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Thursday, 4 December 2014
Page: 10260


Senator KIM CARR (Victoria) (16:03): Thank you, Mr President. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 is perhaps the most significant piece of legislation to be presented to this parliament since the election of the Abbott government in regard to immigration and asylum seekers. The bill has many parts to it and is quite complex. It contains a legislative response to judicial actions. This bill seeks in part to override in part the High Court. The bill contains arrangements which might be regarded as quite unusual, to say the least, whereby the parliament is asked to intervene in a matter that is currently before the High Court. The minister describes this bill as a legislative recognition of the government policies. In fact, it is much more than that; it is an attempt by this government to override the judicial processes which have been established in this country.

We have a situation where the government is seeking in a somewhat shoddy manner to undermine a case which is currently concerning the CPSF versus the Minister for Immigration and Border Protection. What the minister is actually doing is attempting to scuttle a case before the court. If the legislation is passed, it would render the precedent value of that case redundant. It is a case which is fundamentally important to the application of the Maritime Powers Act. We know that the High Court in this country is extremely important and it ought not be treated in the manner which this bill would have us do. It is inappropriate to be able to go down this path whereby a case which is currently before the High Court, where the High Court has not made a decision—and the High Court is able to make its decision based on the evidence but it should not have the government intervene in such a manner to disrupt the proceedings that are currently before it.

The government says that this is all about saving lives and it makes an emotive appeal to the suggestion that it is the only way in which these matters can be resolved. We know that the impact of policy relates to a whole lot of issues in regard to people currently in Indonesia, people who are arriving by boats. We want to make sure that there is an appropriate response to those actions. The government is claiming that this bill is really all about legislating for a turn back policy, when we have seen quite extraordinary circumstances in regard to Indonesia.

The minister's claim that the bill is recognition of the turn back policy is quite deceptive, given that the real interest here is whether or not the government is able to intervene in a legal process currently before the High Court. Labor believes that that action is grossly inappropriate.

The bill seeks, at the same time, to resurrect TPV policy. It creates a new class of temporary 'safe haven enterprise visas'. Labor's position on TPVs is well known. We oppose them because they place recipients in limbo. There is no certainty about the way in which they will be treated, about their future within this country. Our view is that people who have been found to be entitled to Australia's protection—that is, they have genuine refugee status—should not be treated in the manner that this bill proposes.

What we are seeing here is the government trying to undermine the High Court, claiming the political imperative in terms of legitimising its policy, and taking away fundamental rights that people are entitled to have. The vast majority of people will be here, under various arrangements, without any opportunity to secure any future advancement in this country. We saw during the Howard government that TPVs were effectively abandoned because of the failure of such an approach by the government.

The bill purports to introduce this new visa class, the safe haven enterprise visa, ostensibly in fulfilment of the undertakings the government made to Mr Palmer. I say 'ostensibly' because the bill has not met those requirements. The explanatory memorandum states that the conditions for the operation of these so-called SHEVs will be laid down by regulation in the new year. The bill therefore holds out, I suppose, some hope that there will be permanency in the future for people, but that is clearly not what the minister is saying publicly. The opposition believes that there ought to be an appropriate, proper pathway to permanency for those who have been resolved to be genuine refugees. You will not find that in these measures that are before the parliament.

The measures in this bill would provide a temporary visa, valid for five years, and applicants for this visa would need to demonstrate their intent to work or study in regional Australia. If they do not work or study in regional Australia for at least 3½ years of the visa period, they would become eligible, you would think, for further action from the government. Labor's amendments propose that there is a right to work and extend bridging visas to asylum seekers while their claim for refugee status is being assessed.

We are concerned that the bill seeks to change the refugee assessment process in a number of ways. The bill seeks to speed up the processing of assessment claims, but it is not clear how this fast-tracking arrangement will work, because the bill depends on various regulations, details of which, of course, have not been provided. The second change is the replacement of the Refugee Review Tribunal by an Immigration Assessment Authority, with a limitation on the existing right of review for adverse decisions. This is a change which is a matter of grave concern. This government has undermined the whole process of legitimate, legal processing of refugee claims. Labor cannot support the limiting of applicants' rights to review the provisions of application processing. We cannot support the proposed fast-tracking of applications, which does not offer any way of reducing the duration of the process but would go a long way towards reducing the rights of people to actually get a fair outcome.

There is also the issue of the refugee convention within this bill. The bill seeks to remove any reference in the act to refugees. You cannot possibly ask the Labor Party to support such a proposal. The government argues that the bill in fact codifies the obligations under the existing convention so that the decisions of Australian courts will determine Australia's laws in this area, rather than the decisions of international courts. There is no good reason for changes of this type, and in many cases they are unlikely even to achieve the government's objectives. The minister's second reading speech argued that Australia remains a party to the refugee convention and that this is given legislative effect by the Migration Act. But our courts will inevitably refer to decisions by courts in other common-law countries when determining how obligations of this kind should be interpreted.

There is a further problem raised by attempts to codify the law. The bill inserts requirements in the act that, if a person is able to alter their behaviour reasonably, they should not be able to claim Australian protection. Setting this down in fixed, statutory form raises questions that would not be easy to resolve. We simply do not have clear administrative practice in regard to, for example, the protection of people in regard to their sexual preference. Would protection be denied on the basis that the alteration of that behaviour would result in a person not being persecuted in his or her country of origin? The fact remains that, in these measures, we would have different legal standards being applied to certain classes of people in this country. It may not be the intention of the bill, but it is simply impossible to see how you could have this bill interpreted in any other way.

The bill also contains a provision for the removal of the 90-day rule for the hearing of various claims by refugees, which is a very important accountability measure and a mechanism by which public servants have to respond to applications. At the time of last year's federal election, about half the protection applications were decided within the prescribed 90 days. But according to the most recent report about the Abbott government's behaviour here, only 14 per cent of decisions were being made within 90 days. This is a 90-day rule which this government has already sought to abrogate by administrative action. We know how important that provision is. Labor will defend that provision within the second reading components of this bill.

In essence this bill rewrites, in a far-reaching way, administrative law in regard to immigration. It seeks to set aside due legal process in regard to court actions currently underway. It seeks to undermine the rights of many people who are in this country. This is a further step in the government's downward spiral in regard to the proper treatment of refugees.

The government will say that if we do not support these measures then we will not be able to remove children from detention. Frankly, this is a proposition which says that this chamber should respond to a government that is now holding children up as hostages. If the minister were interested in removing children from various offshore facilities, he could do so tonight. He does not need this legislation to achieve that outcome. To suggest that we should respond to quite unfair measures in the hope that we can get children out of detention strikes me as the most crass form of blackmail. Holding children to ransom in that way is something that any government should regard as reprehensible. This is a government that does not blush at such a proposition. Frankly, the idea that we vote for this and we get additional humanitarian assistance places strikes me as in itself quite obscene. If the government were concerned to do these things, it could do them immediately. People do not need to be treated as bargaining chips in the government's desperate bid to further its political objectives of winding up public hostility towards people who are legitimate, bona fide refugees.