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Thursday, 12 May 2011
Page: 3826


Mr HAWKE (Mitchell) (12:19): I rise to oppose the Migration Amendment (Complementary Protection) Bill 2011 and in doing so I want to state from the outset, after listening to the member for Fowler, that it is odd that we stand in this place today when our border protection system is in a mess, in complete disarray, and the government is asking us to pass a piece of legislation that will in effect solve no problem and make no difference to the current regime other than to demonstrate to people smugglers that the government has no understanding of the problems that face border protection and migrants. Let me outline what I mean. This bill will provide no additional protection that is not already afforded to people seeking asylum in Australia today. There is no suggestion that anyone in this chamber does not agree that we should meet our international obligations. In fact, there is no suggestion that Australia has not met its international obligations—none whatsoever. If any member of the government wants to state that their own government has not met our obligations, then come forward and do so. But of course that is not the case, and that is not why we are here today.

I reject this sort of legislation, the sort that comes before us when a government is in political turmoil and says, 'We need to do something.' I reject such legislation at this sort of juncture. We have a bill before us today that proposes to scale back the nature of ministerial discretion in our well-functioning Westminster democracy. If you said to me, Mr Deputy Speaker, 'I am nervous about the quality of many of the frontbench of the Labor Party in making decisions,' I would say to you, 'I understand.' If you said to me, 'There are some people there whose judgment I don't trust,' I would hear you on that. If people in the government want to say, 'We are nervous about the capacity of our ministers to make decisions in a parliamentary democracy,' I think a lot of people around this country today, after experiencing four years of this Labor government, would agree with that, particularly if they are in the pink batts industry or other key parts of our economy. But the principle is very important here, and what this legislation is doing is undermining our Westminster democratic traditions. I believe that passionately. The member for Fowler said there are people who might be sent back to face the death penalty because they are gay. Do we really think that the Minister for Immigration and Citizenship, who has the power under the act to exercise his discretion, would not exercise his discretion in that situation? That is the argument of the government back bench: 'We need a statutory process to replace the minister's intervention and discretionary powers under the act because, effectively, we do not trust his judgment.' That is what you are arguing. That is why we have this piece of legislation before us today.

I reject that. I am going to stand up for the minister for immigration. I note that many of the government backbenchers have raised this point. Maybe they are looking to get to the front bench, but I do not think that there is any minister in this government or was in our government, or in future governments, who would not act in a humane or compassionate way in those circumstances to ensure that our international obligations are met. There is a little bit of scoffing from one or two government backbenchers. There is no suggestion that Australia has not complied with its international obligations—none—and it is offensive for anybody to stand up here and say that it has not. I would defy any member of this place to do so and point to the examples.

We know that between 1 January 2010 and 22 October 2010 the minister finalised 1,690 requests for intervention. The minister granted visas to 438 of those people and, according to the minister's office, only six have satisfied the requirements of the proposed new complementary protection visa. So, once again, the first question and duty of a government is to say, 'What problem are we trying to solve?' If we are trying to solve the problem of six cases that met under this provision and say that we do not rely upon our ministers under the Westminster system, that is not an inspiration for a piece of law in this chamber.

The instinct of this government too often is to legislate first and not do something practical to fix it. We do not need legislation when we have a well-functioning system, when we are meeting our international obligations and when hundreds of years of parliamentary tradition, democracy and ministerial accountability apply and there is no suggestion that that system is not working. So, instead, we are going to add another piece of legislation for good governance to the statute books, as if that is the panacea for all our problems. What problem are we trying to solve?

The government has not made a case. We heard the member for Fowler talk about the fall of Saigon and some other distant topics. The member for Fraser read out some stanzas of the national anthem. He did not get all four or five of them in and he did not address why we need a law to do this. Neither have government members opposite made a sustained case about why we should add another law to the statute books. There is a very serious issue at stake in this bill. By putting a statutory process in favour of a ministerial power, you are actually reducing the flexibility of government. You are setting up your own government for further problems in immigration and in this domain.

It is our role as an opposition, as a coalition, to point out bad legislation—not to just oppose but to argue why we should not have another law added to the books when it will not work. In fact, using this kind of statutory process could easily attract vexatious litigants. I note that Dr Ben Saul—as pointed out by the shadow minister for immigration—of the University of Sydney was of the view that the criteria contained in the 2009 bill were poorly drafted. It was the result of the inclusion of unnecessary qualifying phrases and, far from creating certainty, Dr Saul thought this would invite needless litigation. That is very important for this House to note at this juncture.

The capacity for people smugglers to market, 'Once you get here, and once you have an issue that you may have back home, we can then go through a statutory process, then go to court and then tie this up for months or years of further legal process,' is a selling point for people smugglers. Again, from our point of view as a parliament, as a nation, we do not rely on ministers of the crown elected by the people of Australia sent to this parliament to administer acts of the parliament; we do not rely on their discretionary judgment to do these things?

There is a very serious issue and principle here in this legislation today that I reject. We ought to have our ministers firmly accountable for the decisions they make under the acts of parliament that this parliament passes. They should be held accountable for every decision. They should make decisions. They should not be afraid of making decisions. We know we have a government at the moment that is afraid to make decisions but, frankly, when you look at the facts and the figures there is no problem here that the government is trying to solve.

Of course, we take very seriously human beings who arrive here who could be threatened with death or other circumstances back home. Of course the minister should intervene when appropriate, as appropriate, in those situations. That is what is occurring already today. And, again, we do not have an answer about why we have this legislation here today, other than we have a political problem in Australia for the government, and that is that it has lost control of Australia's borders.

But just by passing a law we may not make things better. As Dr Ben Saul points out, there could be in that 2009 legislation, which is largely replicated before us today, the opportunity for vexatious litigants. From the shadow minister, the member for Cook, we have sought advice from the government about what agencies have been consulted on this legislation. We understand the Australian Federal Police, the Customs and Border Protection Service, ASIO and other relevant agencies have not been consulted about the potential impact of this measure and, at a time when we are asking them to do so much in relation to the processing of asylum seekers and to screen and do other things, I do not understand why wide consultation would not be sought on a bill that seeks to remove ministerial discretion and power. It makes no sense. The whole bill makes no sense.

Going further, for many of the provisions, I think there are some other important things. When this was last considered, Liberal senators in their dissenting report to the inquiry in 2009 made some very good points. This bill will add to the problems. We know that between the time of the bill's introduction in 2009 in the House and today the figures worldwide have become much worse. At the time of the bill being introduced, about 53 per cent of people who were in detention had been there for six months or more. That has now risen to 60 per cent of the record population of almost 7,000 in our detention network. We have a crisis in the fact that this legislation was dropped, which was a good idea, at the proroguing of parliament in 2009—let us abandon bad pieces of legislation, let them go and move on—and now we find that we are back here in a pure attempt to understand that the government is looking like it is doing something. In concluding, I want to say that the government is today positing that somehow this is going to improve the situation for asylum seekers in Australia or that it will add an extra layer of protection or an extra layer of being able to meet our international obligations. That is not the case. There is nothing that can be pointed to here that will demonstrate that. We are meeting our international obligations. There is no suggestion that the minister for immigration has not acted appropriately in exercising his discretion to grant visas, in using his discretion and the flexibility contained within that discretion to solve the problems of the complex nature of humanity and the people that arrive here. Nobody is making that argument here today.

What we are saying is that with our border protection in crisis—with almost 1,000 children in detention, with 7,000 people in camps in Australia today rioting, protesting, burning things on roofs—we do have a problem that must be addressed. This bill will not address it. This bill will go nowhere. This bill has the potential to cause further complexity and legal delay and problems in our system. I think it is the sloppiest and worst way of dealing with very serious problems, very complex issues and things that do require the attention of government and, sometimes—if I could say to the member for Fowler and some of the other government backbenchers—a firm hand. Being firm and being administratively competent is a better way of being compassionate than being completely emotional. Emotion tends to dominate the speeches of government backbenchers—pure emotion. They are driven by this constant idea that somehow, if we feel empathy for people, things will be better. Yet we find a thousand children in detention today. That is something that has to be addressed. We find 7,000 people in camps. There are riots. We have expanding detention facilities all over the country. We have more boats coming in than ever before. We have ships being wrecked. We do have problems.

The blind move in 2008 to weaken our border protection system in the name of compassion has led us to where we are today. Legislating to remove a ministerial power, a flexibility—a proper, functioning and lauded system such as the Westminster parliamentary democratic system, where ministers have discretion and have appropriate powers under acts—in favour of a statutory process, I contend and the opposition contends, will add to the problems in our system, not help fix them. So we warn the government and urge them to do things that will improve the state of our border protection system, to do things that will deal with the real problems that are out there, not to pass needless law that removes the discretion from their own ministers—the appropriate discretion to grant the appropriate visas to people in these very serious circumstances.