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Thursday, 28 June 2012
Page: 4822


Senator BIRMINGHAM (South Australia) (13:57): I rise to continue this debate on the Migration Legislation Amendment (The Bali Process) Bill 2012. This is a very complex and serious issue, but it is underscored with one very simple question: how do we stop the human tragedy of lives being lost at sea with minimal impact on the human rights of those we are trying to save? That is the simple question that this parliament should be seeking to answer. That is the question the Australian public, the media and the polity generally are all seeking to have addressed. It is perhaps more than some are saying at present, which is simply that we must do something to stop lives being lost at sea. I agree that we must do something to stop lives being lost at sea. But that 'something' must be an option that has the least impact on the human rights of those people whose lives we are trying to save.

There has been, I think, a realisation—an awakening of sorts—across the Australian community and across the body politic about this issue and the need to genuinely stop human trafficking, the need to genuinely stop people-smuggling, and the need to genuinely stop the boats that come to Australian waters carrying those seeking asylum. That awakening has been that there is a real threat to the lives of these people. It is sad that it has taken the loss of so many lives for that awakening to occur universally across this parliament and across the community. It is a fact that the coalition have long known. We have long known that it is in the best interests of those who seek to make the voyage that they be discouraged from doing so—just as it is in the best interests of Australia in terms of how we maintain integrity and support for Australia's migration program and, in particular, the humanitarian and refugee impact of our migration program for us to control our borders effectively. So I welcome that the fact that everyone now appears to agree that there is a need to stop the people smuggling.

The division between the parties lies on just how to stop the people smuggling. Those questions of how and the policies that stem from trying to answer those questions must be addressed by looking at two factors—firstly, of course, what will actually work, what will make a difference; and, secondly, what will work in a way that does not compromise the other principles that Australia should hold dear. On the first question, about the legislation before us, which provides for the government's so-called Malaysia solution, the answer is unknown. As Senator Brandis said in his contribution today, Mr Andrew Metcalfe, who has been quoted and cited by many in this debate, has acknowledged that the Malaysia option is untested and that it is conjecture as to whether or not it would work. We do know that past policies appear to have had an effect and appear to have slowed—indeed stopped—the arrivals. We do not know whether the Malaysia option could achieve the same outcome.

On the second question, as to whether it would work and whether it could be implemented without compromising other core principles that Australia should hold dear, the answer is clear. The option of the Malaysian approach proposed by the government and made available by Mr Oakeshott's bill would compromise other principles that Australia holds dear. It would compromise the core principle that Australia has held dear for many decades—ever since we signed and ratified in 1951 the United Nations convention in relation to refugees. In 1951, under the Menzies government, Australia took that step and decided that it was appropriate that we guaranteed those who sought refuge in this country a certain standard of protection. This bill, if passed, would strip those protections—protections that have existed since 1951—from those who may arrive on our shores and be sent to Malaysia. I am unwilling—and I am pleased that the coalition is unwilling—to strip those sorts of human rights protections from our migration laws.

Let's look in particular at what it would seek to strip. It would strip from our Migration Act section 198A. Under section 198A, if the minister for immigration is to send people to an offshore country for processing, he is required to acknowledge that that country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection;

These are core protections that the Howard government enshrined in the Migration Act to ensure that people who were subject to offshore processing were guaranteed appropriate human rights protections. The Labor government, through this bill, will take those protections out. They will take those protections out because they cite the High Court case that invalidated their plan to send people to Malaysia. Yes, it did invalidate their plan—and it invalidated it in part because of section 198A.

There is a question as to whether or not Nauru could still operate as an option under this. The coalition believe it could; others have disputed that. But the coalition have accepted and agreed that, if need be, those protections could be taken out of the Migration Act. However, we are unwilling to see those protections removed without replacement protections put in place. Those replacement protections, we suggest, should be, as a core standard and a core minimum, that a country be a party to the UN refugee convention. It is a simple test—a test that at least would pass the High Court with a clear yes or no. Is the country a party to the UN refugee convention or is it not?

Does that, in and of itself, guarantee the human rights of those who are sent to that country? No, of course it does not. I recognise and acknowledge that just being a party to a UN convention does not guarantee rights. There would need to be a second test applied at the policy level, by whoever the government of the day is, and that would be as to whether those rights actually will be and can be guaranteed in that country. Malaysia would fail on both of those tests. It would fail the test of whether it is a signatory to the UN refugee convention because, of course, it is not. And it would fail on the test of whether human rights protections can be guaranteed for those we send to Malaysia, because quite clearly, transparently, those human rights protections cannot be guaranteed in Malaysia. We knew they could be guaranteed in Nauru, even though Nauru was not at that stage a signatory to the UN refugee convention, because Australia operated the facilities on Nauru. When we detained people on Nauru to assess their application for refugee status, it was Australia that ensured adequate education facilities for children who were there, adequate health facilities for those who were ill, adequate protections across the board for every person who went to Nauru. None of those protections, none of those education facilities, none of those health facilities, none of those safeguards could be guaranteed for the people that the Labor Party proposed to send to Malaysia—not one of them.

If this bill were to be passed, if the Labor Party were to get its way, how would we look—as an apparently compassionate, humanitarian country that signed the UN refugee convention in 1951—when the first person that we sent to Malaysia found themselves ill and was denied health care or was unable to access health care that could have been life saving? How would we look when that person—a minor, potentially—found themselves in Malaysia needing education and was unable to access education services? How would we judge ourselves if indeed somebody were to find themselves in Malaysia unable to access basic justice services if they are attacked or, indeed, subjected to torture or other forms of inhumane treatment?

This proposal fails every decent test of human rights. Don't just take my word for it. This morning my colleague from the other place Judi Moylan, the member for Pearce, spoke at a press conference. Ms Moylan's record is impeccable on these issues. There is barely a parliamentarian in this place who has spoken with as much passion and concern for those seeking asylum as Judi Moylan has. Her words this morning were:

The Oakeshott bill is actually the worst of all options, because the government actually removed section 198A from that bill, which was some of the protections we would normally afford to asylum seekers.

Ms Moylan, the member for Pearce, with her impeccable record of concern for refugees and asylum seekers, described this bill—of all those that were canvassed in the long debate in the House of Representatives yesterday—as the worst of all options. There is no way that this Senate should allow the worst of all options to be passed. There is no way that this Senate should allow to be carried into law something that would strip from those who are desperate and those who are seeking a new life basic protections of their human rights.

There have been numerous things said by those opposite during this debate, both here today and in the other place yesterday. Ms Gillard said, 'We must get something done.' She embraced, she claimed, the Oakeshott bill because it would ensure that she could not claim a win and the opposition could not claim a win but that we could leave this place and get something done. It is not enough to get something done; you must get the right thing done. And the right thing would be to pass legislation through this parliament that we could all be proud of because it guaranteed continued protection of the human rights of those seeking asylum whilst providing disincentives for people to make the dangerous boat journey to Australia and risk their lives. Such legislation would bring back the policies of the Howard government that did appear to work, that did stem the flow of boats and that did see, by 2007, that flow basically reduced to zero.

It is the Labor government of Mr Rudd and Ms Gillard that unwound those policies and that created this problem. I know that the steps they took were in some ways done with good intentions and that many had heartfelt concern that the policies that had been enacted were cruel. We now know, though, that policies that encourage people to come to this country and encourage people to potentially put their lives on the line have even more devastating consequences.

We should not take the Prime Minister's advice to 'just get something done'. 'Something' will not suffice. It must be the right thing. I take to task words that I heard Senator Bilyk and others use today, that this is the only bill that can be passed. That is not true. This may be the only bill that is on the Notice Paper but it is far from the only bill that can be passed. We saw just before I spoke a change to procedures of the Senate for today that added another piece of legislation for passage through this place today.

I am confident that if the government were willing to drop its inflexible position and talk to the opposition about passing the legislation that Mr Abbott committed yesterday to be willing to pass, it could sail through this place very quickly and it could sail through the other place very quickly. I am confident that, having willingly given whatever time is necessary in this place to debate this topic today, the coalition would equally willingly give whatever time was necessary to debate a proposal that actually had a chance of getting through this parliament and making a difference. So instead of stubbornly coming into this place and saying to us, 'This is the only bill that can pass today; therefore you must support it,' the government should grow up. The government should recognise that this bill is not going to pass but there are options that could and that those options should be embraced.

Lastly, I take to task what Senator Feeney said before me. He acknowledged the Greens for being consistent in their position but then somehow suggested that the coalition had not been. Nothing could be further from the truth. The coalition established temporary protection visas and the coalition established offshore processing at Nauru. The coalition opposed the Labor government's repealing of temporary protection visas and the coalition opposed the Labor government's unwinding of offshore processing at Nauru. And the coalition today supports the reinstatement of temporary protection visas and the reinstatement of offshore processing at Nauru. Our position could not be any more consistent and could not be any clearer. This stands in stark contrast to those opposite, who have flip-flopped throughout this. As I acknowledged before, this is perhaps based, I am sure based in many cases, on the best of intentions but they have now come to the worst of all possible solutions.

I finish by reminding the Senate of the question I posed at the start: how do we stop the human tragedy of lives lost at sea with the minimal impact on the human rights of those whose lives we are trying to save? The answers to that question are clear. They have been delivered before in the policies of the Howard government. They should be delivered again, and the answer is most certainly not sending these people to Malaysia.