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Monday, 19 November 2012
Page: 8921


Senator MILNE (TasmaniaLeader of the Australian Greens) (11:03): I rise today to comment on the current bill before the Senate and, after Senator Macdonald's rather ugly and mean-spirited contribution, we would be hard-pressed to know what we are actually doing here. But we are debating the Appropriation (Implementation of the Report of the Expert Panel on Asylum Seekers) Bill (No. 1) 2012-13 and the appropriation of $1.6 billion. That is where we are having a discussion today, about whether or not it is appropriate to spend that amount of money considering that a substantial amount of this money, $557 million, is going to the operating costs for Manus and Nauru for the rest of this financial year and you have got at least $267 million going for the capital costs. So $557 million of this is going to the construction of those detention centres and their operating costs, whereas the expectation was that the government was going to seriously fund the UNHCR regional capacity to assess asylum seekers regionally, to look at them and assess their status as refugees and move them through quickly and, at the same time, to increase our humanitarian intake.

I am pleased to say that part of the allocation of this money, $93 million, is going to the increase in the humanitarian intake. There is also an extra $8 million for family reunion places. But there is only $10 million for the UNHCR regional capacity. So we are going with $557 million for Nauru and Manus Island and $10 million to boost UNHCR regional capacity in Indonesia. I would suggest that it should be a much better balanced outcome than that, because $10 million is going to go in no small way to actually frustrating asylum seekers even more. They are going to see Australia more willing to pour those millions into keeping people in offshore detention centres indefinitely, contrary to our international obligations.

We sat here in this Senate when these bills went through in June and the Greens said very clearly that it would not stop the boats coming to Australia because deterrence does not work. People are going to continue to try to seek asylum in our country because they are running from appalling circumstances in Afghanistan and in other places around the world. We said that deterrence would not work and that this would not stop the boats. What would work was to increase our humanitarian intake and boost the UNHCR capacity.

Senator Lundy, who is in here today for the government, argued strenuously at the time that what Australia was doing was not contrary to our international obligations even though it is as clear as the nose on your face that in fact it is. The whole point of this legislation in the first place was to get around the High Court, which had said quite clearly that because there was no legally binding obligation to guarantee the rights of asylum seekers offshore—in Malaysia in particular—the legislation was not legal. This legislation that went through. All this hastily gotten together so-called compromise has done is breach Australia's standing internationally. People are looking at us now and saying, 'What is Australia doing, sending people offshore to indefinite detention?' That is what it is: indefinite detention.

I heard Senator Macdonald going on about people in this parliament not caring about others in Australia with mental health issues. Well, he could not be more wrong. I think it is a disgraceful thing to say, because I would say that people right across this parliament of all political persuasions are very concerned to protect mental health. There is no party more concerned about that than the Greens. We have argued strongly for a big injection of funds into mental health. My colleague Senator Penny Wright is currently conducting a survey in rural and regional Australia on mental health provision and how best to achieve that around rural and regional Australia.

We recognise that people need to be assisted in this way. That also extends to people in our care in detention. The government has put these people into detention. Human rights advocates and many very highly regarded health professionals are saying that one of the reasons why there is such a rapid deterioration in the mental health of people who are seeking asylum and sent offshore indefinitely is the fact that there is no hope and they see no end to it. They are stuck on Nauru or Manus Island and they have no end in sight. That is why several hundred of them went on a hunger strike recently and, in fact, at least two of them are seriously ill at this time. That is on the government's record. It is something they will have to take responsibility for.

Why are people left in indefinite detention when it is contrary to what Australia should be offering under human rights law? Because the government argues we want a no-advantage test. Yet where is this no-advantage test? It was an ill-considered concept. There was no meat on the bones when it was raced through this parliament. The Greens said at the time: what does the no-advantage test mean? You cannot apply an average across the region. We still do not know. So, on the basis of no advantage, people are shoved into indefinite detention and that is driving deterioration in their mental health.

I have a press release from the Australian Human Rights Commission. This goes to many of the rather ignorant remarks that we heard from Senator Macdonald a short while ago. The Australian Human Rights Commission's press release on Thursday, 1 November 2012 was entitled 'Migration Act amendments undermine Australia’s international law obligations'. I trust Senator Lundy is listening, because she told the Senate that what Australia was doing did not undermine Australia's international law obligations. You can only assume now that she misled the Senate at that time or believed it to be true at that time and now can no longer believe it to be true. We will see when the minister responds. The press release says:

The proposed amendments to the Migration Act requiring that asylum seekers who arrive anywhere in Australia by boat be taken to a regional processing country undermine Australia’s obligations under the Refugees Convention and other human rights treaties.

That is a fairly emphatic statement, Senator Lundy. It continues:

The Australian Human Rights Commission President, Professor Gillian Triggs says this legislation discriminates against some of the most vulnerable people in our region, based on the way in which they arrive in Australia.

“Australia is obliged to implement the Refugees Convention in good faith. The proposed amendments to the Migration Act undermine the Refugees Convention because they penalise asylum seekers who arrive in Australia by boat,” said President Triggs.

This is a point I made when we debated the legislation at the time. I said that the convention says you cannot discriminate against people on the basis of the manner in which they arrive. That is exactly what Australia is doing. The press release continues:

Professor Triggs said the Commission is concerned that transferring asylum seekers to a third country will lead to breaches of their human rights, including the right to be free from arbitrary detention and the rights of children to have their best interests considered in all actions concerning them, to be detained only as a measure of last resort and for the shortest appropriate period of time and for asylum seeker children to receive appropriate protection and assistance.

“States cannot avoid their international law obligations by transferring asylum seekers to a third country,” said President Triggs.

“Effectively all boat arrivals are already potentially liable to third country processing. However, preventing all maritime arrivals from having their protection claims assessed in Australia sends a message that Australia is not prepared to meet its human rights obligations to asylum seekers,” said President Triggs.

The Commission also holds serious concerns about the more than 5000 people potentially liable for transfer to a third country currently in detention in Australia.

“These people, including children, are currently indefinitely detained and face what is in effect a suspension of the processing of their claims for protection. The Australian Government should release these people from detention and process their claims for asylum as soon as possible,” said Professor Triggs.

There you have the Australian Human Rights Commission coming out so clearly saying we are behaving absolutely contrary to our obligations under the refugee convention and other human rights treaties. When the parliament raced this through only the Greens stood up and said it was contrary to all of our obligations and will not stop the boats. History has shown that that is absolutely what has occurred—it has not stopped the boats.

What interests me is that the whole crisis was brought on in June because a boat containing asylum seekers sank and a lot of people drowned. I said at the time that Australia knew on the Tuesday afternoon that that boat was in trouble but we did not go to their assistance until the Thursday, by which time 90 people had drowned. The question I have asked all along is: why is it that when we knew these people were in trouble we did not send the appropriate rescue at the time given our obligations under the International Convention for the Safety of Life at Sea, which is a fundamental maritime obligation?

I still pose that question because, since then, the Australian community has been oblivious to this—and they are oblivious to it because it has not been reported. Why was it reported then and not reported now? There is a story from a lone survivor who has been returned to Indonesia. His story is that he:

… clung to a rubber tube and drifted helplessly for three days before rescue as the sole survivor of a boat that sank en route to Christmas Island.

Habib Ullah, 22, of Karachi, said he was among 34 Hazara from Afghanistan and Pakistan aboard a rickety boat that left Indonesia on October 26.

Speaking from … detention centre in Jakarta, an emotional Mr Ullah said the engine failed and the boat started taking on water in treacherous conditions after about one-third of the voyage.

He described the horror of watching friends, many of whom could not swim, drown around him as he clung to the tube he took aboard with him.

"One by one they were drowning before my eyes," he said. "I could not do anything but watch. I witnessed about 18 to 20 people drown."

He said he was in despair as his hopes of rescue faded fast.

"I saw very big oil tankers but they were too far from me," he said. "I was at the mercy of the ocean and very scared.

"My face was burnt, my legs were sore and my whole body was in a critical condition."

He was semiconscious when fishermen picked him up and nursed him for five days before handing him to Indonesian officials.

Mr Ullah told his story to send a message to Prime Minister Julia Gillard and Opposition Leader Tony Abbott.

"Please accept asylum seekers because it is too dangerous to go back to our homeland," he said. "We Hazaras are very grateful to the Australian Government and people for their generosity that is willing to accept us into their society."

But he did not see offshore processing as the solution.

Mr Ullah said Hazaras in Pakistan and Afghanistan gambled with their lives just walking into the markets. "I want to complete my education in a safe environment where there is no prejudice or religious violence," he said.

Refugee advocate Victoria Martin-Iverson said it was the second boat lost in the last four months with neither reported in the media.

Shahin Tanin, of Brisbane, has grave fears for his cousin Mohammed Jawad, 40, left Jakarta 13 August.

Mr Tanin said none of the 26 Hazara passengers, including women and children, has been heard from. "I fear he has drowned or why wouldn't one of them contact us?" he said.

He said Mr Jawad was forced to flee Afghanistan after the Taliban threatened to kill him when he refused to join them.

Ms Martin-Iverson said she wondered how many lives were lost at sea without the public knowing.

In June, it was reported a boat with 67 asylum seekers disappeared en route to Christmas Island.

The issue here is: if the concern is about people losing their lives at sea, why is it that, since the legislation has been passed and these boats have now apparently been lost at sea, it has not even been reported in the media? And, if concern is about people being lost at sea, why is it that this policy has not been declared an abject failure because more people have risked their lives at sea since it was brought than before? Doesn't that say that the legislation that went through here did nothing to help people decide whether or not to get on one of those boats?

What will help to stop people getting on one of those boats is to give them hope, in those processing centres in Indonesia, that they can find a safe passage to Australia or to another country and not to be so despairing that this is their only alternative. Contrary to what Senator Macdonald said about queue jumping, there is no such thing as a refugee queue. You have to be realistic here. There are people in refugee camps all over the world. The Australian Greens are keen to see as many of those people as possible, once their countries get out of conflict situations, enabled to go back home or, if they are refugees from political persecution, helped to be placed elsewhere in the world. Of course we want to see that happen. What has been so mean-spirited about this government and, indeed, the Howard government is that, as they accepted people arriving by boat, they reduced the number of people coming from those camps. That is a decision of the Howard government and the Gillard government; that is not something that the Greens have endorsed.

In one day, 9 November this year, 11,000 Syrians crossed the border and were refugees—11,000 in one day. Would Senator Macdonald say that they were queue jumping because they sought to leave Syria in the most appalling circumstances? It is a nonsense idea. When people are in trouble, when they are being persecuted, when they are being set upon, of course they are going to leave. They are going to try to get somewhere safe and, as that young person said, somewhere to get an education and live a safe life. That is what Australia offers. No amount of leaving people on Nauru indefinitely is going to deter people seeking asylum in Australia. That is why deterrence has never worked. That is why this policy is going to get more and more expensive—and not only because of the operating expenses for Nauru and Manus. When I say 'expensive' I mean in terms of human lives, the deterioration in people's physical and mental health and the long-term exposure to the compensation claims that Australia will have to meet.

We need to reassess this policy and say it has not worked. Let's get realistic here and recognise that there are large numbers of people around the world seeking asylum. Let's do what we undertook to do when we signed up to the refugee convention. Let's respect that convention. Let's actually give people their access to natural justice. It is a disgrace in Australia that the legislation takes natural justice away from people. It takes away their ability to access the courts. One of the most disgraceful things that have been done—and this is a stain on the Gillard government, just as it was a stain on governments previously—is that the government brought legislation into this Senate which was passed by the majority of the parliament, with the exception of the Greens, to exempt the minister from his duty of care to children.

The High Court had said that, as the guardian of unaccompanied children, the minister must act in their best interests and therefore that cannot be to send them into offshore detention. So the government moved in this place to exempt the minister from his responsibility as a guardian of unaccompanied children and, as a result, those unaccompanied children do not have to be dealt with in the best interests. Senator Macdonald says the Greens do not know what Australian values are. I think I know what Australian values are when it comes to the protection of children. I do not think I would find a single person walking down the street who thinks it is appropriate that the minister legislates to exempt himself from guardianship and doing the right thing by children in order to send them indefinitely somewhere else, if he chooses to do so. That is not Australian. That is not something a parliament should be proud to have done, nor should we be proud to have taken away people's natural justice.

I want to see the humanitarian intake increased. I want to see more family reunion places. I want to see much more than $10 million going to boosting the UNHCR regional capacity, so that people can be assessed and so that they do not feel like they have no other option but to come on boats.

So let us not have any more pretence here: this has not stopped people risking their lives at sea. More people than ever have done so. And my question to the minister is: why hasn't the government made any statements about the lost boats? If there is such concern in the government about saving lives at sea then get rid of this policy and actually save lives at sea by massively increasing that humanitarian intake and by supporting the UNHCR in Indonesia to assess people and give them hope. Hope is the answer here, not despair, not punitive measures, not punishment and not out of sight, out of mind, indefinitely.