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Monday, 21 October 2002
Page: 5521


Senator STEPHENS (5:19 PM) —This inquiry provided an opportunity for there to be some consultation and considered scrutiny of the current system of dealing with those who enter Australian territory without a visa. This kind of scrutiny has been manifestly lacking during the initial implementation of this draft of legislation. The report of the Legal and Constitutional References Committee, entitled Migration zone excision: an examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and related issues, provides some timely advice on the problems inherent in the Howard government's current system of border protection.

The Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, under such long-awaited scrutiny in this report, relates to the further excision of approximately 4,891 islands from Australia's migration zone for the purposes of applying for a visa. This, of course, is an extension of the legislative basis of the disaster that has been the Pacific solution. The report examines the questions of why it might be necessary or advisable to excise these further islands, considering that they are particularly close to the mainland. The report is a resounding criticism not only of the legislation under consideration but also of the implementation of the previous excision measures. Most immediately, it recommends that the excision of these further islands not go ahead.

I would like to take note of some of the issues that were raised in the report, particularly in chapter 6. Firstly, there is the question of consultation. As Senator Scullion acknowledges, members of the committee, including me, travelled to Elcho and Goulbourn islands in the Northern Territory to speak with residents there about how the legislation might affect them and how they felt about the consultation process to do with the bill. Whilst this legislation does not affect the citizenship of those living in the areas that are to be excised, there was not enough effort made to ensure that those people understood that. The committee notes:

... there has clearly been uncertainty and anxiety in some indigenous communities arising from a lack of consultation and communication about the Bill ...

It also notes:

Government consultation with affected communities prior to the introduction of the bill appears to have been minimal and manifestly inadequate. The Torres Strait Regional Authority told the Committee that there was no consultation other than a phone call from the Minister just prior to the announcement in the national media.

Similar concerns arose in the islands of the Northern Territory. Giving evidence of behalf of the Warrawi community, Mr James Marrawal said:

When you came out that time, we did not know what was going on. In the back of our minds we were thinking: why are we getting kicked out from the rest of Australia? After all, we are enrolled for federal Commonwealth elections.

Consultation is important to people, particularly people who might not have many opportunities for involvement with political processes. This bill, for all its flaws, does not involve any surrender of sovereignty, but debate in the media and in parliament did speak in these terms. How, then, can we expect people in areas that are being excised to know the legal niceties? What proportion of the general public understand that this bill involves `excising islands from the migration zone for the purposes of applying for a visa'? Who knows what the migration zone is? Not consulting or communicating effectively with communities in areas proposed to be excised was a serious oversight on the part of the government and caused these people much unnecessary anxiety.

The committee notes in the report that DIMIA acknowledged shortcomings in the process of consultation with affected communities. DIMIA explained further that the regulations that were made on 7 June, and that were subsequently disallowed, were made in haste because the People Smuggling Task Force had information that suggested that a boat was `on the way soon'. This kind of haste is not the way to make good legislation, particularly legislation that can affect the lives of people fleeing persecution, as this bill does.

Another issue raised by the report was concerns expressed in submissions about the terminology that has been used in this bill, the debate surrounding it and the issue of refugee flows more generally. The United Nations High Commissioner for Refugees, in its submission, argued that the language used in the bill, the related legislation and the debate `diverges from accepted meanings'. In particular, the UNHCR criticised the use of the expression `unlawful asylum seeker' during parliamentary debate on the bill. Its submission states:

Although an asylum seeker may arrive unlawfully, either as a result of a lack of appropriate documents or a failure to seek access to sovereign territory through legal entry points, the right to seek asylum, including for those arriving illegally, is a lawful act under international law. Linking the word `unlawful' to the term `asylum seeker' is therefore incorrect as entry in search of refuge and protection should not be considered an unlawful act.

Other submissions reiterated this concern, not only with the language that has been used by the government in this debate but also with the intentions and effects of this language. Obviously language is powerful in shaping people's beliefs and understanding of any issue. This government has been successful in using language that creates an impression of an asylum seeker who is jumping the queue, who is playing outside the rules, who is greedy, who is a threat to our society, who is utterly unlike us. In my experience of those who have arrived in Australia as refugees, these descriptions could not be further from the truth.

A submission from barrister Robert Lindsay cited international expert Professor Goodwin-Gill in discussing the way in which—


The ACTING DEPUTY PRESIDENT (Senator Collins)—Order! The time for the debate has expired.