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Monday, 19 March 2012
Page: 3376


Mr MORRISON (Cook) (11:04): I am not surprised the member for Lyne would come into this place and seek to attack the coalition. He has done that on many occasions and he has shown more loyalty to the Prime Minister than at least 31 of the Prime Minister's own colleagues, including the member who is at the table today.

Ms Hall interjecting

The DEPUTY SPEAKER: The member for Shortland will resume her seat. The member for Cook has five minutes and he will be relevant to the bill or I will sit him down. The member for Cook has the call.

Mr MORRISON: Thank you, Madam Deputy Speaker. I was just addressing the previous member's remarks and attacks on the coalition.

In August last year the High Court struck down the government's Malaysian people swap because of the failure of that arrangement to satisfy the human rights protections set out in section 198A of the Migration Act. Rather than seek to create a new and more objective test to ensure that human rights protections were maintained for offshore processing, the government simply sought to abolish them. The coalition rightly rejected this approach. Instead the coalition proposed an amendment after the High Court decision to insert into the act a new, more objective test for human rights protections—that any country to be designated an offshore processing country must be a signatory to the refugee convention.

The coalition's amendment to the government's bill provided a clear, objective and universally recognised standard of protection that does not require judicial interpretation. That was the position we adopted for good reason after the decision of the High Court. The member for Lyne claims that the bill before us, the Migration Legislation Amendment (The Bali Process) Bill 2012, incorporates the coalition's amendments to the government's legislation. It simply does not. The coalition only had one amendment to the government's legislation and it is not included in this bill.

The member for Lyne's bill restates the government's bill by repealing section 198A and fails to replace it with a binding human rights protection measure that can be objectively determined, thereby constraining the scope for judicial review, which was a key purpose of our amendment. This is the only objective standard that creates legally binding obligations available to establish the presence of protections. Paragraph 117 of the High Court judgment on the Malaysian people swap makes this position very clear. It states:

What is clear is that signatories to the Refugees Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described.

Paragraph 125 also states:

A country "provides access" to effective procedures for assessing the need for protection of persons seeking asylum of the kind described in s 198A(3)(a)(i) … if it is bound, as a matter of international obligation …

The argument that the inclusion of nonrefoulement and orderly assessment provisions in section 198AB accommodates the coalition's amendment completely fails to understand the purpose of our amendment and indeed the High Court decision. This bill explicitly now states in section 198AB(6) that the protections proposed—or assurances, they are termed—are not legally binding. In addition, the selection of the Bali process as the alternative test to the UN refugee convention fails to understand the role and purpose of that forum. We should know; we introduced it. Participation in that forum creates no obligation on participating members, let alone obligations that are legally binding.

The member for Lyne's claim that this bill provides higher humanitarian standards than have ever existed in Australia before is completely false. The fact is that this bill would allow the Malaysian people swap deal to proceed. That is proof enough. However, as noted, the protections the member for Lyne advocates are not legally binding.

Mr Oakeshott interjecting

Mr MORRISON: This makes them deficient to the provisions currently in the act that he proposes to abolish that were established by the coalition and that were used by the High Court to strike down the Malaysian people swap. They are also deficient to the coalition amendment, as the UN refugee convention creates legally binding obligations. There are other problems with this bill, and I will be inviting the minister to make his observations on those.

The DEPUTY SPEAKER: I do not think that is up to the member for Cook.

Mr MORRISON: I am sure that he will be equally concerned about the definition of 'party' within this to the Bali process. The definition is ambiguous and it creates further legal opportunities, I think, to create uncertainty around this issue. Secondly, the bill requires the rules of natural justice to apply. That is something the minister himself in his own bill around this matter sought to have removed. Thirdly, the bill establishes the designation of an offshore processing country as a legislative instrument.

Mr Oakeshott: You've flipped!

The DEPUTY SPEAKER: Order! The member for Lyne might be my first throw from the chamber.

Mr MORRISON: That means that that would completely put before the parliament complete discretion to enable the parliament to overturn any decision of an executive government, even if it were to accord with the requirement that it be a signatory to the convention.

This bill is no more than a carbon copy of the government's bill. Its attempt to rebirth the Malaysian people swap is no surprise. The member for Lyne is clearly doing the government's bidding, as always. (Time expired)