Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Link to this | Hansard source

I want to thank the member for Fowler just now for reminding us that it is international Human Rights Day next week on 10 December and for once again honouring and speaking up for the victims of human rights abuses and persecution in Vietnam. Australia is now home to many people who fled from Vietnam as refugees. It is therefore appropriate that I take this opportunity of the grievance debate to speak on two bills that are presently before the Senate, as I was absent from the parliament when they came before the House of Representatives: firstly, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and, secondly, the Migration Amendment (Character and General Visa Cancellation) Bill 2014.

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill goes further in the government's quest to put pointless, unprincipled and harmful obstacles in the way of asylum seekers and to undermine Australia's international humanitarian obligations. It goes further in allowing the exercise of power to occur without scrutiny, review or even compliance with international law.

Page 3 of the bill's explanatory memorandum says the amendments will:

That is just extraordinary. We are talking about the power to intercept, detain and move ships and their passengers. Such actions will no longer be subject to the rules of natural justice and they will no longer be subject to Australian judicial consideration in terms of their legality under international law and Australia's international agreements. Let's be clear: these changes are not designed to stop deaths at sea and they are not designed to assist in the speed of processing and proper resettlement.

It was bizarre to hear the minister recently say that the coalition government would determine Australia's international obligations and that the views or input of other nations or multilateral bodies on the question of our international agreements and commitments were irrelevant. How absurd! How would the minister and the Abbott government regard the decision by another nation to freely interpret its own obligations to us under a treaty or another form of international agreement? Are free-trade agreements now to be subject to the whimsical interpretation of any country's government of the day?

Are fundamental international covenants like the Refugee Convention now to be a kind of jabberwocky text about which the Minister for Immigration, in Humpty Dumpty mode, will be able to claim:

When I use a word … it means just what I choose it to mean—neither more nor less.

We might suggest, as Alice does, that words should mean what they say. I suspect the minister would answer, as Humpty Dumpty does:

… the question is, which is to be master—that is all.

That is because this is clearly a minister and a government that believes it is the master and not the representative of the people and not the custodian of our principles, responsibilities, values and obligations; it believes it is our master, deciding by itself and for itself what is good for Australia. I hope that senators considering these bills note the approach contained in this legislation very carefully, for it represents a far-reaching change to the long-established balance between the powers of executive government, the legislative responsibilities of the parliament and the role of the courts in interpreting domestic and international legal obligations.

The effect of part 2 of schedule 5—which seeks to remove references to the Refugee Convention from the Migration Act and instead create a self-contained and self-fulfilling statutory form of the convention's protection obligations—is to defeat the purpose of international law, which is to put in place principles that are collectively adopted, supervised and observed. What's more, it seeks to remove the role of Australian courts in assessing the actions of government with respect to international law. In so doing, it shatters a critical check on government power, which has always been shaped and constrained by judicial consideration of the principles and protections that exist in foundational documents like the Australian Constitution and key international covenants and agreements.

Schedule 1 of the first bill gives the minister power to detain people on the high seas and in international waters and to cause them to be transferred to another country or even to the vessel of another country. This change arrives in the wake of the events in July when the government directed that two vessels be intercepted in international waters. It handed over one boatload of asylum seekers to the Sri Lankan navy and was prevented from handing over other asylum seekers by a High Court injunction. It detained passengers for a month on board a Customs vessel while it conducted enhanced screening assessments of protection applications. The fact that it has only been the High Court standing between the government and complete impunity when it comes to its treatment of asylum seekers is an illustration of the importance for accountability in safeguarding the rule of law and the independence of the judiciary. The bill attempts to override these safeguards and this accountability by providing new powers, which have presumably been framed as a form of retrospective justification as well a licence for future conduct.

The government does not seem to know that passing a law in Australia cannot give the minister the power to detain people on the high seas under international law, including the law of the sea, refugee and human rights law. Furthermore, the actions that such powers contemplate infringe the sovereign rights of other nations and raise constitutional issues in Australia regarding the separation of powers—for example, the provision allowing arbitrary detention at the minister's discretion without oversight or judicial review.

The return of temporary protection visas is a terrible development in this bill as it would return asylum seekers to circumstances of uncertainty, psychological distress and legal limbo. The creation of a proposed new safe haven enterprise visa is difficult to assess because of the lack of detail provided but, to the extent that some of its features are clear, it is hard to support.

Both the TPVs and SHEVs envisage that visa holders would not be able to leave the country for the duration of their visa and would not be permitted to apply for family reunion. As we saw during the time of the Howard government, such provisions only create an incentive for family members to get on boats since there is no legal way for them to come to Australia to be with their loved ones.

The changes proposed in schedule 4 carry on the ever-widening permeation of administrative unfairness. As with the migration amendment bill passed a few months ago, these changes reduce and constrain the opportunity for asylum seekers to have adverse decisions properly reviewed.

Schedule 6 contains changes that will retrospectively invalidate protection visa applications made by Australian-born children of asylum seekers. This is despite the fact that the children were born in Australia, have never left Australia, are currently eligible to apply for a protection visa and, in some cases, have Australian birth certificates and are eligible for Australian citizenship.

The effect of these changes is that children will be sent offshore to Nauru to a situation where, according to the recent National Inquiry into Children in Immigration Detention, mental health problems are about 30 per cent higher than the normal child population.

The Migration Amendment (Character and General Visa Cancellation) Bill is also extraordinary in its overreach and the taking of power in the sole non-reviewable discretion of the minister. The bill introduces personal ministerial powers to set aside and substitute decisions of delegates and tribunals and to cancel a visa with or without natural justice 'where it is in the public interest to do so'. This represents a further abrogation of the rule of law and the separation of powers.

These two abominable bills cause me to ask: how far have we fallen as a country? I am reminded of Prime Minister John Curtin's last major parliamentary speech on 28 February 1945, in which he championed the new international peacemaking organisation which would become the United Nations. He said:

If we are to concert with other peoples of goodwill in order to have a better world, there must be some pooling of sovereignty, some association of this country with other countries, and some agreement which, when made, should be kept.

…   …   …

There is a price that the world must pay for peace; there is a price that it must pay for collective security. I shall not attempt to specify the price, but it does mean less nationalism, less selfishness, less race ambition. Does it not mean also, some consideration for others and a willingness to share with them a world which is, after all, good enough to give to each of us a place in it, if only all of us will observe reason and goodwill toward one another?

I think this great man, John Curtin, one of my predecessors as the member for Fremantle, would be ashamed of Australia today.

Prime Minister Abbott is fond of quoting another Australian Labor PM Ben Chifley who spoke of our country's great objective, the light on the hill, which we aim to reach by working for the betterment of mankind not only here but anywhere we can lend a helping hand. Under this government our light on the hill has become a deep dark bunker. We are seeing Australia's hard-won reputation as a constructive, generous and principled member of the international community traduced, along with longstanding pillars of democracy, good governance and the rule of law.

These bills are a further instalment of injustice; a grasping for authoritarian power, for power unsupervised by the courts and incompatible with our international obligations. Worst of all, they will produce many instances of individual harm and unfairness that will make for terrible experiences in the lives of our fellow men, women and children who have already suffered too much.