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Tuesday, 1 November 2011
Page: 12355


Mr BANDT (Melbourne) (18:42): Here we have another instance of Labor and the coalition working together to diminish the legitimate rights of people coming to this country to seek asylum. It is another attempt to avoid an inconvenient truth which keeps recurring because we signed up to international conventions which recognise that people have a lawful right to come to this country. That truth, until we face it squarely, is going to continue to be inconvenient for the government and the opposition because they will continue to do all they can to bring to bear some of the most harsh and punitive measures that can be found against some of the people in this world who need our protection the most.

I will go into the detail of the Deterring People Smuggling and Other Measures Bill 2011 shortly. But—regardless of what your position is on the question of migration and on the question of the appropriate laws that should be in place—this bill ought to be of great concern to anyone who values the basic principles of the rule of law, because what this is really about is a case that is due to be held in Victoria's Court of Appeal in two days time. That case is the case of a 20-year-old Indonesian fisherman who is intending to say to the court, according to the reports, that he is not a people smuggler but an impoverished young Indonesian person who found himself working to earn a very small amount of money by working on a boat. He says that he was caught up in this, according to the media reports. And on 3 November the court was going to act independently, apply the rule of law, look at the questions of fact and of law, and decide whether or not that was the case and that person had a valid defence under Australian law—and that is, Australian law as it stood at the time he was alleged to have committed the offence.

Because this case is coming up, we now have this bill being rammed through without any proper scrutiny. I note that, had this bill being introduced before five o'clock tonight, we would have had the opportunity at the Selection Committee to refer it to an inquiry. It is no coincidence that the government waits until that is over, comes along here and says: 'Right, we've got the agreement with the coalition and we're going to ram this through without any due scrutiny. Let's get this through parliament in the evening.' It was not even on today's daily program.

The fact that there is no scrutiny is bad enough, but violating the principle of retrospectivity to shore up a bad Howard law is even worse. What we have here is a law that will apply back to 1999. If you were concerned about the rule of law in this country you would think that if you were going to remove legitimate rights that people may have had going back to 1999 you would put it up in lights and you would allow time for proper debate and proper scrutiny, not go through the process that we are seeing here now.

What makes it additionally objectionable is that this bill is linked with mandatory sentencing provisions that will require judges to impose minimum mandatory sentences of five years imprisonment, with three years nonparole. In effect, what this parliament will be saying is that we cannot trust the courts to decide when someone is what might be termed a big organiser of people smuggling and when someone else has just been caught up in it, perhaps with as little volition as some of the people who are getting on the boats. I think most people would agree that there is a big distinction between a high-level people smuggler—if we use that term for the moment, as the government has—who might have a sophisticated operation that potentially trades in misery and a 16- or 17- or 18- or 19- or 20-year-old who has found themselves working on a boat to earn a couple of bucks. If the government were concerned about really addressing the people who are at the top then they would craft a law that deals with that—but that is not what is being done here.

The Human Rights Law Centre made it clear that, of the 353 people currently charged with people smuggling, only six are people who actually organised the boats. The rest are people who operated or were crew on those boats. So this is not a bill that is aimed at the supposed kingpins. This is a bill that will catch everyone in its wake. And this is a bill that is reacting to the fact that the court of appeal might well have decided in a couple of days that, yes, this person does not deserve to be punished. So, in their desire to be tough, what do the government do? They cosy up to the coalition and say, 'Let's take away people's rights retrospectively, let's do it quickly, and let's extend mandatory sentencing; let's presume we can't trust the courts to make this kind of decision themselves, let's avoid scrutiny and let's make the 95 per cent of people pay for the five per cent who might be the genuine high-level organisers'—the ones the government are, apparently, so concerned about.

If we really wanted to address the problem the government are identifying, we would need a bill that gives the judiciary the ability to determine, on a case-by-case basis, whether or not the person being charged is someone who is a high-level organiser who, in the government's words, trades in misery. And we would give the courts the discretion to determine whether or not the person should then be sentenced or whether there were any extenuating circumstances. But that is not what this bill does. This bill is a knee-jerk reaction to an upcoming court case because the government are terrified that the court may in fact say, 'Yes, some people do have a legitimate right to come to Australia, and, no, if you find yourself as a 17- or a 20-year-old Indonesian fishermen caught up within it we are not going to mandatorily sentence you to five years.'

If we are serious about avoiding deaths that occur when people take their lives into their own hands and embark on perilous journeys—and I believe everyone in this chamber would agree that we want fewer people dying at sea and we want to take steps to make that happen—there are a number of things we could do. We could have a long-term, practical, humane and compassionate policy towards refugees, like this country used to have. We could say that we will increase our humanitarian intake. We could say we will play a broader role in our region—in Indonesia, Malaysia and all the countries in the region—to resettle more people who have come from those countries so that they do not need to embark on a perilous journey. We could start by putting more staff in those countries to process the claims. There are many people in those countries who have been found to be refugees and who have been languished in camps or elsewhere for years at a time because there are not adequate staff to process them. They are then forced into a position where sometimes they do take their lives into their own hands. If we really wanted to do something about stopping the tragic deaths that occur when people jump on a boat to come here, we could start by doing that and by putting protection of people at the centre of a framework for a regional approach, not continuing with this knee-jerk approach that says, 'We will break the people smugglers' business model,' if by that we mean that a 20-year-old Indonesian fishermen deserves to spend several years in prison. Every time we get close to having a rational and humane debate in this country about how to deal with the difficult global problem of people fleeing war and persecution, it seems to be the case of one step forward and two steps back. We had the instance of the High Court telling us what we should have already known—that is, it is unlawful to expel people from Australia to another country where we do not know how they will be treated. We had the opportunity to ask if Australia could be different. In Australia in the 1970s, for instance, we had an agreed approach that said, 'We will take in some of the world's most vulnerable people and resettle them and their families and we will stop them coming on boats by embarking on a regional resettlement program.' We did that then and it was successful. There are many people in this country who long for us to have that kind of debate again. There are really tough questions that need to be asked about how we deal with people who are potentially risking their lives to get here. How do we discuss these issues with humanity, compassion and with an eye to a practical outcome instead of knee-jerk reactions that engage in a race to the bottom?

I will not be supporting this bill. If this bill is so important, we would have seen it coming on the daily program for some time, we would be having proper committee inquiries and it would not be rushed through two days before the Victorian Court of Appeal is due to determine a matter. This is not a bill that is part of some longstanding grand plan to deal with the big question of refugee movement. It is a bill designed specifically to scuttle a court case that is coming in a couple of days and other cases that might follow it. In the process of doing that the government seems prepared not only to trash the principle of retrospectivity but also to uphold a bad John Howard law. Many people will wake up tomorrow, read the newspapers about what has happened this evening and shake their heads and wonder what is the future of debate about asylum seekers and refugees in this country.