Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Hansard source

I too rise as a member of the Legal and Constitutional Affairs References Committee to speak to the committee's report, Australia's arrangement with Malaysia in relation to asylum seekers. The submissions and the witnesses raised a number of very, very serious concerns in relation to the proposed Malaysia arrangement. Those who have gone onto the committee's website to have a look at the submissions that were provided to the inquiry would have seen that the majority—one might even say all—of those who provided evidence by way of the submission process provided comment on the Malaysia arrangement and expressed their opinion in absolute opposition to the arrangement.

It would be fair to say that based on the evidence the committee received it is patently obvious to everyone—except perhaps the current Prime Minister of Australia—that at its most basic level this so-called Malaysia arrangement is both inadequate and unacceptable. The evidence presented to the committee confirms that the arrangement was conjured up out of political desperation and, as a result, is extraordinarily imprecise. The parties' so called 'contractual obligations', which the previous speaker referred to, are couched in ambiguous, equivocal and vague language. They include terms that are not defined and as a result are both nebulous and imprecise in their meaning.

In reality, far from the contractual obligations of the parties being set out, as claimed by the government, the evidence presented to the committee confirms that the most offensive part of the arrangement is that it reflects merely the political commitments and the political intentions of the government. This is clearly set out in clause 16 of the arrangement, which specifically states that the agreement is 'not legally binding' on the parties.

That is perhaps the most abhorrent part of this arrangement—the fact that the document clearly states that the arrangement is not legally binding on the parties. That actually means, and what the evidence presented to the committee confirms, that there is absolutely no means for the Australian government to enforce the obligations of the parties as set out in the document—in other words, the document means absolutely nothing. In fact, Mr Rowan Anderson from the office of the Commonwealth Ombudsman described the arrangement as 'almost aspirational'. Why? Because it talks of commitments, not binding obligations. I think this chamber knows that when you talk in terms of aspirations, often what you have are expressions of one's hopes, desires, wants and wishes. Certainly what you do not have are obligations that if breached by one of the parties can actually be enforced by legal means.

The Department of Immigration and Citizenship gave evidence that Malaysia has undertaken major obligations in relation to the principle of nonrefoulement of asylum seekers—to treat asylum seekers with dignity and respect and in accordance with human rights standards and to deal with the special needs of vulnerable cases, including unaccompanied minors—and that these are set out in the text of the arrangement. Again, though, the evidence from the department completely overlooks the fact that, because the agreement is specifically stated at clause 16 to be a non-legally-binding arrangement, the Australian government is actually powerless in the event that Malaysia does not comply with the arrangement. As the Ombudsman highlighted to the committee, there are actually no steps which can be taken by the joint committee or the advisory committee, the only bodies likely to be providing any form of oversight of the up to 800 people that Australia proposes to send to Malaysia, in the event that there is any breach of the arrangement. That is the Commonwealth Ombudsman giving evidence to the Senate committee that there are no steps that these so-called advisory bodies can actually take in the event that there is a breach of the agreement.

Evidence was further presented to the committee in terms of selecting Malaysia as the location to process the protection claims of the 800 'transferees', as they are referred to in the arrangement. The evidence actually highlighted the fact that the Australian government has chosen to completely ignore one key fact, and that one key fact, when you talk about protecting the human rights of the 800 transferees that we are going to be sending to Malaysia, is that Malaysia is, as we all know, not a party to the United Nations convention on the rights of refugees. At a minimum, the Australian government should meet the current Prime Minister of Australia's previous commitment to rule out sending asylum seekers who travel to Australia by boat to countries which are not signatories to the refugee convention. Obviously Malaysia does not satisfy the Prime Minister's own stated intention.

So, having established that the Malaysian arrangement is not legally binding and does not accord with the Prime Minister's own stated position in relation to the country having to be a signatory to the refugee convention, and having confirmed that the arrangement itself is not legally binding, as specifically set out in clause 16 of the agreement, we now have a situation in Australia whereby the Labor government, despite the overwhelming opposition not only in the evidence given to the legal and constitutional affairs committee but by the people of Australia, continues to tell us—and this is reflected in the dissenting report of the Labor senators in this committee—that it is committed to the Malaysia arrangement. We have the government of Australia committed to a policy that will send people who have come to Australia seeking our protection to a country where, as evidence to the committee confirms, statistics published by the Malaysian ministry of justice show that, in the five years between 2005 and 2010, some 29,759 unlawful entrants to Malaysia were subjected to the punishment of caning. That is an average of 16 floggings per day, every day. Again, the evidence to the committee confirmed that that is a common penalty provided by Malaysia under their Immigration Act to asylum seekers that are entering that country.

I pick up on the comments of the Labor senator who spoke previously, who said that the people that we send there will not be subject to that penalty because Malaysia is making a specific provision for them under the Immigration Act. But I turn back to clause 16 of the agreement that has been entered into by the parties. The agreement is not legally binding. That is not me saying that. That is not the majority of this committee saying that. That is what the Labor government of Australia have negotiated between the two parties, Australia and Malaysia. They have had it set out in black and white at clause 16 of the agreement that the agreement is not legally binding.

In the committee majority's view, the terms of the Malaysian arrangement and the associated operational guidelines, along with their practical implementation, are fundamentally hopeless and fundamentally flawed. In particular, the committee strongly believes that the Malaysian arrangement is lacking in significant detail and, most importantly, fails to address serious human rights issues. As set out in the report, if the transfer of asylum seekers to Malaysia proceeds then the Australian government will have failed dismally in fulfilling any so-called moral obligation that it allegedly claims that it has.

Question agreed to.