solution for refugees. The uncertainty exacerbates real mental health issues and denies people the capacity to live full lives. As well as significant international law concerns with these provisions, they put people in limbo. There is no deterrence value here, even if you accept that to be a valid policy objective—they only place vulnerable people in a place of uncertainty. For these reasons and many more, this is a complex, unnecessary and unhelpful bill which should be rejected by the House.

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

How wonderful it is to have such support in the House today. I appreciate that all my colleagues here also appreciate how important this bill. So I am delighted to rise to speak on this bill, which of course is important to constituents Australia wide who want to see an end to the arrival of illegal boats and a satisfactory humanitarian solution to Labor's legacy of illegal maritime arrivals.

For my constituents in rural and remote parts of Australia's north-west, it is of special importance because it will benefit those seeking to fill job vacancies, those seeking to grow their business, those seeking longer term employees to become part of the community, and those that welcome ethnicity and diversity as a vibrant addition to the fabric of this multicultural community. And there are many in Durack.

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 amends a number of acts and regulations—including the Migration Act and Regulations, the Maritime Powers Act, and the Immigration Act—in support of the government's strategies to combat people smuggling and to manage asylum seekers, both onshore and offshore. The bill fundamentally changes Australia's approach to managing asylum seekers in various ways, such as reinforcing maritime operations to stop people smuggling at sea; strengthening border security and maritime enforcement operations; introducing temporary protection for those who arrived in Australia illegally; introducing more rapid processing and helping to resolve protection applications efficiently; and, deterring the making of unmeritorious protection claims.

The measures in this bill are a continuation of the government's protection reform agenda and clarify that there will not be permanent protection for those who travel to Australia illegally. Essentially the bill is designed to resolve Labor's outrageous and callous legacy. Our government has designed a package of measures to resolve the immigration status of a caseload of 30,000 human beings who arrived illegally under the former Labor government. The bill honours our promise to restore border protection and immigration measures to stop the boats. These measures, successfully used under the Howard government, were abolished by the former Labor government, leading to the abhorrent unresolved caseload of 30,000 human beings just left waiting. The bill re-introduces temporary protection visas and, importantly, introduces a new safe haven enterprise visa, SHEV, which is also a temporary visa. The bill reinforces the government's powers to turn back boats and introduces rapid processing and streamlined review arrangements.

Specifically, the bill amends the Migration Act to (1)    introduce temporary protection visas for unauthorised arrivals, whether by air or by sea, who are found to engage Australia's protection obligations; and (2) create a new visa class to be known as a safe haven enterprise visa. The government is providing temporary protection to illegal maritime arrivals found to engage Australia's protection obligations. The temporary protection visa will be granted for a maximum of three years and will provide access to Medicare, social security benefits and work rights.

These people will be provided with stability and a chance to get on with their lives—which, of course, is the humanitarian thing to do—while at the same time guaranteeing that people smugglers do not have a 'permanent protection visa product' to sell to those who are thinking of travelling illegally to Australia. The temporary protection visa will be for a period of up to three years. Thereafter a person's circumstances will be re-examined and if found to still be owed protection by the Australian government will only be granted a further temporary protection visa or a safe haven enterprise visa, which is also a temporary visa.

I shall specifically speak to the new safe haven enterprise visa—or SHEV, as it will now be known—which points to mutual benefits for the visa holder and potentially for nominated communities and businesses throughout Australia. The SHEV, once created and promoted, has the potential to assist small business considerably, particularly in regional Australia; strengthen regional Australian communities; and also reward enterprise. Very importantly, it is also a temporary visa, but in addition to Medicare, social security benefits and work rights, it will encourage earning and learning as well. The holder of a SHEV, which is valid for five years, will work in designated regional regions. If after 3½ years the holder has worked without income support they can apply for onshore visas, such as family and skilled visas as well as temporary skilled and student visas.

Government Members:

Government members interjecting—

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

Those members down there on my left who are conducting a conversation, they might do that outside of the chamber while the member for Durack is speaking and show her the respect that they would want in this chamber.

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

I just note that the SHEV is a very important visa, which I am sure my National colleagues would appreciate given they are all from regional areas.

Mr Nikolic interjecting—

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

And the member for Bass is interjecting outside of his place in this chamber now!

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

The holder of a SHEV, which is valid for five years, will work in designated regions. If after 3½ years—I am repeating myself now, but I think it is worthwhile saying this again—they have worked without income support they can apply for onshore visas, such as family and skilled visas as well as temporary skilled and student visas. Of course we all hope that after 3½ years the SHEV holders will have found a place in the community and the potential for a family visa would be welcomed by that community.

As we know, Australia is a multicultural community and there will be many members and senators in this place who come from families who escaped their old country for a better life in Australia—some legally and others as best they could—perhaps as a stowaway on a boat, and we have all no doubt heard those stories. Now embedded in the Australian community, those people are making an enormous contribution—perhaps socially and of course economically—to the wellbeing of our communities, our electorates and, indeed, our nation. The SHEV has the added bonus of offering work and study, which of course leads to opportunities that can be provided in Australia that simply are not available in many places throughout the world.

These proposed amendments enable a visa to be granted to illegal maritime arrivals who are found to comply with Australia's protection obligations and who are willing to commit to working and/or studying in a designated regional location. This new category of visa will address some of the shortages of skilled people and labour in areas of Durack while providing the visa holder the opportunity to contribute to the economic and social development of regional Australia as well as a better life. It is important to stress that no-one will be forced to live or work in a particular area, but the SHEV provides that option. It is not a requirement for a temporary protection visa to live in one of these designated areas. The SHEV requires the applicant to commit to work and/or study in a regional area, but should they not wish to make this commitment they are able to apply for a temporary protection visa only.

Our government seeks to reward enterprise and this will encourage growth in regional Australia. Regional communities in Durack that are seeking to fill job vacancies and grow their business are able to benefit from this proposed legislation. The SHEV will be an alternative temporary visa and encourage enterprise through earning and learning. The SHEV will bring more people to the regions to participate in and contribute to the community and the economy—to attend learning institutions, to use services, to add a multicultural flavour and to work in new and different businesses—and this all leads to growth in regional Australia.

Durack towns such as Carnarvon and Kununurra and different parts of the Wheatbelt region have been seeking useful and appropriate visa and employment arrangements for some time. Small businesses need steady reliable employees while some agricultural and horticulture enterprises are seeking repeat reliable seasonal employees. Government, in particular local government, in regional towns of Durack are often pursuing long-term employees to live in and contribute to the community—not always easy to achieve. The new safe haven enterprise visa will benefit towns, businesses and, importantly, illegal maritime arrivals who may have left behind bitter circumstances and no economic opportunities and who are keen to both earn and learn as well as have a new life.

SHEV holders will be welcome in Carnarvon. This coastal town on the mouth of the Gascoyne River is midway between Geraldton in the Mid West region and the iron ore province of the Pilbara. Horticulture, fishing and agriculture have long been the lifeblood of the town of Carnarvon and, as one might expect, the mango and banana plantations and the farms are owned and worked by a range of Asian families, primarily Vietnamese; European families, primarily Croatian and Italian; and Australian families. They have labour needs that cannot be satisfied locally; likewise the Carnarvon tourism and hospitality sectors. For a long time the Carnarvon small business sector and horticulturalists have bemoaned the current visa arrangements, and more recently have rejoiced at the announcement of the new SHEV. Should Carnarvon apply to become a designated area, then SHEV holders will be transposed to a warm and inviting multicultural community, a diverse and thriving town on the Coral Coast with whale sharks and the Ningaloo reef, and with a fine TAFE facility—and plenty of fresh fish, fruit and vegetables. SHEV holders will be welcome in Carnarvon.

In the far north-east of my electorate, in the Kimberley, the small town of Kununurra lies just 37 kilometres from the eastern Australian border with the Northern Territory. It has an abundance of fresh water, conserved by the Ord River dam, with tropical agriculture crops grown in the Ord River irrigation area. Tourism and mining have also become important to the local economy. Many communities in Australia typically have a colourful history of immigration and multiculturalism, as does Kununurra, including considerable foreign investment when the Koreans became involved in intensive agriculture in the region. However, now that the rights for stage 2 of the Ord River irrigation area have been won by the Chinese, one is seeing a strong and welcome Chinese presence in this far-flung town where, once again, SHEV holders will be most welcome. There is plenty of work to be done both on the existing farms and on the new agricultural expansion, which will grow sugar cane. It is a community that boasts many ethnic groups and all that comes with such diversity: food, customs, colour, skills, knowledge and culture.

The SHEV will be open to applicants who have been processed under the legacy case load and are found to engage Australia's protection obligations. Those granted a SHEV will work in designated regions, identified through a national self-nomination process. A state or territory government, local government or employer can request to be designated. The visa will be valid for five years, and like the temporary protection visa will not include family reunion or a right to re-enter Australia. SHEV holders will be targeted to designated regions and encouraged to fill existing regional job vacancies. It is an option to the temporary protection visa, but there is no compulsion.

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 amends a number of acts and regulations in support of the government's strategies to combat people smuggling and to manage asylum seekers both onshore and offshore. It will help to resolve the appalling immigration status of the illegal maritime arrivals legacy case load of 30,000 people who arrived under the former Labor government.

This bill restores border protection and immigration measures to stop the boats. The introduction of this new SHEV will encourage people to work and/or study in regional Australia, which I welcome wholeheartedly. This may address some of the shortage of skilled people and labour by providing illegal maritime arrivals with the opportunity to contribute to the economic and social development of regional Australia in a humanitarian and sensitive manner. This in turn will support small business and contribute to growth. I commend this bill to the House.

Debate adjourned.