Senator BARTLETT (12:18 PM) —I was interrupted while speaking yesterday on this disallowance motion on the Migration Amendment Regulations 2005. This is an important matter, and it is also an urgent matter. I remind the Senate, for those who are not aware, that the effect of these regulations is already in play. The legal effect occurs from the moment the regulations are gazetted, and for these regulations that occurred last month. As we speak, significant parts of Australia are now excised from the migration zone and, in relation to certain people, are no longer subject to aspects of the Migration Act. That occurs now, as we speak, and it will continue to occur until the moment that the Senate votes on it. If the Senate were to vote in favour of this motion to disallow, the regulations would then cease to have legal effect. So it is an urgent matter because the longer it takes to be resolved the more this iniquitous and unjustifiable situation continues. Unfortunately, because of the action of the Greens this morning in putting forward their issue without consultation with or notice to anyone, we will not get to vote on this today, so it will not be resolved until Tuesday, assuming there are no further unforeseen issues. It will remain standing at least until then.

Having said that, it is rather less likely than previously that this disallowance motion will be successful. This is, I think, the fourth time that the government has attempted by either legislation or regulation to excise large parts of Australian soil from the migration law, by excising them from the migration zone. Each previous time it has been struck down by the Senate, sometimes on my motion and sometimes by the chamber on the second reading vote on the legislation. Each time it has been clear that it has not been acceptable to the Senate to further expand this notion of exempting parts of Australia from the operation of the Migration Act.

What is different now is that the government has the majority in the Senate. It would require two government senators to take the very short walk across the floor to vote with the other senators—I am being a bit presumptuous but I am assuming that Labor will support this; they have in the past—for it to be successful. A single vote would give a tied vote, assuming that Senator Fielding votes on this side—and, again, I am not in a position to speak on his behalf. It will require at least a couple of government senators, if not three government senators, to vote with the opposition parties to enable this motion to be successful.

Nonetheless, I urge government senators to give the motion serious consideration. I started outlining the reasons yesterday. As we have until Tuesday before we vote on this, I urge all government senators to have a look at those genuine and important reasons. I draw government senators’ attention in particular to the Canberra Times. There has been a lot of commentary this week about what the world is going to be like under the new government controlled Senate. Will everything the government puts up just be waved through or will there be opportunity for the Senate to continue to operate as a genuine house of review? The Canberra Times said:

This is one of those times, because this measure gives unlimited power to executive government in a particular aspect of public policy. That is why this is such an important issue. Beyond the specifics of the impact it has on individuals caught up in it, or even the arguments from the other side about the alleged effect it has on deterring people smugglers—I do not believe there is any evidence that it does deter people smugglers, but others I am sure will put forward that case—we have to look at what we are doing in reality in putting forward measures like this even if, for the sake of argument, we say that they do have some effect on deterring unauthorised arrivals.

I might say, as I did yesterday, I support appropriate means of discouraging unauthorised arrivals, including asylum seekers, because it is not in their interests to get on dangerous boats, to go through uncertain processes, to have to pay exorbitant amounts of money to seek safety. They should have other opportunities. This measure does not give them other opportunities; it just denies them an existing opportunity and makes them more likely to be pushed in other directions, theoretically, even if it does have some impact. I do not wish to be accused by others who disagree with this motion that somehow by supporting this motion you support people smugglers. That is nonsense. We do need to ensure that asylum seekers are not in a position where they have to risk their lives. We need to work with other countries to give other viable opportunities. It is only because there is no genuine opportunity to get safety that these people have to go to these extreme measures and put their lives further at risk.

The fact is that the mechanism that is being chosen in this instance—apart from, in my view, not having any genuine impact, but that is perhaps a matter for debate—operates by giving unlimited power to executive government. We saw tabled in this chamber yesterday the Palmer report, which shows how extraordinarily badly the immigration department is handling the powers that it has under the Migration Act. That is an act that I criticise very heavily, an act that I believe is still being administered very poorly even as it stands in its flawed state.

This measure gives those same people, that same department, that same minister—and there has been a scathing report tabled in this place about the culture of that department and the major problems in its structure, its lines of authority and the way that operates—absolute power, unlimited power, to deal with people who arrive without visas in certain parts of Australia, completely outside any legal framework. That is the way the government likes it. Of course, every government loves to have absolute power. We all know the maxim—it is true, and that is why everybody knows it—that ‘absolute power corrupts absolutely’. That is why we have checks and balances. That is why we have things like courts. That is why we have things like independent mechanisms of appeal. Of course they are inconvenient, of course they take a bit of time, but they are to provide a check and balance, they are to provide a mechanism to attempt to ensure that you do not get the sorts of gross misuses of power that we have seen, that we all know happen now, even under the existing act.

The government says it wants to change the culture, and its first action, as soon as it gets the chance, is to give these people the ability to operate completely outside the act when they are assessing what to do with anybody that arrives without a visa in certain parts of Australia. It is an extraordinary move to suggest on the one hand that you are going to change the culture and make everything fairer, with due process and so on, when on the other hand your first act is to push forward a measure that in particular circumstances will enable these same people to operate without any scrutiny. Many senators would not know this, but I do, because I have been to Nauru, I have seen the people there, I have seen some of their cases, I have seen some of their papers: the people that did the assessment in Nauru were able to do that outside any legal framework at all, as will happen if this regulation goes through for people that arrive in the parts of Australia that are excised.

The assessments that are made for people who arrive in Australia are bad enough, and we know that, but the people making them know that their assessments are capable of being re-examined by an independent—or at least quasi-independent—body in the Refugee Review Tribunal. After that these people know that there is the prospect that their assessment might be examined by a court for lawfulness. At least they know somebody is going to be examining their paperwork independently. The people who did the assessments in Nauru knew that nobody was going to see them. The only other person who was going to see them, if there was an appeal, was someone else in the same section of the department, or someone else in the department again. There is no doubt that there was clearly therefore a much greater willingness to be far more sloppy. There were no legal requirements to meet; it was their own interpretation of the refugee convention.

This regulation, in effect, withdraws the refugee convention from the law of Australia. It does not deratify it, but it takes away its legal enforceability in Australia for these parts of Australia. That, I suggest, is completely the opposite of the way we need to go if we are genuinely trying to provide realistic alternatives to people who are seeking protection from persecution and who want to avoid the dangers and risks of people smugglers. It is a completely inappropriate move, and I very much urge coalition senators to recognise that it does hand unlimited power to executive government. For that reason alone, it is extremely dangerous in its precedents. It should be opposed by anybody who cares about the rule of law and due process.