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Wednesday, 29 August 2001
Page: 26971

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Senator FAULKNER (Leader of the Opposition in the Senate) (9:51 PM) —The opposition will not be supporting this bill. This is a hasty, ill-conceived and ill-considered piece of legislation. Over the past 10 years, there have been 13,000 unauthorised entries into this country. Eleven thousand of those have occurred since 1996. Labor has consistently supported measures put up by the Howard government to stem this flow of illegal entries.

In relation to the current crisis involving the MV Tampa» , the opposition has offered support for the Howard government's action since the ship picked up 438 people in Indonesian waters on Sunday this week. We have supported refusing MV «Tampa» entry into Australian waters. We have supported the government's efforts to return these people to Indonesia—although we question how vigorous the government has been in these efforts, given that the Prime Minister has not even seen fit to speak to the Indonesian President about these matters. We have supported the government's action to board the ship when it moved into Australian waters off Christmas Island. Madam Acting Deputy President, let me make it clear that we are prepared to consider whatever legal action the government may wish to propose to deal specifically with the MV «Tampa» situation. But we are not prepared to support a sweeping change to the current legal framework for dealing with situations like that of the MV «Tampa» . This legislation is far too broad.

In particular, we are not prepared to support such significant legislation in the circumstances in which the government has placed the opposition. I will deal briefly, during my contribution to the second reading debate, with those circumstances. The opposition was given 40 minutes notice of the introduction of the Border Protection Bill 2001. No explanatory memorandum was made available. Members of the House of Representatives did not even have a copy of the bill. Even a cabinet minister—the Minister for Agriculture, Fisheries and Forestry, Mr Truss—made it quite obvious during debate in the House of Representatives that he had not seen the bill, and he certainly did not understand the implications of it. When the opposition dealt with the question in this chamber of ensuring that a procedural device could be put in place to allow this debate to occur tonight, I, as Leader of the Opposition in the Senate, had not seen a copy of the bill. No member of any of the opposition parties in the Senate had seen a copy of the bill.

Had the government seriously wanted the support of the whole parliament on the Border Protection Bill 2001, had the government taken seriously the role of the Australian parliament and had the Prime Minister been sincere in pronouncing that it is proper that the people's representatives in this parliament take such weighty decisions as these, I think we would be entitled to expect even a cursory amount of consultation. Surely, we could expect the courtesy of proper consultation. We were not extended that courtesy.

We can only conclude, given the total lack of engagement with the opposition on this legislation, that we are dealing with another example—another desperate gambit from an unpopular Prime Minister about to face the electorate—of wedge politics. Make no mistake about what the Prime Minister, Mr Howard, is on about here. He is attempting to drive a wedge between the two major political parties on the most significant political issue of the moment. But, as Mr Beazley said, this is a wedge too far. Even in the brief period that we have had to consider the bill that is now being debated in the Senate, it is clear that it raises very significant legal issues, issues which require and deserve thorough and thoughtful consideration by this parliament—the sort of consideration that has traditionally been given to significant legislation by this chamber.

Under this bill very broad powers would be conferred on an unspecified group of people who would not be accountable even under criminal law. For example, it fails to specify a particular class of vessel to which it would apply. It seems to me that it could conceivably apply to an Australian vessel with an Australian crew and Australian passengers. It could apply, for example, to an Australian fishing boat or cruise ship which might have rescued three or four boat people. It could apply to any vessel in any circumstance. You have to ask, `Is that what the government really wants with this legislation?'

Let me elaborate on some of the serious concerns we have. These concerns have been identified in only the very short amount of time we have had to look at this bill. These concerns have been identified in just a matter of hours. Let me take you to clause 3, `Definitions'. `Officer' is extremely broadly defined. These people are empowered to make decisions with grave consequences. They have absolute discretion and absolute immunity. Does the definition of `officer' include lowest ranking officers of Customs or even trainees or recent graduates of the AFP or state police forces? These are serious questions that need to be answered.


Senator Ian Macdonald —Move an amendment then.


Senator FAULKNER —Take clause 4 of the bill. Subclause (1) empowers an officer `in his or her absolute discretion' to direct the master of a ship that is within territorial waters and any person on the ship `outside the territorial sea'. What matters does an officer have to take into account in exercising this discretion? Would an officer have to take into account the seaworthiness of the vessel in making such a direction? Would an officer have to take into account the health and safety of the people on board the vessel in making such a direction? Would an officer have to take into account the circumstances which had led to the arrival of the vessel in Australian waters in making such a direction? These again are crucial issues. These warrant the sort of scrutiny that has traditionally been applied in this chamber of the Australian parliament.

Do the words `absolute discretion'—I quote from the bill—mean that the officer's decision is not subject to direction from superiors, the minister or the Prime Minister? Again, that is a crucial question. Senator Macdonald, during this second reading debate, had the temerity to say, `Move an amendment.' This should have been sorted out beforehand. This is the sort of matter that surely a government would apply its mind to before we got to a second reading debate, having seen a bill dealing with such an important matter come in with such speed and with such a lack of consultation.

Take subclause 4(2) of the bill, which makes it impossible to challenge in any court in Australia. Does the bill attempt to exclude the jurisdiction of the High Court to review actions? Does it? Perhaps Senator Macdonald might care to offer an opinion on that one.


Senator Conroy —Oh, yes, he's so smart.


Senator FAULKNER —Exactly. Subclause 4(4) of the bill provides that:

even if:

(a) there was no master on board the ship to receive the direction; or

(b) the master did not receive or understand the direction.

Does this mean that the order does not have to be communicated in a language understood by people on the vessel? Again, these are crucial issues. These are important questions.

Take clauses 5 and 6 of the bill. I ask this question: what does `reasonable force' mean for the purposes of this bill? Who will decide what is reasonable, given that it can never be challenged in court? These are crucial issues, as I have said, and they are ones any parliament and any house of parliament worth its salt would address itself to. What are `reasonable means'? What are reasonable means for the purposes of the bill? Would it be reasonable for an officer to lock up the captain of a ship if orders were not complied with? Would it be reasonable for an officer to sedate the captain if orders were not complied with? Would it be reasonable for an officer to shoot the captain of the ship if the orders were not complied with? What does it mean?




Senator FAULKNER —What does it mean to detain a ship?


The ACTING DEPUTY PRESIDENT (Senator Calvert)—Order! I wish I could hear what you are saying. Would you tell your colleagues to keep quiet?


Senator FAULKNER —How can a ship be taken beyond the territorial sea of Australia? Does this mean that a person without experience in steering or driving a particular ship can drive it out of territorial seas? Does clause 6 of the bill mean that a person who is evacuated for medical reasons can be forcibly returned to the ship?


Senator Conroy —You get up and tell us. You're the minister for justice.



Senator FAULKNER —Who makes the decision as to when and how this person—


The ACTING DEPUTY PRESI-DENT —Order! Senator Faulkner, I am sorry to interrupt your speech. Senator Conroy and Senator Abetz, I wish you would stop sledging across the chamber, because I am finding it very hard to hear Senator Faulkner, even though he has to shout.


Senator FAULKNER —I was speaking about clause 6 of the bill and whether it would mean that a person who is evacuated for medical reasons can be forcibly returned to the ship. That is the question I was asking.

Before I was rudely interrupted by Senator Abetz, I was going to go on to ask who would make the decision about when and how such a person would be returned to the ship. Clause 10 of the bill—and it is the real killer clause—states that this bill has effect `in spite of any other law'. Does this mean that no Australian criminal laws apply? Does this mean that an officer acting under this legislation cannot be held responsible for, let us say, manslaughter, if a boat sinks after being removed from international waters? What does it mean? The government does not know the answer to that question or to any of the other questions I have been posing. I would like to know and, since we have a legal expert in Senator Macdonald here with us, perhaps he could tell us. Does this mean that an officer acting under this legislation could not be held responsible for assault?

I acknowledge and admit that we have only had an opportunity for a cursory examination of this bill. There has not been time for a more exhaustive analysis of some of the weaknesses that no doubt are contained within this legislation. I want to repeat the words of the Leader of the Opposition, who said this a short while ago in the House of Representatives during the debate on the bill in that chamber:

What the opposition expected when the government handed across a copy of this bill was legislation that dealt specifically with the situation in relation to MV «Tampa» .

That was the expectation of the opposition. I believe it was probably the expectation of a majority of senators in this chamber. But we would also have expected that there would be an opportunity for a wider consideration and examination of other issues, and surely that is appropriate. But none of those opportunities has been provided. This is not that sort of bill. Those expectations were not met. This is a very different sort of bill. It is a bill that goes to the entirety of the legal regime which applies at the moment.

The opposition has urged the government to bring back a piece of legislation for the consideration of the parliament, if it is necessary—and I certainly believe it is possible that it is. I think some thorough briefings might be offered to those with an interest in these matters, but we believe that it would be appropriate for the government to bring back some legislation to deal with the specific situation and circumstances that we are now facing. The specific situation is that of the MV «Tampa . We are certainly prepared to consider such a bill, but this is not such a bill, and it is for those and the other reasons I have outlined that the opposition will not be supporting the legislation before the chamber.