Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, why is there no mention of the UN Convention on the Law of the Sea even when this bill allows the extraterritorial application of maritime powers?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Thank you for the question. The government asserts that this bill has been drafted to ensure that it allows Australia to fulfil entirely its obligations under the UN Convention on the Law of the Sea and to exercise its rights at international law. The geographical limitations in division 5 of part 2 ensure that the exercise of enforcement powers in Australia's maritime zones in other countries and between countries is consistent with international law. In particular, the bill reflects the provisions of the UN Convention on the Law of the Sea that outline the jurisdictional rights of coastal states to take enforcement action on the seas. For example, UNCLOS, the UN convention, gives states the right to identify vessels without nationality on the high seas, and this is provided for in the bill. Maritime officers will also be able to exercise maritime powers available under international decisions, such as UN Security Council resolutions and international agreements between Australia and other countries. I would particularly refer the senator to clauses 12, 19 and 33.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Thank you for that, Minister. Moving on to another aspect of the bill, what is being done to ensure that the fishing communities that are likely to be affected by this bill are educated about the changing circumstances? I am interested in how this will work, because it appears from reading the bill that the focus is on enforcement when surely having an effective education campaign could help avoid some of the problems that usually arise.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that this bill is essentially a consolidation bill cleaning up or consolidating a whole range of different legislative regimes. In that sense it is a continuation of the status quo. There are, I am advised, no specific plans at this time to run, for want of a better word, not meaning to put words in your mouth, an educational campaign. But to the extent that I am wrong about that, I will be sure to come back to you with further advice. That is my understanding at the moment.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (4) on sheet 7348:

(1) Clause 41, page 30 (line 5), omit "Australia", substitute "Australia (which may include repelling vessels from the contiguous zone, or prohibiting vessels from entering or further entering the contiguous zone, or towing vessels to another place whether inside or outside the contiguous zone)".

(2) Clause 41, page 30 (line 24), omit "chased without interruption", substitute "towed or chased without interruption".

(3) Clause 54, page 38 (line 8), omit "Note:", substitute "Note 1:".

(4) Clause 54, page 38 (after line 9), at the end of subsection (1) (after the note), add:

Note 2: A specified course or speed may include a direction to adopt or maintain a course that will take the vessel to a place outside Australia.

The parliamentary secretary, Senator Feeney, has already in a sense anticipated the debate on these amendments. Contrary to what Senator Feeney has said, the opposition is not satisfied that the powers gathered together and consolidated in this bill do make it sufficiently clear that the powers of masters of Australian vessels or those in control of Australian vessels, including naval vessels, do include the power to turn around and tow back other vessels, foreign vessels. For that reason, the effect of these amendments is to insert a provision into the act, in particular by amendment to proposed section 41 of the act, that makes it clear beyond doubt. The relevant words in the principal amendment which we move, amendment (1), are to make it clear that the powers to enforce laws of Australia in relation to foreign vessels include the power of repelling vessels from the contiguous zone, or prohibiting vessels from entering or further entering the contiguous zone, or towing vessels to another place whether inside or outside the contiguous zone.

It is essential, in the opposition's view, that the existence of this power be clarified in this bill. This is the bill that consolidates in a rational scheme which the opposition otherwise supports all of the maritime powers that have hitherto variously been located in a variety of different acts of parliament. What an appalling oversight it would be if, in effectively codifying those powers in a single act of parliament, that act of parliament omitted the biggest issue that is on the minds of the Australian public at the moment when it comes to the exercise of maritime powers, and that is the exercise of a maritime power to repel from unlawful entry into Australian waters foreign vessels and, in particular, vessels containing unlawful entrants or unlawful attempted entrants.

The parliamentary secretary said in his remarks—reading from a script no doubt written for him by officials—'To the extent that Australian law contains such powers, they are preserved by the bill.' The introductory or qualifying words of his contribution 'to the extent that' in a sense make the opposition's point, because it is by no means clear from this bill that that power exists as clearly as it should. We the opposition make no apologies for saying that the power to repel or turn around foreign vessels should exist and that the existence of that power should be made explicit in this codification of Australian maritime powers. It is as simple as that.

Might I remind honourable senators and those who may be listening to the broadcast this evening that, when Mr Kevin Rudd—remember Mr Kevin Rudd; of course, you do, Madam Temporary Chairman Stephens, because you are one of his supporters, and are you one of his supporters, Senator Feeney; I can never keep track of the Labor Party; they are like a merry-go-round—was elected as the democratically elected Prime Minister of Australia in 2007, during that election he said, emphatically, 'We will turn the boats around.' It was very controversial within the Labor Party but, nevertheless, Mr Kevin Rudd was elected on that promise in November 2007: we will turn the boats around. I have to concede that when Mr Kevin Rudd said that, Mr Howard, the then Prime Minister, could hardly say that Mr Rudd was not taking the issue seriously. But, unfortunately, within a year of the election of the Rudd government, by legislation introduced into this chamber, in August 2008, by the then Leader of the Government in the Senate and the then minister for immigration, Senator Chris Evans, the Howard government's tough border protection policies were repealed. And the rest, as they say, is history.

We went from a situation in which Australia's borders had been protected and our maritime borders had been made secure, since the Howard government's reforms of 2001, to a situation in which a green light was given to the people smugglers. I think people know that, the people of Western Sydney know that, the people of Western Australia know that and people in every region of Australia know that. I see my distinguished colleague Senator Michaelia Cash, a very distinguished Western Australian senator, nodding in agreement. She will no doubt speak in this debate from a Western Australian perspective.

But let me remind you of the facts. There was a problem of the borders getting out of control at the end of the 1990s. There is no doubt about that. In 1999, 86 unlawful asylum seeker boats made it to our shores and, in 2000, it was not a lot better—there were 51. Then in 2001 the government of Mr John Howard introduced tough policies. He introduced, in particular, temporary protection visas and a suite of policies which were designed to send a message loud and clear to the people smugglers: we are going to destroy your evil trade and we are going to put you out of business.

Do you know what happened? The policy worked because, in the year after it was introduced, in the calendar year 2002, not one asylum seeker vessel tried to enter Australian waters—not a single one. In 2003, one asylum seeker vessel tried to enter Australian waters; in 2004, there was not one; in 2005, there were four; in 2006, there were six; in 2007, there were five; and, in 2008, there were seven. In the course of those eight years there were 23 vessels, an average of about three a year, because the policy worked.

But out of an excess of zeal and moral vanity, Senator Chris Evans repealed those policies by legislation introduced into this chamber in August 2008. In the ensuing less than five years more than 500 vessels have made that perilous journey and, as you know, Madam Temporary Chairman, several of them have sunk. More than 1,000 lives have been lost and most of those lives have been of women and children.

I have said before in debates on this issue, bad policy always has a price. I do not for a moment doubt Senator Chris Evans's good intentions. I remember his profession of humanitarian sentiment when he stood at that table, in August 2008, and announced these changes. But the problem is that when a bad policy is so bad that it reignites a trade like people-smuggling, in which innocent women and children are taken across perilous waters and their lives are placed in peril and, as a result, more than 1,000 of them drown, it is not just an academic exercise; a dreadful, horrible, human price was paid for that catastrophic policy decision by this government. It is a decision that it has been trying, without admission or acknowledgement of its error, to walk away from ever since.

The Australian people know that there is one side of politics that gave the green light to the people smugglers in August 2008, regardless of all of their retrospective affectations and posturing of toughness—and that is this government, the government of Mr Kevin Rudd and Ms Julia Gillard. They also know that there is another side of Australian politics which gave the red light to the people smugglers which drove them out of business, and that was the side of politics that I represent—the government of John Howard, who, by introducing tough measures in 2001, stopped the people smugglers and saved lives. Who can say how many lives would have been lost in those years between 2001 and 2008 if we had not had the spine to introduce the measures to drive the people smugglers out of business? But we know how many lives have been lost, because in 2008 your government, Senator Feeney, did not have the spine to hold onto those tough measures: more than 1,000.

I feel sorry for Senator Chris Evans. I have served in this Senate for as long as I have been a senator with Senator Chris Evans. He is, in my view, undoubtedly a good and decent man. But he took responsibility for a catastrophic error and people died in their hundreds—in their thousands, possibly, certainly more than 1,000—as a result of that policy error. That is, I am sorry to say, something with which his name will always be associated and I feel sorry for him. But in these jobs we have to take the responsibility for the consequences of our decisions. If those consequences are as grievous as the consequences of that particularly egregious policy error then I am afraid that is the record that history has left.

We moved this amendment to ensure that in codifying maritime powers, the policy that worked under Howard—and will work again if the Australian people elect Mr Tony Abbott and his shadow ministers to government later this year—will be enabled to work again, to turn back the boats when it is safe to do so, to embrace temporary protection visas and to reopen Nauru. The government have already walked back on the issue of Nauru—we know that—in a terribly humiliating backdown, a backdown made more humiliating by the fact that the government did not have the grace to admit that it had made an error and was reversing an earlier policy decision to close down Nauru. But without introducing the whole suite of policies, including turning the boats around—the policy on which you were elected to office, Senator Feeney—and temporary protection visas then the people-smuggling business model will not be broken.

You said that this amendment was introduced to make a political point; not so, Senator Feeney. The amendment is introduced to make sure that it is as clear as can be in this bill that the power exists. But there is an important point to be made, and call it a political point if you will, but the reality is and the record shows, indisputably, that there was a will and a steel to break the people smugglers that was supported by effective policies when my side of politics was in office that will be restored if my side of the politics is elected to office which your side of politics entirely lacks.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, the government do not support the opposition amendments and Senator Brandis is quite right that I did assert in my earlier remarks, when responding to Senator Humphries, that ultimately the coalition was motivated to put up this amendment not so much because it clarified or changed the bill, and in fact we say it does not, but to make a political point. Insofar as my observation required any confirmation, the contribution just made by Senator Brandis made the point better than I ever could.

I will begin by dealing with some of the questions of fact before returning to some of Senator Brandis's more expansive and indeed outrageous remarks. To repeat what I said earlier, the government is satisfied that the bill does not affect the government's executive power, including its prerogative power. This is preserved in clause 5 of the bill and as set out in the explanatory memorandum of the bill, specifically pages 12 and 13. Clause 5 provides that the bill will not limit the executive power of the Commonwealth. This means that the bill does not override the ability of the executive government to exercise any of those powers traditionally known as Crown prerogatives. These enable the executive to make certain decisions without the need for parliamentary or legislative approval. That is, for Senator Brandis's purposes, one would think, the end of the matter.

As I alluded to in my earlier remarks, responding to Senator Humphries, further observations were made by the expert panel regarding tow-backs and turnarounds. In particular, the expert panel found that the conditions necessary for the safe and lawful enforcement of tow-backs did not presently exist. The panel did identify the theoretical circumstances in which tow-backs could take place. The expert panel report at paragraph 3.77 and attachment 3 also identified the following international law obligations relevant to tow-backs and turnarounds. Firstly, on jurisdiction, Australia has very limited powers to deal with stateless or foreign flagged vessels on the high seas, so as a general rule we would require the consent of the flag state of the vessel either to intercept the vessel outside our territorial sea or contiguous zone or to steam it outside those waters. Secondly, our obligations under the Safety of Life at Sea convention mean we would not be able to cause a vessel to be placed in a situation of distress. Thirdly, Australia has taken on so-called non-refoulement obligations under a range of human rights treaties and the refugees convention, which generally means that Australia cannot send a person to a place where they will be persecuted on the grounds of race, religion, ethnicity, membership of a social group or political opinion, or where they would be subjected to torture, cruel, inhumane or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty. Lastly, we would require the consent of the state to which Australia intends to return the vessel. The expert panel noted—as the government has been telling those opposite from time to time—that those circumstances simply do not exist for us at the moment. The government agrees with the conclusions of the expert panel's report.

That sets out in a logical and concise way how the government says that the opposition's amendments add nothing to this bill. They do not protect or achieve the purpose for which Senator Brandis and others say they were intended. But, of course, that is not the true intention. The true intention of the coalition's amendments is to once again be able to raise the spectre of asylum seekers and—as the opposition leader has referred to it—the peaceful invasion of Australia.

In this respect, I cannot let Senator Brandis's farrago of distortions passed by unremarked upon. Perhaps, as an introduction to the farrago of distortion that was Senator Brandis' remarks, was this extraordinary proposition that the coalition have throughout recent years remained stoically and consistently resolved in providing a hard line or red light to the people smugglers. It is a black and white assessment which utterly belies the conduct of the coalition in recent years. Let us remind ourselves about where we are and how it is we came to be here. Firstly, Senator Brandis launched a series of statistics at us about ship arrivals during the period of the Howard government. And I guess it should be reassuring, particularly to those economists amongst us, that, just as the coalition insist that the global financial crisis never happened, so too do they insist that the invasion of Iraq in 2003 or the conflict in Afghanistan played absolutely no part in the arrival of refugees either. The wars in Iraq and Afghanistan during those periods were at a phase where refugees and displaced persons were not making their way to Australia in the numbers that they presently are, nor for that matter was the aftermath of the civil war in Sri Lanka upon us. Those external factors remain completely unremarked upon by Senator Brandis because they, just like the global financial crisis, would reveal the fact that there are global externalities which are of critical importance in this debate, a debate of nuance to which the coalition is not well prepared.

Let me continue, because if we think about how it is that we got where we are, we cannot forget for a moment the decision of the High Court to strike down critical parts of this legislation. The impact of the High Court was such that it would have rendered impossible parts of the Howard solution, let alone rendered impossible parts of the contemporary government's mechanisms for dealing with this problem. In the aftermath of that extraordinary High Court decision, you will recall that the Prime Minister and the government reached out across the aisle and said, 'This is an issue of importance to both of us. Both parties have important commonalities here. This is a critical piece of national interest and we can work together to make a proper and considered fix, proper and considered amendments to the legislation that enable our policy and would indeed enable yours.' What was your response to that very sensible, amicable, bipartisan approach? It was ruthless and implacable rejection.

So, Senator Brandis, I, on Senator Evans's behalf, take mighty exception to your proposal to lay thousands of dead at his feet in what I think is a particularly scurrilous allusion on your part, when I might just as easily say the same of the opposition for your disgraceful conduct during those dark days in the aftermath of the High Court decision. I might say the same about your refusal to let this government undertake the Malaysia solution: a solution which, in this government's judgement, would do precisely what it is you say you want to do, and that is to break the—

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

Doug Cameron does not support them.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I did not interrupt the barrages I have been confronted with, Senator Cash. You might do the same.

Senator Cash interjecting—

Or you might not. Let me simply make this point, Senator Brandis. You have deliberately as a ruthless political stratagem sought to obstruct this government, you have sought to obstruct this government's capacity to have legislation that enables its solutions. You have denigrated and destroyed wherever possible the Malaysia Solution, a proposal this government says would have dealt with the people smuggler model. You have conducted yourself in a way so as to ruthlessly exploit this issue for every vote you think that it might bequeath you. And to have done all of that and then lay the tragic dead of those dreadful tragedies at Senator Evans's feet—who, as you said, is a fine upstanding member of this place—is a disgrace. I am sure it will be thought of as such by everyone listening to this debate.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to clarify that the Greens will not be supporting the opposition's amendments as circulated and spoken to by Senator Brandis. In fact, I am extremely concerned that we are debating the introduction of amendments that absolutely fly in the face of international law when it comes to the laws of the sea. We know that the proposals that have been put forward by the coalition are incredibly dangerous. The idea that we would turn back asylum seeker boats on the high seas is a policy that the opposition have been spruiking for years.

All of the evidence from those who have worked in this field previously such as the former Chief of the Defence Force, Admiral Barrie, clearly says that it will not work, it puts the lives of our brave men and women at risk and it pushes people to take desperate acts which we just should not be promoting. In fact, Admiral Barrie said only last year:

My expectation wouldn't be very high it's going to work in many cases, and I would be very conscious that our commanding officers at sea must act in accordance with international law.

The problem with the coalition's policy is that it drives people to very desperate measures, and I do not think it is something we should promote.

Of course there are many Australian defence personnel and international law experts on the record condemning this policy of the coalition, but there is also the Indonesian government, which has said time and time again that it simply will not accept this policy by the coalition. And we know that when Tony Abbott, the Leader of the Opposition, had an opportunity to raise this issue with the President of Indonesia, he could not even bring himself to put this topic on the table for discussion, because the Leader of the Opposition knew very well that the Indonesian government, the Prime Minister of Indonesia and the Foreign Minister of Indonesia have all flatly rejected this as a workable option.

I will read one statement from the Indonesian foreign minister from March 2010:

… simply pushing boats back to where they came from would be a backward step.

…   …   …

The general concept of pushing boats back and forth would be an aberration to the general consensus that has been established since 2003.

That is what the Indonesian government says about this ludicrous, dangerous, extreme policy of the coalition.

The Greens will not be supporting this desperate measure. I think it is incredibly unhelpful. It is illegal under international law. It is rejected by our neighbours, the very people we need to engage with in a positive way if we are to establish a genuine regional approach to people who are seeking asylum. Rejecting their opinion of this, dangerously pushing boats back to the high seas and not listening to our neighbours are not the ways you engage the very people you need in order to get us through what is going to be a challenging decade when we know that the number of people in our region who are seeking asylum and on the move is growing.

It beggars belief that the opposition continue to bang on about this issue despite all of the evidence showing that it will not work and is dangerous. Our Navy officers will not do it. That is what the Chief of the Defence Force has said. They will not accept their officers breaking the law and putting lives at risk. And our closest neighbour, whom we need to engage, says they will not have a bar of it. And of course Tony Abbott knows this; as I have reminded us here today, he could not even bring himself to bring it up with the President of Indonesia when he was here. It is all guff and bravado and has no substance in terms of a workable policy. I suggest we move on and vote for the amendment to get it knocked off.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I will disregard the moral posturing of Senator Hanson-Young, but I do want to respond in three particular respects to some observations made by Senator Feeney. First of all, let us deal with who bears responsibility for this tragic and catastrophic policy mistake, because these things we know. Firstly, we know that in the second half of 2008 the policy was changed by the Rudd government. I do not remember whether you were in the Senate. Were you in the Senate in 2008?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Then you were here and you will remember that the policy was changed by the Rudd government. Secondly, we know that, before the policy was changed, in the period between 2001 and 2008 there had been a negligible number of asylum seeker vessels, in two years of that period not a single one—not one—and across those seven years a total of 23, an average of about three a year. Those are the facts, and you cannot—and, in fairness to you, you did not—controvert them.

The third thing we know, because we remember Senator Evans saying it, is that the policy was changed for humanitarian reasons, to do away with what were described as 'the harsh policies of the Howard government'. Senator Evans told Senate estimates how proud he was to have been responsible for doing away with those harsh policies. That is on the record.

The next thing we know that is not in dispute is that, immediately after those policies were changed, the number of unlawful asylum seeker vessels seeking to come to Australia went through the roof so that, in the 4½ years since, more than 500 vessels came. That is a fact. You may choose to believe, or to persuade yourself, that there was not a cause-and-effect relationship between that policy change and the sudden and continued escalation of people-smuggling. But if you seek to persuade yourself that there was not a cause-and-effect relationship then, with great respect to you, you are deluding yourself.

This last fact we know, too: hundreds and hundreds of people at least—on the most conservative estimates more than 700 people—whose bodies have been counted and recovered, died. Credible agencies, including Amnesty International and the UNHCR, have estimated that the likely number of deaths was more than 1,000. How many more than 1,000 is unknowable because we do not know how many bodies were never recovered. We do not know how many SIEVXs there were.

I do not wish to say anything cruel about Senator Evans, whom I regard as a good person, but it is a fact of life for senior political decision makers that they have to take responsibility for their decisions, which is why there is such a high price on bad decisions. This was a catastrophically bad decision made from the purest of motives. It was catastrophically wrong, and nobody, no matter how good or pure their intentions, can walk away from responsibility of the consequences. I think it was Saint Bernard of Clairvaux who said, 'The road to hell is paved with good intentions.' It has become a cliche, but it is also a truth. All ministers, in particular, are responsible for the consequences of the decisions they make, particularly when the likely consequences of those decisions were pointed out time beyond number in this chamber by the opposition. We were told that we were fear-mongering. The truth, as we know—the grim, fatal, statistical reality—shows that that was not so, that this was a terrible error which the government, albeit without acknowledgement, has been trying to walk away from ever since.

Secondly, let me say something about the Malaysia solution. The government chastised the opposition for supporting the Malaysia solution—

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Not supporting.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I beg your pardon: for not supporting the Malaysia solution. We do not support the Malaysia solution—we never have—and we are unashamed of not supporting it because, as the High Court of Australia itself found, there were fundamental gaps in human rights protection in Malaysia which the so-called Malaysia solution did not deal with and could not guarantee protection from. One of those gaps was the custom of the Malaysian authorities to subject asylum seekers as a matter of routine to corporal punishment—to whipping. Do you think that we are ashamed of not sending men, women and children to a jurisdiction where they were liable to be whipped? No, we are not. We do not think that that was the right thing to do. It was not then, it still is not. We did not support it and we are proud not to have supported it. The Malaysia solution predated, in the government's consideration, the Nauru solution—the solution which worked.

Thirdly, Senator Feeney, let me take up what you say about Australia's international treaty obligations. Australia's international treaty obligations should be respected by all sides of politics, but treaties are obligations between nation states; they are always subject to domestic laws. Senator Hanson-Young, in the weird, cloud cuckoo land of the Greens, where everyone greets one another as a fellow Earthian, seems to think that there is a hierarchy of laws that puts international law above the laws of nation states. Not so, Senator Hanson-Young. We do not have global government—thank goodness! Treaties are not part of domestic law unless specifically enacted, and treaty obligations are always subject to and able to be attenuated by domestic legislation—not the other way around. Australia's treaty obligations are subject to the laws of this parliament—not the other way around. And while a law of this parliament might adopt a treaty obligation, the fact of the existence of a treaty not domestically legislated for does not tie this parliament's hands in seeking to abate or attenuate the obligations assumed under the treaty.

We make no apology at all for saying that the will of the Australian parliament, reflecting the will of the Australian people, is the paramount consideration here. If that means that a law passed by this parliament, with the mandate of the Australian people, abates a treaty obligation, then so be it. But nobody should say that a treaty obligation is superior to the domestic law of Australia in circumstances where the treaty obligation has not itself been enacted by the domestic law of Australia.

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

I, too, rise to support the amendment moved by my colleague, Senator Brandis, and in doing so will take the opportunity to respond to some of the points made by the minister, and by Senator Hanson-Young.

In responding to the minister's—or parliamentary secretary's—comments in relation to what Senator Brandis had to say, I think the response can be summed up by this: the comments were nothing more and nothing less than from someone who clearly comes from a government that is weak on policy, and someone who is clearly representing a government that has no spine at all when it comes to securing Australia's borders. The speech that was given by the parliamentary secretary in relation to the comments made by Senator Brandis were excuse, after excuse, after excuse, after excuse as to why this government refuses to take steps—not only just steps but steps that have been proven to work under the former Howard government—to ensure the security of Australia's borders.

The parliamentary secretary also said in his comments that Senator Brandis himself had made some outrageous comments. The only thing outrageous about the debate that we are having today is that in not supporting the amendment put forward by the coalition, the government clearly does not have a view on the fact that in excess of 33,600 people have now arrived in Australia by boat under their failed border protection policies. That is the only outrageous thing about this debate! Clearly, the parliamentary secretary does not see as outrageous what Senator Brandis put squarely on the record; that is that we only know of some of those people who have perished, unfortunately, whilst trying to undertake the perilous journey to Australia. We do not know how many have actually died as a result of the loosening of Australia's strong border protection regime.

The parliamentary secretary also said that the government does not support the opposition's amendment, and that the only reason the opposition moved the amendment was to make a political point. Nothing could be further from the truth. The parliamentary secretary will know that these bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee and that that committee reported on 12 September 2012. Coalition senators provided a dissenting report and they stated in the dissenting report:

…this legislation may represent a surreptitious attempt to remove the Commonwealth's power to turn back unauthorised boats as part of an effective national border control policy.

The term 'surreptitious' was used because agency witnesses before the committee were unable to state whether this power is preserved in the bill. So for the parliamentary secretary to say that the coalition moved this amendment merely to make a political point, I can only assume that either he or the advisers who are allegedly advising him have not read the legislation properly and do not properly understand the implications of the legislation that is currently being debated. The reason that Senator Brandis, on behalf of the coalition, has moved the amendment that is currently before the Chair is to ensure that this legislation is not read down in a way that brings into question the undoubted power of the Commonwealth to refuse entry into Australian waters or, if necessary, to tow back unauthorised maritime arrivals.

In his second reading speech, Senator Brandis indicated to the chamber that we would be looking for bipartisan support for our amendment. Why would Senator Brandis state that we would be looking to the government to support our amendment? The answer is quite obvious: because turning back the boats was actually Labor Party policy. It was the policy that the former Prime Minister of Australia—now the former Foreign Minister of Australia and merely backbencher, Mr Kevin Rudd—took to the 2007 election. Indeed, on the eve of the 2007 election Mr Rudd told the Australian newspaper:

… Labor would take asylum-seekers who had been rescued from leaky boats to Christmas Island, would turn back seaworthy vessels containing such people on the high seas …

To quote Mr Rudd:

"You'd turn them back," he said …

That was the policy the then Labor opposition, under former opposition leader, Mr Rudd, took to the 2007 election—a policy whereby if they were elected they would turn back the boats. That might give us an indication as to why Senator Brandis said he would expect bipartisan support for this amendment. But perhaps the policy of former Prime Minister, former Foreign Minister and now merely backbencher, Mr Rudd, was not enough to convince those on the other side that they should support this amendment.

Let us put on the table what the current Prime Minister—and, again, I use that term very loosely—Ms Gillard had to say about the policy of turning back the boats when she was the shadow minister for immigration. This is what the current Prime Minister said on 3 December 2002 about turning the boats around:

We think that turning boats around that are seaworthy, that can make the return journey and are in international waters, fits with that.

What the Prime Minister, the then shadow minister for immigration, was referring to was statements that we had made issuing new instructions to Northern Command to commence to turn back the boats when it was safe to do so. Let us look again at what Ms Gillard said:

We think that turning boats around that are seaworthy, that can make the return journey and are in international waters, fits with that.

So the Prime Minister herself supported turning the boats around when she was in opposition; yet we have a parliamentary secretary standing here today, responding to an opposition amendment which would assist both the current Prime Minister and the former Prime Minister to ensure that their former policies are implemented, and stating that the only reason Senator Brandis moved this amendment was to make a political point.

Parliamentary Secretary, with all due respect, I think the only person making a political point here is the parliamentary secretary himself. Like on so many things, members of the Labor Party take one thing to an election and then, when they are elected, do a complete turnaround and implement something else. This is a government that has continually said for a number of years that it 'wants to stop the boats'. However, if one were to do an analysis of statistics to date, two scenarios arise. Labor either does not mean what it says—which I put some credence on, given that it is the party that said there 'would be no carbon tax under a government that I lead' only, once it was elected to power, to completely change its mind on that issue—or, alternatively, it is incapable of doing it. I am not quite sure what is worse.

Is the Labor government totally incapable of securing our borders or has it yet again completely misled the Australian people? Why do I say that? Let us look at the statistics. The total number of arrivals since November 2007, when Mr Rudd was elected to government, is now 33,600 people. The total number of boats to arrive since November 2007 is 576. The total number of arrivals since polling day on 21 August 2010, bearing in mind that Ms Gillard was the leader of the Labor Party at that election—and one of the reasons Ms Gillard was the leader of the Labor Party was that former Prime Minister, Mr Rudd, had failed to stop the boats and Ms Gillard was going to stop the boats—is 423 boats carrying 26,251 people.

I am sure that, in his response, the parliamentary secretary may well tell the chamber that turning back the boats does not work and that is why the government will not support the opposition's amendment. Again, let us look at the facts, the actual statistics in relation to turning back the boats when implemented with temporary protection visas and offshore processing. As Senator Brandis pointed out to the chamber, we admit that in the early 2000s there was an influx of boats to Australia. Unlike the current government, the opposition does not shy away from that. We say, 'Yes, there was a problem.' It is as simple as that. It is not nearly as bad as the problem that the current government is facing. In fact, the total number of boat arrivals under the Howard government pales into insignificance compared to the total number of arrivals under this government. But we openly admit that in 2000 to 2001 approximately 54 boats with 4,137 people arrived. The difference between us and the Labor Party, however, is this: we took strong and decisive steps to implement policies that would secure Australia's borders, that would show those coming here illegally that Australia as a sovereign nation would dictate who comes to this country and the manner in which they come. Guess what? Our policies worked.

The statistics back that up as a fact. After the implementation in 2001-02 of the former Howard government's strong border protection policies, in 2002-03 the number of boat arrivals dropped to zero, with the number of people arriving in Australia being reduced to zero. One boat arrived the following year with 82 people on it. Zero boats arrived in the following year with zero people. This government says that it wants to stop the boats. If it truly means that, we expect the government to take the opportunity to support the coalition's amendment when it is finally put, because this amendment has been proven to assist in stopping the boats.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I seek to respond to some of the remarks made by Senator Cash on the Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012. A whip once observed that 'Humanity is blessed with two ears and one mouth and they are best used in those proportions.' Reflecting on that, Senator Cash, I think a critical point needs to be made, and that is that you have missed, in its entirety, the central issue at debate here, which is whether your amendments actually affect any change at all.

I have said that the purpose of your amendments is to have this debate that we are having and probably to have this debate in the very terms you have it. But be very clear, Senator Cash, that as far as the government is concerned this is not a debate about tow-backs or turnaroundsor whatever you might want to call them. This is a debate about whether completely superfluous amendments should be adopted into legislation even though those completely surplus amendments are indeed superfluous. The prerogative powers of this government are not expanded or improved by your amendments. Your amendments achieve absolutely nothing, except to give you 20 minutes in this chamber to preach to this government about responsibility.

So let us just talk a bit about responsibility. Who is it who bears responsibility? Another whiponce said, 'There are lies, dammed lies and statistics', and again that is proven wholeheartedly with your use of statistics. It is a truism—perhaps unfortunately in this debate—that the coalition has tended to overestimate pull factors and the ALP has, from time to time, had a tendency to overestimate push factors. For those looking for the truth in this issue, the play between push and pull factors is critically important—but not for you, Senator Cash. For you the world is a very simple place indeed—there was no global financial crisis, there was no war in Iraq, there is no conflict in Afghanistan, there was no civil war in Sri Lanka, thousands of people were not cast up upon the shores and there are not 300 million refugees in the world today. For you the world is a very simple place.

That is unfortunately at the core of this problem, because it is not simply possible for you to say that the coalition's policies are the solution here, when the coalition has ruthlessly, at every turn over the past few years, sought to achieve nothing more than gridlock and stagnation. You are not interested as legislators in fixing this problem. You are not interested in working with the government. You declined to work with us on the expert panel. You declined to work with the government on amendments to the immigration legislation in the aftermath of the High Court decision. At every turn you have refused to work with this government. Why? Because you vote with your feet, Senator, and your feet and your vote are always for gridlock and stagnation. As entertaining as that debate is, that debate does not belong here, Senator Cash, except insofar as you can desperately try to make it so. This is a debate about whether completely superfluous amendments that achieve absolutely nothing for you or for us should be included in the bill. We say no. We say no for self-evident and obvious reasons.

Let me finish with this. I noted with interest, Senator Cash, that you spoke with great enthusiasm about the Labor Party's utterances in 2007. Next time you refer to a 2007 commitment as though it was an article of canon law, consider this: where is your commitment to the carbon trading emissions scheme which formed such a central part of the platform you were elected on? Where is your commitment to the 2007 platform of Howard and Turnbull to which you were committed? Dare I say it, before you start throwing rocks you should observe the glasshouse in which you reside.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

Clearly the parliamentary secretary has forgotten one piece of history, and that is when Ms Gillard told us that every boat arrival was a policy failure. According to her standard, since November 2007 we have had 3,600 policy failures. On her watch, 27,048 people have arrived since she became Prime Minister.

Parliamentary Secretary, let me take you back to the comments that were made at the time when I was in Senator Cash's position as shadow parliamentary secretary in this area. Senator Evans was sitting there at estimates and telling us about the changes that he was proposing, and I was taking him through those changes. He sat there and he told us that he was dismantling 26 programs in the immigration portfolio. How can you change 26 programs in the immigration portfolio and not have a consequential impact with those changes? The people smugglers listened to every word that Senator Evans told the Senate. They were tuning in wherever they were and listening to every word and thinking, 'Great, our product has just improved on the international market and we will be able to promise a lot more and deliver a lot more for a higher price. You beauty; we are going to make a lot more money.'

I would also say to you, Parliamentary Secretary, that as a former government lawyer I did my fair share of immigration law. So do not come into this chamber and sanctimoniously preach about detention. Look back into your own dark days when your predecessors, Gerry Handand the Keating government, introduced mandatory detention. If you want to go out there and preach, you should go back and look into your own history, because over my legal career I have done my fair share of immigration law. If you want to talk about throwing stones in glasshouses you ought to look back at your own history on these issues.

Today we are talking about a bill that provides for enforcement powers available to maritime officers, including boarding, obtaining information, searching, detaining, seizing and retaining things, and moving people into detention. We know that the maritime environment is a particular environment. My husband was in the Navy for 35 years, and at one stage of his career he was commanding officer of the patrol boat squadron out of Darwin at a time when we used to have boats coming in. Yes, it is a very difficult situation, but it is a situation which requires absolute flexibility in officers' ability to exercise judgement at sea and to deal very, very quickly with changing and difficult circumstances.

This bill was examined by the Senate Legal and Constitutional Affairs Committee, and I refer the Senate to the dissenting report of coalition senators, who said it was their belief that this legislation represented a surreptitious attempt to remove the Commonwealth's power to turn back unauthorised boats as part of an effective national border control policy. I quote from the report:

We say 'surreptitious' because the Government, in evidence before the Committee, was unable to say categorically whether this power, used by past Federal governments as an important tool in maritime policy, is preserved in the present legislation.

That is the reason the report went on to say:

We note that the power to turn back boats has been exercised in the past and has been exercised by various agencies, in particular by the Royal Australian Navy.

Of course, turning back the boats is not new. Before the last federal election, as Senator Cash has correctly pointed out, we had Mr Rudd telling us that turning back the boats was precisely what he was going to do. We saw his quotes in the Australian, and he told everybody before the election that that was precisely what he wanted to do.

Coalition senators in their dissenting report observed that the Maritime Powers Bill 2012 purported to set out comprehensively the powers of authorised officers in a maritime setting. However, officers of the Attorney-General's Department were unable to tell the committee how, if at all, the power to turn back boats was replicated in this bill. One would have thought that the officers of the Attorney-General's Department would have been able to tell the Senate committee about a very important point in this legislation and to explain where in the legislation it is guaranteed that that power would continue. It was suggested that clause 5 of the bill preserves the prerogative powers of the Commonwealth, including the power to repel unauthorised boats. However, it seems that this bill evinces a clear intention to describe and regulate Commonwealth maritime power so that any prerogative powers must be read down by the constraining provisions of the bill—including clauses 32, 54 and 69. It is very doubtful that the present power to turn back boats is preserved by these provisions. Indeed, that is why the coalition cannot support these bills. The principle bill clearly seeks to codify the Commonwealth's maritime powers and it seems, therefore, that any prerogative powers must be read down.

Since the last federal election we have had many, many boat arrivals. As Senator Cash has correctly said, arrivals during the Howard years totalled just over 13,000—239 boats. Since the last election we have had 570 boats carrying 33,000 people, which is almost 20,000 more people and more than twice the number of boats that arrived during the entire Howard years.

Progress reported.