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

Thank you very much. The reason that formalities are in place in this parliament is so that parliament can carefully consider the legislation that comes before it. The formalities in place in this parliament provide for a series of steps to be gone through as the Senate considers any piece of legislation. They are in place because they reflect principles such as scrutiny, transparency and accountability, all things that are lacking in the way the government has responded to the recent High Court decision that effectively rendered indefinite immigration detention unlawful in Australia.

Now, the reason that the formalities should be observed in the case of this bill is that things are moving incredibly quickly. Just this afternoon the High Court released the full reasons for its judgement finding that indefinite immigration detention in Australia is unlawful—and not just unlawful, unconstitutional. There was a writ of habeas corpus issued, effectively saying that the state had kidnapped someone and was illegally depriving them of their liberty. This country has had a problem with liberty since the colonial project was established and so many people who were denied their liberty at that time were transported here from England and other places like Scotland, Wales and Ireland. We have had a problem with our liberty ever since.

The High Court has found that liberty is, in fact, important in Australia, and today it released its reasons for that finding. The reason that we should observe the formalities in relation to this piece of legislation is that it is time for the parliament to calm down, to stop panicking and to carefully consider the legislation that is being rammed through this place because the Labor Party is running scared of the opposition. The Prime Minister is running scared of Mr Dutton and, as a result of a confected emergency created by Mr Dutton, the Labor Party has cravenly capitulated. The reason we should be observing the formalities on this bill is so that we can all collectively take a deep breath, take a beat, think about the 30-plus pages of reasons that the High Court has released this afternoon and carefully consider our response. But what we have had from the government, the Labor Party, in this case is one panicked, shoddy, xenophobic piece of legislation that passed through this place heavily amended by panicked, shoddy, xenophobic amendments by the Liberal Party in the previous sitting week. Then we had another shoddy, panicked, xenophobic piece of legislation passed through the House yesterday. Now the government wants to introduce that legislation into the Senate less than an hour after it announced that it would also attempt to legislate a preventive detention regime in Australia and that it would have that legislation through both houses of the parliament this week.

Colleagues, this is no way to legislate. This is no way to legislate on such a critical issue as human rights and the deprivation of liberty. Liberty is one of the fundamental rights that exist in any Western democracy. The right to liberty is not an absolute right but it should only be impeded in extreme circumstances, and with an abundance of care. An abundance of care is not what this parliament is demonstrating at the moment.

The formalities that are normally attached to any piece of legislative action are a series of requirements that effectively force the parliament to take care with the bills that come before it. Those are normally attached to any piece of legislation unless the Senate decides otherwise, which is of course the question before us here. Some completely or effectively inconsequential bills—in fact many; probably most—do observe the formalities because the default situation in this chamber is that we will carefully and soberly consider pieces of legislation.

It has just been announced that a High Court challenge to the legislation that passed in the previous sitting has been lodged today—it was lodged just a few hours ago. I reckon it's going to win. From what I know of that case—and I've had a high-level briefing from one of the lawyers who lodged it—I believe that it has an extremely good chance of winning. So my advice to this parliament is to stop trying to legislate its way out of a High Court decision. It's the Constitution; it isn't some kind of 'vibe' of the thing. It's the High Court of Australia—it's the Constitution, mate! The reason the formalities are in place is to require this Senate to carefully and lucidly consider what it is doing. It is an outrage that in the case of this bill—which has been deliberately designed to get around a constitutional decision by the High Court and allow for the arbitrary deprivation of liberty of a small number of people in this country on the basis of whether or not they are citizens, I might add—the government wants to ram it through without observing the formalities.

As Senator Hanson-Young has reminded us, this is what happened in the last sitting week: the formalities were not observed. There was no Senate inquiry; no reasonable opportunity for questions to be asked in the committee stages of the legislation; and no reference in the Legal and Constitutional Affairs Committee, where this type of legislation would normally be referred. It's a disgrace, colleagues. The parliament is panicking; the parliament is losing its mind. The government has thrown good governance and proper process out the window. And who is going to suffer? Refugees and migrants to this country, because if you're an Australian citizen then none of this stuff can be applied to you. It can only be applied to people who are on a particular class of visa—noncitizens. It's one rule for most of the people in the country and another set of rules for a small group of other people who are in this country.

What have we come to, colleagues? Australia used to be a brave, proud and welcoming nation. We were regarded on the international stage as such. And what are we now? We are a craven, timid and cowering nation that is prepared to enact laws without proper process and without proper scrutiny—laws that treat one group of people differently under the law to most other people in this nation. How have we come to here? We have come here on a simple and disgraceful path. We have come here because the far right in politics is prepared to demonise and weaponise refugees. And we have come here because much the Australian media is prepared to provide a megaphone for that weaponisation and demonisation. And we come here because the centre-right party in this place, the Australian Labor Party, are too craven to stand up for human rights and for refugee rights. We have watched this for decades. In this country there is a bipartisan lockstep of cruelty to refugees that runs deeply through the political veins of both the Liberal Party and the Labor Party in this place, and it needs to end. It will end when we start doing our job properly in this place and observe the formalities on legislation such as this.

Colleagues, this is no time and no place to throw the formalities out of the window. This is a time and a place for this parliament to carefully consider how it wants to proceed. We need to stop panicking. We need to take a deep breath. We need to calm down, and we need to think our way through this situation. Throwing the formalities out of the window, as Labor is proposing to do, simply means that the knee-jerk, panicked response that we saw in the last sitting week will continue into this sitting week. I predict that, when Labor's preventive detention legislation, which was only announced an hour or so ago by the Minister for Home Affairs in the other place, comes up, whoever the duty minister is will be up here, moving that the formalities be suspended on that legislation as well. It is legislation that means that one group of people in this country will be treated differently under the law than another group of people. It is legislation that is born of the collective panic of the major parties in this place. It is legislation that has come through the fake emergency confected by the Leader of the Opposition, who finds himself unable to resist exploiting fear and division in our community and unable to resist the temptation to demonise migrants and refugees—something he's built his political career on—and a Labor Party that has lost its heart and its backbone and is cravenly capitulating to Mr Dutton's agenda in the most shameful and abject way.

The government needs to stop letting Mr Dutton back-seat drive its response to the High Court. The way it could do that is to actually stand up for good governance and for people's rights and calmly explain to the country that, even if some of these people have committed a crime, they've already been punished twice for it—firstly, by the courts and, secondly, by being unlawfully, indefinitely and arbitrarily detained in our immigration system. Now the government wants to punish them for a third time. It's triple jeopardy—triple punishment. Now we have the announcement of a preventive detention regime which is a future crime piece of legislation where you're going to be imprisoned on the basis of something you might do in the future. This is Orwellian stuff. You should never go down this dark and dangerous path, but, if you do want to walk down it, don't walk down it in a panicked haste. That is what the government is proposing to do by moving this evening that formalities on this legislation be denied.

It's time that this parliament considered the human rights implications of legislation like this. It's time that the parliament considered exactly the kinds of people who this legislation will apply to. The simple fact is that this is legislation that overwhelmingly will apply to people with black or brown skins. And do you know what that makes it? That makes it racist. That's what it makes it. It's time that the parliament understood that a panicked knee-jerk response to a High Court decision that will actually act to deny freedom and deny liberty to a small group of people in this country, many of whom have committed absolutely no crime whatsoever, is a terrible idea. The way that we would discover collectively that it's such a terrible idea is by observing the formalities that usually apply.