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Monday, 9 December 2002
Page: 7485


Senator KIRK (7:36 PM) —The Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 is a self-defeating bill that, if enacted, will do much harm to Australia's international reputation and will show the government's defiance of international law conventions and proper practice. It will do little to achieve the government's stated aim of border protection. With this bill, the government is attempting to excise from Australia's migration zone approximately 4,900 islands off the western, northern and eastern coasts of Australia that are home to approximately 21,000 residents.

The bill seeks to extend the definition of `excised offshore place' under the Migration Act, such that any person arriving on these excised islands would be deemed an offshore entry person. Some of these 4,900 islands are so close to the Australian mainland that, as Senator Sherry said earlier, they can actually be seen by the naked eye, and in some cases you can even walk to them. We have to ask ourselves why an asylum seeker, after a torturous and dangerous journey on a leaky boat, would land on such an island with mainland Australia in sight. In my view, this is beyond comprehension. The effect of the bill will be to establish mainland Australia as the goal for asylum seekers arriving by boat. The bill will not stop asylum seekers from coming to Australia—desperate people will do whatever they can, and there is no doubt that asylum seekers are desperate people. An ill-conceived bill such as this will not form any part of a long-term solution for border security.

This was the conclusion reached by the Senate Legal and Constitutional References Committee, of which I am a member, which inquired into this legislation and reported to the Senate in October this year. Despite ministerial statements that the objective of this legislation is to enhance border protection by deterring people from arriving on mainland Australia, the committee heard that this will not be achieved under the terms of this bill. For example, in its submission to the committee the Australian Federal Police acknowledged that this bill will `draw people towards the mainland'. DIMIA also told the committee that the bill will require people smugglers to bring their vessels closer to mainland Australia. In an answer to a question on notice DIMIA acknowledged this when they said:

The Bill, by extending excised offshore places to islands off the northern coast of Australia, and therefore requiring people smugglers to bring their vessels closer to mainland Australia ...

Not only will people smugglers bring their human cargo closer to the mainland if this bill is passed; they will also put those people in even graver danger than at present. The International Commission of Jurists argued before the committee:

... by forcing refugees fleeing persecution by sea to push on for the mainland in order to activate their rights under the [Refugee] Convention, Australia is placing them in a more perilous situation with further grave risk to their health and safety, particularly in areas with coral reefs.

It is because of these concerns that I have referred to, and others to which I will refer shortly, that recommendation 1 of the Senate committee's report is that the bill not proceed. It is the self-defeating nature of this bill that has led the opposition to oppose it both here and in the other place. After hearing evidence given to the Senate inquiry into this bill, I for one was left wondering when the government would begin to excise parts of the Australian mainland from the migration zone. The Prime Minister has claimed that excising parts of the Australian mainland is an absolutely ludicrous proposition, but does that mean never, ever? Senator Scullion, from the Northern Territory, who spoke a moment ago but has now left the chamber, has said that he feels very strongly that we should excise parts of mainland Australia. While the Minister for Immigration and Multicultural and Indigenous Affairs told Senator Scullion that excision of the mainland is not the government's current policy, Senator Scullion has since stated, `But I'm not so sure that that's necessarily off the radar.' So with that public admission from a government senator that this may be a future plan of the government, one does wonder where the excisions will stop.

The Senate and the Commonwealth parliament must not head down the legislative path of passing this bill in an unamended form. The Senate committee that I referred to earlier heard of numerous other concerns about the bill over the course of its inquiry. Many witnesses warned of the possible breaches of Australia's international obligations that will be effected by the bill if it is enacted into law. The committee heard of significant concerns in this regard from the United Nations High Commissioner for Refugees, international law experts and legal and human rights groups, as well as many other individuals and organisations. It is clear, and it was made clear to us over the course of the committee's hearings, that the refugee convention applies to all of sovereign Australia, based on our signing of the Vienna Convention on the Law of Treaties 1969. Article 27 of that treaty provides that a state cannot `invoke the provisions of its internal law as a justification for its failure to conform with the provisions of the treaty'.

Much of the evidence that the committee received concerned Australia's international obligations, particularly the obligation of non-refoulement of refugees under the refugee convention. When Australia signed the refugee convention, it committed this country in article 33(1) to non-refoulement of refugees. This obligation prohibits Australia from returning a refugee `in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened.' This article also extends to `chain refoulement', whereby Australia shall not send a refugee to a country where he or she will be returned to the place of persecution. Similar obligations are imposed under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, to which Australia is also a party. The committee heard about instances of possible refoulement—in particular, when the government turns boats around and sends them back to Indonesia. The Australian Lawyers for Human Rights submitted to the committee:

If an asylum-seeker is returned to Indonesia by Australia and subsequently refouled, Australia remains responsible for that person. Australia is the precipitator of chain refoulement.

Because Indonesia is not a party to the refugee convention, we in Australia can have little confidence that, by sending boats back to Indonesia, the asylum seekers will not be refouled. We could be creating a situation where refugees are in effect left in limbo: they find themselves in Indonesia without protection, they cannot find a resettlement location and, most certainly, they cannot return to where they were persecuted. Concerns were also raised with the committee of possible refoulement in the situation where Australia sends refugees from excised islands to declared countries such as Papua New Guinea and Nauru in accordance with the government's so-called Pacific solution. When this occurs, again there is no guarantee that asylum seekers would not be refouled, particularly those sent to Nauru—a country which is not a signatory to the refugee convention. As South Australian law lecturer Rebecca LaForgia told the committee:

If the non-refoulement provision is to mean anything, then it must be a substantive right that, if you are a refugee, you will not be returned. A substantive right requires a certain element of publicness, accountability and lawfulness.

This is the core of the issue. It is impossible for Australia to know whether or not these refugees sent by Australia to other nations are being refouled or not. This government will not make inquiries as to, nor will it monitor, the fate of these asylum seekers. Our international obligations are not satisfied by turning people around and sending them on their way. As I said, under this bill Australia will send offshore entry persons—the asylum seekers who land on excised islands—to countries that are declared by the minister. However, there is no requirement in the Migration Act that these countries give an undertaking of non-refoulement. Furthermore, because of the government's well-known dislike of judicial review, the minister's declaration under section 198A is not reviewable in any court.

The committee, of which I was a part, heard various concerns about the lack of open and accountable guidelines in processing claims of asylum seekers in these declared or third countries. Before the committee, DIMIA denied that there is any breach of Australia's international obligations associated with the processing of asylum seeker claims in declared countries. In evidence to the committee, DIMIA said that our international obligations are met through ensuring that any asylum seeker who arrives at one of those places has his or her claims for recognition as a refugee individually assessed. Despite the assurances of DIMIA, the committee still had significant concerns about the entire process of declaration of countries for the processing of refugee claims.

Under the bill, as I said, the minister will have the power in section 198A of the Migration Act to declare a country as one for processing. This power is not reviewable. It requires no undertaking by the country concerned as to the non-refoulement of asylum seekers and it does not require the minister to revoke the declaration if he or she is no longer satisfied that the country meets appropriate human rights standards. In response to these concerns expressed to the committee, the committee in recommendation 3 of its report stated:

... that the use of declared countries for holding and assessing claims for refugee status by those who have entered Australian territory at an excised offshore place should be abandoned.

The committee further recommended in recommendation 4 that if the government does not abandon this practice then the Migration Act should be amended to incorporate requirements as to the meeting of appropriate human rights standards and in recommendation 5 that there be statutory recognition of standards in processing claims.

Further concerns expressed to the committee in relation to the bill focused on the reliance on the ministerial discretion under section 46A. Under this section, the minister has a discretion to lift the prohibition on an offshore entry person applying for a visa while in Australia. However, there is no obligation on the minister to take any action in relation to offshore entry persons, nor even to consider an application. The committee heard evidence that the act does not oblige Australia to take any action but merely allows the government to detain and transfer offshore entry persons. There were also serious concerns expressed to the committee that offshore entry persons could remain on an excised island and be left, in effect, in legal limbo with no recourse to apply for a visa and no right to judicial review. Such persons may be unable to apply for a visa while still in Australia and yet be barred from initiating any legal proceedings. Under section 494AA of the act, certain legal proceedings relating to offshore entry persons are barred. These include proceedings relating to an offshore entry, to the status of an offshore entry person and to the taking of a person to a declared country. Although this provision recognises that the jurisdiction of the High Court under section 75 of the Constitution is not affected, this would be of little practical benefit to an asylum seeker. The committee was of the view that the ministerial discretion to `lift the bar' is not an adequate mechanism. Recommendation 7(i) of the committee was that the government review the operation of section 46A to ensure that there is no possibility that offshore entry persons are left in a `legal limbo'.

The committee also heard submissions that article 31 of the refugee convention is another international obligation which is not complied with in the terms of this bill. Article 31 deals specifically with people coming directly from a country where their freedom is threatened and states that no penalties shall be placed upon them for their illegal presence. The government points to the ministerial discretion to allow a refugee application under section 46A, to which I just referred, in order to show its compliance with article 31. However, the committee was not satisfied with this for the reasons I stated earlier: the ministerial discretion does not require the minister to do anything in relation to people coming directly from persecution and it is not judicially reviewable. There is no guarantee under this legislation that such persons will not be penalised, contrary to article 31. As a consequence, the committee recommended in recommendation 7(ii) that the government review section 46A to ensure that this cannot occur.

Finally, the committee was concerned about the retrospective operation of this bill. The bill proposes retrospective excision of the islands to which I have referred, back to 19 June 2002—that is, the date the regulations were rejected by the Senate. Retrospective legislation will always require a high level of justification for it to be enacted. The committee was of the view that there is no such justification for this bill. Even if such retrospectivity may have once been justified because of concerns that boats were en route to Australia, the lapse of time has made such retrospectivity unnecessary and excessive. Recommendation 10 of the committee's report is that if the bill does proceed its application should not be retrospective.

This bill is a short-sighted attempt at border protection. There are better, more sustainable ways to protect our borders and to ensure a fair opportunity for refugees to seek asylum in this country. I refer to Labor's recently announced policy on asylum seekers and refugees. A Labor government would put an end to the Pacific solution, which was the subject of extensive criticism during the hearings into this bill. Labor's policy will implement a long-term solution to the processing of asylum seeker claims. It will end processing of claims in declared countries, such as Nauru and Manus Island, thereby removing any potential for refoulement of refugees contrary to our international obligations. The committee heard many concerns about this during our inquiry. Under Labor's policy, Christmas Island will be maintained as a processing and detention facility where refugees will be processed in accordance with UNHCR guidelines. Such processing will deter unauthorised arrivals, because there will be no incentive to come to Australia by a leaky boat when the same processing guidelines apply on Christmas Island as in overseas refugee camps.

Unlike Labor's long-term approach to providing a just and fair processing system for refugees while at the same time protecting Australia's borders, this bill fails in every intended respect. It fails to achieve border protection and at the same time exposes Australia to criticism for its failure to adhere to its international obligations. The Senate should not allow this cynical, short-sighted bill to pass unamended. I urge senators to support the opposition's amendments, which will reflect the recommendations in the report of the Senate Legal and Constitutional References Committee.