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Thursday, 17 December 1992
Page: 5436


Senator HARRADINE (10.14 p.m.) —This piece of legislation is a further chapter in the Government's shameful record in its treatment of refugees and applicants for refugee status to Australia.

  I stand in this chamber in total agreement with what Mr Justice Einfeld said about Australia's treatment of boat people. He said that Australia's treatment of boat people seeking asylum had been a shameful blot on its compassion and humanity. Others have condemned Australia's treatment of applicants for refugee status, and among them is Brian Burdekin, the Federal Human Rights Commissioner.

  This legislation is intended dramatically and drastically to limit compensation made to applicants for refugee status who have been illegally detained. It is another indication of the callous treatment of refugees by the Government and its absolute contempt for the judicial processes, including for the High Court.

  The High Court ruled last week that the Government had detained 37 boat people unlawfully and that these boat people were entitled to compensation. It also declared invalid a law prohibiting a court from releasing a boat person from custody. Honourable senators will recall that that law was passed by this Parliament in May of this year and that a number of us—the Democrats, Senator Chamarette and myself—were vigorously opposed to that provision and the High Court struck it down.

  Under this legislation, compensation will be limited to one dollar a day for any period of detention found unlawful by a court. Clearly, this legislation is designed intentionally to circumvent that decision of the High Court. What a preposterous situation it is. I will tell the Senate what the essence of this legislation is. In essence, if a boat person has been found by a court to have been illegally detained in a detention centre and that boat person is entitled to compensation, the Government will determine that compensation. Just think of the precedent that sets.

  The Federal Government was the perpetrator of the illegal detention and the suffering for which the boat persons are entitled to compensation. Under this legislation the Federal Government sets itself up as the judge of the compensation to be made to the victims of its illegal act. That is a disgraceful situation. I have never known that to occur in any other legislation at all.

  I challenge the Minister for Justice (Senator Tate) to tell the Senate what other legislation exists which contains such a preposterous provision. The implications in general areas of law are mind-boggling. If the perpetrator of a crime is the judge of what compensation will be paid to the victims of crime, then we are on the downward slide. That is precisely what this Bill does.

  The Government should have heard what the High Court said. It should have gracefully accepted the decision of the High Court and agreed to relieve the torment and suffering which have been imposed on the boat people—in both Cambodia and Australia—by releasing them from detention and allowing their stay on humanitarian grounds. That appeal was recently made by the Australian Catholic Bishops Conference in Sydney, and the Government already has the power to do just that in respect of these 37 people.

  The Minister says that he does not have the power in certain circumstances—I will come to that in the committee stage—to grant permanent entry on humanitarian grounds. I have an amendment being circulated which will put that beyond doubt. There will be no excuse for the Government or the Minister to say that they are bound hand and foot and have no power to consider matters on humanitarian grounds. Instead of gracefully accepting the High Court decision and taking that action, the Government has used devious and outrageous means to circumvent the High Court's decision, which was to uphold the individual human rights of these people.

  The Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs, Senator Tate, is also the Minister for Justice. How he can sit here and see this Bill do what it is doing is beyond me. Constitutionally, this legislation represents an unwarranted interference with the judicial power.


Senator Teague —What was the Parliament's original intention?


Senator HARRADINE —I will come to the Parliament's original decision. The High Court and any other courts look at the intentions of Parliament, and they obviously have looked at the intentions of Parliament. They have come down with a decision which struck out part of the previous legislation. I will come to that in a minute. The Government has set a totally unacceptable precedent in any democratic and civilised society committed to the rule of law. I look at the Minister and I wonder how he, as Minister for Justice, can countenance that.

  As has been indicated by Senator Spindler, the legislation is contrary to the International Covenant on Civil and Political Rights and our obligations thereunder. The covenant provides in article 9.5 that anyone who has been the victim of unlawful detention shall have an enforceable right to compensation. Article 26 provides that all persons are equal before the law and are entitled, without discrimination, to the equal protection of the law. Discrimination on the basis of status is prohibited, yet this legislation discriminates against applicants for refugee status whom the Government has described as designated persons.

  The response of the Minister and Senator McKiernan to all of that is to blackguard the boat people. We should bear in mind that only about 400 boat people have landed in Australia. People are being told that there are thousands; there are 400. The Minister blackguards these people who have suffered torment in their place of origin, enormous difficulties in coming to Australia and then torment in detention in Australia for up to three years or more.

  The Minister described these people as queue jumpers. Senator McKiernan accused them of bribing their way into Australia. There is no proof of that. It was a dreadful accusation and an assertion which should be condemned. These people have rights. They may be yellow, they may be coloured, but they have rights, the same as we have. The Opposition spokesperson, Senator Teague, said that these people have come here without papers, without visas and without passports.


Senator Teague —They have come here illegally.


Senator HARRADINE —They came from a country—Cambodia—where there was no Australian embassy, at a time when the government of that country was not even recognised by Australia. How can they be queue jumpers? The words `queue jumping' suggest that people have not gone through the appropriate process. There was no process to go through. Many of them suffered under Pol Pot. Many of them suffered further under the Hun Sen regime, the Vietnamese-backed government. They came out here at a time when we did not recognise that government of Cambodia. It is morally and factually shameful to call them queue jumpers.

  I heard what Senator Teague said: they are playing a legal game of hide-and-seek. If they are playing a legal game of hide-and-seek, let me ask Senator Teague this: is it a game to depart from the country of your origins to come to this country? Is it a game to suffer detention for over three years in this country?


Senator Teague —No, it's the lawyers.


Senator HARRADINE —It was not the lawyers at all. A number of church groups and community organisations asked the Department to allow these people to be released from detention into various communities on the cognisance of those church groups and community organisations. The Department deliberately, and with intent, refused that offer and kept these people in detention, unlawfully, as we have seen. Their lawyers did the right thing in attempting to get them released from the custody in which they were unlawfully kept. Two days before that case came before the Federal Court this Government rushed legislation through this Parliament to prevent a court considering the release of those people. I opposed it and it was subsequently struck down by the High Court.

  I will move an amendment to the second reading motion that this matter be referred to the Scrutiny of Bills Committee, and I will come to that now as it is a germane point. When the Bill was presented to us in May it was rushed through the House of Representatives. I move:

  Leave out all words after "That", substitute "consideration of the bill be postponed until the bill has been considered and reported on by the Standing Committee for the Scrutiny of Bills.