Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

On behalf of the Legal and Constitutional Affairs References Committee, I present the report on Australia's arrangement with Malaysia in relation to asylum seekers, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

The Senate's committees are often asked to consider issues of great complexity where diverse opinions exist with respect to particular decisions that governments of the day might make. With respect to this particular issue—that is, the agreement entered into between Australia and Malaysia for the transfer of 800 asylum seekers from Australia to Malaysia and the reciprocal transfer of 4,000 asylum seekers back from Malaysia to Australia—I have to say that the evidence presented to the Legal and Constitutional Affairs References Committee was quite overwhelming. It was quite unambiguous. It is rare to find a situation where so many witnesses are in such complete agreement. The arrangement entered into and the particular action that the government has initiated was totally unsupported by those witnesses.

This is an arrangement which was designed to prevent the business of people smuggling from flourishing, but the flaws and inadequacies in this arrangement were so flagrantly evident to the members of the committee that it beggars belief that anyone could view these arrangements and rationally suggest that they are a viable and effective way of dealing with Australia's problem with unauthorised maritime arrivals. The arrangement is not just unsatisfactory from various points of view; it is quite patently the most unsatisfactory option available to the Australian government today to deal with this issue.

There are many problems with that agreement that were evident from the evidence put before the Legal and Constitutional Affairs References Committee. I want to run through some of those issues. The first and perhaps most troubling issue with the arrangement that was put before the committee is that the so-called agreement with Malaysia is, in fact, not binding. The evidence to the committee was quite clear that the arrangement is aspirational in nature. It amounts to an indication of what the parties are attempting to achieve but does not place binding obligations on either nation. Australia's desire to make this arrangement work was fairly evident from the statements made by the government, but, with great respect, it is much less clear whether Malaysia has the same commitment to a number of the provisions in this arrangement, particularly with respect to the welfare of those people transferred to Malaysia under the agreement—the 800 or so who constitute Australia's contribution to that people swap. The arrangements are not legally binding. They cannot be enforced. After it has transferred the 800 people, it is very doubtful, under the evidence put before the committee, that Australia has any capacity to enforce Malaysia's adherence to agreements, for example, on the treatment of those asylum seekers. Given that this government has on many, many occasions returned to the mantra of the human rights of those concerned, ensuring that Australia exercises a humane policy—at one point indicating that it would not deal and did not believe that Australia should deal with any country which was not a signatory to the UN convention on refugees—it is troubling, to say the least, to see this kind of arrangement put in place.

One of the arrangements that is part of this agreement—this non-binding agreement—is that Australia should put in place arrangements to ensure that there is not refoulement of transferees to the countries from which they are fleeing. The identification of the vulnerabilities and heightened risks of refugees, particularly focusing on unaccompanied children, is part of the process. The agreement is also seeking to confirm that particular transferees are fit to travel and undertake the journey concerned.

As I said, the arrangements are not binding, so anything that relies on cooperation at the Malaysian end for the delivery of those objectives might not be enforceable. But what was particularly troubling to the committee was that the arrangements Australia has put in place to attempt to enforce the objectives of the agreement contained in a document on the preremoval guidelines—which supposedly determines what kinds of measures are put in place to ensure that people are not inappropriately transferred to Malaysia—were not available to the committee to examine. They have not been annexed to or incorporated into the agreement itself—which causes some concern as to whether they are enforceable with respect to the agreement with Malaysia—and they have not been made available to the committee. Indeed, at the time the committee was meeting, nor were they even made available to the Commonwealth Ombudsman, who has a role as the Immigration Ombudsman on such arrangements. That leaves a very stark and disturbing question before the committee and, in turn, before the Senate as to what these preremoval guidelines say and to what extent they protect the interests of those transferees. The committee was deeply disturbed by the absence of that information. The question of what those guidelines say remains a very open question for the Senate as a whole.

I do not want to speak at length about the conditions of asylum seekers in Malaysia— the conditions, therefore, of the transferees that Australia will send under this arrangement, if it proceeds—because I know others will make comment about that in this debate. I know that Senator Cash has already highlighted the conditions which appear to apply in Malaysia on the caning of asylum seekers in certain circumstances. Very little that the committee heard allayed its concerns about the possibility that transferees under this arrangement would indeed be caned. Again, I have to record the greatest of concern that a government which has professed repeatedly its desire to protect the human rights of asylum seekers could possibly contemplate an arrangement where people are transferred in large numbers to a country where such treatment of asylum seekers not only happens but is quite common.

The problem is exacerbated in Malaysia by the existence of a kind of volunteer-citizens police force, which is specifically tasked to regulate immigration matters and the affairs of asylum seekers in that country—people without the legal authority to be there on the basis that they are asylum seekers. This organisation, RELA, apparently has over one million members in that country and its history of involvement in extortion, intimidation, harassment and abuse of asylum seekers and refugees is very disturbing in the extreme. Some attention was focused on mitigating circumstances in Malaysia—how Australia, the UNHCR and Malaysia itself are working to try and prevent abuses such as arbitrary arrest and the abuse of asylum seekers by RELA officers—but the overwhelming impression that the committee came away with was that with such a huge number of people involved in that organisation in Malaysia the chances of that kind of amelioration actually protecting every asylum seeker transferred is very small indeed.

The impression that the committee has been left with is one of a chaotic response to the government's present woes on asylum seekers. The committee had no hesitation in recommending that the agreement not proceed. The agreement is deeply flawed and defective, and it is not in Australia's interests to be party to such an arrangement. (Time expired)

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to provide some commentary on this Senate Legal and Constitutional Affairs References Committee report this afternoon. As people would be aware, the committee is chaired by the opposition, and no doubt they will not be surprised that government senators on this committee have provided a dissenting report. We have also recommended in our dissenting report that the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 be passed by this parliament to give effect to the implementation of the Malaysian agreement.

What I want people who may be listening to and interested in this debate to do is go to the committee's website and have a look at this report and in particular at chapter 2, which sets out a very well-defined summary of the arguments that have led to the Malaysian agreement. If people read chapter 3, which is basically a summary of the position of the coalition and Greens and the committee's view, they should also carefully read the government senators' dissenting report. I think they will find that this report provides a balanced perspective of the different views in relation to the issues around this debate.

I do want to make note at the outset that the committee secretariat—the team who, under the guidance of a terrific secretary, do a fantastic job all the time with whatever work or challenge they are presented—have done a great job in this instance in setting out the views that were presented to the committee and the views of both the opposition and the government. However, people should also note that the committee wrote to over 200 individuals and organisations advising them of this committee inquiry, and from that we only got 37 submissions. That was a bit underwhelming; I was a bit surprised to find that we got so few submissions in relation to this current, fairly topical, contentious debate.

Many submitters had strong opinions about this current situation but we heard from no-one who had had a direct involvement with the Malaysian agreement. The UNHCR has had involvement with it and acknowledge the arrangement that has been put in place. In fact, there is an article in today's paper about the UNHCR's position on this agreement. Quite rightly, they said that they were neither called upon, nor would it have been appropriate, to endorse or otherwise formally sanction the agreements. However, the committee's main view in this report significantly underwhelms and understates the view of the UNHCR, who actually went on to say that they were:

… appreciative of the efforts made by the two parties to provide fundamental protection safeguards for transferees, notably: respect for the principle of nonrefoulement, the right to asylum, the principle of family unity and best interests of the child, humane reception conditions, including protection against arbitrary detention, and the realization of durable solutions.

In fact, newspaper articles today have a headline of 'Malaysia a better option for asylum seekers, says UN'. In the context of the Malaysian arrangements, the insurances of legal stay and community based reception for all transferees can be seen as a more positive protection environment rather than indefinite detention, which is the policy at this stage of both the major political parties in this country.

I also want to comment on the Commonwealth and Immigration Ombudsman, who I thought performed significantly unprofessionally during the course of this inquiry. When I questioned the Ombudsman in the hearings about how and where and on what basis they had drawn the facts and the detail for their submissions, I was told that they got their information mainly from newspaper articles and academic articles and journals, which I thought was astounding. The Commonwealth Ombudsman's office in fact did not purport to have any knowledge of the administration in Malaysia and had no specific technical or legal knowledge of procedures in Malaysia. In fact, the Ombudsman's initial submission to the inquiry contained substantial errors of fact, major errors of fact—which I noticed are not highlighted in the committee's majority report—which of course the Ombudsman subsequently had to correct. He handed a letter to the committee tabling those corrections on the day he appeared before the committee to give evidence. Given that the Ombudsman's role includes the oversight of immigration detention and refugee assessments, those errors are simply unacceptable. I do not believe that the evidence the Ombudsman gave before the committee was at all credible or well sourced and documented.

I want to point out to people that the Malaysian agreement is about one thing. The Malaysian agreement builds on the regional cooperation framework that was established at the fourth Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime ministerial conference in Bali in March this year, the Bali Process. It is about trying to get the region of Asia to accept what is happening in relation to refugees, particularly those who move through places like Indonesia as a secondary movement of asylum seekers.

Christmas Island is in my electorate and I cannot state more strongly how traumatised my constituents on Christmas Island were in the lead-up to the incident and during the incident last December in which a boat smashed on the cliffs at Rocky Point. Anything and everything we could possibly do as a nation and as a people to prevent that happening in the future, we must do. We must make every effort possible to stop people, women and children in particular, risking their lives by thinking that, if they can get on a boat in Indonesia and travel that dangerous journey to Australia, it is safe to do so. It is not safe to do so. We accept refugees in this country with open arms. As a result of this agreement with Malaysia we will be accepting 4,000 refugees from Malaysia and increasing our refugee intake. So people should not for one minute believe that this is not a country that is receptive to people who are seeking asylum. What we are not going to do anymore is stand by and see people risk their lives. Through this arrangement and through the legislation, we want to ensure that if you get on a boat in Indonesia and make your way to Australia—that is, to Christmas Island—then not only will you not be processed in this country but you will not be resettled in this country.

We absolutely want to break the people-smuggling model. In our dissenting reporting we make a comparison with the coalition's policy, which simply wants to tick the box and send people to Nauru. But, at the end of the day, if people head off to Nauru they will be resettled in Australia as they have been in the past. We want to ensure that people get two very strong messages: not only will you not be processed here but you will not be resettled here. So this agreement is very strong in terms of building on the regional cooperation. It is very strong in terms of building on the cooperation we have with Malaysia. The report severely underestimates the work that has been done.

Finally, one of the things this report seeks to do is provide, in an almost hysterical sort of way, a report and discussion about what would happen in Malaysia. The very essence here is that asylum seekers who are transferred to Malaysia will not be illegal migrants. They will be exempted under section 55 of the Malaysian Immigration Act. That is the protection we can offer those people. That is the protection that we have come to agreement on with the Malaysian government. These asylum seekers will have entered Malaysia legally. They will not have committed any immigration offences under Malaysian domestic law, and we are confident that they will not be subject to any of the issues raised in this report.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I too rise as a member of the Legal and Constitutional Affairs References Committee to speak to the committee's report, Australia's arrangement with Malaysia in relation to asylum seekers. The submissions and the witnesses raised a number of very, very serious concerns in relation to the proposed Malaysia arrangement. Those who have gone onto the committee's website to have a look at the submissions that were provided to the inquiry would have seen that the majority—one might even say all—of those who provided evidence by way of the submission process provided comment on the Malaysia arrangement and expressed their opinion in absolute opposition to the arrangement.

It would be fair to say that based on the evidence the committee received it is patently obvious to everyone—except perhaps the current Prime Minister of Australia—that at its most basic level this so-called Malaysia arrangement is both inadequate and unacceptable. The evidence presented to the committee confirms that the arrangement was conjured up out of political desperation and, as a result, is extraordinarily imprecise. The parties' so called 'contractual obligations', which the previous speaker referred to, are couched in ambiguous, equivocal and vague language. They include terms that are not defined and as a result are both nebulous and imprecise in their meaning.

In reality, far from the contractual obligations of the parties being set out, as claimed by the government, the evidence presented to the committee confirms that the most offensive part of the arrangement is that it reflects merely the political commitments and the political intentions of the government. This is clearly set out in clause 16 of the arrangement, which specifically states that the agreement is 'not legally binding' on the parties.

That is perhaps the most abhorrent part of this arrangement—the fact that the document clearly states that the arrangement is not legally binding on the parties. That actually means, and what the evidence presented to the committee confirms, that there is absolutely no means for the Australian government to enforce the obligations of the parties as set out in the document—in other words, the document means absolutely nothing. In fact, Mr Rowan Anderson from the office of the Commonwealth Ombudsman described the arrangement as 'almost aspirational'. Why? Because it talks of commitments, not binding obligations. I think this chamber knows that when you talk in terms of aspirations, often what you have are expressions of one's hopes, desires, wants and wishes. Certainly what you do not have are obligations that if breached by one of the parties can actually be enforced by legal means.

The Department of Immigration and Citizenship gave evidence that Malaysia has undertaken major obligations in relation to the principle of nonrefoulement of asylum seekers—to treat asylum seekers with dignity and respect and in accordance with human rights standards and to deal with the special needs of vulnerable cases, including unaccompanied minors—and that these are set out in the text of the arrangement. Again, though, the evidence from the department completely overlooks the fact that, because the agreement is specifically stated at clause 16 to be a non-legally-binding arrangement, the Australian government is actually powerless in the event that Malaysia does not comply with the arrangement. As the Ombudsman highlighted to the committee, there are actually no steps which can be taken by the joint committee or the advisory committee, the only bodies likely to be providing any form of oversight of the up to 800 people that Australia proposes to send to Malaysia, in the event that there is any breach of the arrangement. That is the Commonwealth Ombudsman giving evidence to the Senate committee that there are no steps that these so-called advisory bodies can actually take in the event that there is a breach of the agreement.

Evidence was further presented to the committee in terms of selecting Malaysia as the location to process the protection claims of the 800 'transferees', as they are referred to in the arrangement. The evidence actually highlighted the fact that the Australian government has chosen to completely ignore one key fact, and that one key fact, when you talk about protecting the human rights of the 800 transferees that we are going to be sending to Malaysia, is that Malaysia is, as we all know, not a party to the United Nations convention on the rights of refugees. At a minimum, the Australian government should meet the current Prime Minister of Australia's previous commitment to rule out sending asylum seekers who travel to Australia by boat to countries which are not signatories to the refugee convention. Obviously Malaysia does not satisfy the Prime Minister's own stated intention.

So, having established that the Malaysian arrangement is not legally binding and does not accord with the Prime Minister's own stated position in relation to the country having to be a signatory to the refugee convention, and having confirmed that the arrangement itself is not legally binding, as specifically set out in clause 16 of the agreement, we now have a situation in Australia whereby the Labor government, despite the overwhelming opposition not only in the evidence given to the legal and constitutional affairs committee but by the people of Australia, continues to tell us—and this is reflected in the dissenting report of the Labor senators in this committee—that it is committed to the Malaysia arrangement. We have the government of Australia committed to a policy that will send people who have come to Australia seeking our protection to a country where, as evidence to the committee confirms, statistics published by the Malaysian ministry of justice show that, in the five years between 2005 and 2010, some 29,759 unlawful entrants to Malaysia were subjected to the punishment of caning. That is an average of 16 floggings per day, every day. Again, the evidence to the committee confirmed that that is a common penalty provided by Malaysia under their Immigration Act to asylum seekers that are entering that country.

I pick up on the comments of the Labor senator who spoke previously, who said that the people that we send there will not be subject to that penalty because Malaysia is making a specific provision for them under the Immigration Act. But I turn back to clause 16 of the agreement that has been entered into by the parties. The agreement is not legally binding. That is not me saying that. That is not the majority of this committee saying that. That is what the Labor government of Australia have negotiated between the two parties, Australia and Malaysia. They have had it set out in black and white at clause 16 of the agreement that the agreement is not legally binding.

In the committee majority's view, the terms of the Malaysian arrangement and the associated operational guidelines, along with their practical implementation, are fundamentally hopeless and fundamentally flawed. In particular, the committee strongly believes that the Malaysian arrangement is lacking in significant detail and, most importantly, fails to address serious human rights issues. As set out in the report, if the transfer of asylum seekers to Malaysia proceeds then the Australian government will have failed dismally in fulfilling any so-called moral obligation that it allegedly claims that it has.

Question agreed to.