Senator BOURNE(11.54 a.m.) —The Senate at the moment is debating whether the Migration Legislation Amendment Bill (No. 2) is urgent enough for us to debate it today. I am sure the government wants to do it today because I have just received a speakers list for the bill. It is a little pre-emptive as we have not yet had a vote on whether we will debate it. It is a very short speakers list which we have not yet been invited to add our names to. There is only one name on the list from the Australian Democrats but I can assure you that there will be more. This is such an outrageous piece of legislation that I will want to speak, Senator Spindler will want to speak and I know there are other Democrats who will want to speak on it as well.

The question as to whether this bill is urgent has a very obvious answer; and the obvious answer is that, no, this bill is not urgent. If this bill does go through in the next day and a half, what will happen? What is so urgent? What has to be stopped to make sure that this bill goes through in the next day and a half? Why is it so desperately urgent that we have to have a piece of legislation that takes away the human rights of people in Australia?

I am told that the reason it is so desperately urgent is that it will cost money if this does not happen. It probably will cost a bit of money but it will not cost a lot of money. There are not people coming in on boats from outside every day. Of those who do come in on boats from outside only 15 per cent ever try to challenge what comes from the immigration department about their fate. That means that 85 per cent of those people do not challenge it.

So if we get more boat people coming in before August or September, when this would come up again, maybe a maximum of 15 per cent of them might challenge what is going on. How many people is that? It is only a very few people. You are taking away their rights; I am not going to take away their rights. Why is it urgent to take away their rights, right now? Why can't we take away their rights in August?

Along with the question of urgency, something we should also look at is the drafting of this bill. We should look at the second reading speech and the explanatory memorandum. To save the Senate doing that, the Senate Standing Committee on the Scrutiny of Bills has already done that. They have done a very good job at looking at that. Let me remind senators of what they said, because it is very important when we consider how urgent this bill is. Let me quote from page 14 of the Senate scrutiny of bills committee Alert Digest No. 4 1996. The Senate scrutiny of bills committee said:

The implications of section 256

The substantive amendments to the Migration Act 1958 which are made by this bill appear to the committee to be predicated on an inaccurate view of section 256 of that Act. Section 256 provides:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall,

at the request of the person in immigration detention, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

That is section 256. The report continues:

This section places a positive obligation on the person responsible for the immigration detention of a person to give access to obtaining legal advice if the detained person requests it. It does not say that this section is an exhaustive code of all the ways in which such a detainee may have access to legal advice. Yet paragraph 2 on page 2 of the explanatory memorandum—

in relation to section 256—

asserts that section 256 establishes that a person in immigration detention has a right to access legal advice only when they request it. Equally the second reading speech speaks of an onus on unlawful non-citizens to advise officials if they wish to seek legal advice and speaks of section 256 as making provision for access to legal advice but only where the detainees request legal advice.

Section 256 for the detainee is an enabling section ensuring a right to access legal advice if the detainee requests it. Section 256 for the custodian imposes a positive obligation to provide that access if it is requested.

I emphasise that—if it is requested. The report continues:

But Section 256 is not restrictive in the sense that it denies all access to legal advice except through section 256. It is an unwarranted conclusion—

say the members of the Scrutiny of Bills Committee—

that because the Migration Act 1958 is otherwise silent on the matter of legal access to this class of person, that no other right to access legal advice exists and that the Migration Act 1958 exhibits an intention to exclude all other access.

Very good words. The report continues:

Parliament's intention in passing an Act is to be found in the interpretation which a court puts on the meaning of the words. It is true that in cases of ambiguity a court may use other documentary material. But, absent an ambiguity, no one can say the intention of an Act is other than what a court finds to be the express or implied meaning of the words. In this instance, the Federal Court in Human Rights and Equal Opportunity Commission and Another v Secretary of the Department of Immigration and Multicultural Affairs (unreported, 7 June 1996, Lindgren J. NG 268 of 1996) has put the matter beyond doubt.

Okay, the matter is beyond doubt. How are these people going to know they have that right, that they can ask for legal advice, if they are not told that? And they are not told that. They have to ask for it. That is what we are contemplating whether we consider to be urgent. Let me go on referring to what the Scrutiny of Bills Committee said, so that no-one has any ambiguity about what you are doing if you make sure this goes through as urgent. I quote:

The second reading speech can also be seen mistakenly to assume that there is some hierarchy in Acts of Parliament. It mentions that certain provisions of the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 could be used:

to undermine the intention of section 256 of the Migration Act.

So we have a human rights act that is undermining the intention of the Migration Act. Isn't that appalling? Right, well, let's take away their human rights! The immigration department has to be much more important than human rights, as we all know, as we have seen in this chamber before. The report continues:

As we have seen above, the section does not exhibit an intention to exclude the operation of the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 . So the argument that the effect of those Acts should be legislated away cannot be based on an assumption that the Migration Act 1958 is somehow more important than the other Acts and therefore should not be undermined.

The result of the Federal Court case that has prompted this legislation is clear proof that the intention of Parliament, as found by the only institution that can authoritatively say what that intention is, in passing the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 was to provide a method of access to legal advice alternative to that provided in the Migration Act 1958 . Any impression that somehow Parliament made a mistake that now has to be fixed is quite false.

I cannot agree with that more. If that is the case, where is the urgency in this bill? There is another section of the report by the Scru tiny of Bills Committee which I will quote to senators so that they will know what they are doing:

The right to knowledge

In 1765, in his Commentaries , Sir William Blackstone said:—

this is a quote from Sir William—

. . . a base resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it.

Senator Chamarette —What a beautiful quote.

Senator BOURNE —It is a lovely quote. It goes on:

It may be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.

That is what we are doing. If this goes through, we are writing this law in small characters and we are hanging it up upon the high pillars.

Senator Chamarette —And not delivering it.

Senator BOURNE —And not delivering it. Senator Chamarette is right. We are writing it in small characters, we are hanging it on the high pillars and we are not letting the people out to get to the high pillars to pick the bloody thing up. I apologise to the Senate; I should not be swearing. The report continues:

The maxim of law that ignorance of the law is no excuse is based on the assumption that people are able to find out what the law is that affects them. It seems to the committee that the provisions of this bill are clearly designed to make it as difficult as possible for the people subject to these laws to find out what rights they have in law.

How true. The report continues:

The committee rejects the notion that this is justified because it will cost money to enable them to exercise their rights if they find out about them.

And I reject it as well. The report continues:

The protection of rights ought not to be governed by cost-benefit analysis.

How very true. The report continues:

The committee has previously had cause to comment that:

There is always a healthy tension between the attractiveness of a convenient solution to a problem and the experience that resulted in the establishment of this committee: experience that attractive solutions sometimes have a downside of trespassing unduly on personal rights and liberties.

That is also extremely true and it is also exactly what is happening if this bill passes the cut-off motion and then goes through.

Let me make one comment about Senator Harradine, who is away on parliamentary business. Senator Harradine, I know, would very much like to have a part in this debate. Senator Harradine feels extremely strongly about these topics.

Senator Chamarette —He would probably be calling quorums at this very moment.

Senator BOURNE —Yes, Senator Chamarette, if Senator Harradine were here, he would be calling quorums at this very moment. Don't give me ideas! Senator Harradine is not being given the opportunity to debate this, not because this is an urgent bill; there is no urgency in this. As we have seen from this very good Alert Digest from the Scrutiny of Bills Committee, and as we can see if we just read the bill, there is no urgency. Senator Harradine is being denied that right because we have a collusion, not between all members of the government and all members of the opposition; we have a collusion between some members of the government and some members of the opposition.

I am sure that there is a former immigration ministers club. They have probably got a tie and they probably wear it proudly. They ensure that what happens with the Migration Act is that, if any money may have to be spent, they do not like money being spent. If anybody's basic human rights are being trampled on, they seem to like that. I hope to goodness I am wrong. But if this bill is given urgency, if this bill goes through, obviously I am not wrong and, obviously, that is what is the case.

I have been thinking of designs for the former immigration ministers club tie. I am thinking of having a few made up and sent around to them so they can wear them with pride. But if they see what design is on them, maybe they will not want to wear them.

Senator Chamarette interjecting—

Senator BOURNE —Don't tempt me again, Senator Chamarette. I am not going to tell you what I thought of. This week is refugee week. What fabulous timing for the urgency of this bill! There was a forum in Parliament House all day yesterday that discussed the rights and the lack of rights of refugees. They do not have an awful lot of rights in this country, and this is taking away one of the basic ones urgently.

I cannot understand how anybody could vote for this. Perhaps I am wrong. Perhaps people will not vote for this. Perhaps the government and the opposition will not use torture on their members who believe in human rights by forcing them to vote on this. But I am sure that is what they are going to do. I may be wrong. I hope to goodness I am wrong. I look forward to being wrong if that happens.

This week is refugee week. When Human Rights Commissioner Chris Sidoti went down to Hobart to launch refugee week, he had just found out about this bill being introduced. Let me remind senators of when this bill was introduced. It was introduced last Thursday about 10 minutes before we rose. There was no opportunity for any other debate because we were not sitting on Friday. The government and the opposition have been trying ever since to make sure it is voted on and it is passed with as much alacrity as possible and with as little debate as possible, as is usual with these sorts of amendments to the immigration act.

So we are in refugee week. The refugee week summit has had enormous amounts of discussion in one of the Senate committee rooms. Yesterday the rights of refugees were discussed and found to be wanting. That was even without this. Will they be found to be wanting after this goes through, if it goes through? I still live in hope that the urgency will be denied for this.

People who come to our shores will not know if they are entitled to these basic human rights. Why do you think these people are getting in a boat? These people are coming from countries where their human rights are not looked after. Of course some of them are economic refugees and some of them are genuine humanitarian refugees. This is only going to affect them.

I guess they are supposed to dream the night before they come to our shores that God says to them, `When you get to those shores, you have a right to ask for legal representation.' If God, Budda or whoever doesn't come to them in that dream and tell them that, then they do not know that. They have to ask for it. They come from countries where this is not ordinarily the case. If you or I were getting in a boat and going to another country, we would know this because we come from a country where it ordinarily is the case that we do have a right to access the law. These people are coming from countries where that is not the case. Therefore, this is a totally illusory right on their part.

It is all very well to say that these people have an absolute right to do this. Yes, they do have an absolute right to do this. But if they do not know they have the absolute right to do this, how on earth are they supposed to ask for it? They probably do not even speak English. It is just outrageous that this chamber is even considering that this bill will be urgent.

Let me tell you what will happen if this bill does not end up being urgent. I have spoken to the Human Rights Commissioner, Mr Chris Sidoti, about this and he believes that there is an opportunity before August, when we get back, for himself and for the Commonwealth Ombudsman, Miss Philippa Smith—I have not spoken to her, but I am sure she would agree with this—to sit down with officers of the immigration department and discuss the problems that have been identified.

Perhaps there are problems here that I do not see—if there are, they are not being fixed by this bill. So Mr Chris Sidoti is willing to sit down with officers of the immigration department to talk about whether there are problems with the immigration act and wheth er there are problems with people being given knowledge of their human rights in this country, their basic and what should be inalienable human rights in this country.

He is willing to sit down with immigration department officials, Attorney-General department officials and Department of Foreign Affairs and Trade officials—there is another interesting point; I will go on to that in a minute—to discuss at length how that can be fixed. He is sure that there is a solution that can be agreed to by all sides. He is sure that can happen.

If somebody can tell me why making sure that 15 per cent of those people who may or may not arrive on these shores before the 20 August do not have the right to ask for legal access because they do not know about it is more urgent than the Human Rights Commissioner and the Commonwealth Ombudsman sitting down with officials of the Attorney-General's Department, the Department of Immigration and the Department of Foreign Affairs and Trade and discussing ways that we can solve this problem without going to these lengths, without taking away these human rights, then I will be pleased to hear it. But I have not heard it yet.

The Department of Foreign Affairs and Trade has a section which is involved in international law and which looks at our international covenants. I know about these matters because I am a member of the foreign affairs subcommittee and the human rights subcommittee of the Joint Committee on Foreign Affairs, Defence and Trade which, I am very pleased to say, has been reconstituted. That section of the department does some very good work. If this bill becomes an urgent bill, I will have several pages of questions I will be wishing to ask as part of what will be a very extensive debate in the committee stage. I will certainly ask whether the Department of Foreign Affairs and Trade was consulted about what will happen should this bill be passed.

Between when the court case came to its conclusion and the introduction of this bill there has been an extraordinarily short amount of time. It is obviously not a very well written bill, according to the scrutiny of bills commit tee—and it is absolutely right. But I wonder whether officers of the Department of Foreign Affairs and Trade, in particular officers of the international organisations' branch of that department, were consulted about this. If they were consulted, I wonder what they came up with and what sort of advice they gave. I do not believe they would have advised that this does not transgress international treaties to which Australia is a party.

I might note that we now have a Joint Standing Committee on Treaties of which I am also a member. I am sure there will be many opportunities for that committee to discuss our immigration laws. Most certainly I will be bringing this up for discussion should this matter go through. Most certainly I will be looking at whether the implications of this law transgress any of the human rights treaties or other international obligations to which Australia is a party. This is something we should all consider very closely before we decide whether this bill should be regarded as urgent.

In conclusion, let me say that I do not believe this bill is urgent. I do not believe that taking away the basic human rights of people who land on our shores, whether they be Australians or not, is urgent. I do not believe that this bill, because it has been prepared so quickly, is particularly well written. I am not blaming anyone who has drafted the bill, but I believe it has been done with such haste because there is a desire to plug a leak. I am sure that is the case here. The Human Rights Commissioner has been exercising his right to look after the rights of others—which I hope he will always do—and that is the leak.

I am sure that when we look at the report of the Senate Standing Committee for the Scrutiny of Bills; when we look at the way the Human Rights Commissioner has actually been prepared to sit down with the people concerned to discuss whether there is a problem; when we look at how many people will be affected by this between now and 20 August; when we look at how much money this will cost—which is always of paramount importance to some senators in this chamber; when we consider whether Senator Harradine should be entitled to speak on this matter— we all know it is something of great importance to him; when we look at how much money this will cost between now and 20 August, then I am sure, when all those things happen, we will consider it and vote against it.