Chris Ketter (Queensland, 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 want to make a number of points with respect to the proposed bill, which some have characterised as the most significant piece of legislation on immigration and asylum seekers that has been put to the parliament since the election of the Abbott government.

This is an omnibus bill, as many of the speakers have already indicated. It contains many parts. There are some parts of this bill which Labor can support, but we have a number of significant concerns with respect to certain other aspects of the bill.

I think the most appropriate way to characterise my concerns with the bill is this: it does not apply principles of fairness and natural justice to the very contentious issue of dealing compassionately with refugees. Labor understands that there does need to be a balanced approach between the fact that we do not want to see deaths at sea, but on the same token we want to deal compassionately with people who are refugees. Labor knows the contribution that refugees have made to our country over many years. It is a vexed issue and very contentious.

This is a bill that is broken up into a number of parts, as I indicated. The parts that I will be attempting to deal with are the areas in which Labor has some concerns. As a brief overview of the various parts of the bill, schedule 1 provides additional powers in relation to turning back boats. I will come back to that particular schedule with some comments. Schedule 2 seeks to reintroduce temporary protection visas and to introduce an alternative class of visa, known as a safe haven enterprise visa, although, as we will see, this class of visa seems to be introduced in name only. Very many parts of that particular visa and how it will operate are left for next year in terms of regulations. That is an area that I will make further comment on.

Schedule 3 provides better consistency between the Migration Act 1958 and the Migration Regulations 1994 in respect of certain visa types. Schedule 4 goes on to introduce a fast-track assessment process for protection claims, combined with a limited form review, through a newly established immigration assessment authority, removing access to the Refugee Review Tribunal, or the RRT, for people who are in Australia in an unauthorised way. Schedule 5 clarifies the exercise of the removal power and codifies Australia's interpretation of its protection obligations under the Refugee Convention. Schedule 6 makes clear that the children of the unauthorised maritime arrivals inherit the immigration status of their parents. Schedule 7 ensures that the minister can cap classes of protection visas in the Humanitarian Programme.

In terms of Labor's position, we are opposed to schedule 1. In making some comments about our position on schedule 1, I want to reiterate the Labor position: we are completely committed to doing everything we can to see an end to deaths at sea and the human tragedy which is unfolding on our borders. Labor has a history of attempting to put arrangements in place which deal with this issue. We put in place the Papua New Guinea arrangement, which did a lot of the work necessary to see an end to the flow of asylum seeker vessels.

But we do have two concerns about schedule 1. I think some of the speakers before me have touched on these points. Firstly, there is the fact that we do need to do this in a way which does not have a detrimental impact on our relationship with Indonesia. Labor has a very clear history of understanding the diplomatic necessities in that regard. The incoming President of Indonesia has made some comments in respect of Australia's border protection policies. His Excellency Joko Widodo, as I understand it, has issued a stern warning to the Australian Prime Minister about his alleged failure to respect Indonesian sovereignty. We do need to have an approach which is not going to impact our very, very important relationship with our northern neighbour. It is obviously a country with 200 million or so people and, being one of our closest neighbours, it is extremely important that we have a hand in glove relationship with Indonesia in respect of dealing with asylum seeker vessels. That is the approach that Labor adopted in government and we were able to achieve that close working relationship.

It is probable that this is not a short-term issue that we are addressing here. We are probably looking at an issue that will take some years to work its way through. Obviously, the sooner the better, but in order for us to deal with this comprehensively with Indonesia it is important that those concerns be taken into account. The second concern we have with schedule 1 is the question of safety at sea. We have had advice from the Navy to the parliament about the question of safety at sea. Unfortunately, there appears to be a lack of information in respect of this issue. When there is a lack of information, there cannot be public confidence in whether the operations that are occurring at sea are in fact safe; it becomes an open question. In order for us to form a position with respect to the issue of turning back boats at sea, there is this need for further information, and we need to be satisfied that it is a policy which can be carried out safely.

The other aspect of schedule 1 which causes us some concern is that, in a sense, this aspect of the bill is attempting to deal with a case which is currently before the High Court—the case of CPCF v Minister for Immigration and Border Protection and others. This is an important case; it will determine the legality of the government's turn-back policy, as implemented on the basis of the existing law. We say that the High Court should be allowed to come to a position on that particular issue. If the turn-back policy adopted by the government is shown to be lawful, then that is important for public confidence in the government and in its actions. Equally, if the turn-back policy is found to be unlawful, it is important that that be placed on the public record and that it be totally transparent. Of course, if that were to occur, then this parliament could consider this issue and this legislation in light of the legal position. But there is a scattergun approach that is being adopted by this government, and I would take the opportunity to say that we have this extremely important piece of legislation being put through on what may or may not be the last day, or the second-last day, of sittings for the year; it is probably not an appropriate way for this extremely important matter to be dealt with.

On the issue of schedule 2 of the bill, this seeks to reinstate what we would call the 'failed' temporary protection visas. The Labor Party has a well-established policy on temporary protection visas. We adopt the view that these visas suspend asylum seekers in a prolonged state of uncertainty. Under a temporary protection visa, people put their lives on hold for a significant period of time. People are unable to take out loans or to do the sorts of things that we all take for granted in our lives. It causes fear, anxiety and financial hardship to asylum seekers; it means that they are unable to move their lives forward for themselves and for their families in Australia; and it prevents them from making a contribution to the community.

We would also say that there should be no pretence about the fact that temporary protection visas in any way serve as a deterrent to people seeking to risk their lives and to come to Australia by sea—that is patently wrong. We saw evidence of that in the Howard-government era in the use of temporary protection visas by the Howard government—and the figures speak for themselves. More than 90 per cent of refugees initially granted temporary protection visas under the Howard government were eventually granted permanent protection because the situation in their country of origin had not changed. I will recap: the temporary protection visas offer no deterrent value and only place people in a state of uncertainty.

We move to the proposal under schedule 2 on safe haven enterprise visas, to which the Labor Party has offered its in-principle support. Speakers before have expressed disappointment with the fact that the government has failed to deliver the SHEVs, as they are called, through this bill. We note that the commitment on the part of the minister to deliver the SHEV was a key component of an agreement with the leader of the Palmer United Party, Mr Palmer, to support the reintroduction of temporary protection visas. The minister has repeatedly claimed that he would give life to a new visa to be known as the safe haven enterprise visa. On 24 September, he wrote to Mr Palmer to say that the visa would be introduced. Then on 25 September, in a statement to the House of Representatives, the minister said that the visa would be created. In a media release on 25 September, the minister asserted:

A further temporary visa, a Safe Haven Enterprise Visa (SHEV) - where holders work in a designated self-nominated regional area to encourage filling of job vacancies - will be introduced as an alternative to a TPV.

It is a matter of regret that Mr Morrison has failed to deliver on this commitment. I say that because this bill does not give legal effect to a safe haven enterprise visas as a new class of visa. All it seems to do is introduce into the Migration Act new subclause 35A(3A), which states:

There is a class of temporary visas to be known as safe haven enterprise visas.

No further details, let alone any criteria, are provided to us about the conditions that apply to this visa. Extensive provisions are included in the legislation to make clear that despite the SHEV being named in the bill no such substantive visa is actually brought into effect and nobody can apply to obtain one until we see regulations coming forward. There is no guarantee, and nothing in the proposed legislation, to compel the minister ever to promulgate the regulations that are required to give effect to this class of visa. We would argue also that the government has failed to undertake the detailed policy development necessary to make the safe haven enterprise visa a reality.

All of this uncertainty goes to the concern and the suspicion we have that nobody really knows what this new type of visa will look like, if it comes into existence at all. Labor supports in principle the idea of the safe haven enterprise visa. We agree with the leader of the Palmer United Party when he says that they would be a win for refugees and a win for regional Australia. It would be important for both of these wins to come into effect, but we do not see the detail of that.

The Australian Labor Party opposes schedule 4, which seeks to deprive asylum seekers the opportunity to have their applications for protection assessed fairly. What it does is replace it with a bureaucratic agency that is subject to the direction of the executive government. In the time available to me I will not deal with that further, but there are real concerns about the procedural fairness in relation to the way in which the proposed system will operate. Returning to the points I made at the outset, we believe that the government should go back to the drawing board in relation to this bill in respect of the areas that I have touched on.