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Legal and Constitutional Affairs Legislation Committee

VARGHESE, Mr Jacob, Principal, Maurice Blackburn

WATT, Mr Murray, Senior Associate, Maurice Blackburn


CHAIR: I now call Maurice Blackburn, who provided submission No. 43—Mr Murray Watt and Mr Jacob Varghese. This is a totally inappropriate question which you should not answer, but are you related to the Mr Varghese we know?

Mr Varghese : Should I answer, or should I not answer?

CHAIR: You may be embarrassed to answer.

Mr Varghese : No, I am not embarrassed to answer. Yes—he is my uncle.

CHAIR: Okay. Very good man.

Mr Varghese : I will pass on your regards.

CHAIR: I am not sure if you have heard this before, but these are proceedings of the federal parliament, and parliamentary privilege applies. If there is anything you want to put in private, please let us know and we can talk about that. Otherwise, we have your submission—thank you very much. If you want to amend or alter it, now is the time to do that. If not, we ask you to make an opening statement and then we will ask some questions. Can I just urge you, particularly when answering questions, to keep it as brief as possible, because some of us are on real time constraints.

Mr Varghese : We understand, Chair. Thank you. To introduce myself and my colleague, I am Jacob Varghese; I am the principal of Maurice Blackburn responsible for coordination of our pro bono practice, and I am here with Murray Watt, who is the solicitor from our Queensland practice, with primary carriage of the B9 litigation, which is the case involving baby Ferouz.

CHAIR: I cannot help but interposing to say that, if you are in charge of pro bono practice, you must have interesting family Christmas dinners! But go on.

Mr Varghese : Yes. We are here in our capacity as the solicitors for 107 babies who were born in Australia to parents who had arrived by boat. Can I take this opportunity to update some of the figures in the submission. We continue to get instructions from other people in the same category, and as a result those numbers are slightly higher than they were when we presented the submission. We now act for 107 babies, including baby Ferouz; 35 of those babies are Rohingyan, which means that they are stateless—not recognised by their country of Burma as being citizens of that country. Twenty-three of those babies were born to transitory persons, which means that they have been born to parents who were at some stage on Nauru or Manus Island and have been brought to Australia—normally for the delivery of the baby—and those babies have never set foot on Nauru or Manus Island to date. Seven of those babies are in both of those categories—they are Rohingyans and they are babies who were born to transitory persons and who, if the legislation in its current form were passed, would themselves be deemed to be transitory persons.

As our submission makes clear, we are here only to comment on schedule 6 of the bill and not on other parts. We would not like that necessarily to be construed as consenting or agreeing in form with the other parts, but that is not our area of expertise. In relation to schedule 6, it is our recommendation that it be removed from the legislation before passage. The reason for that is twofold. One is that there is litigation on foot; we are currently scheduled to be at the Full Federal Court on 24 November for an appeal which will determine this question of whether or not children who are born to people who have arrived by sea are deemed themselves to have arrived by sea within the meaning of the Migration Act. Aside from various other technical arguments, it is our contention that the words 'arrive by sea' in the legislation must have some meaning and that arriving by the process of being born is not arrival by sea. The contrary argument is that it is deemed to be so by a provision which provides that you arrived by sea if you arrived by any means other than aircraft. It is our view that parliament had not previously considered the third alternative, which is arriving neither by aircraft nor by sea but arriving by the process of being born.

That is the subject of the litigation. Schedule 6 will effectively mean that that litigation becomes moot and that the point is decided against our clients. So it is in that context that we are opposed to schedule 6.

There is another point, though, which is that schedule 6 will, for the first time, deem as transitory persons babies who are born to transitory persons. I do not think there is any sensible argument that those people are currently deemed to be transitory persons. This will have that effect. That is significant in the context of the political agreement that we understand to have been struck between the minister and the leader of the Palmer United Party, which will ensure that a large number of the babies we represent will be granted TPVs if the minister holds to his agreement but that at least 23 of our clients will not be and will be sent to Nauru having been born in Australia and never previously having set foot in those regional processing countries. That is our main concern. The thing we wanted to bring to the attention of the committee and the parliament is that there are actually Australian born children who are in that category and who, under the arrangement that currently exists between the Prime Minister and the Palmer United Party, will ultimately be sent to a regional processing country if this legislation and that deal eventuates. I will now pass to my colleague, Murray, to go into some more technical detail.

Mr Watt : We are conscious of the time but we thought it worth adding a little bit more detail about the practical effect of these amendments. As my colleague, Mr Varghese, has outlined, we represent 107 babies who were born in Australia to parents who came to Australia by boat. Those babies include baby Ferouz. I am not sure whether the committee is familiar with his personal circumstances. He was born in Brisbane's Mater Hospital. He holds a Queensland birth certificate and he is eligible to apply for Australian citizenship. He and his family are Rohingyan, an ethnic minority from Myanmar. Mr Varghese has given details of the other 106 babies that we represent.

As Mr Varghese has stated, our main concern with this bill relates to amendments in schedule 6. These amendments will, firstly, result in the transfer of a relatively small number of Australian born children to Nauru. They will also interfere with Ferouz's current Federal Court action. These amendments seek to retrospectively remove a range of rights that are currently available to babies who are Australian born. Specifically, the amendments retrospectively deem babies who are born to transitory persons and to unauthorised maritime arrivals to themselves have that status, despite the fact that these babies were born in Australia and have never left Australia.

If passed, these amendments will have five negative consequences for the 107 babies who we represent. Firstly, all 107 of them would retrospectively lose their right to apply for a permanent protection visa. That will happen because they will be deemed to be unauthorised maritime arrivals. Secondly, all 107 of those babies must, on a strict interpretation of the amendments, be taken to Nauru. It is the case that some of those babies may qualify for TPVs or SHEVs if those amendments are passed, but, as we have already heard from officials from the department, that would only be the case if the minister allows those babies and their parents to apply for protection here in Australia.

The third consequence, as Mr Varghese has outlined, is that at least 23 of these 107 babies would not be eligible for TPVs or SHEVs even if those visas are created. That is because these 23 babies would be deemed by this legislation to be transitory persons, which is another way of saying 'someone who has come to Australia having already been in Nauru or Manus Island', despite the fact that these children have never set foot outside Australia let alone in Nauru or Manus Island. If there is one consequence of this schedule that is the worst, it is the impact this would have on these 23 babies such that even if TPVs or SHEVs were created those 23 would not be able to apply based on comments that the minister has already made.

The fourth consequence is that the amendments would interfere with the rights of about 32 of these 107 babies to apply for Australian citizenship, which stems from the fact that they are stateless, meaning that they are not entitled to citizenship in any other country. And, fifthly, the amendments, as we have already heard, would interfere with legal proceedings for Ferouz which are due to be heard in only 10 days time.

The only other point I wanted to mention concerns the retrospectivity of these amendments, because there has been some confusion as to whether they are indeed retrospective. The short answer is that they are retrospective. Schedule 6, clause 11(b) applies these amendments to a baby, whether they are born before, on or after the amendments commence. Schedule 6, clause 2 acknowledges that these amendments do not apply to an application under the act, for example, for a protection visa, if the application was finally determined before the amendments commence. But section 5, subsection (9) of the Migration Act states that, for an application to be finally determined, all forms of review of the application must be exhausted. That process can obviously take many months, and it is extremely unlikely that all forms of review regarding a specific protection visa application would be exhausted before these amendments commence, so there is no doubt that these amendments are retrospective and would deprive Ferouz and the other babies who were born in Australia of rights that they would otherwise have.

So in conclusion, for the reasons that we have outlined, we do ask that the committee recommend amendments to delete schedule 6 of the bill. Further, we ask the committee to recommend that any legislation be shaped in a way that prevents any baby born in Australia from being taken to Nauru.

CHAIR: Thanks very much, Mr Watt. Can you tell me about the retrospective nature. If this legislation is passed, from when do the provisions apply?

Mr Watt : My recollection is that this schedule would commence on the day of assent. But it is stated to be retrospective and take effect in relation to particular babies, regardless of when those babies were born. So the amendments do not commence until the date of assent, but when they commence they have retrospective application regardless of when a baby was born.

CHAIR: Can you identify the particular clause of the bill—if you can do it quickly. Otherwise you can take it on notice.

Mr Watt : The schedule—

Mr Varghese : It is in schedule 6, item—you mentioned it before.

Mr Watt : There is another clause within the bill that sets out when various amendments commence. I cannot remember that off the top of my head, I must admit.

CHAIR: Because of the time—I do not want to hold up others up—can you send the secretary an email as soon as you can find that, as a question on notice.

Mr Watt : Sure. I do not know if this answers your question, but, as I said in my opening statement, schedule 6, clause 11(b) is the one that applies the amendments to a baby, whether they are born before, on or after the amendments commence. But, if what you are looking for is the clause within the bill that sets out when these amendments commence, that is the thing I do not know off the top of my head, but we can certainly advise you. From memory, there is a clause within the bill that sets out when various parts of the bill commence.

Mr Varghese : That is section 2 of the bill itself.

CHAIR: Which of those again?

Mr Watt : Schedule 6, clause 11(b) is the one that says the amendments apply to a baby before the amendments commence, and Mr Varghese has just pointed out that it is section 2; I think item 23 is the one that says that schedule 6 commences on the date of assent.

Senator HANSON-YOUNG: Mr Watt, why does it matter? It is 23 babies. Why does it really matter? And, if the government has already said that people who have arrived by boat should not be here anyway and they are going to go to Nauru, why should we worry about the whole schedule just because of 23 babies—or 27, did you say?

Mr Watt : Twenty-three.

Senator HANSON-YOUNG: Twenty-three.

Mr Watt : I suppose it comes down to whether you agree with the government's view that babies who are born in Australia should end up in Nauru. I think I can speak for our law firm that we do not believe that, and I know that there are many people around Australia who do not believe that. From what we understand, even people who have been party to the introduction of this legislation may not have understood that and are rightly concerned that Australian-born babies may end up in detention in Nauru.

Senator HANSON-YOUNG: The minister has said that if the Senate passes this whole bill, more children will come out of detention—those on the Australian mainland, Darwin and elsewhere, and on Christmas Island. What you are saying is that if this bill passes, we will see some children going to, arguably, a worse form of detention, indefinite detention in Nauru.

Mr Watt : That is right. I would not want to be sitting here and saying that conditions in detention in Australia or on Christmas Island are wonderful. We have many clients who are in that situation and the conditions are appalling, but I think it would be fair to say that the conditions are worse again in Nauru. You would be familiar with the reports that the United Nations have presented after inspection of conditions in Nauru, which found, in their own words, that conditions were inhumane and not fit for children. It is doubtful whether the conditions that people are facing on Christmas Island at the moment are fit for children, but there is no doubt that they are not fit for children in Nauru.

In answer to I think where you were heading around the argument that this will, if you like, provide an incentive to people to have children or come here by boat pregnant, there is absolutely no evidence that that is occurring. Not a day goes by where the government does not very pleasingly announce that boats have stopped. There is no evidence that boats are coming to Australia at all, let alone fully loaded up with pregnant women. There is no evidence that we have seen that the rate of pregnancy in detention centres is any higher than it is in the Australian population generally. The most recent statistics from the immigration department set out that the average length of detention for someone in Australia is over 400 days. So I do not think it is that surprising that if you are going to be detaining families for that length of time, some of them are going to fall pregnant. We do not think that there is any basis to the argument that this is going to provide a deterrent to people.

Senator HANSON-YOUNG: What is your response, as representatives of clients in this predicament, to being referred to as anchor babies?

Mr Watt : I find that a very offensive term.

Mr Varghese : On our review of the arrival dates of our clients and the dates on which the babies were born, we are not aware of any of them that were not conceived before the families came to Australia. Having spoken to many of these families, I think it is clear that the last place they want to be having a baby is in detention. In fact, we have had more reports of people who have been seeking medical assistance to have terminations than to have babies. I do not think there is any attempt by anyone, or any evidence that there is anyone who is trying to have babies in detention. Most people are concerned to get out of detention before they start having families.

Senator HANSON-YOUNG: Just for the sake of this committee, so we understand the time frames, can you just update us? Where is the appeal case up to?

Mr Watt : The appeal will be heard by the Full Court of the Federal Court of Australia on the 24 November, so about 10 days from now.

Senator HANSON-YOUNG: Okay.

Mr Watt : We have filed our submissions in that appeal. The minister is due to file his submissions, from memory, on Monday, and then it will be Monday week for the actual hearing. I could not really speculate as to how quickly the court will hand down a decision. In the Federal Circuit Court the judge handed down his decision very promptly. It is obviously a matter for the court as to how quickly they hand it down.

CHAIR: When is the hearing date?

Mr Watt : It is 24 November, in Brisbane.

Mr Varghese : Senator Hanson-Young, could I just add in relation to one of your earlier questions: you were saying that there will be a lot of children taken out of detention as a consequence of the deal between the minister and the leader of the Palmer United Party. That is no doubt true. I think our question and our plea to this parliament is: why treat those 23 babies any differently? From their perspective, it is an utterly arbitrary distinction that their parents happened to have spent some time in Nauru, sometimes very short times, before they came to Australia and had babies. It is of no relevance to those children. It is not just those children; there will also be brothers and sisters of those children, older children who were not born here, and there does not seem to be any sensible reason why we should not be making every effort to keep those children in Australia as well.

Senator HANSON-YOUNG: Why were the children born in Australia in the first place if they had been sent to Nauru?

Mr Varghese : Nauru does not have the facilities to safely deliver babies, as far as we can tell. It has been the practice of the department to bring families back to Australia for the delivery of their children, as far as we can divine from the practice.

Senator HANSON-YOUNG: This is going to be an ongoing problem?

Mr Varghese : To the extent that there are continuing pregnancies in regional processing centres, it may well be. I am not sure what other mechanisms the government or the government of Nauru have to make sure that there are safe deliveries. So far, as we understand it, the babies that have been born to transitory people have been born here for the particular purpose of bringing them here for the delivery.

CHAIR: Thanks, gentlemen. Unfortunately, we are on restricted time. Thank you for coming all this way for this very short appearance. Do not send us the bill!

Mr Watt : It is pro bono!

CHAIR: Thank you very much. With that, I declare the hearing adjourned.

Committee adjourned at 16:16