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Monday, 9 December 2002
Page: 7478


Senator BARTLETT (Leader of the Australian Democrats) (6:04 PM) —I speak on behalf of the Australian Democrats to the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002. In short, this legislation is re-running an initial attempt to put through by regulation an excision of many thousands of islands—I think over 4,000 was the eventual advice the committee received— across all of Northern Australia. The area is basically from halfway up Western Australia, all the way over the top of Australia, then back down past a large chunk of Queensland, with the intent of having all of that area exempt from the operations of the Migration Act for the purpose of claiming protection. The Democrats opposed the attempt by the government to excise those islands by way of regulation earlier this year and we likewise oppose the attempt to do exactly the same thing now by way of legislation.

I commend to the Senate and to the public at large the report of the Senate Legal and Constitutional References Committee into the migration zone excision issue. The report put forward a number of recommendations, one of which was to oppose the legislation, and quite a good outline of the issue. From the Democrats' point of view it is a great tragedy that before the last election the major parties in the Senate prevented the Senate committee from having the opportunity to examine the whole proposal to excise islands from the Australian migration zone. The Democrats welcome the Labor Party's opposition to this legislation. It is impossible, however, not to comment on the Labor Party's ongoing support for the existing excision of Christmas Island, the Cocos Islands and Ashmore Reef from the migration zone. It is difficult to see the logic in opposing the excision of all the other islands but continuing to support the existing excision of some islands from the migration zone. Obviously we need to welcome the Labor Party's willingness not to extend those excisions, but what is needed is a winding back of that injustice.

An interesting component of this report, which I have recommended that all people read, is the last couple of pages—appendix No. 3—which talk about the classes of visas and the merits review and judicial review rights of various people depending on how they entered Australia and which part of it they entered. The additional levels of complexity that this government, with the support of the ALP, has put into the Migration Act, creating all these different classes of people depending on that aspect, are a source of continuing amazement. If unauthorised people land on the mainland or on these other islands that the government is attempting to excise, without having contact with Christmas Island, for example, then they could get an onshore temporary protection visa. If they land on the mainland with a tourist visa or a visitor visa of some sort and then claim protection, they can get a permanent protection visa. In both cases, they can get their applications reviewed by an independent tribunal—independent in theory— such as the Refugee Review Tribunal or the Migration Review Tribunal. In both cases, there is still scope—although it is very limited scope and it is still arguable how limited it is—for them to appeal through the courts.

On the other hand, if they land on the mainland in an unauthorised way having previously landed at an excised place such as Christmas Island, then that same person can be standing next to another person in Australia but have no right to any visa in Australia unless the minister exercises his discretion and lifts that bar on applying. Therefore, they have no right to a visa and no right to merits review by the Refugee Review Tribunal; they are called an offshore entry person.

Similarly, if people apply whilst at sea in territorial waters and with no previous contact with Christmas Island, they are eligible to make an application. As they are not in the migration zone, their protection claim would be assessed, subject to meeting criteria. But they would have no rights to review, although an Australian sponsor might have review rights to the MRT for certain classes of visa and they might still have review rights in the courts. Again, there is a different set of criteria for people who apply while at sea having previously had contact with an excised place but whose boat was not intercepted at those areas. So they land on Christmas Island, go back out to sea and then apply while at sea—there is a different set-up again. If they apply from the Christmas Island processing centre after being intercepted at sea, then again they have no rights to a visa.

What this means, and what will be continued under the Labor Party's policy, is that people who are on excised lands in Australia have no right to apply directly for a visa under the Migration Act. Therefore, they have no right to any independent review of that visa and no access to the High Court, at least in relation to a visa decision. Ironically, they will have access to the High Court in relation to anything else that happens to them on Christmas Island under Australian law, as long as it is not to do with the actions of Commonwealth officers operating under the auspices of the Migration Act. For example, if they were robbed or anything else whilst they were on Christmas Island, they would have access to the courts for that but not in relation to a visa decision.

Similarly, people who apply from a declared country processing centre such as Nauru and who have had previous contact with an excised place such as Christmas Island do have access to a visa class—an offshore visa class called a secondary movement offshore entry (temporary) visa class. If they apply from a declared country processing centre such as Nauru after being intercepted at sea but without being in contact with Christmas Island, then there is a different visa class again—the secondary movement relocation (temporary) visa class. All of those have no right to review and usually have no right to a judicial review.

So, apart from anything else, you have this ridiculously complex visa regime applying to a whole lot of different people, all of whom are basically just seeking protection or asylum, and, depending on when they were intercepted and which piece of dirt they put their toe on first, they have a whole set of different rights. This is clearly a blatant breach of the refugee convention. Despite this, as we have heard time after time in various inquiries in this place and in government responses to opinions from the UNHCR, other UN bodies, and Australian bodies such as the Human Rights and Equal Opportunity Commission, the Australian government simply says, `That might be your opinion but it's not ours; we don't breach anything.' It just so happens that nobody else in the world agrees with them, but that does not matter! This legislation is simply another attempt to extend that absurdity.

The report is useful because it also highlights the way the whole process works in terms of the offshore entry components of the Migration Act. In terms of what this bill seeks to do, the fundamental principle from the Democrats' point of view is that you should not have people in different parts of Australia with different rights depending on which part of Australia they are in or, even worse, people who are side by side in Australia with different rights depending on whether they got here via the mainland or got here via Christmas Island and then were put on the mainland. That is a ridiculous principle and it should not be recognised in any context.

Once it is recognised—as it currently is, unfortunately, under the existing Migration Act—then the same sorts of principles can be extended or applied to other areas of the legislative regime. That adds an extra reason to why the Democrats so strongly oppose this whole legislative regime. It is not just because of the terrible impact it has on genuine asylum seekers but also because of the general principle, the general undermining of the rule of law and the introduction of very dangerous legal precedents that, once they are in place, are able to be pointed to by this government or future governments to say, `This is already operating in this area of the law. There should therefore be no objection to extending it to another area of the law.' That is a very dangerous path to go down.

Fundamental components about equal treatment under the law are something that should not be waived, except in the most extreme circumstances. And despite all the rhetoric and all the hype about the so-called security risk and the need to protect Australia's borders et cetera, it is quite clear that asylum seekers do not pose a significant risk to the Australian community. They certainly do not pose a security risk and they certainly do not pose a threat to our safety. As we are now so tragically aware, the real threat to our safety comes from terrorists and extremists in our region, not from asylum seekers, many of whom are trying to flee such extremists and terrorists in the areas which they came from.

Surely it is now time to revisit the entirety of the Pacific solution and to recognise that we need to refocus our attention and our resources. By that I mean refocusing not just the money but the enormous amount of defence resources and personnel, intelligence resources and personnel and bureaucratic resources away from this area, which does not present a significant threat to Australia's security, and channelling those resources to where the real threat is.

Similarly, we can scrap the absurd legal regime that puts in place legal principles and legal precedents that fundamentally undermine our rule of law and instead once again have a legal framework that is consistent, that meets our international obligations and that enables us to have a framework for assessing refugees that we can once again market to the rest of the world, which has a much bigger issue with this matter than we do. That is where this debate needs to go. I hope the fact that the ALP are holding firm on this provides a good benchmark for us to then start winding back in some of the other areas. I recognise the political difficulties they are in, and I do not want to make massive political capital out of it, but eventually they have to decide which side they are on. I think there has been an attempt to reconcile two fundamentally contradictory positions.

I go to some of the recommendations in the Legal and Constitutional References Committee's quite positive report. I was a member of this committee during its inquiry and signed up to its recommendations. The committee recommended:

... initial assessments of claim for refugee status by offshore entry persons should be reviewed by an external body such as the federal magistracy or the Refugee Review Tribunal.

I agree with that, but that does not match Labor's new policy. The abolition of declared countries should be welcomed, and I understand that Labor's new policy does go that far whilst shifting things across to Christmas Island. The one thing you could say is a benefit of Christmas Island rather than Nauru and PNG is that at least it is in Australia, at least there is potential scope for people to try to exercise their rights under the Constitution. I have no doubt that there will be some interesting legal cases in the next year or two trying to determine exactly what those rights are and whether or not the legislation that was passed last year in a rush before the federal election is constitutional in some aspects. I certainly hope that it is not. There is no doubt that there are strong legal arguments that parts of it are not. As always, we will have to wait for the judgment of the High Court in that regard, rather than speculating about it here.

An interesting part of the report goes to section 46A of the Migration Act. This is the part of the act that allows the minister to exercise discretion to enable people to apply for a visa. The committee recommended that the government review the operation of section 46A:

... to ensure that those asylum seekers coming directly from a place of persecution are not penalised by virtue of their place of entry into Australia.

It is quite clear that the law as it currently stands means that asylum seekers can be penalised by virtue of their place of entry into Australia, and that will continue. Thankfully, with this legislation being defeated this will not be expanded, but the fact remains that an offshore entry person who comes directly from a place of persecution—and that has occurred; people have come direct from Sri Lanka, for example, across to the Cocos Islands—will be treated differently from a person who has come direct from a country and landed in some other part of Australia. That is a legal absurdity and it is an arrangement that beggars belief, particularly when you look at trying to build alliances with other countries about how best to deal with this broader problem.

I was fortunate to be able to spend two or three weeks in July visiting a number of countries in Europe, looking at how they are dealing with the issue of unauthorised movements of people. All of us here would know that the numbers of unauthorised people that European countries have to deal with are vastly greater than those which Australia has had to deal with in recent years. People may also know that a much lower percentage of those people that apply for asylum in most parts of Europe end up being accepted and recognised as refugees, although another proportion are accepted on humanitarian or family grounds.

This does not contrast at all with the sort of situation that Australia has had. Previously, Australia could have been engaging, selling internationally and highlighting the strengths of our positive system with our humanitarian program, our resettlement program and our migration program across the board, which many European countries do not have. We could be looking at greatly increasing our direct assistance to countries of first asylum. Instead of spending all of the hundreds of millions of dollars that we are spending, for example, on building the new detention centre on Christmas Island, that money could be put into countries of first asylum or countries adjoining refugee hot spots. It would make a great deal of difference in preventing secondary movements of people.

All of this would be far more effective and far more constructive in terms of the long-term solution, which will only come about through working cooperatively with other countries. Instead of that, we have put out a message and a legislative regime that says, `The way you deal with this is to put up a wall, take away people's legal rights and be as nasty to them as you possibly can so that they will not come here and will go somewhere else.' All that could possibly do—if that works—is encourage everybody else to do the same thing and be equally as nasty. I do not think that is an effective or sustainable long-term way of dealing with the issue. The global pressures are too big to simply deal with it by having all of the developed world saying, `We'll just be more nasty towards people fleeing persecution and that'll stop them coming here.' That is not going to work. You do not need to think about it for too long before you recognise that it is not going to work.

The government may say, and I am sure that the minister in his final statement will say, that this policy has succeeded—nobody has arrived for a year: success. They have already said that a number of times in this chamber. On a very narrow definition of `success'—which is, `Let's not have people arriving here unauthorised in boats'—that is successful. If you are looking at a broader definition of `Let's not cause immense suffering to vulnerable people, let's not split up families, let's not have people drown at sea, let's not have people who are part of the Australian community suffering enormously in immense poverty for prolonged periods of time'—


Senator McGauran —Ha!


Senator BARTLETT —Senator McGauran finds that amusing, but I do not think many other people do—then let's not call that successful. That is what we are causing directly as a result of this government's policy.


Senator McGauran —No-one has drowned for 12 months.


Senator BARTLETT —If Senator McGauran likes the idea of having lots of impoverished refugees in the Australian community unable to settle down, unable to be reunited with their families—if you put it in that context—I do not think he is in the majority. If he is in the majority, then I can tell you that the Democrats will not rest until that view is in the minority—not just for political purposes but because it is in Australia's interests to have a country that will treat every person equally.

Beyond all else, that is what is fundamentally abhorrent about this legislation: it does not treat people equally. That is a principle we should never adhere to. Once the principle is accepted that one group of people in the community—because of particular characteristics they have—can be treated differently under the law in the assistance they get or do not get and in whether or not we will let them be part of the community, it is a very short step to create different political dynamics to make it acceptable for another group of people to be so treated. And who knows what the next group of people to be targeted will be.

That is why it is important to resist these sorts of things. More broadly, we have already seen the targeting of Muslims in some of the rhetoric of Senator McGauran and his fellow travellers. We have seen a targeting of people who want to promote peace, rather than just blindly going to war. Once you get a divisive approach that is legitimised via a legislative framework, it could be applied in all sorts of different ways. That is why it is crucial that people stand up in the face of legislation like this. That is why the Democrats will continue to oppose this measure.

We welcome the ALP's opposition to it as well. We will continue to encourage them— constructively, I am sure—to move their position even further so that the disgracefully negative and destructive legislative framework that was passed by this chamber in September last year can be wound back and, once again, Australia can hold its head up high as a country that defends human rights and tries to work with vulnerable people rather than punish them.