Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I table four supplementary explanatory memoranda relating to the government's amendments to be moved to this bill. I also seek leave to move government amendments on sheet HA110, government amendments on sheet GH117, government amendments on sheet GH118 and government amendments on sheet HA108 together.

Leave granted.

by leave—I move:

(1) Clause 2, page 2 (after table item 4), insert:

(2) Schedule 2, item 16, page 27 (after line 24), after subsection 35A(3A), insert:

  (3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.

Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.

(3) Schedule 2, Part 1, page 28 (after line 1), at the end of Division 2, add:

Migration Regulations 1994

18B After subparagraph 1401(3)(d)(i)

  Insert:

     (ia) does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and

18C After subparagraph 1403(3)(d)(i)

  Insert:

     (ia) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or

18D At the end of Schedule 1

  Add:

1404. Safe Haven Enterprise (Class XE)

(1) Form: 790.

(2) Visa application charge:

  (a) first instalment (payable at the time the application is made):

     (i) for an applicant who is in immigration detention and has not been immigration cleared:

     (ii) for any other applicant:

Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-internet application charge. Not all of the components may apply to a particular application.

  Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.

(b) the second instalment (payable before grant of visa) is nil.

(3) Other:

  (a) Application must be made in Australia.

  (b) Applicant must be in Australia.

(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Safe Haven Enterprise (Class XE) visa may be made at the same time and place as, and combined with, the application by that person.

  (d) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person:

     (i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or

     (ii) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or

     (iii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or

     (iv) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or

     (v) did not hold a visa that was in effect on the person's last entry into Australia; or

     (vi) is an unauthorised maritime arrival; or

     (vii) was not immigration cleared on the person's last entry into Australia.

(e) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person indicates in writing an intention to work or study while accessing minimum social security benefits in a regional area specified under subclause (4).

(4) The Minister may, by legislative instrument, specify a regional area for the purposes of these regulations.

Note: See also regulation 2.06AAB (visa applications by holders and certain former holders of safe haven enterprise visas).

(5) Subclasses:

  790   (Safe Haven Enterprise)

18E After Part 785 of Schedule 2

  Insert:

Subclass 790—Safe Haven Enterprise

790.1—Interpretation

790.111

     For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if:

  (a) A is a member of B's family unit; or

  (b) B is a member of A's family unit; or

(c) A and B are members of the family unit of a third person.

790.2—Primary criteria

Note: All applicants must satisfy the primary criteria.

790.21—Criteria to be satisfied at time of application

790.211

(1) Subclause (2) or (3) is satisfied.

(2) The applicant:

  (a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and

  (b) makes specific claims as to why that criterion is satisfied.

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

(3) The applicant claims to be a member of the same family unit as a person:

  (a) to whom subclause (2) applies; and

  (b) who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa.

Note: See paragraphs 36(2)(b) and (c) of the Act.

790.22—Criteria to be satisfied at time of decision

790.221

(1) Subclause (2) or (3) is satisfied.

(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

(3) The Minister is satisfied that:

  (a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and

  (b) the applicant mentioned in subclause (2) has been granted a Subclass 790 (Safe Haven Enterprise) visa.

Note: See paragraphs 36(2)(b) and (c) of the Act.

790.222

     The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

  (a) a Medical Officer of the Commonwealth;

  (b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

790.223

(1) One of subclauses (2) to (4) is satisfied.

(2) The applicant has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia.

(3) The applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause (2).

(4) The applicant is a person:

  (a) who is confirmed by a relevant medical practitioner to be pregnant; and

  (b) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(c) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

  (d) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

790.224

(1) A relevant medical practitioner has considered:

  (a) the results of any tests carried out for the purposes of the medical examination required under clause 790.222; and

  (b) the radiological report (if any) required under clause 790.223 in respect of the applicant.

(2) If the relevant medical practitioner:

  (a) is not a Medical Officer of the Commonwealth; and

  (b) considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth.

790.225

     If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

790.226

     The applicant:

  (a) satisfies public interest criteria 4001 and 4003A; and

  (b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

790.227

     The Minister is satisfied that the grant of the visa is in the national interest.

790.228

(1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied.

(2) The Minister is satisfied that:

  (a) the applicant is a member of the same family unit as an applicant to whom subclause 790.221(2) applies; and

  (b) the applicant to whom subclause 790.221(2) applies has been granted a Subclass 790 (Safe Haven Enterprise) visa.

Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.

Note 2: Subclause 790.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.

790.3—Secondary criteria

Note: All applicants must satisfy the primary criteria.

790.4—Circumstances applicable to grant

790.411

     The applicant must be in Australia when the visa is granted.

790.5—When visa is in effect

790.511

     Temporary visa permitting the holder to travel to, enter and remain in Australia until:

  (a) if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 790 (Safe Haven Enterprise) visa within 5 years after the grant of the first visa—the day when the application is finally determined or withdrawn; or

  (b) in any other case—the end of 5 years from the date of grant of the first visa.

790.6—Conditions

790.611

     Conditions 8565 and 8570.

Note: There is nothing in the Act or these regulations which restricts the ability of the holder of the visa to study or work as he or she sees fit.

(4) Schedule 2, Part 1, page 28 (after line 1), after Division 2, insert:

Division 2A—Safe haven enterprise visas: pathways to other visas

Migration Act 1958

18F After subsection 46A(1)

  Insert:

  (1A) Subsection (1) does not apply in relation to an application for a visa if:

  (a) either:

     (i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or

     (ii) the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

(b) the application is for a visa prescribed for the purposes of this paragraph; and

  (c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.

Migration Regulations 1994

18G After regulation 2.06AAA

  Insert:

2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas.

(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:

(2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa who currently holds, or has ever held, a safe haven enterprise visa must, for a period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect, satisfy one of the following requirements:

  (a) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified under subclause 1404(4) of Schedule 1;

  (b) the applicant is enrolled in full-time study at an educational institution, as determined under subregulation (3), in a regional area specified under subclause 1404(4) of Schedule 1;

(c) the applicant satisfies a combination of the requirements in paragraph (a) and paragraph (b), at different times.

(3) The Minister may, by legislative instrument, make a determination for the purposes of paragraphs (2)(a) and (b).

(5) Schedule 2, page 28 (after line 22), at the end of item 19, add:

(3) The amendments of the Migration Act 1958 and the Migration Regulations1994 made by Division 2A of this Part apply in relation to an application for a visa made on or after the commencement of that Division.

(1) Schedule 2, page 28 (after line 1), after item 18, insert:

18A At the end of subsection 85(2)

  Add "or safe haven enterprise visas".

(2) Schedule 7, page 111 (after line 4), after item 10, insert:

10A Section 85

  Omit "The", substitute "(1) Subject to subsection (2), the".

(3) Schedule 7, page 111 (after line 8), after item 12, insert:

12A At the end of section 85

  Add:

(2) Subsection (1) does not apply in relation to temporary protection visas.

(1) Schedule 2, item 31, page 42 (line 3), omit "remain in Australia", substitute "remain in, travel to and enter Australia".

(2) Schedule 2, item 31, page 42 (line 16), after "8503", insert ", 8570".

(3) Schedule 2, page 44 (after line 10), after item 36, insert:

36A At the end of Schedule 8

  Add:

8570      The holder must not:

  (a) enter a country by reference to which:

     (i) the holder was found to be a person to whom Australia has protection obligations; or

     (ii) for a member of the family unit of another holder—the other holder was found to be a person to whom Australia has protection obligations; or

(b) enter any other country unless:

     (i) the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and

     (ii) the Minister has approved the entry in writing.

(4) Schedule 4, item 1, page 57 (lines 20 to 22), omit subparagraph (a)(v) of the definition of excluded fast track review applicant.

(5) Schedule 4, item 1, page 57 (after line 27), after paragraph (a) of the definition of excluded fast track review applicant, insert:

  (aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

     (i) has no plausible or credible basis; or

     (ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or

     (iii) is made for the sole purpose of delaying or frustrating the fast track applicant's removal from Australia; or

(6) Schedule 4, item 1, page 58 (line 2), after "13 August 2012", insert ", but before 1 January 2014, and who has not been taken to a regional processing country".

(7) Schedule 4, item 2, page 59 (after line 19), after subsection 5(1AC), insert:

  (1AD) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA).

(8) Schedule 4, item 21, page 62 (line 17), after "13 August 2012", insert ", but before 1 January 2014, and who have not been taken to a regional processing country".

(9) Schedule 4, item 21, page 63 (lines 13 and 14), omit "and quick", substitute ", quick, free of bias and consistent with Division 3 (conduct of review)".

(10) Schedule 4, item 21, page 68 (lines 25 to 29), omit paragraph 473DD(b), substitute:

  (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

     (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

     (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

(11) Schedule 4, item 21, page 72 (line 18), omit "and quick", substitute ", quick, free of bias and consistent with Division 3 (conduct of review)".

(12) Schedule 5, item 7, page 93 (lines 24 to 31), omit subsection 5J(2), substitute:

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(13) Schedule 5, item 7, page 95 (lines 15 to 31), omit section 5L, substitute:

5L Membership of a particular social group other than family

     For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:

  (a) a characteristic is shared by each member of the group; and

  (b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

     (i) the characteristic is an innate or immutable characteristic;

     (ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

     (iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

(14) Schedule 5, item 7, page 95 (after line 31), after section 5L, insert:

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

  (a) protection against persecution could be provided to the person by:

     (i) the relevant State; or

     (ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

  (a) the person can access the protection; and

  (b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

(1) Clause 2, page 2 (after table item 9), insert:

(2) Page 49 (after line 23), after Schedule 2, insert:

Schedule 2A—Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas

Migration Act 1958

1 After section 39

  Insert:

39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas

(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.

(2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).

( 3 ) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.

( 4 ) Despite subsection 44(2) of the Legislative Instruments Act 2003 , section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.

(5) In this section:

  Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.

Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations1994.

  Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.

Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations1994.

As a result of the success of the government's strong border protection management policies, the Australian government has been able to restore offshore places within the humanitarian program for vulnerable people waiting overseas to be resettled. The first amendment I am moving proposes to add a new schedule 2A to the bill to progressively increase Australia's humanitarian program over the next four years so that by the financial year commencing 1 July 2018 Australia's annual humanitarian intake will increase from its current level of 13,750 places to 18,750 places. This will be done through two successive increases of 2½ thousand places in each of the 2017-18 and the 2018-19 programs. The government will also maintain the size of the program over the next two years at no less than 13,750 places in each year. The amendments set out these commitments within the Migration Act 1958, and they will provide clarity and certainty for the Australian public. The proposed government amendments will provide certainty about the size of the humanitarian program in the coming years and demonstrate the government's commitment to a strong and orderly humanitarian intake, focused on those overseas most in need of resettlement. The government considers these amendments to be a public commitment to build on Australia's proud history of resettling refugees and those in humanitarian need.

I am also moving amendments to schedule 2 and schedule 7 to the bill to address concerns raised in relation to the operation of the new safe haven enterprise visa, known as the SHEV, and temporary protection visas, known as TPVs. The first amendment I have moved to schedule 2 is to make clear on the face of legislation that holders of the SHEV will, in certain circumstances, be able to apply for certain types of permanent visas. It was always the government's intention to permit SHEV holders who work or study in regional Australia for at least 3½ years of their visa, and access income support for not more than 18 months in that time, to apply for onshore substantive visas, including permanent visas but not permanent protection visas, provided that they meet the application criteria for those visas.

However, to alleviate concerns about the detail of the operation of the SHEV, it is proposed to clarify that the bar on visa applications by illegal maritime arrivals while lawful noncitizens will not apply to SHEV holders who have met the SHEV work and study requirements and who are applying for a prescribed list of visas. The pathways being proposed will include skilled and family visas and the full list of permanent visas for which SHEV holders may be eligible to apply for will be prescribed in the regulations.

The second amendment I am moving to schedule 2 is to set out the criteria for the grant of the SHEV. Schedule 2 to the bill already creates the SHEV as a new class of visa. This amendment will make it clear to the parliament what the criteria are for the grant of a SHEV and address the scare campaign suggesting that the government does not intend to follow through on the creation of this visa.

The third amendment I am moving to schedule 2 will allow travel in compassionate and compelling circumstances, as determined by the minister, to places other than a country in respect of which a TPV holder or a SHEV holder was found to be eligible for protection. If a TPV holder or a SHEV holder can demonstrate a compelling or compassionate need to travel, they will be able to request permission to do so from the minister. The permission would need to be sought prior to travel and cannot be to the country from which they sought protection.

The amendments I am moving to schedule 7 are in relation to the minister's ability to cap the number of protection visas available in the financial year, which the bill clarifies in this schedule. Capping protection visas is in no way an attempt to resile from Australia's non-refoulement obligations. The amendments I am proposing would ensure that this is the case by preventing the minister from placing a statutory limit or cap on the number of temporary protection visas or safe haven enterprise visas granted in a program year. As a result of these amendments, it will not be possible to use this power to cut the number of temporary protection visas or safe haven enterprise visas available. These amendments will not impact on the power of the minister to place a cap on permanent protection visas. This power, which is clarified in schedule 7 to the bill, is intended to support the government's policy objective by granting only temporary protection to illegal maritime arrivals and encouraging the grant of SHEVs to the benefit of regional Australia.

I am also moving amendments to schedule 4 aimed at increasing the integrity, transparency and accountability of the fast-track process. The first amendment I am proposing to schedule 4 is to clarify on the face of the legislation which IMAs are subject to the fast track. The amendments will expand the definition to clarify that fast-track applicants will include persons who are an unauthorised maritime arrival and who entered Australia on or after 13 August 2012 but before 1 January 2014 and have not been taken to a regional processing country. This demonstrates the government's commitment to process IMAs currently on Christmas Island through the fast-track assessment process along with the current backlog of IMAs.

Secondly, the proposed amendments to schedule 4 would amend the purpose of the Immigration Assessment Authority, the IAA, from being required to 'pursue the objective of providing a mechanism of limited review that is efficient and quick' to being required to 'pursue the objective of providing a mechanism which is efficient, quick, free from bias and consistent with the code of procedure'. This amendment would clarify the purpose of the IAA and reassure the public that the review by the IAA will be free of bias and consistent with division 3, the conduct of review, as well as efficient and quick.

The third amendment I am proposing to schedule 4 would clarify certain circumstances which may satisfy the IAA that exc

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

I would like to speak to these amendments moved by the government. I obviously have an awful lot of questions for the minister as well in relation to how on earth the government thinks it is appropriate to hold children as hostages in order to change fundamental pieces of legislation to simply grant the minister more power for himself. I have had many debates in this place over asylum seeker and refugee policy and many of them have been pretty undignified, but I must say I have never seen anything so appalling and abusive as I have seen in this place tonight. We heard from Senator Muir, who said he felt he was in such a difficult position—with a choice to vote for a bad bill or a terrible bill, because he was told that, if he did not do what the government wanted, the children would get it. He was told the only way to get these children out of detention was to pass this bill and this package. I have been saying for a number of weeks that the minister was using children in detention as hostages—it was a figure of speech until tonight. Tonight we saw children on Christmas Island being handed the phone number of Senator Muir, and they were asked to call that number and beg that senator to let them out. If that is not treating children as hostages, what is it?

This minister has become one of the most sociopathic people in this country. I want to give you the definition of a sociopath. It is characterised by a lack of regard for the moral or legal standards of society, a master deceiver and manipulator, someone who will do whatever it takes to get what he wants with no regard for consequences. Minister Morrison is a sociopath who has held children as hostages in order to grab the power he wants in this place tonight.

I do not blame Senator Muir. I do not blame any of the members on this crossbench. I do not even blame a number of the backbenchers of the Liberal-National party who I know are appalled at where this government's policy is doing but I sure as hell blame Minister Morrison and Tony Abbott. They have been desperate for months to get a win on this issue. They have done everything they could to make it a hard moral choice for people in this place. What is in this bill is not just temporary protection visas, not just a new visa created to allow people to work. We know there are seven schedules in this piece of legislation and the majority of them do exactly the opposite of helping children and their families resettle properly in this country.

Minister Morrison has held children in detention for months, children he could have been released at any time. The conditions inside the detention centre on Christmas Island are appalling. Children have been abused. They have been raped and their parents have been raped. I am not exaggerating. This is what the evidence has shown. Why did he not get the children out when they started to be abused? Why did he not let the children out when they called, wrote and begged him to let them go to school six months ago? Why did he not let them out when the Human Rights Commission said they are the most disgraceful conditions children should ever be held in? Why did he not let them out then? Because he was waiting for his prime time to use them as bargaining chips, as pawns in his political play, to get legislation that he wanted through this place which previously had no support in this chamber.

The amendments moved today by the minister do not improve the substance of this bill. The amendments put forward in this piece of legislation do not make any real difference to the use of those SHEVs or those TPVs, despite what the crossbench has been told. There is no way that somebody can honestly believe that there is a pathway to permanency for any of the people in this 30,000 caseload backlog. I want to address the backlog issue because one of the men responsible is the very same man who has now drafted and negotiated this dirty, hostage situation this week and his name is Paris Aristotle.

We have a backlog of 30,000 asylum seekers in this country because Paris Aristotle told Prime Minister Gillard that it would be a good idea to freeze the applications of asylum seekers when they arrive here. He told Prime Minister Gillard at the time that that is how you stop the boats—stop processing people's claims, introduce something called the 'no advantage rule', which would mean that people would not have their claims processed for five or six years—they would not even put a figure on it. The boats did not stop; they kept coming, despite the fact that right in this place we had a debate about that exact piece of legislation which allowed for all of the recommendations that Paris Aristotle and Angus Houston wanted. We had a late night debate, very similar to what is going on here. I was standing right there. That legislation went through, the freeze occurred, the boats did not stop but boy oh boy, the backlog built up.

Now in 2014, two years later, the very same person who created the policy which created this problem is in our crossbenchers' offices this week telling them, 'You have to do something to get these children off Christmas Island. You have to do something to change the laws so that the minister can fast track their applications and please, at least give them temporary protection visas.' They have no hope of putting down roots to rebuild their families in the country in which they deserve to get permanent protection. The very same person set the 30,000 asylum seekers and refugees up to fail from day one. It is appalling.

I want to put on the record today that I was appalled by Senator Xenophon's speech yesterday—the praise for Paris Aristotle, who does not represent the refugee sector in this country, has no authority in this country, is a ministerial adviser. He has negotiated a hostage situation hand in hand with Scott Morrison tonight.

I want those kids off Christmas Island. I want the kids off Nauru. I want the people out of detention on Manus Island. But I do not believe in setting 30,000 people up to fail, giving them false hope that they will get their refugee claims assessed fairly—which they will not, because schedules 4 and 5 scrap their ability to ever have their claims assessed fairly—and pretending that somehow there is a pathway to permanency when the minister has said himself that it is going to be a 'very high bar to get there and good luck to them.' These people are being sold false hope, and who did the final deal but a distraught, broken, abused child on Christmas Island, down the telephone to a compassionate senator who wanted to do the right thing. This minister has not just used children as a bargaining chip. He has sold them a false dream once more.

We know that when you strip away the ability to have a genuine appeal process, to have cases reviewed, you risk 60 per cent of applications being marked as wrong. Sixty per cent of the children on Christmas Island tonight who will come to Australia will never be given a visa under this legislation. It does not matter how compromising or willing we are to try to move on and give people some form of temporary visa or a SHEV. The reality is, the statistics tell us and past history and evidence show us that if this assessment process is changed the way the minister wants it changed, 60 per cent of those children are never even going to be given a temporary protection visa. This minister is not just a sociopath, not just grabber of power for himself who is prepared to take everything and use children to get it; he has sold senators in this place who are trying to do the right thing a lie. Sociopaths are masters and deceivers and manipulators. That is what we have seen here tonight, colleagues. That is exactly what we have seen here tonight.

I heard Mr Palmer earlier today saying that he had won family reunion as part of this deal. I have looked through the legislation, I have looked through the amendments. There ain't no family reunion in here. We heard that people would be able to have a pathway to permanency. Well it is not in there, and it will not be in there for the majority of people we apparently must do this for to get them off the island. Why didn't the minister act to get those children out of detention when he was told that the conditions were damaging them—months ago? Why has he spent months attacking Gillian Triggs for standing up and saying these kids needed to be off the island and out of detention? Why didn't he act then? Because he was desperate to keep his chips in his pocket for exactly this occasion. Who would have been on the end of that phone call, distressed and crying, if he had already taken all the children out? I am appalled. Many people in this country tonight would be appalled. Using children as hostages is never okay, and only a sociopath would do it.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Could I ask the minister if she could show me where in the bill I will find those figures that she read out in support of her amendment to the proposed new schedule 2A. As I understood, Minister, you were suggesting there will be an expansion in the number of humanitarian places. Where will I find those numbers in the bill or the amendment?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The minister has stated publicly on the record that Australia's humanitarian intake will be increased from its current level of 13,750 places to 18,750 places. He has also stated that this will be done through two successive increases of 2,500 places in each of the 2017-18 and 2018-19 programs. The government will also maintain the size of the program over the next two years at no less than 13,750 places each year. I would also point out, Senator Carr, that one of the fundamental differences between what is occurring under this government and what occurred under the former government is that the places that are within the humanitarian program are going to go to genuine refugees from camps. They are not going to be places that go to people who have arrived illegally by boat. The minister has clearly stated that on the public record.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Minister, would you therefore object to us moving an amendment to put those specific figures into this bill?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The minister has gone on the record and fronted TV and stated that this is a commitment that he has made. He will stand by his commitment.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Minister, the difficulty here is that there is a profound lack of trust and therefore we will be moving an amendment to give effect to the commitment that you have made in the chamber. Could I indicate to the chamber that, with regard to the provisions that the minister has outlined, the opposition will reluctantly support the government amendments on sheet HA108; however, we recognise that the amendments are incredibly weak but better than nothing. They will be improved when we are able to move an additional amendment specifying the precise numbers and, if the minister wishes to provide assistance, we would be delighted, to make sure we get exactly the right numbers that are consistent with what she has given a commitment to tonight.

We have to acknowledge though that this is a humiliating admission by the immigration minister. It is of great concern that he cannot be trusted to honour any commitment to the crossbenchers on the issue of visa protection and has had to provide these public assurances. I am sure we will all feel a lot better if they are written into the act itself. I suppose we should not be surprised about that, given the long litany of broken promises that this government is able to display. The immigration minister has repeatedly demonstrated that he is willing to exercise his powers—I say he is willing to exercise his powers in a quite capricious manner—and he regularly needs to be called to account by the courts. While these amendments will not provide us with enormous satisfaction, they at least will do something to ensure that the minister is held to his commitments.

We cannot support the government amendments on sheet GH118, in essence, because the fast-track arrangements that the government has proposed do not provide sufficient security for proper administrative practice.

We will be opposing the amendments on sheet HA110 simply because the Labor Party is concerned that the SHEV proposal fails to provide adequate security of a pathway to permanency, and, while people are judged to be genuine refugees, we think they are entitled to that. There is a very clear policy that this opposition Labor Party opposes temporary protection visas because they leave people in an unfair state of limbo. They are unable to put down roots and establish themselves in this country and they are unable to become fully functioning contributors to Australian society while they are left in that period of limbo. Our policy is that asylum seekers ought to have a pathway to permanency. The view of the opposition is that the government's proposals fail to meet that test, so we will be opposing those amendments.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

On Senator Carr's question with respect to the first amendments that I moved in relation to adding a new schedule 2A to the bill to progressively increase Australia's humanitarian program, I advise Senator Carr that this will be done by way of legislative instrument if the bill passes the Senate—or when the bill passes Senate—and this amendment enables the minister to sign off on the legislative instrument.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I understand the point the minister is making. It is the opposition's preference to move an amendment and test the chamber on that matter, and I trust that that preparation is now being made.

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

I would like to ask the minister: what is the reason that the 460 children currently detained on Christmas Island could not have been removed from the island and brought to the mainland last week?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

In addressing Senator Hanson-Young's question, the first thing that I would like to remind the Senate of is that it is actually this government that has commenced the process of taking children out of detention. If I could remind the Senate that at the end of the Howard government's era there were actually no children in detention. Under the former Rudd, Gillard and Rudd governments, vocally supported by Senator Hanson-Young, a total of 8,469 children arrived. There were a record number of children in detention, and in fact in July 2013 there were 1,992. When Labor lost office in September 2013, there were 1,392 children in detention. As a result of the actions of this government in but 14 months, there are now 50 per cent fewer children in detention across the detention network and 75 per cent fewer children in detention on Christmas Island than when the coalition took office in September 2013.

So when Senator Hanson-Young comes into the chamber and claims the moral high ground in relation to children in detention, I would argue that the facts established under this government in relation to the reduction of the number of children in detention clearly show that one of the huge issues with Senator Hanson-Young is that, by her comments that she has placed on the record and her actions, she is responsible for preventing children from being released from detention.

Nothing that Senator Hanson-Young has done in this place has contributed to one child being released from detention but everything that Senator Hanson-Young has done has ensured that children in record numbers—let me just read again the number of children who came here under the former government: 8,469 children arrived under the former government. Everything that Senator Hanson-Young has done for the duration of her time as a senator and her record will show that, unlike my record as a member of the coalition, she is responsible for ensuring that children are placed in detention.

The minister and I, over the period of being in government, have ensured that children are progressively released from detention. As the minister has stated, if the bill passes the Senate, children on Christmas Island will be released prior to Christmas.

I also need to address the comments that Senator Hanson-Young has made in relation to Mr Paris Aristotle. It is widely accepted throughout the community—and, in particular, by those people with whom he works—that Mr Aristotle is a man with a good heart and who, throughout his career, has worked tirelessly with victims of torture.

Through you, Mr Chairman: Senator Hanson-Young, it demeans you when you come into the Senate under parliamentary privilege and make such heinous slurs in relation to Mr Aristotle, purely because he has been able to work with the government and the crossbenchers to achieve what you personally in six years have been unable to achieve and what you going forward for the rest of your time in this place will be unable to achieve—that is, the release of children from detention.

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

First of all, my concern is that this government has now been in for 15 months. These kids have been sitting there for 15 months, and you want a pat on the back? You have got to be kidding. These kids could have been out 15 months ago.

Secondly, I would like to know whether the good senator over there, if all these kids are not out by Christmas Day, is prepared to put her Senate seat on it and resign.

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

I would just like the minister to clarify the costs of the increased resettlement numbers. Minister Morrison is on the record saying that increasing the humanitarian intake to 20,000 would cost $3 billion over the forward estimates. That is the previous position of the minister, and the argument he has put as to why he could not entertain increasing the humanitarian intake is that it is going to cost $3 billion. I would like to know from Minister Cash where the budget figures are on this and where the $3 billion is going to come from.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

Senator Hanson-Young, I think you and I are just going to have to agree to disagree in relation to so much of what you are going to put to me tonight. When it comes to costs, I have to say you are not one who can stand up in this chamber with any form of credibility, given that the policies that you supported so vocally under the former government led to an almost $12 billion cost blow-out for the Australian taxpayer. Everything that this government has done in this portfolio since it came to power has been to (a) restore integrity to our borders, and (b) ensure that taxpayers' money is efficiently spent.

Senator Hanson-Young, what you just do not seem to be able to grasp is that our humanitarian program costs the Australian taxpayer money. That is why it needs to be managed appropriately and that is exactly what we are doing.

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

I suggest to the learned minister that, if she wanted to save money, they would be closing Nauru and bringing the children home from Nauru as well. I would like to know whether the minister has the figures on the resettlement numbers and how it is costing $3 billion, as previously stated by Scott Morrison, the immigration minister. Where are your costs? Are you not going to answer?

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

There was one group of amendments I failed to indicate the opposition's attitude towards, and that was sheet GH117. We will be supporting that.

The CHAIRMAN: Even though all the government amendments were moved together, because there was a foreshadowed amendment to one of the groups of amendments, and there is an indication that there are different positions on them, I will be putting the amendments in the groups that they are in on the running sheet. So I will be putting four separate questions.

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

I would like to ask the minister why it is that Clive Palmer was led to believe, according to his announcement today, that these amendments would cover family reunion. Could the minister please point to the amendment where family reunion is included?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

Senator Hanson-Young, you would be well aware that there is no family reunion. Again, if you want to stand up and make cute political points, you can, but the facts do not support what you are stating.

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

I am glad for that clarification because, as I said, I was surprised when I heard Clive Palmer announce that family reunion had been granted and that that was one of the concessions that he was able to get out of the minister. Clearly that is not the case. I thank the minister for the clarification. It seems that, again, Clive Palmer has been sold a pup.

The CHAIRMAN: Can I just remind senators that, while I am happy to let it go from time to time, members of this place and the other place should be referred to by their proper titles, and it should be Mr Clive Palmer.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Mr Chairman, I have a question. As I have indicated, we have a foreshadowed amendment. You are not putting that at this stage?

The CHAIRMAN: No. My understanding, given your advice, Senator Carr, is that that would involve government amendments (2) and (1) on sheet HA108. I will not put those amendments until you have had an opportunity to circulate your amendment. The first amendments I will put are government amendments (1) to (3) on sheet GH117. So the question is that government amendments (1) to (3) on sheet GH117 be agreed to.

Question agreed to.

The CHAIRMAN: The question is that government amendments (2) to (4) and (1) on sheet HA110 be agreed to.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that government amendments (1) to (14) on sheet GH118 be agreed to.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I move the opposition amendment on sheet 7646:

(1) At the end of section 39A, add:

(4) To avoid doubt, the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas to be determined under subsection (3) for any financial year must not be less than 18,750.

I have circulated on sheet 7646 an amendment to the government's amendment (2) to give effect to the numbers—the 18,750—that the minister has outlined to the chamber is the government's commitment. The simple proposition here for senators to consider is that if the government is happy to promise this increase in numbers of the annual refugee intake to 18,750 and to do so in front of TV cameras it should have absolutely no problem in giving that commitment to the Senate and having that commitment written into this legislation. I am concerned that the government has said many things in public but failed to deliver on those things when it has actually had the chance in government. There is obviously a long track-record. To resolve this matter I would seek the support of the Senate so that we do not have a situation whereby the government says, 'No cuts to the ABC, no cuts to SBS, no cuts to education—

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

No change to pensions.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

no cuts to the pension.' There is a long, long litany of crimes here. This is a very simple proposition that will give an opportunity for the minister's commitment to be put into the legislation.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

If I could briefly respond to the amendment moved by Senator Carr on behalf of the opposition. Senator Carr, you have previously been in government. Does what you are asking mean that every time a public commitment is made it has to be legislated? I would put it to you that that is completely unrealistic. The minister has given a clear commitment publicly. He has given the commitment to the crossbenchers. I have recommitted the government and reiterated the commitment in my address tonight, which is recorded in Hansard, that we are by legislative instrument proposing that we will:

… add a new schedule 2A to the bill to progressively increase Australia's humanitarian program over the next four years so that by the financial year commencing 1 July 2018 Australia's annual humanitarian intake will increase from its current level of 13,750 places to 18,750 places.

This is a commitment that the minister has given to the crossbenchers. It is a commitment he has made publicly. We stand by our commitment.

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

I would like to see this done because I have seen so much lying go on in this place in the last 5½ months; it is disgraceful. There is no trust left between that lot over there and me. There is no trust left between the Clive Palmer party and me. I too, as a new crossbencher, would like to see this go through. I want you to stand by what you are going to do. There is no reason why you cannot all vote on this.

Senator Back interjecting—

You want to talk honourable? Let us be honourable, about as honourable as you were with the Defence Force the other day. Let us be honourable. Let us see it. I want you to put this bill where your mouth is. I want to see this go through the Senate. I want to see this in black and white. I want to see this mean something and I am sure every other Australian wants you to do this as well.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I support this in principle. I have received an undertaking, as have other crossbench colleagues who support this measure. I would like to get a time frame as to when the legislative instrument will be introduced. I think it is reasonable to know that. If the legislative instrument is not introduced, I think the government knows that it will be a massive breach of faith and that the government cannot expect any cooperation from me on any future piece of legislation if the undertaking is broken. I think that is fairly clear.

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

I rise to give the Greens support for this amendment. It seems pretty basic that if the government is going to make a promise to increase the humanitarian intake until after the next election then at the very least it should put its money where its mouth is and put that promise into legislation. We have ended the year—

Honourable Senators:

Honourable senators interjecting—

The CHAIRMAN: In case it has escaped the attention of senators, I actually really enjoy chairing the committee. I am quite happy to stay all night, but we will have some order.

Honourable Senators:

Honourable senators interjecting—

The CHAIRMAN: It is pointless my bringing the Senate to order if senators then simply start interjecting once again.

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

Thank you, Chair. This amendment would put into legislation the commitment that we have been told has been undertaken by the Abbott government. I just want to point out that we are ending a year in which, during the last 12 months, we have seen broken promise after broken promise within 12 months of an election. The commitment that has been given to crossbenchers in this place is that the—

Senator Bernardi interjecting—

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Bernardi, you are not in your place. You should not be interjecting in any case, but it is even more disorderly to be doing it from where you are.

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

Thank you, Chair. I never thought of Cory Bernardi as a gentleman, so I think he is proving himself in showing appalling behaviour tonight. I am more than happy to have a debate with Senator Bernardi any time, but perhaps he would have the courtesy to allow people to finish speaking. The point I am making here is that, if the government honestly want to show that they are committed to increasing the humanitarian intake and expect both the public and the Senate to believe that that will be honoured after the next election, put your money where your mouth is and make sure it is in the legislation tonight. I cannot see why that would be such a problem from a government who desperately want the public and the parliament to believe them.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

() (): While I have substantial sympathy for this amendment, I will not be supporting it. I discovered after the event that Minister Morrison has agreed to an increase in the humanitarian intake as a result of my representations, plus those of Senators Day and Xenophon. I also understand that the cost of humanitarian refugees is quite considerable, and to increase the number in this manner would be a very big burden on the budget. As senators will know, that is something of major concern to me. However, I am also pleased that the minister has agreed to allow those on bridging visas and, of course, TPVs and SHEVs to work. Therefore, those who do will pay taxes and will come off social welfare. That will contribute to the cost of an increase in humanitarian intake, which, as I said, I regard as quite important.

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

) ( ): I, too, will be opposing this. I, too, have had a personal commitment from the minister regarding this increase. I am fairly new here, but I can guarantee the minister in this place that, if I make a commitment to do something, I will do it—and I expect the minister to reciprocate. His commitment to increase the humanitarian intake is a worthy commitment, but I do not think that enshrining it in legislation is the way to go. I do take the minister at his—

Opposition Senators:

Opposition senators interjecting—

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Order!

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

By regulation by legislative instrument.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I draw the attention of those who have just spoken to what the words in the current bill actually say. It says the minister 'may' by legislative instrument determine a minimum total number of protection class visas and refugee and humanitarian class visas. There is a real issue here. You believe you have been given an assurance. The PUP senators were given an assurance some months ago which they believe was reneged upon. That is why there has been this considerable delay in having this matter put before the chamber. I urge you to think carefully about assurances you have been given. Therefore, you have this opportunity here to have the assurance you have stated actually put into the legislation.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I understand that the minister was able to make the legislative instrument subject to, obviously, royal assent of the bill, and the minister has given me a commitment that that would be done by 1 January 2015 on the basis that royal assent has been given to it.

The CHAIRMAN: The question is that the amendment moved by Senator Carr to government amendment (2) on sheet HA108 be agreed to.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The next questions I intend to go to are government amendments (2) and (1) on sheet HA108.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

There is one question I would seek advice on. On the issue of cost for these additional places: what is the government's cost?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The minister has indicated it is approximately or around $100 million.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The difficulty we have is that there have been various estimates given publicly. The minister on previous occasions has spoken of $3 billion out of the budget. Is the $100 million now the official estimate?

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I am advised that it is the minister's estimate for this particular 7½ thousand.

Question agreed to.

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

I move amendment (8) on sheet 7629:

(8) Clause 2, page 2 (table item 2), omit the table item.

And the Greens oppose schedule 1 in the following terms:

(1) Schedule 1, page 5 (line 1) to page 23 (line 13), to be opposed.

Schedule 1 of the bill relates to the maritime powers being inserted into the Migration Act to overrule international law on the high seas. This schedule effectively allows, at the command of the immigration minister, our Navy and our customs officers to be directed to act illegally on the high seas. We know of course that there have been terrible situations where our Navy officers have been asked to do things that no person working for the Australian government and in the name of the Australian people should be asked to do. We know that because we saw it. We saw officers only this week pour their hearts out on the 7.30 program over the types of activities they had been asked to undertake whilst intercepting and turning around boats.

This schedule is all about removing Australia's obligations under international law and allowing the command of the immigration minister to reign high. This is an immigration minister who is already drunk on power. He already thinks he can do whatever he wants and now he wants to be able to tell our Navy to not follow international law.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the Greens on this. We oppose schedule 1 on the grounds that this represents a very clear attempt by this government to undermine the High Court. It is a very shoddy exercise here. The government is attempting to undermine a case that is currently before the High Court. A little while back this government took into custody 157 people and detained them on a prison ship for over a month. When that matter was brought to the attention of the courts this government protested vigorously and sought to undertake these measures to undermine the court proceedings.

This schedule, if carried, would scuttle the High Court case. It would render the precedent value of the present proceedings redundant. That is a case which is fundamentally about the powers of the government under the Maritime Powers Act. The High Court has a legitimate function to perform in assessing the government's actions. This is not about this chamber making a pre-emptive decision on that matter; it is about whether or not the High Court is an appropriate place to evaluate the government's actions.

It is simply inappropriate to walk down this path when the case is currently before the court. After the court has made its decision, then the government I believe would be entitled to put a proposition to the parliament, but I put to this chamber that to do so while the proceedings are under way is totally inappropriate. We strongly believe that this is not an appropriate use of this chamber. We ought to ensure that the proceedings before the court run their course. The High Court should be allowed to continue the work it has been able to do and that is why we are opposing this schedule.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I advise that the government will not be supporting Senator Hanson-Young's proposal. Schedule 1 of the bill clarifies a range of matters relating to the exercise of maritime powers. Maritime powers are used to respond to a range of threats to Australia's national interests, including the smuggling of contraband goods, protecting Australia's fisheries, protecting our ocean and coastal ecosystems from environmental damage, and countering people smuggling. The amendments to the Maritime Powers Act are focused on strengthening Australia's maritime enforcement framework and will provide greater clarity to the ongoing conduct of border security and maritime enforcement operations. These amendments do not seek to create new powers beyond what is already available to maritime officers; instead they clarify the intended operation of those powers and their relationship with the law.

If I can also address the comments that Senator Carr has made in relation to the matter that is currently before the court, there is nothing unusual about amendments to legislation wholly or partly in response to issues raised in a court case. Court cases can help to reveal when a piece of legislation is not being interpreted in a manner consistent with parliament's original intention, allowing parliament to address and rectify this through amendments. The proposed amendments do not affect the case before the High Court or undermine the ability of the court to consider and pass judgement on the applicable law, neither do they prevent the members from considering the court's judgement in time. The government is conscious that any potential adverse decision by the High Court will see people smugglers send the message that Australia is open for business. Introducing these amendments now will also limit the ability of people smugglers to trick vulnerable people into believing this message.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Minister, there is a pretty serious question here. You are quite right that parliaments do amend laws after courts have decided on a matter. It is very unusual to proceed in this fashion while a court case is actually underway.

The CHAIRMAN: The question is that schedule 1 stand as printed.

Question agreed to.

The CHAIRMAN: Senator Hanson-Young, your amendment (8) was really consequential on being successful with your opposition to schedule 1, so I think that has disposed of that, unless you have any objection. Senator Carr, (1) and (2) on sheet 7617 effectively were the same questions, so they are also disposed of, unless there is any objection. We now move to Australian Greens' opposition to schedule 2, which is outlined on sheet 7629, if that is convenient to you, Senator Hanson-Young.

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

The Australian Greens oppose schedule 2 in the following terms:

(2) Schedule 2, page 24 (line 1) to page 49 (line 23), to be opposed.

The Greens propose to delete schedule 2 from the bill. We know that much debate around this legislation has been focused on schedule 2. This is the part of the bill that includes legislating for temporary protection visas and allowing for regulations for SHEVs. The reason, fundamentally, the Greens do not support this schedule is because people who have been found to be legitimate, genuine refugees after all of the anguish they have been through—fleeing their homelands and going through the detention process—under this schedule will continue to live in limbo, effectively for the rest of their lives. Many of the 30,000 we are currently talking about are already having to live in the community in limbo. There is absolutely no genuine pathway to permanency outlined in this schedule at all. It is a long road—

The CHAIRMAN: Senator Hanson-Young—

I have this really irritating voice next to me and then I realise it is Senator Bernardi.

The CHAIRMAN: I know; I can hear it from here. I was not hearing it clearly. Senator Bernardi—

Senator Bernardi interjecting—

The CHAIRMAN: No, take your seat—take your own seat.

Sometimes I wonder whether we should have breathalysers at the doors in this place.

The CHAIRMAN: Senator Hanson-Young, resume your seat. There is no requirement for that. Senator Bernardi, I would ask you to remain quiet—silent, in fact.

Senator Bernardi interjecting—

The CHAIRMAN: If you are seeking to lag in Senator Lazarus as well, I am sure he will appreciate that. But you are the one I can hear, and I ask you to remain silent while Senator Hanson-Young is speaking.

As I was saying, this schedule, as it currently stands, does not create a permanent pathway for refugees. People who have been through the process and have been assessed as a refugee under the current schedule do not have a pathway to permanency. If you are on a temporary protection visa, you will never be given a permanent visa. That is what the minister has said, and that is what this piece of legislation currently before us tonight does. You may be able to opt to go on to the newly created SHEV under this schedule, but it is going to be damn hard for you to ever be able to apply for a permanent visa.

That is not just me saying that, it is the minister himself. The immigration minister himself stood up and said: 'There will be no permanent protection for refugees in this country. Good luck to them if they think they're going to get permanency, but it is a very high bar.' They are the minister's own words, that is the sentiment as outlined in this schedule. It is a pipe dream to think that there is any pathway to permanency under this schedule. It allows for the continued torture of people who just want to start putting their lives back together. You have to remember that this is for people who have already been assessed to be refugees. They have been in detention for years, many of them in the community on bridging visas for years—in limbo, not knowing what their future holds. Under this schedule they will stay there effectively forever. There is no pathway to permanency; it is a pathway to nowhere. That is why it needs to be removed.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Labor is resolutely opposed to the use of temporary protection visas as a quick fix to deal with men and women and children who are currently awaiting processing in Australian funded facilities. Temporary protection visas simply place people in a prolonged state of limbo. They serve as a stopgap that keep people in a cycle of uncertainty. They prevent them from contributing to the community and forging proper links in Australia.

When the parliament, and particularly this chamber, rejected the immigration minister's policy of bringing back temporary protection visas in December last year, the minister, in an act of petulance, stopped processing people—yes, that is right, Minister; I see you are in the chamber. You are clearly here because you cannot trust your senators to do the government's dirty work! We all understand the protocols here, and that is essentially why you are here. I see you nodding vigorously there, but the fact remains that you acted in a completely petulant manner because this chamber chose to reject the policy position that you adopted.

Any claim that TPVs serve as a deterrent to people seeking to risk their lives coming to Australia by sea is simply wrong. Australia has in fact been taken off the table with the regional settlement arrangements, which were introduced by Labor in July last year. This issue has absolutely nothing to do with any person who may seek to come here by boat. It relates to people already in detention who arrived before 19 July last year. For that group of people, Labor believe we need to have a sensible policy that sees them processed and, if they are found to be genuine refugees, allowed to settle in Australia.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I rise to advise that the government will not be supporting the item moved by Senator Hanson-Young. This is where the government, the Greens and the opposition truly do part company. This is where the difference between how you manage your borders and whether you manage them with integrity or whether you let the people smugglers take control of Australia's borders becomes apparent. We have often stated this on this side of the chamber. In fact, we have said it since that fateful day in August 2008, when the then minister for immigration, Senator Chris Evans, commenced the wind back of the former Howard government's strong border protection policies, which had done what this government, under Minister Morrison, has done—that is, stopped the boats. We had always said that we would bring temporary protection visas back as part of our suite of policies—and why. The question we need to ask ourselves tonight is: why? The reason is evidenced in the facts. If you put the sugar on the table and you give the people-smugglers a problem to promote, they will. That product is a permanent visa in Australia. You take the sugar off the table, you take the product, the promise—

Senator Whish-Wilson interjecting—

The CHAIRMAN: Senator Whish-Wilson, you will cease interjecting.

You take the product off the table. You take permanent protection off the table, and the vile people-smugglers, who deal in human misery, no longer have a product to sell. That is exactly what this schedule does. Tonight we bring an end to 50,000 people coming here illegally by boat because the people-smugglers had a product to sell. Tonight we will put an end to the deaths at sea that occurred because the people-smugglers were able to market permanent protection in Australia. We know that in excess of 1,200 people were promised permanent visas in Australia and that they risked their lives to get here, and they did not get here—they died making the voyage. Tonight we put an end to that. We also put an end to the in excess of $11½ billion in cost blow-outs that the former government, so vocally supported by Senator Hanson-Young, oversaw because they failed to understand that permanent protection visas are the one thing that people-smugglers use to market their vile trade. I am going to end by reading from a recent transcript of the 7.30 program. This is what we are ending tonight. The reporter says:

Norris spent much of that time on patrol boats, including this one, HMAS Albany. He intercepted and boarded dozens of asylum seeker vessels.

Troy Norris, one of our ADF members, who routinely witnessed large-scale human degradation and misery, said this:

At the time you run on adrenaline. You are just trying to do the best you can to get as many people out of the water as quickly as possible. There's so many people on the water and they all look the same. All you see is a head and a face. That was one of the most difficult aspects of the recovery of the people in the water that are alive was the fact that you're playing God. And, I didn't like that too often—too much.

The reporter then says:

Often Troy Norris faced a different horror: retrieving the dead, including children.

Troy Norris responds:

They become quite bloated, very unrecognisable and there's only one way to pull them in and that's to grab 'em and, you know, try and chuck 'em in the boat. And sometimes you'd go to pull these people in the boat and all you'd end up with is a handful of flesh. They're just stripped to the bone. And after seeing stuff like that, it's pretty hard to forget.

And that is why, Senator Hanson-Young, the government is not supporting your amendment.

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

I thank the minister for clarifying why they so desperately want schedule 2 to be left in there, and for explaining clearly that the arrangement and the deal done between Clive Palmer, Nick Xenophon and Scott Morrison does not deliver permanent protection.

The CHAIRMAN: Senator Hanson-Young, I have drawn your attention to this matter of addressing people by their correct titles.

I apologise, Chair. The deal done between Mr Palmer, Mr Xenophon and Mr Morrison—

Honourable senators: Senator!

The CHAIRMAN: That is good enough for now. That is all right.

is clearly not delivering any type of permanent protection to the 30,000 asylum seekers and refugees that are here. This is why this schedule should be deleted, because it does not deliver anything of the sort in terms of a pathway to permanency. That is clear. The minister has tonight made that crystal clear—the government has no intention of giving anybody a permanent visa. Of course, things like family reunion, as we have heard already tonight, are not included in this piece of legislation. All we see is a bill riddled with a grab for power by the immigration minister in order to pick and choose who he wants to come to this country and who he does not—not based on the refugee convention, not based on what Australia's obligations are and not based on need but based on who Mr Morrison, the immigration minister, wants to allow into this country and who he does not. How has he done this? He has done this by manipulating the good will, the compassion and the desire in this place of people to give hope and decency to asylum seekers and refugees.

We have had the minister use children as bargaining chips to deliver a deal that the minister here tonight has just confirmed does not give any permanent visa. It does not deliver one permanent visa. It does not deliver family reunion. We have seen children used as a bargaining chip—that is the way it rolls with this minister. I wonder if that is the type of leadership that the Liberal Party want to see leading their party.

We know that Minister Morrison desperately wants to become the next prime minister of this country, a man who has used children as a bargaining chip as part of his blackmail politics and, we have heard tonight, to deliver a deal—the Mr Palmer, Senator Xenophon, Minister Morrison deal—which does not even stack up to the things they have been promised.

The CHAIRMAN: The question is that schedule 2 stand as printed.

The Senate divided. [22:49]

(The Chairman—Senator Marshall)

Ayes 33

Noes 30

Incorporation:20141204:(10.45 pm) on AG amendment no. 2 [sheet 7629]: ayes - 33; noes - 30 (Question: that Schedule 2 remain in the bill)

Question agreed to.

The Australian Greens oppose item (3) on sheet 7629 in the following terms:

(3) Schedule 3, page 50 (line 1) to page 56 (line 5), to be opposed.

This amendment deals with schedule 3 of the bill. Schedule 3 gives incredible power to the immigration minister to effectively hold this chamber over a barrel when it comes to the regulations in relation to a number of visas—not just temporary protection visas, not just the SHEVs. It covers a raft of visas, including the permanent protection visas to which, as we have heard from Minister Cash tonight, the government is so vehemently opposed. They so hate the idea of giving genuine refugees permanent protection—or any type of permanent visa.

Schedule 3 effectively allows for the minister to dictate to this place that it is his way or the highway. If a regulation for a visa is made and if we senators do not agree with that regulation, for whatever reason, if we were to disallow any of those regulations it makes any current application for any one of those visas invalid. What an incredible amount of power to hand to a minister who we know cannot be trusted to do the right thing when it comes to treating people fairly, who cannot be trusted to look after children in his care.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Could we have order in the chamber please? If you are not participating, please leave the chamber.

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

This schedule hands an incredible amount of power to a minister who simply does not deserve it. He has not earned it, he cannot be trusted with it, and we know what this minister does when he does not get things his own way. He holds children as hostages. That is what we have seen happen here tonight. That is what we have seen happen over the last few weeks.

Government senators interjecting—

I can see that I am agitating some of the people on the other side. They hate hearing the truth. They hate hearing that the person who is going to lead their party uses children as bargaining chips. They cannot stand the idea that the next leader of the Liberal government is going to be a man who is so drunk with power, so obsessed with his own authority that is prepared hold children as hostages just to get his own way. This schedule hands ultimate power to this minister and it is why it needs to be deleted.

If this chamber were to roll over on this schedule, we would effectively be saying we have no role in scrutinising regulation or legislation in this place. We know what this government does with legislation. We saw the crossbench having to fix it only a few weeks ago when it came to the FoFA laws. We know they cannot be trusted when it comes to legislation, and here we have the minister saying, 'You know we can't be trusted, so we're going to take away the total ability for you to fix it in the future.'

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I advise the government will not be supporting this amendment.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition will be supporting this amendment. It is a simple administrative matter.

The CHAIRMAN: The question is that schedule 3 stand as printed.

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

by leave—I move Greens amendments (1) and (2) on sheet 7630 together:

(1) Clause 2, page 2 (table item 4), omit the table item, substitute:

(2) Schedule 2, page 27 (after line 24), after item 16, insert:

16A After section 35A

  Insert:

35B Purpose of safe haven enterprise visas

     It is the intention of the Parliament that unauthorised maritime arrivals who entered Australia by sea after 13 August 2012 and before 19 July 2013 and who satisfy the criteria for a protection visa are to be granted safe haven enterprise visas that:

  (a) require them to live in regions of Australia that are suffering from labour shortages; and

  (b) allow them to work and study; and

(c) give them access to social welfare benefits and services on the same basis as a person who holds a permanent protection visa; and

  (d) allow family reunions; and

(e) in certain circumstances, may become permanent protection visas.

35C Regulations prescribing safe haven enterprise visas must be made

(1) Regulations making provision, in accordance with section 35D, for safe haven enterprise visas must be in force at the start of 1 February 2015.

(2) If regulations making provision for safe haven enterprise visas in accordance with section 35D are not in force at the start of a day after the end of January 2015, then, on and after that day:

  (a) an eligible person (within the meaning of section 35D) may make a valid application for a permanent protection visa despite anything else in this Act, the regulations or the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014; and

  (b) subject to paragraph (a), the application is to be determined under this Act, and the regulations, as in force on 1 November 2014.

(3) In applying this Act and the regulations as in force on 1 November 2014 for the purposes of this section and section 35D, disregard any amendment or provision that was made or enacted after that day but purports to have retrospective effect.

35D Safe haven enterprise visas

(1) Regulations making provision for safe haven enterprise visas must:

  (a) provide for safe haven enterprise visas to be granted to any eligible person who satisfies the criteria for a protection visa under this Act, and the regulations, as in force on 1 November 2014; and

  (b) provide for safe haven enterprise visas to be valid for 5 years; and

(c) provide for safe haven enterprise visa holders to have access to family reunions; and

  (d) subject to subsection (2), make it a condition of a safe haven enterprise visa that the holder live in a declared area of Australia while the visa is in force.

(2) The regulations must prescribe exceptions to the condition in paragraph (1)(d) for holders of safe haven enterprise visas who cannot, because of age or health or caring responsibilities, reasonably be expected to comply with the condition.

(3) The holder of a safe haven enterprise visa is to receive social welfare benefits and services from the Commonwealth on the same basis as a person who holds a permanent protection visa, and the regulations may make such modifications of other Acts and instruments as are necessary to ensure that this occurs.

(4) If, for each day in a period of 42 months (or each day in multiple periods that together amount to 42 months), a holder of a safe haven enterprise visa:

  (a) complies with the conditions of the visa; and

  (b) either:

     (i) does not receive social security benefits under the Social Security Act 1991; or

     (ii) is covered by an exception prescribed in accordance with subsection (5);

then, at and after the start of the day after the end of the period or the last of the periods, as the case may be, the visa is taken to be a permanent protection visa.

(5) The regulations must prescribe exceptions for the purposes of subparagraph (4)(b)(ii) for days on which a holder of a safe haven enterprise visa:

  (a) is unable to work because of age or health or caring responsibilities; or

  (b) is undertaking full-time study (including days on which the visa holder is on a normal break between periods of full-time study).

(6) In this section:

  declared area of Australia means an area of Australia that is declared, by legislative instrument, in accordance with the regulations.

  eligible person means the following people:

  (a) a person who:

     (i) became an unauthorised maritime arrival on or after 13 August 2012 and before 19 July 2013; and

     (ii) is in Australia;

(b) a person prescribed by the regulations.

These amendments deal directly with the deficiencies of the current SHEV arrangement. The deal between Mr Palmer, Senator Xenophon and Minister Morrison does not include a permanent visa for people at the end.

If somebody has been found to be a genuine refugee—they have had their assessments, they have had their case looked at and they are given refugee status—and is then put onto a SHEV, a safe haven enterprise visa, and they fulfil the requirements set out in that visa, working for 3½ years in a rural area or studying and not draining welfare, then after the five years why do they not get a permanent visa? If the SHEV is designed as a pathway to permanency once you have proven not just that you are refugee but that you have the good character to be able to rebuild your life and contribute to this country then after you have met the requirements of the SHEV you should be given a permanent visa. Why continue to play a game with people's lives and require them to get a different type of visa, go on to another temporary visa, never really finding that pathway to permanency?

These amendments put a genuine pathway to permanency into the SHEV—exactly what Mr Palmer wanted and just like we have heard from the crossbenchers that they want to see. That is currently not in the legislation. It was not in the government's amendments as negotiated between Mr Palmer, Senator Xenophon and Minister Morrison. That deal did not include a pathway to permanency. If we accept that that is important, if people prove that they are worthy of being able to stay in this country, let's give them permanency at the end of that SHEV process. That is what these amendments seek to do.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

We will be supporting these amendments.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will not be supporting the amendments.

The CHAIRMAN: The question is that amendments (2) and (1) on sheet 7630 be agreed to.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to 13) and (20) to (26) on sheet 7636 together:

(1) Clause 2, page 2 (table item 8), omit the table item.

(2) Schedule 2, item 1, page 24 (lines 14 to 16), omit paragraph (c) of the note.

(3) Schedule 2, item 1, page 24 (line 17), omit "or temporary".

(4) Schedule 2, item 2, page 24 (line 23), omit "and temporary".

(5) Schedule 2, item 3, page 25 (line 3), omit paragraph 31(2)(f).

(6) Schedule 2, item 5, page 25 (lines 19 to 22), omit subsection 35A(3).

(7) Schedule 2, item 5, page 25 (line 24), omit "and temporary".

(8) Schedule 2, item 19, page 28 (after line 19), after subitem (1), insert:

  (1A) A valid application for a Protection (Class XA) visa made before the commencement of Division 1 of this Part and not finally determined immediately before that commencement is, at and after that commencement, taken to be, and always to have been, a valid application for a permanent protection visa.

(9) Schedule 2, item 20, page 29 (line 13), after "class", insert "(other than a protection visa)".

(10) Schedule 2, item 20, page 30 (lines 1 and 2), omit "protection visas and any other classes of visas", substitute "any classes of visas (other than protection visas)".

(11) Schedule 2, heading to Part 4, page 35 (lines 1 and 2), omit "and temporary protection visas".

(12) Schedule 2, item 26, page 35 (lines 13 to 15), omit paragraph (c) of the note.

(13) Schedule 2, item 26, page 35 (line 16), omit "or temporary".

(20) Schedule 2, item 53, page 49 (lines 18 to 20), omit "Temporary Protection (Class 18 XD) visa by the operation of paragraph 2.08F(1)(b) of these Regulations (as inserted by Division 2 of that Part)", substitute "protection visa by the operation of item 19 of that Schedule".

(21) Schedule 2, item 53, page 49 (lines 21 to 23), omit the note.

(22) Schedule 3, item 1, page 50 (line 12), omit paragraph 31(3A)(c).

(23) Schedule 3, item 6, page 52 (line 2), omit paragraph 46(5)(c).

(24) Schedule 3, item 7, page 52 (line 14), omit paragraph 46AA(1)(c).

(25) Schedule 3, item 12, page 55 (table item 3), omit the table item.

(26) Schedule 3, item 12, page 56 (line 2), omit "and temporary".

The opposition opposes schedule 2 in the following terms:

(14) Schedule 2, items 29 to 31, page 35 (line 24) to page 42 (line 16), to be opposed.

(15) Schedule 2, item 37, page 44 (lines 11 to 14), to be opposed.

(16) Schedule 2, Division 2, page 44 (line 15) to page 46 (line 11), to be opposed.

(17) Schedule 2, items 40 and 41, page 46 (lines 16 to 21), to be opposed.

(18) Schedule 2, item 43, page 46 (lines 25 to 28), to be opposed.

(19) Schedule 2, items 45 to 50, page 47 (lines 4 to 24), to be opposed.

These amendments go to the question of TPVs. The Labor Party remains—I have stated this position very clearly—absolutely opposed to TPVs.

Senator Brandis interjecting—

Sorry, what was that? Here we go! Lord Brandis wants to cut in. Lord Brandis, who sits there in his slothful manner, wants to cut in and wants to question whether or not we have real conviction on this matter.

David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Mr Chairman, I raise a point of order. Senator Carr knows that he needs to refer to senators in this place by their correct titles.

The CHAIRMAN: Yes, he does indeed. I again remind senators to refer to other senators by their correct titles.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Under the Howard government there were 11,000 TPVs issued. Of those, 9,800 were made permanent. This demonstrates, on the historic record, that overwhelming numbers of people on TPVs deserved to have permanency. These sets of amendments put our long- and well-held view of the failure of this TPV regime, and I would urge the Senate to support them.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will not be supporting the amendments.

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

The Greens will be supporting these amendments. We are very clearly on the record saying that temporary protection visas are only given to people who have already been found to be worthy and needing protection. It simply adds more pain and more suffering to people and does not allow refugees to rebuild their lives in this country. It does not allow them to put roots down, start contributing properly, allow their kids to go to school and know that they will become Australian citizens and proud members of our Australian community. Temporary protection visas last time around, under John Howard, were a fundamental failure of policy. It is why they did not work. It is why, under John Howard, they had to be quietly reversed for person after person after person. They did not stop the boats. All they did—

Senator Bernardi interjecting—

The CHAIRMAN: Order! Senator Hanson-Young, please resume your seat. Senator Bernardi, I would kindly ask you to resume your own seat.

Of course these amendments to remove and to delete temporary protection visas are important. Under the John Howard government, temporary protection visas encouraged women and children onto boats. Temporary protection visas kept genuine refugees in limbo in the community for years, suffering unnecessarily. They do not allow people who are genuine refugees who need protection, who deserve protection and who want to contribute to our nation the ability to rebuild their lives or to have certainty around what their kids are going to do and what jobs they are going to take. Temporary protection visas were a fundamental failure of policy last time they existed, and they will be again. That is why the Greens support deleting them from the bill.

The CHAIRMAN: The question is that the amendments be agreed to.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that items 29 to 31, 37, 40, 41, 43 and 45 to 50 and division 2 of schedule 2 stand as printed.

Question agreed to.

The CHAIRMAN: Senator Hanson-Young, we might move to your amendments on sheet 7641.

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

I am not proceeding with amendments (2) to (7), (9) to (12) and (19) to (25) on sheet 7641, amendment (1) on sheet 7649 and amendment (8) on sheet 7641. The Greens oppose schedule 4 in the following terms:

(4) Schedule 4, page 57 (line 1) to page 89 (line 22), to be opposed.

This amendment deletes schedule 4 of the bill. Schedule 4 of the bill is what has been dubbed the fast-track legislation. This is the schedule that fundamentally changes the way people will have their refugee assessment made. The minister has argued that it creates a rapid process for asylum seekers who will be assessed under this caseload of 30,000. In reality, what this will do is strip away people's ability to appeal decisions and to ensure that the correct information about their cases is what is being used to make their assessments. It strips their ability to have their cases reviewed by the Refugee Review Tribunal. These amendments are all about the government trying to make it as hard as possible for somebody to be found to be a genuine refugee.

This schedule was the most fundamental concern of refugee advocates and lawyers who submitted to the Senate's inquiry into this piece of legislation. It is stripping away people's ability to ensure that they get a fair hearing, that after all these years of being locked in detention and then dumped in the community with nothing, people are being asked to be fast-tracked, shunted through a system where they do not have appeal rights, where they do not have the ability to make sure that the information they put forward is correct, and the minister himself is allowed to have such ultimate power that he can put big crosses next to these people's names and no-one is going to be able to have that reviewed or to know that those crosses that the minister has put next to their refugee assessment will be reviewed.

It is important to note that those who are found under this process to not be owed protection will become unlawful citizens—no right of appeal, no ability to check that the minister has made the right assessment. And they become unlawful citizens. And what happens then? Those people will go back into immigration detention, awaiting deportation. This whole argument that this is about getting people out of detention is actually a furphy, and this schedule exposes that. We know that over 60 per cent of cases are overturned because the first decision made was the wrong one. That means that over 60 per cent of the 30,000 people are going to not be found to be owed protection if this schedule passes. That does not mean that they are not refugees; it just means that the minister does not have to admit that a mistake was made. It makes it easier for him to stick them back into detention or on a plane back to Kabul, or to Quetta, or to whatever other place from which they have fled persecution.

The reason this is so fundamental is that it is about life and death. This is about how you assess somebody to be a refugee. We have spent most of the night in this place debating what happens once somebody is found to be a refugee—whether they get a temporary visa, whether it is a pathway to permanency—when in actual fact this is the crux of it: the minister wants the power to give fewer visas to people, full stop. He wants to be able to put more people on a plane and deport them back to danger. The schedule is fundamentally flawed. It is abhorrent to the rule of law, and it must not proceed.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition was intending to move amendments in similar terms for the removal of schedule 4. Schedule 4 as it is currently presented—and if the Senate agrees—would have the effect of removing access to the Refugee Review Tribunal for certain asylum seekers to whom the government has given fast-track applications—a somewhat Orwellian concept. Now, in lieu of the Refugee Review Tribunal, the government is proposing that asylum seekers who have had their application for protection denied will be directed to a new body called the Immigration Assessment Authority. And one of the fundamental principles of administrative arrangements in this country is the access that people have to review of decisions that are taken by officers, providing—I think appropriately—a provision for natural justice and the opportunity to have decisions actually reviewed. And because of the very high percentage of cases that are actually overturned by the review mechanism, it is quite clear that such a body is necessary.

The new body the government is proposing—and if you support the measures in this bill you will be supporting this new body—will conduct only limited merit review of decisions, and it would deny the application for protection of applicants on the basis of a paper review. It will be on the papers; it will not necessarily be through any proper judicial standard of review. Unsuccessful asylum claimants will not have an opportunity to appear before such a body to actually argue their case. The review will be conducted by bureaucrats in a closed office. Asylum seekers will not have the opportunity to even make written submissions. Asylum seekers will not have the opportunity to be notified of adverse findings about them or respond to those findings. They will be denied the right of legal representation.

Now, I ask you to think about the implications of that. In any proper judicial process in this country you would have an expectation of legal representation. You would have an expectation that you would be told about the proceedings. You would have an expectation that you would actually be able to present your case. But under this measure none of those basic provisions or legal protections in this country are allowed. There are no prescribed grounds for a review to be conducted by such a body. It is a process that is entirely at the discretion of the reviewer. This strikes me as being fundamentally at odds with the judicial principles that we would have expected in this country.

Furthermore, the immigration assessment authority lacks institutional independence from the executive of government, which I would put to you is one of the touchstones of judicial review. But you do not have the minister ring up and put the fix in, and that is what these proposals would allow. You must have a legal process that stands up to scrutiny. And the IAA reviewers will not be employed by an independent statutory authority—which of course is the case with the Refugee Review Tribunal, or the Administrative Appeals Tribunal. Rather, these reviewers will be regular public servants employed under the Public Service Act. In performing their reviews, they will be required to comply with the practice directions and guidelines imposed by their superiors.

So, this is a proposition that provides no confidence of independent judicial review. What this measure suggests to me is a somewhat pale imitation of current practices with the Refugee Review Tribunal and falls dramatically short of the basic principles of fairness. I ask this chamber to consider the implications of endorsing such a process for people who have a genuine need to have their decisions reviewed by a proper, fair process. Simply put, if this proposition is upheld, asylum seekers will not be afforded natural justice. The basic principles of reasonable administrative decision making that we have all come to expect will be abandoned.

I think we would all defend an open and transparent review process, which of course the Refugee Review Tribunal upholds. That is to be scrapped and replaced with a team of bureaucrats, sitting in closed offices, subject to the direction of government and lacking the institutional independence of the Refugee Review Tribunal. That would mean that the government would take control of the review processes, when administrative decisions—as we all know, because of the representations we all have to take—have so often been demonstrated to be incorrect. The proposition that you have been asked to endorse is a 'trust me, trust the government' approach to justice. That is fundamentally contrary to the principles of the way in which our legal system is operated in this country. Rights and obligations of asylum seekers should not be at the mercy of executive government. Asylum seekers are entitled to a fair and independent, a transparent and credible, forum to have their claims assessed properly. That is why Labor senators will be opposing schedule 4 of this bill.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will not be supporting the amendment moved by the Australian Greens. Despite the statements made by Senator Hanson-Young and reiterated by Senator Carr, I can confirm to the Senate that the bill does not make any change to the judicial review rights. The bill contains the necessary procedural safeguards to ensure a fair process. Natural justice requirements will be observed as the IWA will be supported with a code of procedure in relation to the reviews that it conducts. So I confirm that there is no change to the judicial review rights.

The CHAIRMAN: The question is that schedule 4 stand as printed.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Hanson-Young, the result of that division makes your amendment (11) on sheet 7629 redundant. And, Senator Carr, I believe that it makes your amendment (2) on sheet 7637 also redundant. We now move to Greens amendment (5) on sheet 7629.

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

The Greens oppose schedule 5 in the following terms:

(5) Schedule 5, page 90 (line 1) to page 100 (line 16), to be opposed.

I know everybody is keen to get out of here, and we are moving through the amendments as quickly as we can, so I will continue. This amendment is in relation to deleting schedule 5, which is the schedule that removes the refugee convention from the Migration Act, effectively allowing the minister of the day, the government, to determine what a refugee is, the definition of a refugee, and how international law will be applied in this country. It is an abusive use of power by this minister. It would be a fundamental change to the way Australia deals with our obligations under international law and would send a significant message to the international community that Australia does not care about the refugee convention. This schedule cannot stand the way it is. It is wrong to delete the refugee convention from Australia's law books. It does not matter how much you want to spin it. Why does it need to be done? Because Minister Morrison does not want to have to abide by the obligations as outlined by the refugee convention. If he did, it would not matter. We asked the department, during the inquiry into this, when has this ever occurred before, where you put in the government of the day's own interpretation of our obligations under international law?

They could not tell us, because it has not happened. Why hasn't it happened? Because it is wrong. When we abide by international law you put that in your legislation, you say we stick by the convention and you get on and stick by the rules you have signed up to. The schedule should be deleted.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

We will be supporting the motion to delete schedule 5.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will be opposing the amendment moved by the Australian Greens. I again confirm for the chamber that, despite the statements made by Senator Hanson-Young, these amendments do not attempt to displace Australia's obligations under the refugees convention. The new statutory refugee framework is consistent with Australia's obligation under the refugees convention and in no way resiles from Australia' nonrefoulement obligations under the convention. Putting our international obligations into the relevant act will actually serve to strengthen them. We are a sovereign nation and this will ensure that our laws are determined by Australians and the Australian parliament.

The CHAIRMAN: The question is that schedule 5 stand as printed.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Hanson-Young, I believe that would make your amendment (12) now redundant, so we should now move to opposition amendments (2) and (3) on sheet 7638.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Mr Chairman, I believe that the previous Greens amendment would make those provisions now redundant as well, so I do not wish to proceed.

The CHAIRMAN: We should then move to opposition amendment (1) on sheet 7639.

Mr Chairman, I wish to move amendment (1) on revised sheet 7639, with a further—

Lights in the chamber having dimmed—

Honourable senators interjecting—

The CHAIRMAN: Order! This is not the most exciting thing that has happened tonight. I believe there is enough light for us to continue, so we will press on.

I would also seek to further amend amendment (1) on revised sheet 7639, clause (iv), which currently says: 'conceal a physical, psychological or emotional disability', to change the word 'emotional' to 'intellectual'. I move revised amendment (1):

(1) Schedule 5, item 7, page 94 (line 3), at the end of subsection 5J(3), add:

  ; or (c) without limiting paragraph (a) or (b), require the person to do any of the following:

     (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

     (ii) conceal his or her true race, ethnicity, nationality or country of origin;

     (iii) alter his or her political beliefs or conceal his or her true political beliefs;

     (iv) conceal a physical, psychological or intellectual disability;

     (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

     (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

I understand that this is likely to attract the support of the chamber. The government is supporting it. These measures are being moved in the light of the changes the government is making. This is being moved because the replacement of the refugee convention with these preferred interpretations of convention obligations requires much closer definitions of the so-called modifications that people have to enter into if they are to attract support. As a consequence, I believe they are self-evident requirements, and I commend them to the chamber.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will be supporting the amendment moved by Senator Carr, and I confirm the further amendment in relation to paragraph (iv), replacing the word 'emotional' with 'intellectual'.

Friday, 5 December 20 14

The CHAIRMAN: The question is that amendment (1) on sheet 7639 (revised) be agreed to.

Question agreed to.

The CHAIRMAN: We will now move to Australian Greens amendment (6) on sheet 7629.

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

The Greens oppose schedule 6 in the following terms:

(6) Schedule 6, page 101 (line 1) to page 109 (line 28), to be opposed.

This will be the final amendment that I will move tonight. There are some other amendments on the sheet—

Honourable Senators:

Honourable senators interjecting—

The CHAIRMAN: Order!

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

Sometimes I think this place is full of toolies at schoolies.

Honourable senators interjecting—

The CHAIRMAN: Senator Hanson-Young, there is no need for any commentary. Please resume your seat again. The Senate should come to order. Senator Hanson-Young, you have the call.

This will be the final amendment that I will move tonight. I have other amendments on the sheet, but in the spirit of getting everybody out of here, I will leave them—

Honourable senators interjecting—

The CHAIRMAN: Order!

Well, I am happy to stay, but I think everyone wants to go home.

The CHAIRMAN: Please resume your seat, Senator Hanson-Young. If senators could assist the Chair and remain silent. Senator Hanson-Young, you have the call.

This amendment is in relation to schedule 6. It is the schedule that effectively renders babies born in Australia stateless. It says that those babies who are born here in Australia to asylum seeker parents, whether they are born in a hospital in Perth, in Adelaide or in Brisbane, will be classified as unauthorised maritime arrivals. This schedule is designed to keep those babies in limbo, along with their families. And, of course, one of the most awful parts of this schedule is that it is retrospective. We know that over 100 babies have been born here in Australia. They were delivered like any other baby. They arrived in the way that any other children in this country have. They are not maritime arrivals, and yet this schedule renders them to be unauthorised maritime arrivals.

Furthermore, of those who have already been born, 24 of them, tomorrow when this bill passes, will be on a plane to Nauru. The minister has said that the moment this bill passes those 24 babies, who were born here in Australia, will be on a plane to Nauru. It is putting children back in detention. I see that the minister is here in the chamber tonight, and he is grinning. I find that appalling. Twenty-four babies born in Australia are going to be sent to Nauru under this schedule. It needs to be deleted.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

We support schedule 6 of the bill.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government is opposing the amendment moved by Senator Hanson-Young relating to children born to IMAs. I believe I answered a question from Senator Madigan today in relation to this. The current state of the law is that babies born to mothers who are UMAs are expressly covered by the definition of UMA in section 5AA of the act.

The CHAIRMAN: The question is that schedule 6 stand as printed.

Question agreed to.

The CHAIRMAN: Senator Hanson-Young, you are not proceeding with any more of your amendments?

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

That is correct.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

by leave—I move opposition amendments on sheet 7640 together:

(1)   Schedule 2, item 39, page 46 (lines 14 and 15), omit the item, substitute:

39 Regulation 2.06AA

  Omit "Protection (Class XA) visa" (wherever occurring), substitute "protection visa".

(2)   Schedule 7, item 2, page 110 (line 10), after "visas", insert "(other than protection visas)".

(4)   Schedule 7, item 6, page 110 (line 22), omit "including", substitute "other than".

(6)   Schedule 7, item 16, page 112 (line 3), omit "The", substitute "Subject to subitem (1A), the".

(7)   Schedule 7, item 16, page 112 (after line 8), after subitem (1), insert:

  (1A)   However, the amendments made Part 1 of this Schedule do not prevent a protection visa being granted in relation to an application for a Protection (Class XA) visa made before the commencement of that Part (including such an application that is deemed to be an application for another kind of visa by another provision of this Act).

(8)   Schedule 7, item 16, page 112 (lines 9 to 21), omit subitems (2) to (4).

The opposition also opposes schedule 7 in the following terms:

(3)   Schedule 7, item 4, page 110 (lines 17 and 18), to be opposed.

(5)   Schedule 7, items 13 to 15, page 111 (lines 9 to 14), to be opposed.

Put simply, we are very concerned to ensure that we protect the principle of having protection visa applications dealt with within 90 days. We believe that reporting on the 90-day rule has been an important accountability measure to ensure that the government operates in a timely way in assessing protection applications. At the end of Labor's period in office, about half of all protection applications were decided within 90 days. However, the most recent report, on 1 March 2014 through to 30 June 2014, indicated that only 14 per cent of cases were determined within the 90-day period. Because this government has an obsession with secrecy, we are concerned to ensure that there are accountability mechanisms built into the legislation. So we will oppose any attempt to water down the 90-day rule.

The CHAIRMAN: I need to put this question in two parts. The first part is that the amendments be agreed to.

Question negatived.

The CHAIRMAN: The next question is that items 4 and 13 to 15 of schedule 7 stand as printed.

Question agreed to.

The CHAIRMAN: The question is that the bill, as amended, be agreed to.