Jacqui Lambie (Tasmania, Independent) Share this | Hansard source

I rise to contribute to the debate and oppose the Migration Amendment (Regional Processing Arrangements) Bill 2015. I want to make it clear that I support the principle of offshore processing of illegal immigrants, as long as it is done according to the law of our country and the countries which are being paid to process illegal immigrants trying to travel to Australia. I am pleased that the boats have been stopped and that the deaths at sea and the exploitation of those illegal immigrants by Indonesian government officials and people smugglers have been severely curbed. I am happy that our boarders have been secured and I will not be supporting any Greens amendments to undermine the principle of offshore processing.

However, having said that, it is clear that this legislation is nothing more than a get-of-jail-free card for the government. Before any legislation is passed through this parliament, we should wait and hear what our High Court has to say. We should learn the valuable legal lessons that the High Court challenge will provide. The possibility still exists that this legislation is overreach and not needed. The manner in which this legislation is being brought into the Senate, with no community consultation and in a blind panic, smells of political fear. Because of a High Court challenge to the Migration Act by the Human Rights Law Centre, both the Liberal Party and the Labor Party have agreed to rush legislation through this parliament at a dangerous, rude and unseemly speed, in order to justify expenditure on offshore processing of illegal immigrants at Nauru.

According to a media report written by Shalailah Medhora in The Guardian, the Human Rights Law Centre:

… also claims that the government does not have jurisdiction to detain people offshore. Constitutionally, Australia has authority to lock people up onshore, and deport people. The HRLC—

the Human Rights Law Centre—

maintains that Australia does not have specific legislative authority to lock people up in another country.

If this media report turns out to be true, then both the Labor Party and the Liberal Party in this place have a lot of explaining to do. Why wasn't this legislation fixed in the first place? If it is proven to be defective, who will be held accountable? Labor will have been the culprits to have introduced dodgy migration laws and the Liberals will have been the ones to turn a blind eye to them and operate under them.

Isn't it strange to think that yesterday I delivered a speech to the National Press Club in Canberra, where I defended independent crossbench senators from the claim by this government that we had caused chaos in this parliament? And here we are today debating dodgy government legislation which was rushed through the lower house and into the Senate yesterday in two hours, in order to carry out a pre-emptive political strike on a future High Court decision which may find that the Australian government has broken the law and made illegal payments to host countries participating in our offshore processing and detention of illegal immigrants. Of course, all this comes after our Prime Minister refused to answer questions about credible allegations that his government has also arranged for international criminals who smuggle illegal immigrants to be paid $30,000 worth of bribes.

The definition of chaos is when a government rushes dodgy legislation through parliament in order to make a pre-emptive political strike on the rule of law, while paying international criminals $30,000 worth of bribes. What we have before us is proof of chaos and dysfunction within the present Liberal government and an example of the lingering chaos and dysfunction from the old Rudd-Gillard-Rudd Labor government.

More examples of chaos and dysfunction can been seen by the disclosure, yesterday, of the PM's stage-managed trip to ASIO headquarters and subsequent media coverage that illegally disclosed the location of terrorism hot spots. For his own political survival, this PM is milking the terrorism threat for all it is worth—for every single, last, little drop. His deliberate media strategy of overly focusing on the threat of terrorism is covering up the cuts to the entitlements of pensioners and veterans.

We do not need new terrorism laws. We already have laws of sedition and treason that will protect us from those who assist and help our enemies in any way whatsoever. We just do not have politicians who will allow our law enforcement authorities to properly apply the laws of sedition and treason which must be approved by the Attorney-General.

Another example of this Prime Minister milking the threat of terrorism for all it is worth is the deployment of Australian troops to the Middle East. There is absolutely no military sense in basing our troops in the Middle East and exposing them to threats of insider attack, abduction and attack by gas. Our allies, the Americans, by their own standards with only 3,000 troops in Iraq—about one-third of the number of US forces in Afghanistan—are guilty of flying the flag with a token force. The main purpose of our troops' presence in the Middle East is so that the Liberal backbench will not revolt and overthrow their own PM. Our troops' presence in the Middle East provide a great backdrop for our Prime Minister's next staged-managed press conference.

As Mr Abbott's popularity drops, and the Liberal backbenchers plot, he will continue to milk the terrorism threat for all it is worth and fly to the Middle East to visit our troops. Mr Abbott will shamelessly pose with our diggers, the people he has taken money from, yet he still denies them back pay and a fair pay rise of a full three per cent not, effectively, a two per cent pay cut. Back home, according to last year's budget papers, his government spends $20 million on culturally appropriate residential aged care to Arabic-speaking communities in Western Sydney, which is one of the places, according to yesterday's ASIO maps, that is a terrorism hot spot. How about that!

As I have indicated in this place before, if you want to address and defeat the threat from Islamic State, accept the fact that Iraq, Syria and Libya should be allowed to organise itself into three ethnic and religious groups—the Kurds, the Shiites and the Sunnis—and then fund and provide resources to the Kurds. They are the only effective democratic force on the ground against the Islamic State brutes, and with 40 million people in the Middle East the Kurds are a stateless nation deserving of our support. They deserve our support and that is where we should be sending our resources. This is who we should be assisting.

The government's official explanation of the bill in their explanatory memorandum reads:

The Bill provides statutory authority for the Commonwealth to:

This Bill provides statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries, including the expenditure of Commonwealth money on these arrangements. The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.

The amendments in the Bill will have retrospective and prospective effect.

Everyone knows that retrospective law making is extremely bad law making. It breaches fundamental human rights, democratic and legislative standards, and must be avoided at all costs. Yet this government expects the people of Australia to accept these retrospective laws.

You do not have to search far to find quotes which describe the kind of legislative madness and chaos that the Liberal government has created by introducing the retrospective element. If you look at the Attorney-General's website it will tell you—and I quote:

Where does the prohibition on retrospective criminal laws come from?

Australia is a party to seven core international human rights treaties. The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The Australian Law Reform Commission said in one of its papers on retrospective laws, at paragraph 7.5:

Retrospective laws are commonly considered inconsistent with the rule of law. In his book on the rule of law, Lord Bingham wrote:

'Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence'.

At paragraph 7.6 of the paper the Australian Law Reform Commission also said:

Retrospective laws make the law less certain and reliable. A person who makes a decision based on what the law is, may be disadvantaged if the law is changed retrospectively. It is said to be unjust because it disappoints 'justified expectations'.

How many Australians today with disappointed justified expectations would like the opportunity to retrospectively cast their vote at the last election now that the truth about the dysfunction and chaos besting this Liberal government is starting to emerge?

While the Liberal government seems as if it is prepared to use bribery to reward and stop people smugglers from sailing into Australian waters, I believe there are better solutions to target people smugglers and take them out of business permanently. That way we would not have to rely so much on the threat of offshore processing to deter illegal immigrants from trying to breach our border protection.

People smugglers, wherever they are in the world, must be treated like international criminals and referred to the International Criminal Court, the ICC. A Parliamentary Library study I commissioned says:

While the ICC—

the International Criminal Court—

has jurisdiction over "crimes against humanity" and these could include people smuggling type offences ...

There's a couple of different ways that the ICC could be tasked by the UN—

the United Nations—

to target people smugglers.

It is sitting here! Further, it says:

1) Australia could ask the UN Security council to refer cases of people smuggling to the ICC. If that request was granted by the security council, then the ICC would be officially authorized to Compulsory jurisdiction and against people smugglers.

2) The ICC statute or the Rome Statute, Australia signed on the 9th of December 1998, establishes a permanent international Criminal Court to try individuals accused of the most serious of crimes to the International community as a whole, namely genocide, crimes against humanity, war crimes and the crime of aggression.

3)    The Rome Statute contains obligations on the State parties to co-operate fully with the ICC. The Rome statute applies to natural persons irrespective of whether they are government officials (eg Heads of State, Government and parliamentary officials)

4)    No statute of limitations applies to crimes within the ICC's jurisdiction

5) The ICC is empowered by its enabling statute to sentence an offender to a term of imprisonment (not exceeding 30 years) a fine and to order forfeiture of assets and property derived directly or indirectly from e crime.

Wouldn't a few Indonesian people smugglers think twice about bringing illegal immigrants to Australia—raping and murdering them along the journey—if they and their government accomplices or travel agents organising the trip knew they all could receive a long jail sentence, heavy fines and have their assets seized after the ICC investigated them and hauled them before an international court? The involvement of the ICC must be seriously considered by the Australian government. Once again, I call on—and will continue to call on—the foreign minister to make the appropriate representations to the UN on our behalf.

Another method of deterring people smugglers and having fewer people transferred to offshore processing facilities is to decrease our foreign aid budget to Indonesia every time our forces detect people-smuggler boats. Our foreign aid budget to Indonesia is currently over $300 million a year and over the forward estimates it is worth $1.2 billion. If Indonesia allows people smugglers to fill their boats and leave their ports bound for Australia, then, for each boat our Customs and Navy vessels intercept, let's take away a minimum of $5 million worth of foreign aid to Indonesia. Let's put our foot down. I am sure they would get the message very quickly. The money could be spent on looking after our serving diggers, our pensioners and our veterans who are being unfairly targeted by this government with cuts to their pay, entitlements and pensions.

I note that this matter was supposedly dealt with on 21 September 2011 when the then Minister for Immigration and Citizenship introduced amendments to the immigration act in response to another High Court challenge. During the debate, Minister Bowen said:

The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.

This is a power that was thought to exist until 31 August this year, when the majority of the High Court decided that transfers under section 198A of the Migration Act could only take place to countries legally bound to provide protections equivalent to those offered by Australia.

Subsequent legal advice has made it clear that the High Court's decision has thrown into significant doubt the ability of governments—present or future—to effect transfers to a range of countries in our region who are prepared to offer protection from refoulement, and will allow processing of refugee claims to be made, including Papua New Guinea and Nauru.

So today the government is introducing amendments to the Migration Act to make parliament's intention absolutely clear.

The questions I pose to the Senate after considering Mr Bowen's speech are the following. Why didn't both the Liberal and the Labor parties have a good look at the immigration legislation four years ago after the High Court raised the red flag? The red flag was raised so high you could not miss it. Will we be going through the same chaotic rushed process in another three or four years? Surely a properly measured, thoughtful, independent review of our immigration laws would be a good idea.

In closing, I again repeat my introduction. While I oppose this legislation, I support the principle of offshore processing of illegal immigrants as long as it is done according to the law of our country and the countries which are being paid to process illegal immigrants trying to travel to Australia. I am pleased that the boats have been stopped and the deaths at sea and the exploitation of the illegal immigrants by Indonesian government officials and people smugglers has been severely curbed. Before any legislation is passed through this parliament, we should wait and hear what our High Court has to say. This parliament must show respect to our High Court. We must do that. We should learn the valuable legal lessons that the High Court challenge would provide. The possibility still exists that this legislation is overreach and not needed.