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Wednesday, 21 September 2011
Page: 10945


Mr BOWEN (McMahonMinister for Immigration and Citizenship) (09:19): I move:

That this bill be now read a second time.

This bill amends the Migration Act 1958 and the Immigration (Guardianship of Children) Act 1946 to clarify the framework for taking irregular maritime arrivals, who arrive in Australia at an excised offshore place, to another country for assessment of their protection claims.

The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.

This is a power that was thought to exist until 31 August this year, when the majority of the High Court decided that transfers under section 198A of the Migration Act could only take place to countries legally bound to provide protections equivalent to those offered by Australia.

Subsequent legal advice has made it clear that the High Court's decision has thrown into significant doubt the ability of governments—present or future—to effect transfers to a range of countries in our region who are prepared to offer protection from refoulement, and will allow processing of refugee claims to be made, including Papua New Guinea and Nauru.

So today the government is introducing amendments to the Migration Act to make parliament's intention absolutely clear. This intention—the rationale for these amendments—is set out in the new section 198AA.

Section 198AA makes clear that these amendments are designed to tackle people smuggling, the distressing consequences of which we saw last December, when dozens of lives were lost in surging waters off Christmas Island.

This was simply the latest in what is a long line of tragedies. In 2001, 353 men, women and children died on the SIEV X. Several elderly asylum seekers drowned near Ashmore Reef in 2001, and 12 Sri Lankans died in 2009 in the Indian Ocean when their boat sank before a commercial tanker could rescue it.

There are, unfortunately, other examples I could cite. And it is inevitable that other boats have been lost that we simply do not know about.

The government believes offshore processing, when part of a proper regional framework, is appropriate—because, when properly designed, it can provide an effective deterrent to these dangerous boat journeys.

There are sound policy and humanitarian reasons for supporting the processing of people seeking asylum in Australia in another country when it is part of a properly thought-through regional framework. As the Office of the United Nations High Commissioner for Refugees said in a landmark policy paper in November last year:

… under certain circumstances, the processing of international protection claims outside the intercepting State could be an alternative to standard ‘incountry’ procedures. Notably, this could be the case when extraterritorial processing is used as part of a burden-sharing arrangement to more fairly distribute responsibilities and enhance available protection space.

A truly regional approach involves Australia playing more of a role in resettling refugees and helping countries in the region move towards consistent standards and treatments.

In order to combat people smuggling—and in order to remove the lure of probable settlement in Australia, the product that people smugglers are able to sell—the amendments contained in this bill are explicitly intended to allow for the transfer of offshore entry persons to a country designated by the minister.

The only condition for the designation of a country is that the minister thinks that it is in the national interest to make the designation. In forming this view, the minister must have regard to whether or not the country has provided assurances to the effect that it will not refoule those transferred and will make—or permit to be made—an assessment of a transferee's claims to be a refugee.

This bill allows for transfers to designated third countries, whether or not those countries are legally bound to provide the sorts of protections set out in subsection (3) of section 198AB. This intention is spelt out in paragraph (d) of section 198AA.

In restoring to the executive the power to manage one of a government's core functions—control of a nation's borders—these amendments are designed to provide the government of the day with the ability to implement its policies.

In order to strengthen political accountability, the new section 198AC requires the minister to lay before parliament several documents for the purpose of informing the parliamentary—and public—debate on the designation of a country as an 'offshore processing country'.

These documents include:

a statement of the minister's reasons for considering the designation to be in the national interest;

a copy of any written agreement—whether binding or not—with the designated country relating to the transfer of persons;

a statement about consultations with the Office of the United Nations High Commissioner for Refugees;

a summary of any advice received from UNHCR about the designation; and

a statement about any arrangements that are in place, or will be put in place, for the treatment of transferees.

These are criteria that do not go to the validity of the designation. They go to political accountability.

In enacting these amendments, this government is plainly intending to re-enliven the arrangement entered into with the government of Malaysia.

It is also intending to allow the coalition, opposite, to re-enliven its proposal to transfer boat arrivals to Nauru, should it one day carry the responsibilities of government.

The government believes the Malaysia arrangement is far the superior, removing, as it does, the essential product people smugglers are able to sell their vulnerable customers: the prospect of likely resettlement in Australia.

The arrangement with Malaysia means that, while resettling more people—giving more people the chance to a new life in Australia—we are also removing the attraction of engaging a people smuggler and taking a dangerous boat journey, because people transferred under this arrangement will get no preferential treatment when it comes to resettlement options.

This is an arrangement entered into under the auspices of the Regional Co-operation Framework, agreed at the Bali Process Ministerial Conference earlier this year.

It is an arrangement that contains commitments by the government of Malaysia to:

respect the principle of non-refoulement;

permit transferees' protection claims to be considered by UNHCR;

facilitate their lawful stay in Malaysia while awaiting an outcome;

allow for self-reliance through employment; and

treat transferees with dignity and respect.

The arrangement also provides for appropriate health care and education safety nets.

UNHCR and the International Organization for Migration have agreed to play ongoing roles in the implementation of the arrangement, and on-the-ground planning in Malaysia was well advanced when the High Court decision was made a few weeks ago.

The arrangement with Malaysia is the first of its kind in the region and represents a broadening of protection outcomes and a new level of international co-operation to tackle an international problem.

It would be a travesty to lose this moment, this time of significant progress with a crucial willing partner such as Malaysia.

These amendments are designed to provide the government of the day with the flexibility to find practical solutions with regional partners to reduce the risk of the loss of life at sea, to combat people smuggling and to determine the border protection policy it determines to be in the national interest.

The bill also makes related amendments to the Immigration (Guardianship of Children) Act 1946 to effectively return the law to the position that was understood to exist prior to the High Court decision. That is, to assert the primacy of the Migration Act over the Immigration (Guardianship of Children) Act.

This is designed to remedy the current, patently unworkable, situation precluding the involuntary transfer of unaccompanied minors to other countries, whether taken to a designated country under the provisions of this bill, removed as failed asylum seekers or transferred under other provisions.

Under the interpretation of the law set out by the High Court last month, the removal from Australia of an unaccompanied minor is practically extremely difficult, if not impossible. It would be thus in relation to Malaysia and it would be thus in relation to Nauru.

Of course, the minister will retain the ability to personally intervene to determine that a minor—or any other person who is considered vulnerable—should not be taken to a third country under the new subdivision. This power is an important safety valve to be used in individual cases, as and where appropriate.

However, a blanket inability of the government of the day to transfer unaccompanied minors to a designated country provides an invitation to people smugglers to send boatloads of children to Australia. No government can stand for the gaming of the system and risking of children's lives in this way.

That is why these amendments to the Immigration (Guardianship of Children) Act are necessary.

I urge everyone in this place to recognise the national importance that attaches to the passage of this bill.

There are times when we, as a parliament, must collectively do our job. In a parliament such as this one, responsibility for legislative outcomes resides with the whole parliament.

With power to pass or block legislation of national significance comes responsibility of equivalent gravity: a responsibility to act in the national interest.

I commend this bill to the House and I urge all members to support it.

The SPEAKER: The debate must now be adjourned.