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

I thank honourable members for their contribution to this debate. I will do my very best to mollify your points, Senator Humphries. I am sure by the end of my eloquent address, you and I will be seeing eye-to-eye on these questions and voting side-by-side. Before I make such bold predictions, let me roll on.

This government is committed to supporting the hard-working Australians who work on our behalf to uphold Australia's maritime laws. These men and women are required to operate in a difficult, dangerous and quickly changing maritime environment, an environment which regularly presents risks often unknown. This environment poses particular challenges to the effective enforcement of laws. Enforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land-based operations and constrained by the practicalities of sea-based work.

Under the current maritime enforcement regime, operational agencies use powers contained in at least 35 separate Commonwealth acts. This structure is inefficient and can lead to operational difficulties for the primary on-water enforcement agencies. The government has developed the Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012 to address these challenges. They provide a smarter and simpler approach to maritime enforcement by streamlining the operational framework for our on-water enforcement agencies.

The Maritime Powers Bill establishes a system of authorisations under which a maritime officer may exercise enforcement powers in the maritime domain. The powers contained in these bills are modelled on and preserve the suite of powers currently available to agencies to conduct maritime enforcement operations—a key point to which I shall return. In particular, the bills consolidate all maritime powers in the customs, fisheries and migration regimes, constituting a large majority of Australia's maritime enforcement operations. The bills will, therefore, effect a substantial consolidation of Australia's maritime enforcement regime in relation to areas of highest priority.

The bills also include a range of safeguards to make sure maritime enforcement powers are authorised and exercised appropriately and for a proper purpose. A key safeguard is the requirement for the exercise of powers to be authorised on specific grounds by a senior maritime officer or member of the Australian Federal Police. This provides clarity around who must make decisions to take enforcement action and ensures appropriate oversight in relation to the exercise of powers. The Maritime Powers (Consequential Amendments) Bill repeals maritime enforcement powers in a number of other acts where they overlap with powers in the Maritime Powers Bill.

I will turn for a moment to some of the specific comments made by Senator Humphries regarding the opposition's concern about this legislation and in particular speak to their amendments. Senator Humphries sought what might be called an undertaking about the impact of these bills and how they will change or bend the regime as it exists. He used the phrase 'have previous powers wiped from the statute books'. Let me see if I can give him some comfort in this important respect. These bills do not change the powers of maritime authorities, so to the extent that it was possible previously to turn back boats it remains possible. Let me provide a little more meat on that proposition.

The Maritime Powers Bill will not affect the legality of tow-backs or turnarounds. Currently, to the extent that the power resides in legislation, it is in section 245F of the Migration Act. To the extent that it will reside in the proposed legislation, it sits primarily in clauses 69 and 72, together with clauses 21, 32 and 41 concerning jurisdiction and clauses 52 and 54(1) concerning the exercise of power. To the extent that the power exercised is the prerogative power of a government to control its borders, that prerogative power is preserved by clause 5 of this bill. The government has no plans to reinstitute tow-backs or turnarounds at this time, as you are well familiar with, but this legislation does not change the powers available to a government and, so to the extent that it was previously possible, it remains possible.

We would make the point—and I am sure Senator Humphries would be disappointed if we did not make the point—that this debate and the amendments in this debate are in our view something of a furphy. You are, in our judgement, making amendments that have no practical effect. You are not strengthening the prerogatives or powers of a government in the way that you say you want to, because you are simply adding words that do nothing to add power.

But you are doing this: you are making the political point and highlighting the political point that you want to turn back the boats. I suppose on that partisan point we say that the expert panel that dealt with some of these issues found that the conditions necessary for the safe and lawful enforcement of tow-backs did not presently exist. Senator Humphries, the government's position is that turn-backs and turnarounds are obviously not going to become a tool deployed by this government. We say—and perhaps I will go further into this in committee, if it is desired—that the expert panel report raised a number of questions, including treaty obligations for Australia about why that particular methodology of turning back boats is inappropriate, that it breaches safety of life at sea conventions and the like. But the critical point for you, I say, is this: your policy, notwithstanding the fact that we say it is crazed, is not defeated or undermined by this legislation. This legislation does not constrain this government or any future government from undertaking the sorts of powers that you describe the Howard government exerting.

While we do not agree about the substantive policy point and while I think the government is making its point that this amendment is about political posturing not about strengthening the legislation—