Alex Gallacher (SA, Australian Labor Party) Share this | Hansard source

I rise to make a contribution on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I think it is really important to note at the outset that Australia has an enviable reputation in respect of migration matters. We have accepted thousands of refugees over the history of our great country. The fact that migration policy is so political now is something that I personally deeply regret.

I go to the detail of this bill before us. I think it is very pertinent to go through and place on the record exactly what is before the Senate. Schedule 1 relates to turnbacks and addresses issues that have been raised in the current High Court case CPCF versus the Minister for Immigration and Border Protection and another, relating to the 157 asylum seekers intercepted on 27 June 2014. Most of the provisions relate to the operation of sections 69 and 72 of the Maritime Powers Act 2013. These sections relate to the detention of a vessel by a maritime officer and the taking of a vessel—section 69—and the people on it—section 72—to a destination. This makes clear that the powers exist where the people and/or the vessel is being taken away from Australia. It also makes clear that the powers relate separately to the vessel and the people on board, thus covering the circumstance where persons are removed from the vessel.

I can tell you I had the privilege of leading a delegation to ASEAN. In that delegation we went to Indonesia. It was very clear through the interaction with members of the Indonesian parliament that there was concern about turning vehicles back. They were raised in discussions with our delegation. It was also very clear that the new President of Indonesia, Joko Widodo, has also indicated a very keen interest in our policies in this respect. I am sure that all Australian governments want good relations with Indonesia and I am sure that we need to deal in a very sensitive and proper way. This legislation is very clear about what it is trying to do, but I thought that I would put that on the record.

This bill explicitly gives the power to the minister to give specific and general directions about the exercise of powers under subsections 69 and 71—which can include matters on board an Australian vessel—and subsection 72 of the Maritime Powers Act. This overcomes concern that a commanding officer's decisions are invalid by the virtue of their discretion having been fettered by the dictation of a minister. These are significant issues which really do need to be on the public record.

With regard to maritime powers on the high seas this bill ensures that the full suite of maritime powers under the Maritime Powers Act can be exercised between Australia and another country provided the minister has authorised this use and there is continuity with a detainment which has occurred within Australia's contiguous zone. It ensures the provisions in the Maritime Powers Act will apply continuously from where a vessel is apprehended in Australia's contiguous zone to wherever the final destination is.

Natural justice is not to apply to certain aspects of the Maritime Powers Act. The amendments make it clear that natural justice does not apply to the detainment and movement powers in the Maritime Powers Act. According to the explanatory memorandum for this bill, the original explanatory memorandum to the Maritime Powers Act acknowledges the unique circumstances in a maritime environment render the provision of natural justice in most circumstances impracticable. This seeks to give effect to the original intent of the Maritime Powers Act.

It separates Australian domestic law from international obligations. It ensures that decisions of Australian maritime officers cannot be invalidated because of a failure to take into account international law or laws of another country. Maritime officers' decisions will only be judged by reference to the application of Australian domestic law.

There is no need for an arrangement with another country. These sections provide that a vessel or a person may be taken to a place outside Australia and near another country whether or not Australia has an agreement or an arrangement with that country concerning the reception of the vessel or persons. That place may be another country. This changes the terminology in the Maritime Powers Act from 'place' to 'destination' which may or may not be a country and may be outside Australia.

Obviously, these amendments are quite complex. I think they require a reasonable amount of time to consider. I think this should be a regular and healthy debate. Australia cannot really afford to get any of these arrangements wrong. We live in a very delicate area where we are dealing with neighbours who do not always agree with what Australia's view is. We live in an area where trade is really important. We live in an area where good relationships need to be built and harmoniously developed. I think at times we may have too much of a sense of how relevant Australia is to the region. We are only 20-odd million people. There is a country north of us with 10 times that population, ASEAN has 600 million people and China has over one billion people, so I do not think we can afford to put our finger up at the rest of this region. We need to do these things very carefully and do them with a sense of justice and compassion.

Then there is the time of detainment. Currently section 87 of the Maritime Powers Act provides a 28-day time limit for detainment. These provisions insert a notion of reasonableness in respect of the time it takes for such matters as dealing with a detained vessel, making decisions in respect of the final destination and travelling. The reasonable time associated with these matters is not considered to be part of the 28-day time limit. Accordingly, these provisions seek to prevent an argument that there has been false imprisonment on a vessel over an extended time period. This has an effect on regional processing and interaction with the Migration Act 1958. These provisions make clear that powers in the Maritime Powers Act are intended to operate in their own right. Accordingly, the regional processing arrangements that are written in the Migration Act will not limit the operation of these maritime powers—that is, it cannot be argued that regional processing provisions in the Migration Act automatically apply to detained vessels and the persons on those vessels, thus requiring those persons to be placed within the offshore processing system.

I turn to the exemptions for Customs and other vessels from other legislation. These provisions allow Customs and other vessels involved in turn-back operations to operate without having to comply with certain aspects of the Navigation Act 2012, the Shipping Registration Act 1981 and the Marine Safety (Domestic Commercial Vessel) National Law. This essentially means that Customs and other vessels are put on the same regulatory footing as Navy vessels while participating in turn-back operations. The minister may make a written determination specifying a vessel or a class of vessels to which these exemptions will apply.

I turn now to the exemption from the Legislative Instruments Act 2003 and the AD(JR) Act. These provisions mean that certain determinations made by the minister in respect of turn-back operations cannot be interpreted as legislative instruments and thus subject to tabling or disallowance. The bill exempts decisions in respect of turn-back operations from the AD(JR) Act, bringing the Maritime Powers Act in line with the Migration Act. This means that any legal action will be restricted to judicial review.

We remain open to any policy that saves lives at sea; however, we retain significant concerns about the safety at sea of personnel having to conduct turn-back operations as well as the damage this policy is having on our relationship with Indonesia. I have personally heard representatives of the Indonesian people in the Indonesian parliament, in front of our ambassador and in front of our delegation to ASEAN, express concerns directly about our policy. I think this is a really important issue given our relationship with Indonesia.

We do not support the Hon. Scott Morrison's attempt to make changes to the legislation based on guesses about the outcome of a case that is currently before the High Court. The High Court should be allowed to do its job on this matter before any legislative changes are considered. The subject of this legislation is currently before the High Court so we believe that until that case is properly resolved it is inappropriate to introduce this legislation.

I go to schedule 2—temporary protection visas and safe haven enterprise visas. In principle we are opposed to the temporary protection visas. The bill establishes within the act that a TPV of a three-year duration will be offered as a protection visa to any person seeking protection who is in Australia in an unauthorised way. Work rights are provided to TPV holders and access to the safety net is provided to TPV holders; however, it appears that this would not include access to the full suite of resettlement services. The holding of a TPV bars a person from ever holding a permanent visa. There are no rights to family reunion. There are no re-entry rights.

I go to a permanent protection visa application deemed to be an application for a TPV. Once again we oppose this. This deems an existing application for a permanent protection visa by a person who is in Australia in an unauthorised way to be an application for a TPV. It also provides a general power to deem an application for one kind of visa to be an application for another. This legislation was brought on in this chamber an hour ago and I have not had time to go through all of the application and detail of what is before us. It is critically important that this debate happen and that we place on the record exactly what I am advised the situation is.

There is clarification about the application of bars. Once again in principle we oppose these things. These provisions are consequential to the deeming provisions above and ensure that the application of bars to the making of protection applications is not altered by the deemed change of a permanent protection visa application to a TPV application.

Then we have the safe haven enterprise visa. We support, with an amendment, this provision by the name of SHEV, but there is no detail in this package beyond the name. It is envisaged that regulations would be made around March next year, which will describe it. The government has publicly stated that a SHEV will be open as an alternative to a TPV, can be applied for by a TPV holder at any time, will be for five years, will allow work rights, will not allow rights to family reunion, will not allow re-entry rights, and will require the holder to live in a region that has nominated itself to be a SHEV destination. It will allow access to the safety net; however, not settlement packages—although it is imagined that some regions may provide a package and will enable a holder who has not been the recipient of the safety net for 42 out of 60 months the ability to apply for an onshore visa and thus may ultimately provide for some pathway to a permanent visa. Pending the outcome of the legal and constitutional affairs committee inquiry and report, we will consider moving an amendment in the Senate to secure an explicit pathway to permanency. These are quite complex proposals.

We now go to the TPV and the SHEV consequential provisions, which, once again, in principle we support. The bill will allow for multiple classes of protection visas given that it is the upshot of creating TPVs and SHEVs. The bill will provide a definition of a protection visa, given that it will now incorporate more than a permanent protection visa. Our supporting these provisions flows from the conditional support of the SHEVs. Labor has had a long-standing position of opposing TPVs. They do not appear to offer the deterrence value, and place people in a state of uncertainty. It remains unclear as to whether the SHEV will offer a pathway to permanency. The legislation does little more than name the SHEV. There is no detail in the legislation regarding the criteria or any firm policy around what the requirements will be, apart from the minister's public comments. Accordingly, there is a real danger that the Palmer United Party has been sold, excuse the pun, a pup. If SHEVs did provide a pathway to permanency, this would be of value. Labor will give further consideration to ensuring that this is the effect of SHEVs for amendments in the Senate.

We now go to schedule 3, linking the Migration Act 1958 and the Migration Regulations 1994, which in principle we express support for. This schedule creates an express link between the way certain classes of visas are described in the act and in the regulations. These visas are special category visas, S32; bridging visas, S37; temporary safe haven visas, S37A; maritime crew visas, S38B; and protection visas including, TPVs and SHEVs, S35A. This clarifies the need to meet requirements for a valid visa application both in the act and in the regulations, as opposed to the act or the regulations. If the regulations do not describe any criteria then the visa will be inoperative. Basically, this is a sensible tidying up of the act and the regulations.

Schedule 4 goes to limiting appeal rights in the refugee assessment process, and in principle we are in opposition to it. For persons who are in Australia in an authorised way, a new fast-track assessment process will be developed. This will involve shortening the existing time frames through regulations that are yet to be developed. Access to the RRT will be removed. The bill establishes that the IAA will sit within the RRT. Any adverse initial decision must be referred to the IAA for review. The review will be limited and need only to be done on the basis of the papers, or the applicant can be interviewed if the IAA wishes. The IAA will be able to seek new information, if it wishes, and consider new information presented to it in exceptional circumstances. The bill sets out the manner in which the IAA will operate and it empowers the principal member of the RRT to issue practice directions and guidance decisions. The reviewers within the IAA will be employed under the Public Service Act 1999, there will be a senior reviewer who will have administrative responsibilities as delegated by the principal member of the RRT. In the short time that was allotted to me today, I have gone through some really interesting points and a really careful consideration is required.