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

There are a number of amendments to this legislation that are in the process of being circulated that we will move throughout this committee process. But, firstly, I have some questions. A bunch of amendments is being circulated as we speak—I can see the attendants handing out wads of paper as I stand here. As I said from the beginning, in relation to this debate this morning—

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

Mr Chairman, on a point of order: is there a question before the chair at the moment?

The CHAIRMAN: Yes, the question before the chair is that the bill stand as printed, and Senator Hanson-Young is speaking to that question.

When are we going to have the amendments?

The CHAIRMAN: The amendments are being circulated now. I have the amendments in front of me.

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

I need to say it five times—I have already said it four times. Maybe there is a bit of chatter over on that side. I want to make it clear that I asked the attendants to circulate the amendments over 40 minutes ago. I am sorry: it is not my fault. Perhaps, if we had not rushed this legislation into the chamber so quickly, we would all be in a much better situation to deal with the piece of legislation and amendments before us. In the meantime, I ask the minister: how much money has already been spent on the legal action in relation to the court case that this legislation is seeking to undermine?

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

The question is based on a false premise, Senator.

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

I ask the minister: how much money has been spent on the current case before the High Court in relation to these matters?

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

It is not the practice to disclose fees paid to individual legal practitioners.

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

I do not understand why the government is so desperate to keep this secret. We know there are actually a number of High Court cases currently afoot in relation to offshore detention, the detention of children and the legalities in relation to the indefinite detention of children and families. You would think that—even being the Attorney-General—there would be some understanding of how much money these current laws are costing the Australian taxpayer, because they were not drafted very well in the beginning. They have tried for years now to keep it quiet and they are now being found to be illegal.

I would like clarification as to whether the amendments have been circulated to everybody who needs them. I have one copy before me.

The CHAIRMAN: I have seen the attendants surround the chamber and I believe everyone who is in the chamber now has a copy.

I wish to move the amendments on sheet 7738. We are normally given a running sheet—

The CHAIRMAN: That is correct, Senator Hanson-Young. We are just going to take our time and get through this so there is no confusion in the chamber. There are a number of amendments. I suspect that maybe you want to deal with (1), (2) and (3) together? I will leave it to you. It may be easier, without a running sheet, to simply deal with them one at a time.

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

The opposition will be asking the government a number of questions. We have indicated that we will facilitate the passage of this legislation, and we are not in any way moving away from that commitment. There will be a number of questions, and it will facilitate the passage of this legislation if we are able to get answers to our questions.

Minister, the Minister for Immigration and Border Protection tabled a statement on the urgency of the bill. Can the minister advise the Senate as to why it took the government from February, when the court proceedings were initiated, to now to take this action? Can you indicate in your answer the process that determined that this bill should amend the Migration Act in the manner that it does?

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

The process was the ordinary process of deliberation by cabinet and the party room.

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

Senator Brandis, at the risk of repeating myself, it will facilitate the passage of this bill if we can get some answers. To say that it is the normal process of deliberation is not quite what I call a fulsome answer. So I will ask again: will the minister be able to indicate what was in the government's mind as to why it was necessary to change the legislation and, in particular, why it took from February to now to reach that conclusion?

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

In relation to the first question you ask, I have already answered that in my summing up speech to the second reading debate. In relation to the second question you ask, I have nothing to add to my answer to your earlier question.

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

I have been told that we are not going to have a running sheet, which will mean that I will have to pick out which of my amendments relate to each other and explain that to the chamber as we go. Amendment (1) is linked to amendment (7), and this is in relation to stopping children that are here in Australia being sent to Nauru for further detention.

Obviously, I am extremely concerned. The Australian Greens have been on the record for a long time that we do not believe that children should be kept in indefinite detention. We do not believe that they should be kept in the conditions in Nauru. We have seen over and over again the mounting evidence that detention harms children—frankly, whether it is here in the Australian mainland or in offshore facilities. Despite the fact that across most sides in this place most people would argue that children do not belong in detention, we have a situation where children remain in detention as a matter of course. Whether they arrive here or are born here in Australia to asylum seeker parents, as a matter of course, children are being put on a plane and sent to detention in Nauru. This amendment says that children should not be deported to Nauru for the purpose of detention.

We are talking about young children. We are talking about newborn babies who have been born here in Australian hospitals. One of the claimants in relation to the case currently before the court is a family with a newborn baby. That baby was born on Australian soil. That baby was born in an Australian hospital and, like every other child that is born here in Australia, that baby should have access to protection here under Australian law. Instead, that baby is staring down the barrel of being deported for detention in Nauru. It is unconscionable that, with all of the evidence of the damage that detention does to children, we continue to keep children locked up and we continue to automatically detain children simply because they have been born to asylum seeker parents.

Over the last six months, we have seen more and more evidence come forward about the specific conditions in Nauru and how unfit those conditions are for children—particularly young children. Save the Children are the agency contracted by the government to provide services to children in detention. They are the people employed to look after these children, and they themselves say that they cannot do that properly while it is going on in Nauru. That is how bad the conditions are in the camp. It is unsafe for children. It is unsafe for babies. The issues of child abuse, you would have to argue, is the worst example of how unsafe Nauru has become for children and babies in this place. While we continue to send more children there, we are turning a blind eye to the harm that is being done inside.

It is beyond belief that this still happens after the Moss review, which detailed horrific evidence in relation to the abuse of children; after the Human Rights Commission report The forgotten children, which listed that there were 38 cases of child abuse inside centres; and after the evidence from staff who work in Nauru themselves saying that they cannot look after these kids properly. They cannot do their job as social workers, teachers or case managers properly while they are in these conditions. The conditions are simply not fit for children.

We have to make a stand today. This is an opportunity. The government wants more power to detain people and wants to shore up its power to detain people. It should not include children who are currently here in Australia being deported to Nauru. That is what these amendments do. I hope that we can get some agreement across this chamber that no more children should be sent to this place from here in Australia. I would argue that never again should children be detained but, with the conditions as they are at the moment, surely people can understand that for now there should be no excuse for continuing to send children, infants and babies to be detained indefinitely in Nauru or any other offshore facility. That is the substance of those particular amendments.

The CHAIRMAN: Senator Hanson-Young, I have now had an opportunity to look at your amendments and have taken some advice, and it would appear that they could be done in groups, with (1) and (7) together, (2) and (8) together, (3) and (5) together and (4) and (6) together. That is just a suggestion from me given that they are on different topics, but it is simply a matter for you. Do you want to move any amendments at this point?

I think we can go to (1) and (7), which are in relation to the further detention of children.

The CHAIRMAN: Do you seek leave to move amendments (1) and (7) together?

I seek leave to move those amendments together.

Leave granted.

I move amendments (1) and (7) on sheet 7738 together:

(1) Clause 2, page 2, at the end of the table, add:

3. Schedule 2   The day after this Act receives the Royal Assent.

(7) Page 4 (after line 5), at the end of the Bill, add:

Schedule 2—Detention of vulnerable persons

Migration Act 1958

1 Subsection 198AD(1)

  Omit "sections 198AE, 198AF and 198AG", substitute "sections 198AE, 198AF, 198AG and 198AGA".

2 After section 198AG

  Insert:

198AGA Vulnerable persons

(1) Section 198AD does not apply to an unauthorised maritime arrival if the person is a vulnerable person for the purpose of subsection (2).

(2) A person is a vulnerable person for the purpose of this subsection if:

  (a) the person is aged under 18; or

  (b) the person is the parent of guardian (or other family member) of a person covered by paragraph (a).

3 Application

  The amendments to the Migration Act 1958 made by this Schedule apply in relation to an unauthorised maritime arrival on or after the day on which this Schedule commences.

4 Transitional—vulnerable persons transferred before Royal Assent

(1) This item applies to a person if:

  (a) the person was an unauthorised maritime arrival at any time on or after 13 August 2012; and

  (b) the person was taken from Australia to a regional processing country in accordance with subsection 198AD(2) of the Migration Act 1958; and

(c) at the time the person was taken to the regional processing country the person was:

     (i) aged under 18; or

     (ii) the parent or guardian (or other family member) of a person covered by subparagraph (i); and

(d) on the day this Act receives the Royal Assent, the person is:

     (i) aged under 18; or

     (ii) the parent or guardian (or other family member) of a person covered by subparagraph (i).

(2) As soon as reasonably practicable, an officer must ensure the person is removed from the regional processing country and returned to Australia.

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

Senator Hanson-Young, you do not have a monopoly on compassion, you know. These measures, which were introduced by the previous Labor government and continued by the current government, were designed as part of a solution to a problem. The previous government, because of the lack of other measures which we have now introduced, failed to solve the problem, but this is nevertheless an important element in the solution to the problem. Please, Senator Hanson-Young, do not insult everybody else in this Senate by suggesting that there is anyone in this chamber who is glad to see children in detention. Of course there is not—not one person. But what we want to do is to stop the people-smuggling trade, a trade which, as we know, during the six years of the Labor government cost the lives of more than 1,100 people, many of them children. This measure, supported by the opposition, gives further legal strength to arrangements that the opposition, when they were the government, put in place. We want to see children out of detention. We have released more than 90 per cent of the children who were in detention.

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

I have some questions to put to the Attorney, and I have had a brief discussion with the Minister for Immigration and Border Protection's office this morning. I can indicate that I do broadly support the legislation, with some reservations. I understand that Senator Leyonhjelm, for instance, has an amendment that has just been circulated, which I think is an excellent amendment and an excellent safeguard which I hope the government will seriously consider. He will obviously speak to that very soon.

My question goes to the litigation that is in place. I am happy for this to be taken on notice: insofar as there has been a challenge to the existing legislation and the litigation or the challenge took place based on the legislation as it stands, and this legislation seeks to change the legislation so that there is no question mark or potential valid challenge to this legislation, what is the government's attitude, firstly, to there being no costs orders to this date against those parties that sought to challenge the legislation—that is, if they are given an opportunity to withdraw their case up until this point in time—and also to meeting any reasonable costs to this time, given that they proceeded on the basis of the current legislation and the rules? The goalposts are being shifted. I understand why, but there seems to be an issue of fairness in respect of that aspect of this legislation and the impact on those parties that have sought to challenge this legislation.

Progress reported.