Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

Thank you, Mr Acting Deputy President. This bill contains the most comprehensive set of changes to Australian law on immigration and asylum seekers to be brought before the parliament since the Abbott government took office. Much of the bill is a response to actions of the judiciary. Some of the response is understandable, but much of it is an attempt to pre-empt work that the courts ought to be allowed to do. Labor has grave concerns about many of the provisions of this bill. We believe the bill should be rejected entirely. If it is given a second reading, we propose to introduce substantial amendments.

The minister described the bill as a formal legislative recognition of the government's policy of turning back asylum seeker boats. He claims that this is about saving lives at sea. Let me be clear: Labor does not want to see deaths at sea. That is why, when were in government, we established asylum-seeker processing in PNG. That decision has played an enormous part in stemming the flow of boat arrivals. However, we have grave concerns about the turn-back policy, for two reasons. The first concerns the impact of the policy on Australia's relationship with Indonesia. The turn-backs have clearly harmed that relationship. If there is to be a long-term resolution to the question of boat arrivals, it could only be in the context of a close cooperation between Australia and the country from which most vessels bearing asylum seekers depart. That close cooperation existed when Labor was in office. The government's actions have destroyed it. Turn-backs have resulted in at least six incursions into Indonesian territorial waters. The other aspect of the turn-back policy that is of concern is the question of whether it does in fact save lives at sea, or whether it puts them at risk. The government have never been able to give satisfactory assurances on this question, because of their clear obsession with operational secrecy.

The minister's argument that the aim of the bill is to recognise turn-backs is deceptive. In fact, the relevant clauses of the bill are about a case now before the High Court: CPCF v Minister for Immigration and Border Protection & Anor. In essence, this legislation seeks to scuttle that case, which is fundamentally about the Maritime Powers Act. If the bill passes with these clauses, the precedent value of the case would be made redundant. Labor believes that this is inappropriate. The High Court has a role in upholding the rule of law that parliament must not undermine. If, after the court has made its decision, the government believes that legislation is required because of the consequences of that decision, it can bring another bill before the parliament. But it is not appropriate to legislate while the relevant case is being heard.

On the issue of new visas, the bill also resurrects temporary protection visas, TPVs, and creates a new class of temporary visas, the Safe Haven Enterprise Visa. Labor's position on temporary protection visas is well known. We oppose them because they place their recipients in limbo, with no certainty or assurance about their future beyond the three-year duration of the visa. Our view is that people who have been found to be entitled to Australia's protection should be given permanent protection visas and provided with assistance to settle within the community as quickly as possible. That also gets them off the government's tab, as quickly as possible, and on their way to becoming constructive and contributing members of society. Let us be clear: the vast majority of these people will live here for the rest of their lives, and want to do so. That is what we saw when TPVs were effectively abandoned during the Howard government. We should not repeat that experience. We should accept our obligations, and give those receiving Australia's protection the permanency to which they are entitled.

This bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Case Load) Bill 2014, also purports to introduce another visa class, the Safe Haven Enterprise Visa, ostensibly in fulfilment of undertakings the government made to the Palmer United Party. I say 'ostensibly' because, in fact, all this bill does is to name a new visa The explanatory memorandum states that 'the conditions and operation of SHEVs will be laid down by regulation next year'. The bill therefore holds out a glimmer of hope for permanency to those who might be eligible for the new visa, but guarantees them nothing—in fact, it tells nobody what is involved in these new visas. Labor believes that a pathway to permanent protection, and ultimately to citizenship, is worth supporting. But that pathway must be more than just a name in a bill. The government should withdraw this bill and introduce another that provides a real pathway, and it should also provide information in regulations about how it will work.

Mr Acting Deputy President, this is an issue I have been raising for years, with various governments: the need to have the regulation and the legislation made available at the same time, so that people can see the detail. Too often, we have the situation where the real details are in regulations which are in the future at some time. This is something that needs action across all areas of legislation.

The government should withdraw this bill, as we have said. If it does not and this bill reaches the committee stage, Labor will join with other senators in proposing amendments that turn the imagined pathway provided by the new visa class into a real one. Under those amendments, the new safe haven enterprise visa would be a temporary visa valid for five years and applicants for this visa would need to demonstrate their intent to work and/or study in regional Australia. If visa holders do work and/or study in a regional area for at least 3½ years of the visa period, they would become eligible for permanency. Under other amendments we would propose, the right to work would be extended to asylum seekers on bridging visas while their claims for refugee status are assessed and sections of the bill concerning temporary protection visas would be deleted. We believe these should be either abolished or automatically converted to a permanent protection visa after a successful application for refugee status.

Under the issue of fast-tracking, the bill also seeks to change the refugee assessment process in two ways. First, the bill seeks to speed up the process for assessing claims by people who are in Australia in an unauthorised way either because they have overstayed their visa or because they have arrived without appropriate paperwork. It is not clear how this fast-track process will work, because that will depend on regulation, and details of the necessary regulations have not been provided. The second change is the replacement of the Refugee Review Tribunal by an immigration assessment authority, with a limitation of the existing right of review of adverse decisions. This change is of grave concern. Since the Abbott government was elected, Labor has supported much legislation intended to strengthen the refugee assessment process. This support has caused considerable debate, but the Labor Party has actually supported the proposition put forward by the government. In our view this change goes well beyond that. It guts the process. Labor cannot support limiting applicants' rights of review to the extent envisaged in this bill, or can we support the proposed fast-tracking of applications, which doesn't offer much by way of reducing the duration of the process but would go a long way towards reducing people's rights.

With regard to the refugee convention, the bill seeks to remove any reference in the act to refugees. Labor absolutely rejects this. The government argues that the bill codifies the obligations existing under the convention so that the decisions of Australian courts, rather than the decisions of international tribunals or courts in other jurisdictions, will determine Australia's law in this area. There is no good reason for this change, and it is any case unlikely to achieve the government's objective. The minister's second-reading speech makes clear that Australia remains a party to the refugee convention, and that this is given legislative effect by the Migration Act. Our courts will inevitably refer to decisions by courts in other common-law countries when determining how obligations of this kind should be interpreted in Australian law. That happens now and will continue to happen. The codification set out will not remove the established practice of judicial reasoning

There is a further problem raised by the attempt to codify the law. The bill inserts a requirement in the act that, if persons are able to alter their behaviour reasonably, they should not be able to claim Australia's protection. There are cases now before Australian courts in which a version of that requirement is under consideration, and courts have made decisions on a similar basis in the past, but setting the requirement down in fixed, statutory form raises questions that would not be easy to resolve. What if someone sought protection of the basis of sexual preference, but protection was denied on the basis that alteration of their behaviour would result in that person not being persecuted in his or her country of origin? That may not be the intention of this schedule, but it is not difficult to see how such a possibility could arise.

The bill also contains a provision removing the 90-day rule for hearing of asylum claims, which is an important accountability measure. At the time of last year's federal election, when Labor left government, about half of protection applications were decided within the prescribed 90 days; but, in the most recent report on the Abbott government's performance, only 14 per cent of decisions were being made within go days. The 90-day rule, which was introduced by the Howard government, has proven its worth as a test of the speed with which governments process applications. The rules should be retained. If the 90-day rule is not being met by the department, there should be rationale as to why it is not being met. Rather than changing the rule, there should be an acceptance that the 90-day rule stays and that exceptions to that should be subject to question and a process of explanation from the department to the minister and then to the parliament.

For all of these reasons, Labor opposes this bill, and we will vote to deny it a second reading.