Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes the frequency of poor drafting of legislation and associated instruments in matters relating to immigration by successive Coalition Governments, and the resulting unintended consequences".

I rise to speak on the Migration (Validation of Port Appointment) Bill 2018. We're debating this bill in this place today because successive coalition governments have a very poor track record when it comes to drafting immigration matters. Poorly drafted immigration legislation or regulations can create unintended consequences for the safety and security of Australia and Australians alike, with the potential to undermine the integrity of Australia's migration framework. The current Minister for Immigration and Border Protection—although I'm pretty sure he'd prefer just to be called the Minister for Home Affairs—regularly brings into this place broad, poorly drafted and even erroneous legislation that is littered with unintended consequences. This has become a consistent theme of the out-of-touch Turnbull government. I urge them, especially the Minister for Home Affairs, as well as his junior ministers, to take extra-special care in their work. In cleaning up the Turnbull government's mess and the mess of successive coalition governments, Labor will support this bill.

The Territory of Ashmore and Cartier Islands is located off the north-west coast of Western Australia between Australia and Indonesia. The islands are located in the Indian Ocean. There are a few small islands and some reefs, and they're uninhabited. Under the Migration Act 1958, the minister may, by notice published in the Gazette, appoint ports as proclaimed ports for the purposes of the Migration Act and fix the limits of those ports. Under the powers, the Territory of Ashmore and Cartier Islands is considered an excised offshore place for the purpose of the Migration Act after 21 September 2001. Any person who enters Australia by sea at this territory without a valid visa is considered an unauthorised maritime arrival under the act.

The bill before the House fixes up errors, quite simply typos, made by an immigration minister of a former coalition government in the relevant Gazette. On 23 January 2002, then immigration minister Ruddock published a gazette that erroneously omitted the number '12' before the word 'degree', the letter 's' from the word 'degrees' in the latitude coordinates and the word 'longitude' before 122 degrees 59.0 minutes. The bill will correct these poor-drafting errors by this minister of the former Howard government. The specific quadrant of the earth's surface in which the coordinates occur will be inserted with these amendments by including the words 'south' and 'east' in the description.

In correcting these errors, the amendments will retrospectively validate the 2002 Gazette notice which authorises the waters surrounding the Ashmore territory and Cartier Islands as a port for the purposes of the Migration Act. These errors could have been avoided in the very first instance, if it wasn't for the poor drafting by the former coalition government.

In this place we've seen poorly drafted legislation on numerous occasions, including in instruments, by successive coalition governments, including by the current Minister for Home Affairs. The minister is a tick-and-flick minister incapable of managing his department, which is inherently complex and has many challenges and responsibilities. Despite this inability to perform the job ahead of him and expected of him, the minister never seems to miss a trick to misrepresent our position on asylum seeker policy.

I want to take this opportunity, when we're dealing with legislation that deals with this very topic, to reiterate Labor's policy on asylum seekers. We will never let people smugglers back into business. Every time the Liberals misrepresent our strong position on border protection, they're playing into the hands of people smugglers and criminal syndicates who prey on vulnerable people. We on this side of the chamber believe in strong borders, offshore processing, regional resettlement, and turn-backs when it's safe to do so because it saves lives at sea.

Every time the current minister undermines Labor's strong position on border protection, it is a walking, talking billboard for people smugglers, and he should be ashamed of himself. When speaking about the threat of people smugglers, the minister has said:

What I would say is that anybody, when they're talking about these matters, needs to be careful and circumspect about what it is that they're saying because it will be interpreted a particular way by people smugglers … People need to be mindful of what they are saying publicly.

The inconsistency of the Minister for Home Affairs is obvious and rank. I suggest to the minister he should be actually doing his job and negotiating other third-country resettlement options for eligible refugees on Manus Island and Nauru. Manus and Nauru were set up as temporary regional processing centres. They've become places of indefinite detention because of this out-of-touch government's failure to negotiate other third-country resettlement options. The minister's failure to negotiate third-country resettlement options has meant genuine refugees have languished in indefinite detention. As they've languished, they've suffered because of the Turnbull government's terrible incompetence in managing Australia's funded offshore regional processing centres.

On 30 May 2018, the Queensland coroner handed down findings into the 2014 death of an asylum seeker from Manus Island. The coroner found the death was preventable and the result of compounding effects of multiple errors in their health care, including ineffective processes relating to medical transfers. These are serious findings that cannot go unanswered or ignored by the Turnbull government, and Labor will always hold this out-of-touch government to account for failures such as this.

Ensuring Australia maintains strong borders does not absolve the government of its obligation to provide appropriate health, security and welfare services to people living in Australian funded offshore regional processing centres. If the Minister for Home Affairs is incapable of doing his job, then the Prime Minister should find someone else who's capable or should step in himself.

Labor has repeatedly called on the Turnbull government to accept New Zealand's offer to resettle eligible refugees from Manus and Nauru. The government should negotiate conditions similar to the US refugee resettlement agreement to prevent people smuggling and the exploitation of vulnerable people. If the government were able to negotiate conditions for the US deal, they should be able to negotiate similar conditions with the government of New Zealand so that genuine refugees are resettled in third countries as soon as possible.

Labor believes in strong borders which prevent deaths at sea while committing to a more humane and compassionate approach. The poor drafting of immigration legislation and associated instruments should not happen in this place in the first place. However, poor drafting such as this has become a hallmark of successive coalition governments. The unintended consequences that come as a result of poor drafting have the potential to undermine the integrity of Australia's migration framework. Given this, Labor will support this legislation as the government attempts to clean up this mess of its own creation.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Is the amendment seconded?

Chris Bowen (McMahon, Australian Labor Party, Shadow Treasurer) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the member for Blair has moved as an amendment that all words after 'that' be omitted, with a view to substituting other words. If it suits the House I will state the question in the form that the amendment be agreed to.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I hope that the press gallery and the public are paying attention to this, because the day after the parliament unites to say, 'We do not want discriminatory migration practices enforced in this country', the day after we have people reaching across the chamber and saying that the parliament stands united against people who want to do things that most people in Australia would find abhorrent—the day after that happens—Labor joins with the Liberals to stop up to 1,600 people having the right to even apply for asylum in this country, people who have committed no sin other than to come and seek from us protection and a better life. Many of these up to 1,600 people have been kept in detention—and, we now find out, without any legal basis.

And what do we do? Labor comes in here and joins with the Liberals and says, 'We will now pass a law to retrospectively justify the unlawful detention of people.' They dress it up as saying, 'We're going to hold the government to account, because we don't like typos'. Well, this wasn't a typo. We are in this situation because the previous government, a Liberal government, took the step of trying to circumvent the rule of law. The previous government said, 'We are going to circumvent the rule of law by pretending that parts of Australia and the waters surrounding them and islands surrounding them aren't Australia.' They said, 'We will find a place around the Ashmore Reef, 600 kilometres away from Broome, and we'll draw a circle around it and we will say that it's no longer part of the migration zone, so if you happen to come there or through there, then don't seek Australia's protection.'

The fiction that they used to justify it at the time was to say: 'We'll call it a port. We know we're doing something dodgy and taking away a basic human right from people'—namely, the right to seek protection—'How will we justify it? We'll call it a port.' Of course, it's not a port. It's a reef. It's a set of small islands. A court held the government to account and said: 'That fiction that you used to circumvent the rule of law and take away basic rights of people and then subsequently detain many of them cannot be upheld. It is an unlawful fiction.' They said that as a result there are people—we estimate up to 1,600—who now have the right to come to Australia and seek asylum. They won't automatically be granted it, but they've now got the basic right to come and seek asylum. As I said, many of these people have been unlawfully detained because the government never had a legal basis to do it. I think we probably owe these people compensation, because it turns out that we have denied them their basic human rights without any legal basis to do so. But even if you don't agree that we owe them compensation, at the very least we now owe them the right to process their claims for asylum, because the court has said, 'You were wrong, Parliament'—Minister Ruddock and Prime Minister Howard—try to circumvent the rule of law.'

So, we've now got an opportunity to stand with people who have been treated not only harshly but in violation of their fundamental human rights and give them the opportunity to make an application for asylum in Australia and have that assessed according to law. Here's an opportunity for Labor, who came in yesterday and moved a good motion in this parliament, to say, 'We do not support discriminatory migration practices in this country. We support human rights.' Here's an opportunity, the day after that, to do something about it. But what do they do? They say, 'We will retrospectively authorise a decision of a former Howard government minister to circumvent the rule of law, even if it means retrospectively detaining people and taking away their basic human rights.'

The best that Labor can muster, as they walk into this chamber, is to move a second reading amendment to say, 'We're going to support the legislation but, jeez, the government are poor drafters.' What is Labor saying? Are Labor saying that, if they were in government, they would manage this system of cruelty more efficiently and get the drafting right? Is Labor's only criticism of the government that they make typos? Labor should join with the Greens and with the Independents who are standing up for human rights and saying, 'When it comes to basic principles of the rule of law, if the government can't get it right, then the benefit should flow to the individual.' If you are taking someone's liberty away and if you are taking their legal rights away, then you've got to get everything right.

You shouldn't be doing it in the first place, but at a minimum the courts have upheld a fundamental principle of Western democracy. The courts, in this decision that the government and Labor are trying to overturn, have said very, very simply: 'If someone has got a right to do something, especially if it affects their fundamental human rights, and the government wants to try and take that right away, including by locking them up and including by taking away their human rights, you'd better get it right.' No, Labor cannot even bring itself to defend one of the basic principles of Western democracy and one of the basic principles of the rule of law.

Labor is showing itself, at the first available opportunity, to be a craven supporter of the policies of torture that have now become a joint Labor-Liberal stain on this nation. We are wrecking people's lives with this horrendous offshore detention system that has now become a bipartisan policy. We are wrecking people's lives. We now have, as we speak, people on Manus and Nauru who are giving up and who are attempting to kill themselves. We have young children who are now switching off. Doctors and support staff are crying out, saying, 'We have not seen this before. We have not seen young children effectively give up on the basics of life.'

We know this because we have had inquiry after inquiry—even though the government, with Labor's support, tries to keep the media out of what is happening in these hellholes where persecution is happening in our name. We know that what we are doing is breaking people. We say, 'Oh, well, it's somehow justified.' Labor has just stood up this morning and said, 'We accept the government's argument and we accept Minister Dutton's argument that somehow we need to break people and torture them in order to stop deaths at sea.' I, for one, think our country is better than that. I do not accept that the only way to stop deaths at sea is by torturing and killing people—by torturing children. I do not accept that false logic. Labor should not accept it either.

There is a better way. Going back 40 years, the government of Malcolm Fraser knew that there was a better way. If we update what was done then and apply it now, we will find that we can remove the incentives for people to get on boats by increasing the number of people we bring to Australia, by having proper processing of their claims and by supporting, in places like Indonesia and Malaysia, the UN and others to process their claims there. Once the message gets through in many of these camps that Australia is taking people again and once we start seeing not a trickle, not dozens, of claims, as we are at the moment, but claims in the thousands being processed in Indonesia and Malaysia and elsewhere, people will understand that there's no point in getting on a boat and risking their life to come to Australia, because they will start to understand again that there is some order being put back in and that, ultimately, if they wait, their claim is going to be assessed and they may well come here. But that doesn't exist at the moment.

So you've got people languishing in the countries surrounding us and in other countries where they are fleeing war and fleeing persecution. They don't see any way to come into Australia, because we have closed our doors. So when someone comes along to them and says, 'If you give me a bit of money, I'll pop you on a boat and you can come here,' they do, because they see no other way. We're not taking people. We're not processing them. I tell you what, if I were in that situation, if I were stuck in Indonesia where I could only get an appointment with the UN every six months and they told me, 'Nothing has changed,' even though I had been found to be a refugee, I would probably jump on a boat as well if I thought that was the only door that was open to me, if I thought it was the only way of keeping my family safe. If you really are concerned about deaths at sea then invest in processing and start taking more people here.

The fiction that Labor and Liberal perpetuate is that they've somehow stopped the deaths at sea by turning back boats. Labor have got up this morning and said, 'We love boat turnbacks as well.' When you turn back boats, people can still die; they just die elsewhere. It doesn't happen on our watch and it happens out of the media glare, or it means they have decided not to make the trip to Australia and to go to another country, and they die on that journey. We are seeing people dying on boats as they try to get to Europe from Africa. That's because, out of desperation, they have no other choice. It's happening in our region as well. Just because it is happening out of sight does not mean it is not happening. So, this fiction that somehow the government has stopped the deaths at sea is one that has to be punctured, because deaths are still happening. We just don't see them. And the government has stopped counting them, as if those people don't matter.

I have come to expect the Liberals to adopt this approach where they are prepared to torture children for the sake of improving their position in the polls. Nothing surprises me about the Liberals anymore. But what is becoming crystal clear is that every time you think, 'There's a little moment where maybe Labor might change their mind'—no, no. When given a choice, a day after we have a debate about what kind of migration system we want in this country, it's back to business as usual. It's back to backing the death camps. It's back to saying it's okay to torture and maim people, even though there are other decent alternatives.

I must say, I am very, very gutted not to see the member for Batman, who has a good heart, coming in here and speaking against this bill, because this is an opportunity to make life better for roughly 1,600 people who just want to come here and seek our help. It's a concrete opportunity to say to the government, 'You tried to get around the rule of law and you failed, so, bad luck, you have to process their claims.' To the member for Melbourne Ports and the member for Wills, we are going to remind everyone in your electorates that when you had the chance to stand up, concretely, for up to 1,600 asylum seekers, you said no. You failed at the first test. As I said, I do believe that the member for Batman has a good heart in this respect and I believe that she believes what she said, but what matters when you come to this place is your vote. It's no good to say one thing to people to win a seat and then to come up here and shut the door on 1,600 people who are seeking nothing more than the right to put in their claim to seek asylum.

I suspect that this snap-back return to bipartisan cruelty the day after we saw handshakes across the chamber is going to be repeated in the Senate as well, where the prospect of having an inquiry into the condition of these children who are dying in death camps under our name probably won't even be supported by Labor either. I know that this is something that many people in this country feel very passionately about, and rightly so. And what is becoming crystal clear is that Labor and the Liberals will join together to take away people's human rights, justify torture and even retrospectively justify locking people up without authority if they think it will win them votes. Shame on them.

Kelly O'Dwyer (Higgins, Liberal Party, Minister for Revenue and Financial Services) Share this | Link to this | Hansard source

I thank all members for contributing to the debate on the Migration (Validation of Port Appointment) Bill 2018. The bill confirms the validity of the appointment of a proclaimed port in the Territory of Ashmore and Cartier Islands contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002. The bill upholds the purpose of the impugned appointment, which was designed to ensure that the unauthorised boat arrivals who entered certain waters of the Territory of Ashmore and Cartier Islands, an 'excised offshore place' for the purposes of the Migration Act 1958, would thereby become 'offshore entry persons', now 'unauthorised maritime arrivals' under the act. The appointment was critical to determining the status of persons as unauthorised maritime arrivals under the act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013. In addition, those who became unauthorised maritime arrivals by reason of having entered the proclaimed port at Ashmore and Cartier Islands between 13 August 2012 and 1 June 2013 and were not taken to a regional processing country also became fast-track applicants under the act.

Government policy around the management of unauthorised maritime arrivals has been highly effective in responding to the enduring threat of maritime people smuggling. It is unacceptable for individuals to seek to undermine this policy and circumvent Australia's migration laws by challenging minor and inadvertent admissions in the wording of the appointment. A successful challenge to the appointment could potentially nullify affected persons' status as unauthorised maritime arrivals and fast-track applicants who entered Australia via this proclaimed port between 23 June 2002 and 1 June 2013. If these risks are not addressed, the validity of the appointment will continue to be challenged and potentially undermine public confidence in our border protection arrangements. The bill addresses these risks by confirming the validity of the appointment to put beyond doubt that there was a properly proclaimed port at Ashmore and Cartier Islands at all relevant times and by confirming that things done under the act, such as actions taken or decisions made, which rely directly or indirectly on the terms of the appointment are also valid and effective.

The bill reiterates the government's original intention that the appointment is, and has always been, valid. The effect of the bill does not amend or affect the operation of Australia's migration laws but, instead, maintains the status quo for the processing of unauthorised maritime arrivals and, where relevant, fast-track applicants under the act who entered Australia via this proclaimed port between 23 June 2002 and 1 June 2013.

In summary, the bill protects the integrity of Australia's migration framework and deserves the support of all members. I commend the bill to the chamber.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Blair has moved the amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the amendment be agreed to.

Question negatived.

The question now is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt, Ms McGowan and Mr Wilkie voting no.

Bill read a second time.