Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I rise to make a contribution to the debate on the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. This bill makes a range of amendments, including to the Migration Act 1958, to provide that when an unlawful noncitizen is in the process of being removed to another country under section 198 and the removal is aborted then the person will be taken to have been continuously in the migration zone for the purposes of the Migration Act. What this means, in effect, is that when an unlawful noncitizen—I'm using the government's language here—is in the process of being removed to another country and that removal is aborted or that removal is completed but the person is not permitted entry into the receiving country and, as a direct result, the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa. It also provides that, when such a person does return to Australia without a visa, the person be taken to have been continuously in the migration zone for the purposes of certain sections of the act which bar the person from making a valid application for certain visas.

Currently, the relevant visa bar only applies to a person deemed a noncitizen, not an unlawful noncitizen, because, as we all know—government included—there is actually no such thing. So this bar applies to a person deemed a noncitizen by the act. The act bars that person from applying for particular visas after they've been removed or deported from Australia under section 198 to another country but have been refused entry by that country and so are returned to Australia.

This amendment seeks to extend that visa bar to people the government attempts to remove from Australia but for whom, for whatever reason, that removal was not completed or where the person did not enter the destination country. So this is basically extending the circumstances in which a statutory bar against applying for further visas can be applied to already vulnerable people seeking asylum, to people the government wants to send back to their country, or departure. As we know from the bill's digest—112 of 2017-18—this could apply to people who do not enter the other country due to being refused entry by that country. The risk here is that we're going to create a situation where there are, effectively, stateless people trapped in limbo by two countries saying, 'Not my problem'.

The Parliamentary Joint Committee on Human Rights rightfully raised concerns about the expansion of circumstances in which this statutory bar applies and, in particular, how this bill would impact right-to-liberty and non-refoulement obligations, and how it might engage and limit the obligation to consider the best interests of the child. The human rights that this amendment may engage are the right to liberty, the right to not be refouled and, potentially, the rights of the child. What we need to understand from government here is how it responds to those questions around the human rights that are engaged by this legislation, particularly those rights that I just outlined. And we need to specifically understand in that circumstance why it's necessary to apply a visa bar to noncitizens which the government has attempted to remove from Australia under section 198 of the Migration Act. What is the rational purpose or what is the purpose of this legislation? Is it a legitimate purpose under international human rights law, and are there less rights-restrictive approaches than the application of the visa bar?

We are also interested in hearing from government whether there are adequate and effective safeguards in place to ensure that a person is not subject to arbitrary detention, including the availability of periodic review of whether detention is reasonable, necessary and proportionate in any individual case, and also the circumstances in which a person may apply for a particular class of visas or apply that a visa bar may be lifted. So this is a piece of legislation that potentially has incredibly serious human rights ramifications, and it's important that the Senate completely understands how the government responds to those significant potential breaches of human rights.

With regard to the requirements under international law around the rights of a child, the government also needs to be clear about what relative weight will be given to the obligation to consider the best interests of any child in departmental policies and procedures in the context of the measures proposed in this legislation; what the threshold for intervention is on the basis that the measure would not be in the child's best interests; whether there are proper procedural safeguards in place to ensure that the obligation to consider the best interests of the child is given due consideration; whether the measure is aimed at achieving a legitimate objective for the purposes of human rights law; how the measure is effective to achieve the objective—that is, its rational connection to the objective; and whether the limitation is reasonable and proportionate to achieve the stated objective.

Those last three questions I raised, which were whether or not the measure is aimed at achieving a legitimate objective, how the measure is effective to achieve that objective—that is, is it rationally connected to the objective—and whether the limitations contained in this legislation are a reasonable and proportionate measure to achieve the stated objective—are actually fundamentals of international human rights law. They're absolute 1.01 questions, which any government ought to be able to answer comprehensively and clearly so that the Senate can understand whether or not this legislation is in breach of any or some of Australia's international human rights obligations. I mentioned the potential for refoulement. Provisions against refoulement are contained, obviously, within the protocol to the refugee convention to which Australia is a signatory.

We have seen, time after time, this government walk away from its international human rights obligations and we've got concerns that that is happening in this situation. We've seen that, for example, on Manus Island and Nauru. The government still claims that these are offshore processing centres when in fact there are many people that have clocked up over 5½ years now in offshore detention and there is little or no processing happening of people who've been trapped for well over five years on Manus Island and Nauru. We have a system on Manus Island in Papua New Guinea and on Nauru which is deliberately designed to dehumanise people, which is deliberately designed to harm innocent people, including innocent children, and which is deliberately designed—this is explicitly admitted by the government—to deter other desperate people from attempting to seek asylum in Australia after arriving by boat.

The overwhelming majority of the people on Manus Island and Nauru have been there for over five years. I do ask the Senate to pause and reflect on that for a minute. Five years—that's a big chunk out of a person's life. It's a big chunk of time. It's a big part of their life to be detained in a punitive system which is designed deliberately to harm people. I say that advisedly, because there is abundant psychological and medical literature which shows that indefinite detention is directly correlated, in many cases, to significant mental health conditions. We have a mental health crisis, both on Nauru and on Manus Island. We have a situation where there are children on Nauru who are suffering from resignation syndrome. What that basically means is that they have withdrawn from life. There are many children there who are not eating or drinking and are effectively being kept alive by emergency medical supports.

I know there's been a long debate—in this parliament, in this chamber, in the community—about offshore detention, but I want to make one thing particularly clear. If the answer is deliberately harming innocent children, then you're asking the wrong question, because the answer to any question is never deliberately harming innocent children. The answer to any question is never deliberately harming innocent men and women. I can personally attest to the harm that's being caused, because, unlike the overwhelming majority—and, to the best of my knowledge, every other senator—I've been to Manus Island. I've been there many times. I've seen firsthand the human cost of Australia's offshore detention policy. I've seen it, and it's awful. It's disgusting. It's something that, ultimately, we will see a royal commission into in this country, and we will see in the future one of our prime ministers get up and make the requisite apologies. It's important that those things happen—a royal commission and an apology from the Prime Minister of the day—because we all ought to be focused, firstly, on getting innocent men, women and children out of offshore detention and here to Australia and, secondly, ensuring that this dark and bloody chapter in our national story is never, ever repeated. That is absolutely crucial.

Decades ago Australia was an international human rights leader. Other countries used to look up at us for our human rights stances. Now we're an international shame. There are far right-wing political parties in Europe that are actually using the Australian government's messaging when they talk about immigration and people seeking asylum. It is an international shame. Do you know what? I've got a firm view that the Australian people are better than what the government's policy is on offshore detention. We respect values like compassion, human decency and a fair go for everyone. I'm here to tell you that the people locked up on Manus Island and Nauru have not been given a fair go. They have not. There are people on Manus Island who ask me, when I'm there: why is one person they were sitting next to, on the very same boat, in community detention in Australia and yet another person they were sitting next to, on the very same boat, in offshore detention on Manus Island? And I know there are people on Nauru who are asking the same question. I know there are families that have been ripped apart by this cruel, inhumane policy of the Liberal-National Party. I know somebody on Nauru who has a baby daughter who is well over 12 months old now, and he's never seen his daughter. He's never held his daughter, because the daughter and the mother are here in Australia, and the husband and father has spent over five years of his life on Nauru. These are terrible, distressing stories, but they have to be told. And I'll keep telling the stories until we get a change in government policy and Labor Party policy on this issue.

Members will be aware that I've also tried to visit Nauru but my application for a visa was denied by the Nauruan government, who put in an email to me that, because the visa did not have the support of the Department of Foreign Affairs and Trade in Australia, they were unable to issue me with a visa. Make no mistake: even though the government's political line on offshore detention is that it's all a matter of PNG and Nauru, every single string is being pulled by the Department of Home Affairs here in Australia—every single string, every single time.

We don't want to see this stuff happening again, and we've got very real concerns about this legislation. The Assistant Minister for Home Affairs at the time, Mr Hawke, provided the Parliamentary Joint Committee on Human Rights with a response saying that, in planning the removal of any child, the best interests of the child must be taken into consideration. But he was very clear that it would be a consideration, not the only consideration. He went on to say that visa bars treat all noncitizens—including children—'as if they had never departed Australia,' therefore restoring them to their previous immigration status. What of that person's status? Is that not our problem anymore in this country? If a person is a child, is that not our problem anymore? I don't believe that's what the Australian people are. It's just such a shame that this government think that they are reflecting the values of the Australian people, when clearly they are not.

Regarding this bill's compatibility with the right to nonrefoulement and the right to liberty, the Joint Committee on Human Rights made it very clear that the committee had concerns about this issue. It made it clear that, in the previous parliament, the committee considered:

… that the statutory bar on visa claims in the event of unsuccessful removal from Australia failed to provide for effective and impartial review of non-refoulement decisions, and accordingly the measure was incompatible with Australia's nonrefoulement obligations …

We have very serious concerns that this legislation falls into the same category.