Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I rise to provide some commentary on this Senate Legal and Constitutional Affairs References Committee report this afternoon. As people would be aware, the committee is chaired by the opposition, and no doubt they will not be surprised that government senators on this committee have provided a dissenting report. We have also recommended in our dissenting report that the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 be passed by this parliament to give effect to the implementation of the Malaysian agreement.

What I want people who may be listening to and interested in this debate to do is go to the committee's website and have a look at this report and in particular at chapter 2, which sets out a very well-defined summary of the arguments that have led to the Malaysian agreement. If people read chapter 3, which is basically a summary of the position of the coalition and Greens and the committee's view, they should also carefully read the government senators' dissenting report. I think they will find that this report provides a balanced perspective of the different views in relation to the issues around this debate.

I do want to make note at the outset that the committee secretariat—the team who, under the guidance of a terrific secretary, do a fantastic job all the time with whatever work or challenge they are presented—have done a great job in this instance in setting out the views that were presented to the committee and the views of both the opposition and the government. However, people should also note that the committee wrote to over 200 individuals and organisations advising them of this committee inquiry, and from that we only got 37 submissions. That was a bit underwhelming; I was a bit surprised to find that we got so few submissions in relation to this current, fairly topical, contentious debate.

Many submitters had strong opinions about this current situation but we heard from no-one who had had a direct involvement with the Malaysian agreement. The UNHCR has had involvement with it and acknowledge the arrangement that has been put in place. In fact, there is an article in today's paper about the UNHCR's position on this agreement. Quite rightly, they said that they were neither called upon, nor would it have been appropriate, to endorse or otherwise formally sanction the agreements. However, the committee's main view in this report significantly underwhelms and understates the view of the UNHCR, who actually went on to say that they were:

… appreciative of the efforts made by the two parties to provide fundamental protection safeguards for transferees, notably: respect for the principle of nonrefoulement, the right to asylum, the principle of family unity and best interests of the child, humane reception conditions, including protection against arbitrary detention, and the realization of durable solutions.

In fact, newspaper articles today have a headline of 'Malaysia a better option for asylum seekers, says UN'. In the context of the Malaysian arrangements, the insurances of legal stay and community based reception for all transferees can be seen as a more positive protection environment rather than indefinite detention, which is the policy at this stage of both the major political parties in this country.

I also want to comment on the Commonwealth and Immigration Ombudsman, who I thought performed significantly unprofessionally during the course of this inquiry. When I questioned the Ombudsman in the hearings about how and where and on what basis they had drawn the facts and the detail for their submissions, I was told that they got their information mainly from newspaper articles and academic articles and journals, which I thought was astounding. The Commonwealth Ombudsman's office in fact did not purport to have any knowledge of the administration in Malaysia and had no specific technical or legal knowledge of procedures in Malaysia. In fact, the Ombudsman's initial submission to the inquiry contained substantial errors of fact, major errors of fact—which I noticed are not highlighted in the committee's majority report—which of course the Ombudsman subsequently had to correct. He handed a letter to the committee tabling those corrections on the day he appeared before the committee to give evidence. Given that the Ombudsman's role includes the oversight of immigration detention and refugee assessments, those errors are simply unacceptable. I do not believe that the evidence the Ombudsman gave before the committee was at all credible or well sourced and documented.

I want to point out to people that the Malaysian agreement is about one thing. The Malaysian agreement builds on the regional cooperation framework that was established at the fourth Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime ministerial conference in Bali in March this year, the Bali Process. It is about trying to get the region of Asia to accept what is happening in relation to refugees, particularly those who move through places like Indonesia as a secondary movement of asylum seekers.

Christmas Island is in my electorate and I cannot state more strongly how traumatised my constituents on Christmas Island were in the lead-up to the incident and during the incident last December in which a boat smashed on the cliffs at Rocky Point. Anything and everything we could possibly do as a nation and as a people to prevent that happening in the future, we must do. We must make every effort possible to stop people, women and children in particular, risking their lives by thinking that, if they can get on a boat in Indonesia and travel that dangerous journey to Australia, it is safe to do so. It is not safe to do so. We accept refugees in this country with open arms. As a result of this agreement with Malaysia we will be accepting 4,000 refugees from Malaysia and increasing our refugee intake. So people should not for one minute believe that this is not a country that is receptive to people who are seeking asylum. What we are not going to do anymore is stand by and see people risk their lives. Through this arrangement and through the legislation, we want to ensure that if you get on a boat in Indonesia and make your way to Australia—that is, to Christmas Island—then not only will you not be processed in this country but you will not be resettled in this country.

We absolutely want to break the people-smuggling model. In our dissenting reporting we make a comparison with the coalition's policy, which simply wants to tick the box and send people to Nauru. But, at the end of the day, if people head off to Nauru they will be resettled in Australia as they have been in the past. We want to ensure that people get two very strong messages: not only will you not be processed here but you will not be resettled here. So this agreement is very strong in terms of building on the regional cooperation. It is very strong in terms of building on the cooperation we have with Malaysia. The report severely underestimates the work that has been done.

Finally, one of the things this report seeks to do is provide, in an almost hysterical sort of way, a report and discussion about what would happen in Malaysia. The very essence here is that asylum seekers who are transferred to Malaysia will not be illegal migrants. They will be exempted under section 55 of the Malaysian Immigration Act. That is the protection we can offer those people. That is the protection that we have come to agreement on with the Malaysian government. These asylum seekers will have entered Malaysia legally. They will not have committed any immigration offences under Malaysian domestic law, and we are confident that they will not be subject to any of the issues raised in this report.