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Thursday, 17 December 1992
Page: 5429


Senator TEAGUE (9.37 p.m.) —The Opposition supports the Migration Amendment Bill (No. 4) 1992 and notes the need, as proposed by the Government in full consultation with the Opposition, for there to be certainty in the matter of the intention that we in this Parliament had when we adopted the Migration Act and its provisions as they now stand.

  Indeed, after we debated and passed this legislation in May this year and as a result of a High Court ruling with regard to a recent immigration case that came before it, there were some comments made by members of the Bench. From these comments, it appears that a number of the asylum seekers, people arriving by boat illegally on Australia's shore, may—and I stress the word `may'—have been unlawfully in custody under section 88 of the Act from the time they first entered Australia until the amendment was enacted. It is also possible—and I stress the word `possible'—that if they were unlawfully held a claim for damages could arise.

  The defect in section 88 which has given rise to this possibility was discussed by Justices Brennan, Deane and Dawson. It was suggested that detention is only authorised until the departure of a vessel carrying the alien from Australia or until such earlier time as an authorised officer directs. It is on the rub of when a boat bringing an illegal entrant arrives to the point when that boat departs that we have provisions in section 88 of the Act.

  A situation has arisen which was not fully foreseen and which may—and I stress the word `may'—lead to a problem. That problem is this: in the particular case considered by the court, it was informed that the vessel had been burned by quarantine officials. The view of the court was that once a vessel no longer exists, or for that matter could never depart, the authority to detain a person lawfully might cease to have effect.

  The High Court has a duty to adjudicate independently on the law as adopted by the Parliament. With all due respect to the High Court and courts at every level in this land, what we have is what I would see as a litigious game of hide and seek. Over the last 10 years we have had this litigious game of hide and seek not only in Australia but also in the United States and Canada, and a wide range of other countries which receive immigrants and which are subject to the phenomenon of illegal migration.

  I would even say that well-intentioned lawyers seek to uphold what they see as the rights of illegal immigrants. They seek to find every loophole they can in immigration law in order to help their clients achieve the goal of gaining permanency in the country that they have chosen to come to illegally, without papers, without entry permits, without visas, and often without even passports. What is at issue in this game of hide and seek is in fact the national interest of Australia and the integrity of our immigration law. We must have a law that genuinely fulfils the intentions of the elected representatives in the Parliament.

  Without seeking to provoke some honourable senators who might speak after me—and I see that Senator Harradine and Senator Chamarette are in the chamber—I wish to quote from the second reading speech of the Minister for Immigration, Local Government and Ethnic Affairs (Mr Hand). This is the same second reading speech as the one that has been incorporated in this place. I quote from page 3946 of the House of Representatives Hansard of 16 December 1992:

  This uncertainty turns not on the central issue of unauthorised arrival, but on the haphazard fate of the boat on which the people travelled.

We need to understand this central fact. If the boat was burnt, put in a museum, as one boat was recently, or disposed of in some way, there is a possible interpretation that section 88 of the Migration Act no longer provides that the person who came on that boat can be lawfully detained.

  I am a plain man. I am not into litigious hide and seek, except insofar as to try to win a battle on behalf of the people of Australia and on behalf of the intentions of the Parliament. I would say that there was never any intention by the Parliament to allow an escape from section 88 of the Act on such grounds. Let me mention just a few examples. One vessel that arrived in recent years was called the Collie. The 79 people on board were all illegal immigrants. This vessel could not depart from Australia because it was sunk. The Echo, which had 10 illegal immigrants on board, was committed to a museum. It cannot leave Australia.

  Another boat, called the George, carried 77 illegal immigrants. It was burnt. Another boat, the Harry, with 10 illegal immigrants, was sold and beached. The fate of the Dalmatian, with 33 illegal immigrants, is unknown. Because of the haphazard outcome of what happens to such boats, are we trying to maintain that we will allow some lawyers to drive their coach and horses through a loophole in the law and break down the intentions of this Parliament and, indeed, the integrity of our immigration laws?

  Because of the doubt, it is necessary that there be certainty as to what the intention of this Parliament has been all along. This legislation applies to the period from 19 November 1989 to 1 November next year. After 1 November next year the provisions of the Migration Reform Bill, which we adopted recently, will make for certainty.

  I do not believe that appeals to so-called human rights, appeals to the covenants on civil and human rights, or consideration of the rights of persons to be imprisoned or detained and the conditions under which they are detained, bear upon this matter as much as the haphazard nature of the outcome of the vessels on which they arrive in relation to the words that happen to exist in section 88 of the Migration Act.

  I have read carefully the House of Representatives speeches of the Minister, Mr Hand, and my close colleague, Mr Phillip Ruddock who is the honourable member for Dundas and the shadow Minister for immigration and ethnic affairs. I want to quote two sections of Mr Ruddock's speech. He calls this Bill `an important piece of legislation, designed to ensure that the provisions of the Migration Act, which were enacted last May, are valid'.

  I have spoken on behalf of the Opposition in the last four or five debates on immigration law. A few years ago we were involved in the reformulation of the whole Act. We have sought to make the Parliament's intention clear in legislation, despite this litigious game of hide and seek. We do not in any way wish to see in the immigration law of Australia any breakdown of human rights, any discrimination, or any action that is inhumane or lacking in compassion. We want to see fairness, justice, truth and certainly integrity in the intended immigration law of Australia. Mr Ruddock is reported on page 3951 of Hansard as saying:

. . . it has always been clear that our principal problem has been the unduly legalistic approach that has had to be adopted because of the Government's view that we ought to provide ready access to judicial review of administrative decisions . . .

He went on to talk about the creative way in which the High Court of Australia and other courts have got into the business of determining refugee claims and so on.

  It is for the reasons that have already been set out in the House of Representatives—and which I have repeated—that we wish to see the original intention of the Parliament in the amending Bill of May this year maintained, despite this litigious game of hide and seek. We therefore support this Bill and we wish it speedy passage.