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Monday, 27 August 2001
Page: 30236


Mrs DRAPER (2:13 PM) —My question is addressed to the Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs. Would the minister outline Australia's response to the current influx of boat arrivals?


Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) —I thank the honourable member for her question, and note her continuing interest in these matters. I will quietly outline the issues that we are dealing with and some of the reasons for the movement that we are seeing and, in the spirit of cooperation that has already been offered by the Leader of the Opposition, point to the measures that could have an impact on the nature of the arrivals that we are experiencing. I foreshadowed quite clearly that the continuing phenomena of unauthorised arrivals by boat was something that we would see for some time. There are large numbers of people who have moved into Indonesia in expectation that they will be smuggled into Australia, and in expectation that when they get here they will get certain outcomes. The fact is that the relative attractiveness of Australia over other countries where people can be safe and secure is very much affected by the nature of the decisions that are taken in relation to them. I would like to point out to my friend the honourable member for Bowman why that is the case.

I have already made known that there are quite significant differences in the outcome when decisions are taken by the United Nations High Commissioner for Refugees on asylum claims in Indonesia and the outcome that is achieved in Australia if they happen to get here. For Afghanis—and bear in mind they may or may not be Afghanis; we have evidence to suggest that a significant proportion may be Pakistanis or in fact have residency rights in Pakistan and other countries—84 per cent get their claims up here in Australia. Why the difference? There are two reasons for the difference. One is that in Australia over a period of time the law has been the subject of development by judicial decision making. I saw some comments by the honourable member for Bowman which said on a radio station in South Australia today:

... but I've got to say to you that 75% of every one that can find their way onto our shore on a boat are given refugee status—75%. So there's no question of appeals for them.

That is so. Their cases are dealt with by the tribunal that has to apply the law that has already been determined by the Australian courts and has constrained the way in which it can make its decisions. That is the nature of the jurisprudential model.


Mr Albanese —The law, is it?


Mr RUDDOCK —The law develops here in a way it does not develop elsewhere. There will be two pieces of legislation that will give the opportunity to the opposition to state their position in relation to these questions. The first one deals with the law— that is, the extent to which people are able to access our courts and get different outcomes to those outcomes that they would get if they were making their claims elsewhere and they were assessed by the United Nations High Commissioner for Refugees.

You can by way of a privative clause—and I have explained this to honourable members before—limit judicial review. It means decisions would be taken by tribunals that would apply the same convention that the United Nations High Commissioner for Refugees is applying. We would get different outcomes in that situation.


Mrs Crosio —How do you know that?


Mr RUDDOCK —Because you would be applying the law—


Mr SPEAKER —The minister need not respond to interjections.


Mr RUDDOCK —and they would be lawful decisions in accordance with the convention that the United Nations is dealing with. I will come to that, because there will be some further legislation introduced tomorrow to give some guidance to decision makers in this area—some guidance that will restore the refugee convention to the same convention that is applied internationally and which does produce different results.

Let me make this point in relation to the privative clause: under the privative clause, which we use in numerous legislation here in Australia already, we limit the right of Australians to be able to access the courts, because people have been given appeals to administrative bodies. Most of that happens in the industrial relations area. The Labor Party are saying that they oppose this measure. They have opposed this measure, and they have foreshadowed all along that they oppose this measure—and no amount of prevarication by the honourable member for Bowman, as evidenced on radio today, suggesting, `We might still look at it,' can disguise the fact that they have opposed it all the way down the line. That is what they have done. In relation to this matter, they are giving people who are coming to Australia unlawfully an entitlement to access our courts in a way which we do not give Australians to access our courts where administrative tribunals have been set up.

What would we be doing differently, if we were to implement a privative clause, to that which other countries are doing? I noticed recently there were some suggestions that New Zealand was better at dealing with these matters than we are. I picked up on 21 August a copy of the Dominion newspaper, in which the senior liaison officer of the United Nations High Commissioner for Refugees, Hans ten Feld, was quoted. He makes it very clear that the problem in dealing with asylum issues is how long you take to resolve those matters. If you give people the opportunity to go to the courts, they take a much longer period of time. Many hundreds of people that we are detaining today are still being detained because they are exercising that right to take their decisions, which have been a rejection by the department and a rejection by the independent merits review tribunal, to a court. We know that when they go to the court only one per cent of people get a different outcome.

This is not a situation in which the decisions are being taken incorrectly by those tribunals. The fact is that the article, in regard to the UNHCR commenting on this aspect of Australia's policy, went on to say:

... its multi-step appeals system meant claimants could be held for years, he said. New Zealand's two-step system of an initial decision made by the Immigration Service's refugee status branch followed by appeals to the Refugee Status Appeals Authority was quicker and cheaper.

In other words, the international way of dealing with these matters means that you do not introduce judicial review, which you know delays decision making, exacerbates the concerns that people have, and fuels the arguments that are being put now that people are anxious about their situations in detention and are becoming increasingly more difficult to manage.

The fact is that there will be some further legislation—besides the legislation dealing with the privative clause—dealt with in the parliament in the next week. That legislation will restore the application of the refugee convention relating to the status of refugees, will more carefully define what is meant by persecution, and will make it very clear when you have a court deciding that, if a person cannot get the job of his choice in his home country which befits his qualifications, that can constitute persecution leading to a refugee outcome. If that decision is upheld in every case—no doubt we will appeal it but that will take time—you can imagine how few cases you can reject.

The fact of the matter is that one of the significant determining factors—and it is in our hands how we deal with it—is the relative attractiveness of Australia over and above other countries where people can put their claims and have them dealt with. One of those significant factors that makes Australia more attractive is the extent to which people are more likely to get their claims up here than if they are considered by the international body. The figures that I have given bear that out. It is a very tragic situation when people believe that they can put pressure on us, as we are now seeing people being put under pressure, under duress, in relation to being trafficked into Australia: `If you do not give us what we want, we will threaten you or we will threaten ourselves.' That is a very difficult situation to deal with. I very much regret that in delaying so long in dealing with these matters we have created an environment where as many as 2,500 people are sitting in Indonesia believing that it is more attractive to get to Australia to put their claims than to have them dealt with by the international body, the UNHCR, which does protect people in Indonesia.