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Thursday, 22 September 2011
Page: 11175

Mr MORRISON (Cook) (10:22): The member for Bennelong recently told me that in tennis you never change a winning game but you always change a losing game. If only the Rudd-Gillard government had listened to this advice when they ignored advice and abolished John Howard's proven border protection regime in 2008.

Today we debate the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 in this place because the government has been shamed into doing so. At no stage did this government seek to have debate on this bill expedited by this parliament; the opposition had to remind this government that it was an urgent matter. A government that was delivering lectures on the national interest had failed to work out that such a pressing matter should be urgently dealt with in this parliament. This is what the coalition did a decade ago when dealing with the question of illegal arrivals, and the then member for Bennelong, John Howard, introduced his Tampa bills. After another day of confusion and division within the government yesterday, the government finally relented and brought on this important debate.

The question now for the government is: how many of its own members will be muzzled—how many of them will sit silent? After a decade of vilifying the coalition, they will now sit silent on that side as with this bill their own government introduces their own worst nightmare. The bill follows more than three years of cascading failure by this government, which now seeks a blank cheque to inflict more failed policy on the Australian people. Since the Rudd-Gillard government abolished the Pacific solution, temporary protection visas and turning boats back, more than 12,000 people have turned up illegally on 241 boats. This has caused a budget blowout of more than $3 billion as well as chaos and riots in our detention centres. At least one critical incident occurs in the detention network every six hours. The Howard government's program cost less than $100 million each year; the Rudd-Gillard government's program costs more than $1 billion. When the coalition left government there were just four people in our detention network who had arrived illegally by boat; under the Rudd-Gillard government that number has exceeded 6½ thousand. As hundreds of illegal boats arrived, the government denied that there was even a problem. Instead, it vilified the coalition and all Australians who shared our concerns. At one point the government called us racists for our views—even as, long before the horrific and terrible tragedy at Christmas Island, we pointed out that people die on boats.

After Prime Minister Rudd abolished John Howard's solution, he proved to be an absolute soft touch by bungling the Oceanic Viking stand-off. Then there was his failed and discriminatory asylum freeze. Then, of course, came the embarrassment of Prime Minister Gillard's East Timor non-solution. Now we have Labor's incompetent five-for-one Malaysian people-swap deal, which has already failed and would cost taxpayers almost $300 million. Almost 1,000 people have turned up since the deal was announced with a quota of just 800, and more than 400 have turned up since it was signed. This deal has a clear use-by date which will be deliberately exhausted by people smugglers as a tactic, and the government has no plan B for illegal arrival 801. This failed policy has already been condemned by both houses of this parliament, and just over three weeks ago it was struck down by the highest court in this land.

In 2001, the coalition established section 198A of the Migration Act to enable offshore-entry persons to be taken to a country which the minister could declare provided the following protections: firstly, access to effective procedures for assessing a person's need for protection; secondly, protection pending determination of their refugee status; thirdly, protection while they awaited return to their own country or were resettled in another; and, finally, the meeting of relevant human rights standards in providing these protections. This was the coalition's legislation. In it the coalition enshrined the twin principles of offshore processing and offshore protections in Australian law, and this has been the coalition's policy for a decade.

From the time of the announcement in May, the coalition has consistently highlighted concerns that the Malaysian people swap could not provide the protections required under section 198A. This position was only reinforced in my assessment during my visit to Malaysia in late June, which I made in order to form my own view of the conditions on the ground. During that visit it was patently obvious to me that, even with the best will—which I do not doubt—on the part of the ministers involved in putting the agreement together, such protections could not be practically guaranteed. In my consideration as a shadow immigration minister, there is simply no legal or institutional infrastructure in place in Malaysia to meet the standards set out in section 198A. A key reason for the absence of these frameworks is the fact that Malaysia is not a signatory to the United Nations Convention Relating to the Status of Refugees.

In a small country such as Nauru, this was less of an issue then it is in Malaysia, since the coalition was able to directly and practically ensure the welfare, support, processing and protection of every person through to the time of departure. As we know, of these people only 43 per cent came to Australia, 30 per cent went back to their home country and the balance were resettled in other countries.

This was recognised by the High Court in paragraph 128 of the judgment in the comments provided by His Honour Justice Gummow and his colleagues. They stated:

… the arrangements made with Nauru were very different from those that are now in issue—

Namely, those with Malaysia—

Not least is that so because Australia, not Nauru … was to provide or secure the provision of the assessment and other steps … as well as the maintenance in the meantime—


to provide the access and protections in question.

The High Court judgment struck down a failed policy in Malaysia, not a proven policy in Nauru.

Given that Nauru has now signed the convention, is introducing complementary domestic laws to support their applications, and is willing to enter into clear and binding arrangements with the Australian government, and Australians will be directly involved on the ground to support the Nauruan government in meeting these obligations, the coalition remains confident about reopening Nauru under current law.

Contrary to the claims by the government to discredit Nauru, the Solicitor-General, in his advice to the government and in his briefing to the opposition, did not rule out this possibility. The type of direct control possible in Nauru is not possible in a country like Malaysia. People are left exposed and vulnerable to forces beyond the control of governments that are unaffected by the well-meaning words of non-binding agreements.

On 31 August the High Court struck down the minister's declaration and found that it was not lawful. The protections required were not established as a jurisdictional fact. No statute was struck down by the High Court; just the declaration of a minister who had failed to ensure appropriate protections were in place consistent with the Migration Act. While the court may have found that the discretion afforded to the minister was less than previously understood, there is no question that protections were a requirement of the act.

Rather than seek to uphold these protections that have been a feature of this act for a decade, the government's response to the High Court decision has been to abolish the protections in the act through this bill—as confirmed to the opposition by officials at our briefings—including the lack of any binding obligation for an offshore processing country under the government's proposal not to refoule. To support this bill in its current form, the coalition would have to walk away from a decade of proven policy that has supported such protections being contained in the act.

The bill also fails the test the Prime Minister established for its introduction—namely, simply to restore the previous legal understanding of the situation prior to the High Court decision. This bill goes far beyond this understanding, by stripping away prior protections. The bill also violates the Prime Minister's own commitment to not send asylum seekers to countries that are not a signatory to the refugee convention. The bill seeks to provide unfettered ministerial discretion through a legislative blank cheque rather than re-establishing protections that can be reasonably and objectively tested.

Officials indicated they were unable to identify an objective test of protections that would also satisfy the government's policy to transfer offshore entry persons to Malaysia. In other words, the only way they could make Malaysia lawful and immune from challenge was to provide the government with a complete legislative blank cheque. The recent failure of the government to provide sufficient protections in their Malaysia agreement when they thought they had a blank cheque, highlights the wisdom of retaining safeguard provisions within the legislation—not just for this government but also for any future government.

It is not unreasonable for a parliament to provide modest guardrails for the exercise of executive discretion. The blank cheque option is therefore not about reasonable executive discretion. Such discretion was not available to, nor sought by, the coalition when we introduced these measures 10 years ago—despite the false and desperate assertion by the Prime Minister to the contrary. However, the coalition believe that a safeguard, a clear litmus test, can and need be readily established following the High Court decision by requiring any country to which an offshore entry person may be transferred to have acceded to the United Nations Convention on Refugees or its associated protocol.

During the consideration in detail stage of this bill, I will be moving an amendment that gives effect to that proposal—and I table that amendment for circulating in my name. This will be the only amendment moved to this bill by the coalition. The former Solicitor-General, Dr David Bennett AC QC, has provided written advice to the coalition on the amendments provided by the government and the coalition's alternative. His opinion is that the coalition's plan 'provides more protection for asylum seekers than the government's versions and is less likely to be the subject of complex judicial proceedings'.

I also note that the bill deals with changes to the Immigration (Guardianship of Children) Act to deal with the High Court's decision in the same judgment. The previous understandings of the provisions were that the power to remove under the Migration Act took precedence over the requirements of the Guardianship Act. The amendments restore the original understanding of the ascendancy of the Migration Act over the Guardianship Act and are not opposed by the coalition.

The coalition has offered legislative support to this government to re-establish offshore processing that was abolished by the Rudd-Gillard government just over three years ago. By refusing the coalition's amendment, the government are refusing to guarantee reasonable protections, while leaving the door open for further legal challenge that could leave them once again stranded in the High Court. Our amendment seeks to provide protection in the act to ensure that this government again does not find themselves stranded in the High Court for yet another policy failure.

At the end of the day, the Australian people will make a judgment about this debate, and I believe they will do that on the basis of one simple question, and that is: who do you trust to protect our borders? Who do you trust to stop the boats? Who do you trust to restore the integrity to our refugee and humanitarian migration program—which has been, I think, one of this country's great contributions? We are proud of this program. We have been partners in this program with other members of this place for many, many years. As one who sits on a side of the House in a party that was once led by Robert Menzies, the former Prime Minister who was the one who ensured that we signed the refugee convention in the first place, I believe this is a matter of trust.

The coalition's border protection policy has always been tough, has always been uncompromising, has always been consistent and, most importantly, has always been effective—and it remains so. In contrast, Labor have supported and opposed every position there is, except for things that work—especially this Prime Minister. Labor's record under both Prime Ministers Rudd and Gillard has been failure after failure, and they are seeking a blank cheque for more failures. When it comes to the issue of trust, actions speak louder than words. Onshore processing has been the government's only policy. They abolished offshore processing. By contrast, the coalition turned back boats, successfully operated offshore processing on Nauru and denied illegal arrivals permanent visas. That is how you earn the trust of Australians on border protection. The coalition will stand by the policies that have earned this trust when dealing with the bill before the House. It is for a government to secure passage of their legislation, not for the opposition. The government alone will therefore be responsible for failure to accept our reasonable amendments in seeking secure passage of this bill and will be responsible for every illegal boat that continues to arrive on their watch. (Time expired)