David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

Firstly, the government do not support the opposition amendments and Senator Brandis is quite right that I did assert in my earlier remarks, when responding to Senator Humphries, that ultimately the coalition was motivated to put up this amendment not so much because it clarified or changed the bill, and in fact we say it does not, but to make a political point. Insofar as my observation required any confirmation, the contribution just made by Senator Brandis made the point better than I ever could.

I will begin by dealing with some of the questions of fact before returning to some of Senator Brandis's more expansive and indeed outrageous remarks. To repeat what I said earlier, the government is satisfied that the bill does not affect the government's executive power, including its prerogative power. This is preserved in clause 5 of the bill and as set out in the explanatory memorandum of the bill, specifically pages 12 and 13. Clause 5 provides that the bill will not limit the executive power of the Commonwealth. This means that the bill does not override the ability of the executive government to exercise any of those powers traditionally known as Crown prerogatives. These enable the executive to make certain decisions without the need for parliamentary or legislative approval. That is, for Senator Brandis's purposes, one would think, the end of the matter.

As I alluded to in my earlier remarks, responding to Senator Humphries, further observations were made by the expert panel regarding tow-backs and turnarounds. In particular, the expert panel found that the conditions necessary for the safe and lawful enforcement of tow-backs did not presently exist. The panel did identify the theoretical circumstances in which tow-backs could take place. The expert panel report at paragraph 3.77 and attachment 3 also identified the following international law obligations relevant to tow-backs and turnarounds. Firstly, on jurisdiction, Australia has very limited powers to deal with stateless or foreign flagged vessels on the high seas, so as a general rule we would require the consent of the flag state of the vessel either to intercept the vessel outside our territorial sea or contiguous zone or to steam it outside those waters. Secondly, our obligations under the Safety of Life at Sea convention mean we would not be able to cause a vessel to be placed in a situation of distress. Thirdly, Australia has taken on so-called non-refoulement obligations under a range of human rights treaties and the refugees convention, which generally means that Australia cannot send a person to a place where they will be persecuted on the grounds of race, religion, ethnicity, membership of a social group or political opinion, or where they would be subjected to torture, cruel, inhumane or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty. Lastly, we would require the consent of the state to which Australia intends to return the vessel. The expert panel noted—as the government has been telling those opposite from time to time—that those circumstances simply do not exist for us at the moment. The government agrees with the conclusions of the expert panel's report.

That sets out in a logical and concise way how the government says that the opposition's amendments add nothing to this bill. They do not protect or achieve the purpose for which Senator Brandis and others say they were intended. But, of course, that is not the true intention. The true intention of the coalition's amendments is to once again be able to raise the spectre of asylum seekers and—as the opposition leader has referred to it—the peaceful invasion of Australia.

In this respect, I cannot let Senator Brandis's farrago of distortions passed by unremarked upon. Perhaps, as an introduction to the farrago of distortion that was Senator Brandis' remarks, was this extraordinary proposition that the coalition have throughout recent years remained stoically and consistently resolved in providing a hard line or red light to the people smugglers. It is a black and white assessment which utterly belies the conduct of the coalition in recent years. Let us remind ourselves about where we are and how it is we came to be here. Firstly, Senator Brandis launched a series of statistics at us about ship arrivals during the period of the Howard government. And I guess it should be reassuring, particularly to those economists amongst us, that, just as the coalition insist that the global financial crisis never happened, so too do they insist that the invasion of Iraq in 2003 or the conflict in Afghanistan played absolutely no part in the arrival of refugees either. The wars in Iraq and Afghanistan during those periods were at a phase where refugees and displaced persons were not making their way to Australia in the numbers that they presently are, nor for that matter was the aftermath of the civil war in Sri Lanka upon us. Those external factors remain completely unremarked upon by Senator Brandis because they, just like the global financial crisis, would reveal the fact that there are global externalities which are of critical importance in this debate, a debate of nuance to which the coalition is not well prepared.

Let me continue, because if we think about how it is that we got where we are, we cannot forget for a moment the decision of the High Court to strike down critical parts of this legislation. The impact of the High Court was such that it would have rendered impossible parts of the Howard solution, let alone rendered impossible parts of the contemporary government's mechanisms for dealing with this problem. In the aftermath of that extraordinary High Court decision, you will recall that the Prime Minister and the government reached out across the aisle and said, 'This is an issue of importance to both of us. Both parties have important commonalities here. This is a critical piece of national interest and we can work together to make a proper and considered fix, proper and considered amendments to the legislation that enable our policy and would indeed enable yours.' What was your response to that very sensible, amicable, bipartisan approach? It was ruthless and implacable rejection.

So, Senator Brandis, I, on Senator Evans's behalf, take mighty exception to your proposal to lay thousands of dead at his feet in what I think is a particularly scurrilous allusion on your part, when I might just as easily say the same of the opposition for your disgraceful conduct during those dark days in the aftermath of the High Court decision. I might say the same about your refusal to let this government undertake the Malaysia solution: a solution which, in this government's judgement, would do precisely what it is you say you want to do, and that is to break the—