Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 20 August 2012
Page: 9070


Mr KEENAN (Stirling) (12:12): We are debating the Maritime Powers Bill 2012 about consolidating maritime powers at a time when the front-line men and women of Australian Customs and Border Protection Command and their naval colleagues are operating at absolute breaking point. Both the personnel and the boats in which they operate, because of the government's failure to secure our borders, are operating beyond reasonable demands. I would hope that the House would bear in mind our responsibilities to these men and women in particular and make sure that this bill does not create any further hardships for them. I want to go to an issue that may be within this bill later on in my speech.

What we do know is that we had a system of robust border protection instituted well over a decade ago by the previous government. That system has been completely degraded since the government changed in 2007 and the consequences for the men and women who protect our borders have been enormous. They have been forced to operate at a completely unsustainable operational tempo. If you go and speak to those officers, their frustration about the circumstances in which they have been placed by this government is obvious for everyone to see.

We are debating this bill at a time when the climate for people smugglers has been far too friendly. Clearly this is an issue that the parliament has been debating. We debated it last week and the government took a step in the right direction by finally relenting in its opposition to offshore processing on Manus and Nauru. But our great concern in the opposition—and we would like to see these measures work but we are concerned that they will not—is that the measure that was taken last week just does not go far enough.

It only adopts one plank of the three planks of the opposition's policy, which we believe very firmly needs to be implemented if we are going to bring the curtain down on a very shameful period in Australia's border protection policy. Over 22½ thousand people have arrived illegally with all the enormous consequences for us as a nation that flow on from that fact.

Events occurred last week—that is, the use of two merchant vessels to pick up asylum seekers who had made a distress call—and the issues that arose as a result of these events need to be aired in this debate. The distress call was taken by the Australian Maritime Safety Authority, and merchant vessels went to the aid of those people. In the case of the MV Parsifal, what happened then is deeply disturbing. This merchant ship rescued a boatload of asylum seekers; apparently they were 44 nautical miles from Indonesia. The minister then informed the public on Sky News that after this boat went to the aid of these people—as is required under the International Convention for the Safety of Life at Sea, and to the credit of the crew of the boat—the captain of the vessel, which was on its way to Singapore, fulfilled his obligations. At the request of the Australian authorities he picked up the people who had called for distress, and under any circumstances he was perfectly entitled—and should have been able—to continue to his destination once he had fulfilled his obligations to rescue people and take the people he picked up to the nearest place of safety, which is generally understood to be the nearest port. The captain, as was his right, determined that he was going to continue on his voyage to Singapore. The minister informed us on Sky News that the boatload of asylum seekers then threatened violence and became very aggressive and insisted that the boat turn around and deliver them to Christmas Island. The captain decided that the risk to his crew was too great and acquiesced to the request of those asylum seekers to come to Australia.

This is completely and utterly unacceptable. You wonder why the government was prepared to acquiesce. A merchant vessel went and fulfilled its duty to pick people up when they were in apparent distress and the people, who you would think would be grateful for being rescued by a merchant vessel, then turned on the captain and the officers of the merchant vessel and insisted they come to Australia. This situation is completely and utterly out of control. It is exactly the definition of piracy—using violence to take a ship off the course on which it is supposed to be going. It is not acceptable that potential acts of piracy go unpunished by the Australian government, and it is not acceptable that merchant vessels that go to the aid of people in distress have to fear for their own safety from the people they have picked up and who then find themselves in this apparently life-threatening situation.

The problem is that the Labor government never thinks through the consequences of its actions. This boat was well within the Indonesian search-and-rescue zone and very close to Indonesia itself, yet the government was prepared to acquiesce to the asylum seekers' desire to come to Australia. You wonder how far this policy would go. What are the territorial limits of the Australian government's acceptance of people's desire to come to Australia? What if they had been north of Indonesia? Would they have been allowed to say 'we are going to come to Australia', and the Australian government is going to do nothing about it? What if it was a vessel that had left Sri Lanka and was off the coast of India and was picked up by a passing merchant vessel and they insisted that they come to Australia? Would they be allowed to come to Australia in such circumstances? Clearly the government does not think through the sorts of decisions that it makes.

Mr Jenkins: Read the first part of your speech and compare it to Tampa.

Mr KEENAN: There are interjections from the Minister for Scullin, and I am very happy to compare it to that situation.

Mr Jenkins interjecting

Mr Randall: He should know better; he should know better than that.

Mr KEENAN: Yes, he should know better, Madam Deputy Speaker. I am very happy to make the comparison with the incident that the government compares this to, which of course happened when the Tampa situation occurred. The current situation is a very relevant precedent for this parliament to look at, because what has happened here follows a reverse-Tampa principle. We cannot accept a situation where—

Mr Jenkins interjecting

Mr Randall interjecting

The DEPUTY SPEAKER ( Mrs D'Ath ): Order! Can the member for Scullin and the member for Canning allow the member to be heard in silence? I am asking both members to allow the member for Stirling the right to be heard.

Mr KEENAN: Thank you for your protection, Madam Deputy Speaker. I think that those interjections are just a great example of the sort of hypocrisy we see from the Labor Party on this issue. They have to think through the consequences of what happened last week. A merchant vessel goes the aid of people in distress. The merchant vessel determines that it is going to continue a journey to Singapore. Yet, because of the threats and intimidation that the minister announced on Sky News last week, the vessel was diverted from its course. What are the consequences? Clearly it is going to be a consideration for merchant vessels when they are asked to go to pick up people who have made a distress call and said that their safety is in peril. If merchant vessels are going to be diverted from their course and then pick people up and be hijacked in this way, my concern is that when vessels receive a distress signal they are going to think twice about their response. It also could lead to a situation where merchant vessels avoid this area between Indonesia and Australia. There were two incidents last week where merchant vessels were diverted to pick up people who were apparently in distress, and what happened last week could lead to a situation where merchant vessels start to avoid the area between Indonesian and Australia. Clearly that is not a good outcome for Australia and is not a good outcome for people who might find themselves in distress when taking the same journey.

I will go through what the obligations of a merchant vessel are in such circumstances, because I think it is important that the parliament understand them. The report of the government's own expert panel, which was released last Monday, dealt with this. The panel noted that the safety of life at sea convention says:

On receiving information that persons are in distress at sea, the master of a ship, which is in a position to provide assistance, must proceed with all speed to their assistance.

This obligation applies regardless of the nationality or status of such persons or the circumstances in which they are found.

Where assistance has been provided to persons in distress in a state’s [search-and-rescue zone]—

All of these rescues have, of course, occurred within the Indonesian search-and-rescue zone—

that state has primary responsibility to ensure that coordination and cooperation occurs between governments, so that survivors are disembarked from the assisting ship and delivered to a place of safety.

As a matter of practice ‘a place of safety’ could be the nearest convenient port. This will not necessarily be a port in the territory of the state in whose [search-and-rescue zone] an incident occurs, nor in the territory of the state of the vessel rendering assistance.

The captain of the MV Parsifal responded to the broadcast issued by the Australian authorities and he appropriately followed all of his obligations under the Convention for the Safety of Life at Sea. He is allowed to continue on his journey once he has fulfilled those obligations. The captain determined that the nearest convenient port was Singapore, yet, as I outlined, he was not allowed to continue on that journey, under threats of violence and intimidation from the people he had rescued.

This incident does need to be investigated by the Australian government. Sadly, when the minister announced this on Sky News, apparently the government had taken no steps to investigate these circumstances. They had just acquiesced to the fact that this ship had been diverted from its course because of these threats of intimidation. They need to do much better than that. I understand that, belatedly, they are investigating the circumstances that this vessel found itself in.

The government also need to work out what their policy is. What are the territorial limits of this policy? Is it possible for anyone who has been rescued by a merchant vessel to insist that they come to Australia regardless of where they are rescued? The government really do need to show some resolve in dealing with people smugglers and they need to put an end to a situation where other people are dictating our border protection and immigration policies.

I want to turn to some of the specific aspects of the Maritime Powers Bill, which establishes authorisations under which a maritime officer may exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on certain grounds. It also provides for the enforcement powers available to maritime officers, including boarding, obtaining information, searching, detaining, seizing and retaining things, and moving and detaining persons, and it creates offences for failure to comply. The bill seeks to consolidate the powers and functions that currently exist within the existing legal framework, chiefly under the Customs Act 1901, the Migration Act 1958, the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984.

The unique aspects of the maritime environment merit a tailored approach to maritime powers, helping to ensure flexibility in their exercise and to assist maritime officers to deal with quickly changing circumstances and difficult and dangerous situations. It would appear that the powers contained within the bill are primarily based on powers currently available to operational agencies. However, as with most pieces of legislation originating from this government, it does not hurt for this parliament to be additionally prudent and thorough to ensure we are not passing legislation that has been hurriedly put together and has errors or unintended consequences.

With that in mind, the bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which I understand is due to bring down its report today. The opposition will be keen to scrutinise what it has to say, particularly in relation to an issue I would like to raise in a minute. The Australian Crime Commission made a submission to that committee, and I think it is worth while to look at what they say:

Australia's long and vulnerable coastline provides opportunity for illicit goods to be trafficked into and out of the country via small vessels and light aircraft. As such, the aviation and maritime sectors are highly desirable environments for serious and organised criminal infiltration and exploitation.

Despite clear evidence that our maritime and aviation sectors are being exploited by organised crime, this Labor government continues to slash and burn the budget of Customs and Border Protection. It has savaged the budget of the Australian Crime Commission and it has attacked the budget of the Australian Federal Police.

Recently, in their submission to the parliamentary inquiry into the gathering and use of criminal intelligence, the Crime Commission highlighted the damage Labor's budget cuts have done to their ability to fight crime. Since Labor took office they have slashed $22.2 million in funding and have cut 144 staff from the Australian Crime Commission, clearly hindering their ability to do their job effectively. This point was highlighted by the agency in their submission to the inquiry:

The ACC has, for a number of successive years, been subject to very significant cost reduction strategies, particularly in the context of the agency’s supplier budget. These reductions adversely affect the ACC’s ability to respond to serious and organised crime.

These kinds of cuts also have a very negative effect on the ability of our premier law enforcement agencies to do the job that we expect of them. In particular, the ACC needs to look at organised crime. When you attack their budget and personnel, you are clearly providing opportunities for organised crime to flourish. When the minister talks about his determination to do something about crime in Australia, unfortunately his words are completely and utterly empty, because since this government has come into office it has given every encouragement to criminals to pursue their evil deeds. Sadly, the cuts that I outlined to the ACC have been particularly bad, but they are not the only crime-fighting agency that has been affected by savage Labor cuts. The ACC made this point to the inquiry:

Organised crime groups primarily exploit vulnerabilities in the maritime sector for the purposes of organised theft, the avoidance of duty on illicit goods, and as the primary gateway into Australia for illicit drug importation.

The ACC have highlighted the damaging effect of Labor's cuts; they have also highlighted the sorts of vulnerabilities that criminals, particularly organised criminals, seek to exploit.

The agency that we expect will deal with criminal infiltration on our borders is Customs and Border Protection and, sadly, it is an agency that again has been savaged by the Labor Party since they came to office. Initially the Labor Party ripped $51.8 million out of its budget to inspect cargo when it comes into Australia. When the government changed in 2007, 60 per cent of air consignments coming into the country were inspected. The number of consignments is now 75 per cent down, in terms of inspection, on what it was in those times. Sea cargo inspections are down 25 per cent because of these savage cuts. This is occurring at a time when the volume of cargo coming into Australia is increasing. What we also know from inquiries that this parliament has conducted is that airports and ports are very vulnerable to criminal exploitation. There is lots of evidence that organised criminals are exploiting the difficulties that Customs and Border Protection are having because of the Labor Party's savage cuts. We will reverse those cuts. We do not think it is a good idea when organised criminals are clearly infiltrating our ports and our airports—and when parliamentary committees and law enforcement agencies have acknowledged that—and in fact it is a stupid thing to cut funding to the agency that is responsible for policing our ports and airports. We will reverse those cuts when we come into office, if we get the chance to govern again.

Earlier in my speech I highlighted that I wanted to raise a particular issue on which we have concerns with this bill and I hope it is one that the Senate committee has had a long look at in its report. It has come to our attention that there is a potential issue in the bill that may cause problems with the interception of illegal boat arrivals, including those not in our waters. This may have implications for maritime authorities fulfilling their obligations under the international Law of the Sea. The bill's explanatory memorandum gives details of this obligation, and I believe it is worth quoting in full.

Australia has implied non-refoulement obligations under Articles 6 and 7 of the International Covenant on Civil and Political Rights and under the Second Optional Protocol to the Covenant.

This comprises the obligation not to remove a person to a country where there is a real risk that the person would face the death penalty, arbitrary deprivation of life, torture or cruel, inhuman or degrading treatment or punishment. Such a risk must be a necessary and foreseeable consequence of the person's removal.

Proposed section 72 of the Bill may engage Australia's non-refoulement obligations. Section 72(4) of the Bill provides that a maritime officer may detain a person and take the person, or cause the person to be taken to a place in or outside the migration zone, including a place outside Australia.

The EM then goes on to say:

In circumstances where the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and or the Second Optional Protocol to the International Covenant apply, obligations of non-refoulement may be engaged and a person may be eligible to apply for a protection visa under section 36(2)(aa) of the Migration Act 1958 (Cth ).

In such circumstances, in order to ensure that a maritime officer who has detained a person aboard a vessel acts in accordance with Australia's non-refoulement obligations, procedures relating to the consideration of refoulement risks would need to be in place.

We in the opposition are concerned that this section of the bill could potentially place a considerable burden on our maritime officers who are already finding the circumstances in which they operate incredibly challenging, and I hope that it has been thoroughly investigated by the Senate committee before it hands down its report. We will look very closely at what they have to say about it. Given what I have outlined earlier in my speech about events last week in relation to merchant vessels picking up people who have made distress calls, it is vitally important that this section is clarified to ensure our border protection officers are able to do their tasks effectively and without concern that they are being legally hampered by sections of this bill.

We in the opposition will always side with our maritime officers and the very difficult job they are tasked to do in protecting our borders. They are operating at a tempo that has never occurred in our country's history. They are operating on vessels that are not keeping up with the pace they are required to operate at. We have had reports of vessels going out to sea when they should not—they are required to do that through the sheer volume of illegal arrivals unleashed by Labor's border protection failures. The officers on these boats perform arduous tasks at sea and they are being asked to perform duties that are generally outside their normal remit and are being pushed to breaking point by these failed policies. We strongly support the work that they do and we believe this parliament should do everything we can to help them. We certainly should not be doing anything extra to hinder them. I am concerned that there may be parts of this bill that do do that.

The government needs to take a strong stance backing up our maritime officers, particularly if they are going to face circumstances where they are threatened at sea or intimidated at sea. Clearly as we take on people smugglers—and they are vicious criminals who care nothing about the human cargo they transport—it is completely naive for us to think that they are simply going to give up and go home without testing the resolve of the Australian government. We need to ensure that there is a legal framework that protects our officers who will be called upon to deal with those consequences, because they do deal with very difficult situations. The opposition will always back up their right to do their work in the most effective and safest way that they can. Pending the report of the Senate committee, the opposition is not going to oppose passage of this bill through the parliament, but we will be very interested in what the Senate committee reports.

We will certainly ensure that there is nothing within this bill that is going to hinder the work of the very brave men and women who are protecting our borders. Although we will not oppose this bill, we will not agree to its passage through the parliament until those issues have been fully investigated by the committee.