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Monday, 20 August 2012
Page: 9079


Mr MORRISON (Cook) (12:52): I rise to speak on the Maritime Powers Bill and Maritime Powers (Consequential Amendments) Bill. The purpose of these bills is to set out a common framework to consolidate the powers of our Commonwealth maritime enforcement agencies and their staff. There are a number of key agencies who work in this space and their operational parameters have historically been set out across a range of different bills that govern and determine their specific powers and responsibilities. These different powers are contained in over 35 separate Commonwealth acts, including four key pieces of legislation: the Migration Act, the Customs Act, the Fisheries Management Act and the Torres Strait Fisheries Act.

The government has said the purpose of these bills before the House today is to attempt to consolidate those powers and draw them all together into one document, one single maritime enforcement law. Yet the rhetoric in these bills about best supporting our front-line officers is, I believe, fundamentally undermined by Labor's actions in recent times, and over the last four years in particular, which speak far louder than the words that are written in these bills. In particular I will note and return to the government's failure just in the course of the past week in how they dealt with the MV Parsifal, which my colleague made reference to. Also, we have a situation where the government is effectively not protecting our borders or enforcing our legal rights on our borders. Instead, it has been operating a water taxi service for some time.

The coalition has demonstrated its conviction and belief in secure border protection policies that this government can only hint at. This is a government that lacks the will to deal with this issue, despite the bills before us today and even despite the bills before us last week. The simple fact is they were dragged kicking and screaming to the measures they agreed to last week. If they do not believe in these matters, and over a decade they said they did not, then I do not think Australians can have a high level of trust in their ability to act on these matters in the future.

In principle, I have serious concerns about unnecessarily rewriting legislation that appears on the face of it to be working. I am also very aware of the dangers of inadvertently creating fresh loopholes that would potentially prevent or inhibit our agencies in their ability to protect Australia's border security. I understand that as part of the process of drafting this legislation Customs, the Department of Defence and the Australian Crime Commission have each been consulted. I understand also that the Acting Chief of Navy, Rear Admiral Jones, said on behalf of the Department of Defence and noted in his submission to the committee:

The Department strongly supports the above Bills which will simplify on water maritime enforcement operations and streamline training and doctrine development within Defence (Navy).

In our view there will also be less likelihood of a misapplication of power with more coherent and comprehensive legislation. In addition, any future amendments will be far less complex as there will be only one Department responsible for the legislation.

The Australian Fisheries Management Authority stated:

We are satisfied that the proposed changes are not going to cause operational disruption nor curtail the Authority's powers or ability to perform, in cooperation with other agencies …

I note, however, that within my own shadow portfolio the department of immigration has not yet made a submission to this process. I am puzzled as to why, given their responsibilities under the Migration Act and the significant implications of this bill for matters that relate to them. I would hope that we get some comment or some input from them on these issues.

The Australian Crime Commission said in their submission that they will 'continue to have access to maritime powers as outlined in the powers bill' and that there was no change to the Australian Crime Commission's access to these powers. The Australian Customs and Border Protection Service stated:

As Australia's primary civil maritime law enforcement agency, Customs and Border Protection has been heavily involved in the development of both these Bills.

I hope they are right. It is for the government to guarantee that they are right and that these bills will not create unintended consequences that restrict the options available to our sovereign government to protect our borders—in particular to deter illegal entry—or otherwise impede the ability of our agencies to do their job, whether it be managing and responding to the threat of people smuggling or illegal movements of people or goods across our borders.

I make specific reference to the phrase 'illegal entry', because there still seems to be some confusion about what this means. I will refer to the United Nations Convention Against Transnational Organised Crime and the Protocol Against the Smuggling of Migrants by Land, Sea and Air. Article 3 states the following:

(a) "Smuggling of migrants" shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry—

the UN's word—

of a person into a State Party of which the person is not a national or a permanent resident;

(b) "Illegal entry" shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State …

Article 31 of the Refugee convention also makes specific reference to 'illegal entry', the UN's term to describe the nature of a person's arrival in a country, regardless of whether they at some time might make an asylum claim or indeed prove to be a refugee.

It is not illegal to make a claim for asylum. The coalition has never said that. That is not in dispute. It never has been. But, if you cross our borders without complying with the necessary requirements for legal entry into the receiving state, that is an illegal entry and we will refer to it as such. We will not be intimidated by those who would seek to have us do otherwise. Your claim does not change the nature of your arrival. People arrive in this country legally and illegally. In the former case we have a greater capacity to control and decide who comes to this country and the circumstances in which they come. This remains our policy. This is coalition policy—always has been. We believe in it and we can be trusted to act on it, unlike those who sit opposite.

The bill sets out a system of authorisations under which a maritime officer can exercise enforcement powers in relation to vessels, aircraft, installations, protected land areas and persons. The government has said these bills are not proposing new powers. Rather, the powers contained in the bills are based predominantly on powers that are currently available to and exercised by the agencies that operate in these areas. The bill does not seem on the face of it to propose changes to operational roles or responsibilities, nor does it appear to be reprioritising or reallocating funding.

Where existing powers overlap, these bills are said to remove duplication. However, we are talking about consolidating a very diverse range of laws, and further scrutiny is essential to ensure there are no unintended consequences arising from this attempt at simplification.

The legislation has been referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs and is also before the Senate Legal and Constitutional Affairs Legislation Committee, who are due to hand down their report later this month. The coalition are not opposing these bills at present; however, we await the Senate committee report with great interest in the clarification and further details that this, hopefully, will provide.

Of particular concern to me is the language surrounding the burden of responsibility for maritime officials working in situations where Australia's non-refoulement obligations may come into play, which was referred to by my colleague. Of particular concern to me is that these obligations are outlined in the Maritime Powers Bill explanatory memorandum. It states in relation to proposed section 72(4):

… 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 explanatory memorandum goes on to say that in relation to circumstances where these obligations may be triggered:

… 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.

It is important we have a clear understanding of what these obligations presently are and that in this bill we are not seeking to add to these obligations, particularly on the high seas or in our contiguous zone.

The Guidelines on the Treatment of Persons Rescued at Sea, published by the International Maritime Organization, which also bears the logo of the UNHCR, following amendments to the SOLAS and SAR conventions, are explicit in stating:

Any operations and procedures such as screening and status assessment of rescued persons that go beyond rendering assistance to persons in distress should not—

should not—

be allowed to hinder the provision of such assistance or unduly delay disembarkation …

of survivors from the assisting ships. The government needs to ensure this bill does not create more difficulties or seek to add or further condition the action of maritime officers as they try to do their jobs, including the interception of illegal boats both inside and out of Australia's territorial waters.

In addition, the Houston report found that turning boats back—because this is what it predominantly relates to—'can be operationally achieved and can constitute an effective disincentive'. I note that page 126 of that report states:

The following principles for implementing turnbacks are based on international and domestic legal considerations, as well as diplomatic and operational considerations:

The State to which the vessel is to be returned would need to consent to such a return.

One thing those opposite fail to acknowledge is that the report notes that this consent may be provided by acquiescence. 'Acquiescence' is a very specific term which those opposite would be familiar with, and the drafters of the Houston report were very careful to make sure they put that term in there. This is exactly as occurred when the policies of turning back boats were implemented on the last occasion by the Howard government. It also does not make reference to the situation where an Indonesian flagged vessel re-enters or enters Indonesian waters under its own steam carrying passengers returning to Indonesia or situations of search and rescue where a boat is in distress.

The second condition was:

Turning around a vessel outside Australia’s territorial sea or contiguous zone … or ‘steaming’ a vessel intercepted and turned around in Australia’s territorial sea or contiguous zone back through international waters could only be done under international law with the approval of the State in which the vessel is registered (the ‘flag State’).

These provisions, I note, are set out in article 8, paragraph 2 of the Protocol against the Smuggling of Migrants by Land, Sea and Air. This does not address the situation of a flagless vessel, though—which is how the majority of cases first present at sea—and provide legal basis for interception. Paragraph 7 of that same protocol states:

A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidence confirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domestic and international law.

Thirdly, the Houston report states:

A decision to turn around a vessel would need to be made in accordance with Australian domestic law and international law, including non-refoulement obligations, and consider any legal responsibility Australia or operational personnel would have for the consequences to the individuals on board any vessel that was to be turned around.

There is certainly no clear legal obligation arising from Australia's signatory status to the refugee convention under article 33 which would prevent them doing this in extraterritorial waters. The US Supreme Court held in Sale v Haitian Centers Council that the US Coast Guard's high seas interception and return of Haitian asylum seekers did not contravene article 33. This argument is strengthened by the position that nonrefoulement has increasingly become an established principle of customary international law. In addition, Indonesia are a signatory to numerous other conventions that also deal with nonrefoulement, including the convention against torture. They are also signatories to the International Covenant on Civil and Political Rights.

The fourth criterion set out by the Houston panel is:

Turning around a vessel would need to be conducted consistently with Australia’s obligations under the SOLAS Convention, particularly in relation to those on board the vessel, mindful also of the safety of those Australian officials or Defence Force personnel involved in any such operation.

The Guidelines on the Treatment of Persons Rescued at Sea, which I referred to earlier, state that the government responsible for the search-and-rescue region in which survivors were recovered is responsible for providing a place of safety or ensuring that such a place of safety is provided.

The safety of Defence Force personnel is managed by the chain of command, which has always been the coalition's policy. On this last point, we have the situation now where vessels in distress are being rescued by what has become a water taxi service which has every legal right to return people to the closest place of practicable safety, but it is not doing so under this government. So we have had this situation where the distress calls are now forcing a water taxi service to take asylum seekers who are forcing their claims on the Australian continent by going down that path. As my colleague mentioned prior to me, we have also had the situation now, with the Parsifal, where they are using intimidation through threats to their own safety and, potentially, later, to the crew themselves to force the hand of these vessels.

We have a clear difference in attitude here between the government and the coalition. The government has been dragged kicking and screaming to deal with these issues of enforcing our rights and our sovereignty at sea on our borders. The coalition has always believed in it. We believe we need strong laws and we also believe we need a government that is prepared to use those strong laws and use every option available to it to protect our borders. This government does not have that track record and it does not have the trust of the Australian people.