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Wednesday, 12 October 2011
Page: 7174


Senator CASH (Western Australia) (13:33): This morning, with the passing of the carbon tax legislation through the other place, Australians witnessed their complete betrayal by the current Labor government. After all, this was the Labor government that went to the 2010 election under the platform, 'There will be no carbon tax under a government I lead,' a complete, total, utter and blatant lie. The topic I would like to raise today reflects another blatant lie perpetrated by the current Labor government on the Australian people—that is, the so-called Malaysian arrangement. After all, wasn't it the Prime Minister who said to the Australian people, 'I would rule out sending refugees anywhere that is not a signatory to the refugee convention'? Despite saying that to the people of Australia, what has the Prime Minister delivered to them? Ms Gillard has delivered the so-called Malaysian arrangement, the exact opposite of what she said to the people of Australia.

As each day passes, resistance and hostility to the Prime Minister's so-called Malaysian solution grows stronger. The problem for the Labor Party is that this opposition is not just from members on this side of the chamber; it is actually from all corners of the Australian Labor Party. Look at what just occurred at the Victorian state ALP conference. Delegates voted unani­mously to urge the Labor caucus to reject the so-called Malaysian solution. But it does not stop with the Victorian branch of the ALP. What did Michele O'Neil, the National Secretary of the Textile, Clothing and Footwear Union of Australia have to say about the Gillard government's Malaysian solution? She said this: 'This is a shameful moment for us as a party.' Of course, that is in addition to the pleas of Labor statesman Senator John Faulkner, in addition to the pleas from left faction convener Senator Doug Cameron and in addition to the pleas from left faction member Senator Gavin Marshall, who we know have all stood up in caucus and spoken out against the Malaysian solution.

But it does not stop there. The federal government's proposed Malaysian solution is 'wrong on all counts' according to the Secretary General of Amnesty International. Salil Shetty, during a visit to Australia, called on the Australian government to raise its game on asylum seeker policy. He is reported as saying that the Malaysian solution is out of step with international refugee law and also out of touch with Australian public opinion. But it does not stop there. The opposition to the Malaysian arrangement continues to grow. We only have to go to the submissions and witnesses to the Senate Legal and Constitutional Affairs References Committee inquiry into the Malaysian arrangement. The majority of these submissions expressed their opposition in complete terms to the government's proposal. It would appear that the only person who is committed to perpetrating another lie on the Australian people is the current Prime Minister of Australia, Ms Gillard.

Senator Cameron: Madam Acting Deputy President, a point of order: that remark is unparliamentary and should be withdrawn.

The ACTING DEPUTY PRESIDENT ( Senator Adams ): Senator Cash, would you withdraw your remark?

Senator CASH: If Senator Cameron is so offended by my reference to Ms Gillard as the current Australian Prime Minister, I will withdraw the comment.

Senator Cameron: Madam Acting Deputy President, on the point of order: it is not about me being offended; it is about the use of unparliamentary language in the Senate. That is the point.

The ACTING DEPUTY PRESIDENT: Senator Cash, would you withdraw your remark?

Senator CASH: I withdraw that. But it does not stop there. The so-called contractual obligations of the parties to the Malaysian solution are couched in equivocal and vague terms. In fact, far from setting out the contractual obligation of the parties, it is specifically stated at clause 16 of the arrangement—this is in black and white; this is what has been negotiated between the Australian government and the Malaysian government—that the agreement only reflects the political commitments of the parties. When it comes to the Australian Labor Party, I would have to say that is a pretty weak statement. Is that commitment reflective of, 'There will be no carbon tax under a government I lead,' or maybe the political commitment negotiated under this agreement with the Malaysian government is equivalent to the Prime Minister's statement to the Australian people, 'I would rule out sending refugees to any country that is not a signatory to the UNHCR convention'?

What is worse is that clause 16 of the agreement specifically states—again in black and white—that the arrangement is not legally binding between the parties. As a former lawyer, if my client came to me and said, 'I would like to sue on this document,' and then showed me a clause in the document that said in detail that the arrangement was not legally binding between the parties, it would be a very short conversation. But the criticism of this deal does not stop there. The ombudsman Mr Rohan Anderson has described the deal that has been negotiated between the Australian government and the Malaysian government as 'almost aspirational' because it talks of commitments and not binding obligations.

I say to the Left of the Labor Party that they should be very ashamed of themselves, because when this is brought before the parliament and they cast their vote in favour of the Malaysian arrangement in its current form they will be failing to uphold the human rights of those people that their government proposes to send to Malaysia under this deal. Why do I say that? The Australian Labor Party would tell you that, pursuant to this arrangement, the Malaysian government has made certain concessions to the people that we propose to send to Malaysia, including facilitating their orderly process to Malaysia and an acknow¬≠ledgement that they should have standards and treatment consistent with those set out in the operational guidelines—except the bad news for these poor transferees, and for the people of Australia who continue to be duped by the Australian Labor Party on this arrangement, is that the guidelines are not enforceable. Why are they not enforceable? Because it says in black and white, going back to clause 16 of the agreement—the agreement that has been negotiated between the Australian government and the Malaysian government—that the agreement is not legally binding on the parties. If you do not believe me, go and have a look at the agreement. It is very short. It would take you all of about two minutes to read, but clause 16 is there in black and white.

Amnesty International has produced a report entitled A blow to humanity: torture by judicial caning in Malaysia. The report is a graphic detail of the torture and other mistreatment that refugees and asylum seekers are subjected to in Malaysia. Despite what the Labor Party would tell the people of Australia, Malaysian law itself actually provides for caning as the punishment for at least 66 known offences in Malaysia. Only approximately 20 of them are offences that are committed under the immigration act. The other 46 or so are offences under other legislation. But what is worse—and remember the Australian Labor Party has made it very clear—is that under the Malaysian arrangement we will be sending children to Malaysia. Let us have a look at what the Malaysian law says about children. It says that in 2001 the Malaysian government established the Court for Children under the Child Act 2001. This court has jurisdiction to try all offences committed by child offenders—and remember we will be sending children to Malaysia under this deal—and the Court for Children has the power to order that a child may be whipped. Yes, a child may be whipped, but the good news for the child and the good news for the Left of the Labor Party is that they provide a caveat to the whipping of the child: not more than 10 strokes with a light cane upon proof of actually committing certain offences.

It is recognised internationally that caning is a form of cruel, inhumane and degrading punishment, and it is actually prohibited by international law. However, despite the various reports that have been written by reputable bodies about caning in Malaysia, the Australian Labor Party have yet again confirmed their commitment to send to Malaysia up to 800 people who come here seeking our protection. This is despite what is set out in the Amnesty International report, which quotes Mohd Ghazali, a 29-year-old Malaysian, who received three strokes of the cane:

In all the 29 years of my life I have never experienced pain like this … My body shivered. Everything went black because of the pain. It hurt so much my butt started shaking by itself.

Hussain, a 26-year-old Malaysian who received one stroke, said:

The pain goes up to your head. It felt like an electric shock. I don't have the words for it … I only got one and I couldn't take it. I was thinking, how do people who get more take it.

In relation to the arrest of refugees, people that we will be sending to Malaysia, a 26-year-old Burmese refugee who was arrested—lo and behold, en route to a UNHCR mobile registration unit—said:

They came in a car with guns, [treated us] like criminals, they didn't say why we were being arrested.

Another refugee, Kop Thang, told Amnesty International that during his trial:

I asked if I could see a UNHCR representative, that's why they gave me two strokes. Those who didn't say anything in court were only given one. If any of us asked anything, then their whole group got two strokes too.

That is an asylum seeker who went to Malaysia and, under Malaysian law, was able to be tried. He exercised what he thought was his right—that is, to see a UNHCR representative. The result of asking to see a UNHCR representative was that, instead of getting one stroke of the rattan, he was given two.

Unlike immigration detention centres in Australia, immigration detention centres in Malaysia are closed to the public. As a result, thousands of foreign detainees are tried each year in closed proceedings, violating the right of these detainees to be treated 'in full equality to a fair and public hearing by an independent and impartial tribunal'. As far as Amnesty International is aware, in Malaysia there is no detailed written procedure for judicial punishment by caning. What this means is that, when the punishment is actually being inflicted, it is often open to abuse.

At the same time, despite any written procedure, Amnesty International have viewed enough canings to be able to say the following. When a victim loses consciousness, officials halt the caning. 'I fainted. They waited until I came to,' said Alex, a 33-year-old Indonesian migrant. 'The pain was so bad it went to my head. I fainted again after the second one.' According to Dr Nisha, a physician who attended victims at a caning session, this fainting results from neurogenic shock, or a loss of nerve signals to muscle caused by trauma. The caning, unfortunately, is not terminated after a victim loses consciousness, however. It is merely interrupted.

As set out in the report of the inquiry into the Malaysian arrangement by the Senate Legal and Constitutional Affairs References Committee:

… if the transfer of asylum seekers to Malaysia proceeds then the Australian Government will have failed dismally in fulfilling any so-called 'moral obligation'.

The Left of the Labor Party should be ashamed of themselves. The policy that they sanction, the policy that they are going to be supporting, is not a policy that is based on offshore processing; it is a policy that is based on offshore dumping. The left wing of the Labor Party like to go out into the public, stand up in their forums and say: 'We are opposed to this. This is an absolute disgrace. This breaches the fundamental human rights that these people have.' Yet when they are told to fall in line and support this policy, that is exactly what they do. They have the opportunity to say no. They have the opportunity to stand up for their principles. Let us wait and see if any of them do.