John Williams (NSW, National Party) Share this | Link to this | Hansard source

On behalf of the Chair of Parliamentary Joint Committee on Human Rights, I present the ninth report of 2016: Human rights scrutiny report.

Ordered that the report be printed.

I seek leave to have the tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows—

The statement was not available at time of publication—

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I move:

That the Senate take note of the report.

In particular, I want to discuss the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 which the ninth report considered. Reports in the media last night and today that government members of the Parliamentary Joint Committee on Human Rights are not supportive of the bill are completely false, and I think they demonstrate an appalling lack of understanding by those who have reported these stories of the role of scrutiny committees.

But first let us remind ourselves of why we are taking these measures. It is not as those opposite and some in the media like to portray us—that we are cold-hearted right wing ideologues. In fact, it is quite the opposite. We did not open the regional processing centres, but we have taken and we continue to take responsibility for closing them down. Under the Labor government, with the support of the Greens, the people smugglers were put back into business and they were kept in business over the life of the last Labor government. Sadly, however, their business is the trade in and exportation of some of the world's most vulnerable people.

What was the result when Labor and the Greens put people smugglers back into business? The facts are very clear. Fifty thousand illegal maritime arrivals attempted to come to Australia in over 800 boats. Seventeen onshore detention centres and two offshore regional processing centres were opened by Labor, and still they could not cope with the absolute flood of illegal arrivals.

Under the previous governments and under their policies, over 8000 children were placed in detention, including in an offshore regional processing centre that was set up too quickly and was ill-equipped to handle families and, in particular, children. These were not places for children at that time. Most shockingly of all to me, we know that it least 1200 people died the most heinous deaths at sea as a direct result of the policies of the government of the day. The lives of all 50,000 men women and children were put in harm's way. Many of them—those who did not die at sea and who were returned—lost their life savings because, unsurprisingly, people smugglers do not give refunds.

There is no simple or straightforward solution to dealing with the cruel and insidious crime of people smuggling. If there were, governments would have taken them many years ago. At the heart of this cruel and insidious trade—and I learnt of this when I was in government as a chief of staff dealing with this in 2001-03—people smugglers do not respect our compassion; they see it as a weakness to exploit and to make money on. What they are exploiting? They are exploiting people. What does compassion look like? Firstly to me there is absolutely nothing compassionate about deliberately allowing people to die and keep dying at sea. There is nothing compassionate to me about providing false hope to those who have paid people smugglers that one day they will have the means of entry into Australia. That is the product the people smugglers keep trying to sell them. As we saw in a recent estimates hearing, there is absolutely nothing compassionate about the vilification by some people in this chamber and in Hansard of our brave Australian men and women—in border protection, law and enforcement and defence—who protect our borders. Those men and women have suffered great emotional distress at having to deal with the dead and dying at sea as a direct consequence of government policy. That to me is not compassion.

How successful were they under the Howard government? Clearly they worked, but how have they worked this time under this government? It is now been more than 830 days since a successful illegal boat arrival in Australia. This government has closed all of Labor's 17 detention centres, and all children have been removed from detention. Most importantly, there have been no more drownings at sea of men women or children.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Not in our sea, but in somebody else's sea.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

But we cannot afford to say that the war against people smuggling is over. Today there are at least 14,000 people still in the people-smuggling pipeline which stretches all the way from the Middle East through to Indonesia. They are waiting for a signal to start getting back on the boats. We cannot save many of these people's lives; we cannot afford to put the people smugglers back in business; and we cannot let them take the chance of arriving here or at least surviving the trip at all.

The government's regional processing cohort bill, and in particular section 46A (2AA) does provides the necessary legislation to mitigate, stop and deter people smugglers from further endangering the lives of these men, and women. The bill is further confirmation of the government's commitment to: ensuring and maintaining border protection; ensuring the integrity of our migration system; and ultimately, by these amendments, ensuring that the people smugglers' trade in human misery cannot not happen again.

This legislation, somewhat inconveniently for those opposite, is also entirely consistent with former Prime Minister Rudd's statement on 19 July 2013 that:

Any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.

That is a very unequivocal statement. He did not provide any caveats at the time in case people in the future want to come back as tourists or anything else. It was a very clear statement:

Any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.

Minister Dutton, in his second reading speech in this bill, said this:

These policies and practices were not developed from a basis of fear—how could they be, because more than one in four Australian residents were born overseas and close to half of the population have at least one parent born elsewhere. Immigrants and their descendants are foundational to Australia's human capital and social fabric.

This bill does introduce a statutory bar preventing certain non-citizens who were taken to a regional processing country from making a valid application for a visa to visit or remain in Australia.

Contrary to media reports overnight and again today, the bill's explanatory memorandum also clearly addresses—and I think satisfactorily—the human rights matters. The first of these is this:

The measures proposed in the bill are compatible with human rights. Any limitations the rights of persons in the designated regional processing cohort are reasonable, necessary and proportionate to achieving the legitimate aim of maintaining the integrity of Australia's lawful migration programs and discouraging hazardous boat journeys.

It is also important to note these other points about human rights. Like many of the other sections within the current Migration Act and regulations, the minister has discretion and flexibility to lift the exclusion if it is in the public interest to do so. This consideration could occur in circumstances involving Australia's human rights obligations towards families and children, allowing a valid application for a visa on a case-by-case basis and in consideration of the individual circumstances of the case, including the best interests of affected children. This ban only applies to those who are at least 18 years of age on the first or only occasion after 19 July 2013 when taken to a regional processing country.

Additionally, this bill does not limit the ability of the minister to grant a visa to a person in detention and, combined with the minister's ability to allow a visa application to be made, will allow a person in the affected cohort to be considered in the same way as other unlawful non-citizens. That is, and it is critically important, the person will be maintained in detention only where there is a risk to the safety of the Australian community.

These amendments send a strong message to people smugglers that they have no product to sell, and those considering paying people smugglers to travel here illegally by boat they will never ever have the false hope of setting foot in Australia. There are no easy policy solutions in dealing with people smugglers; there are only the best of the bad ones. But implementing policies that give false hope and lead to heinous deaths at sea—is never a policy I will support. (Time expired)

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Reynolds.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Mr Acting Deputy President Ketter, may I seek leave to continue my remarks?

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Senator McKim wishes to speak on the same matter.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Can I seek leave to continue my remarks on this at a later date?

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I think we will hear from Senator McKim now.

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

I rise to speak on the 9th report of 2016 from the Parliamentary Joint Committee on Human Rights, a committee that I have the honour to serve on. I particularly want to make reference to the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 and the comments and findings that the committee has made on that legislation.

Before I go to the details of the committee's comments on that legislation, I want to make it perfectly clear to the Senate that the Greens do not support this legislation. We believe the government has comprehensively failed to make the case for the legislation. We believe it is discriminatory because it engages and limits a number of human rights and it breaches a number of international conventions that Australia has signed up to over many years, including but not limited to the refugee convention. This legislation seeks to discriminate against a particular cohort who are described as transitory persons who were at least 18 years of age and who were taken to a regional processing country after 19 July 2013. It seeks to prevent those people from making a valid application for an Australian visa.

Before I go to further detail, I will respond to comments made by Senator Reynolds when she talked about the fact that the minister has the capacity to waive the ban on making an application for a visa. That is true. The bill does provide for that. But it is important to place on the record—which Senator Reynolds did not do—that this is a noncompellable function that is granted to the minister in the terms of this legislation. What that means is the minister can effectively refuse to make a decision on an application for the bar to be lifted. If the minister refuses to make a decision that is a noncompellable decision it then becomes nonappellable. In other words, there is no avenue for judicial or administrative review if the minister refuses to make a decision or refuses to engage with the application, to use the terms contained in this legislation. That is very important. It is very important that people understand that we are dealing at the moment—tragically—with Peter Dutton as the Minister for Immigration and Border Protection. I would say to the Australian people that, if you have confidence that Minister Dutton will, in fact, engage and make a decision on every application to lift the bar on making a valid visa application should this legislation become law, that is misplaced confidence because he has demonstrated time after time that he is not a fit person to be immigration minister in this country. Where it suits him or the government politically, he will behave in ways that make Australia less safe and will discriminate against people that he describes inaccurately as illegal arrivals in this country.

As the report of the human rights committee makes abundantly clear, the proposed lifetime visa ban engages the right to equality and nondiscrimination. I would argue very strongly that it limits those rights in a highly disproportionate way. As the committee found, the visa ban would appear to have a disproportionate negative effect on individuals from particular national origins or nationalities and, as the committee further comments, this human rights issue was not specifically addressed in the statement of compatibility. I want to say in relation to a piece of legislation that has a disproportionate negative effect on individuals from particular origins or nationalities that this is racist legislation. I am going to put it right out there that this is racist legislation in the view of the Australian Greens.

The committee has also noted that the proposed lifetime visa ban engages and limits the right to protection of the family and the rights of the child. One of the issues around the rights of children that are trampled by this particular piece of legislation is that there are children currently in Australia, some of whom were born in this country and some of whom are currently at school in this country, who are children of people in the cohort to which this legislation will apply.

It is not good enough for the government to claim that this legislation will not impact on children because of the definition of the cohort in this legislation, which is that people need to be at least 18 years of age. People who are over 18 years of age in the cohort that will be affected by this legislation and who have children who are currently in Australia will be caught by this lifetime visa ban. This means they will not be able to make a valid visa application and therefore they will not be able to come into this country and they will not be able to lawfully remain in this country. That means that when they go either the family is split up because the child remains here or the child goes with the family. So the effect of this legislation does catch children, even though technically it does not apply to children; there are children in Australia whose parents will be caught by this legislation, and that will inevitably impact on the children. This legislation will tear families apart. That is another reason why this legislation will not be supported by the Australian Greens.

I want to also raise the issue of the way that the minister has responded to requests from the Human Rights Committee. There is a malaise across government at the moment, where ministers are not adequately and acceptably delivering information to the Human Rights Committee in a timely way. This committee is a creature of the parliament. It deserves the respect of every government minister. I urge government ministers to do more to responsibly engage with the Human Rights Committee to provide acceptable qualities and quantities of information to the committee in a timely way so that the committee can do its job, which is to report to the parliament and provide information for members of both houses of this parliament. It is a really crucial committee, and it deserves to be treated with more respect by government ministers than it currently is.

Having made those remarks on the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, I think that it is clear, and should be clear, to the Senate that this legislation is discriminatory and that it engages and limits a range of human rights in a way that is clearly disproportionate to the intended effect of the legislation. Ultimately, this committee report lends yet more credibility and yet more weight to the argument that, in fact, this legislation should be rejected by the Senate when eventually the government brings it on for debate in this place. It should be rejected because it is in breach of human rights, because it is in breach of a number of the international obligations to which the Australian government has signed up, because it will result in trauma to families and children, and because ultimately it is racist legislation. I seek leave to continue my remarks later.

Leave granted; debate adjourned.