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Thursday, 27 June 1996
Page: 2355


Senator CHAMARETTE(11.32 a.m.) —I am speaking to the motion to exempt the Migration Legislation Amendment Bill (No. 2) 1996 from the normal procedure of the cut-off motion, which would see it adjourned to the first day of the next session because it has been only recently introduced into this place. The question before us is whether this is an urgent matter and whether it has received sufficient scrutiny, not only from this chamber and this parliament but also by the community.

The content of the legislation is only indirectly relevant to the issue, although some speakers have attempted to illustrate that the content could be considered relevant to its urgency. It seems to me that the three major reasons for the government and the ALP supporting the exemption of this bill from the cut-off have not been given. I will now deal with those three reasons, though not necessarily in order of importance.

The first reason is one that Senator Short referred to, and that is that it appears once again that the immigration department has acted in a way that the courts have found to be illegal and against the human rights of some people detained at Port Hedland. The department seems to have prevailed upon this government to enforce the inhumane and brutalising policies of the previous government and which were supported by the present government when the legislation was introduced.

The government and the opposition are supporting a government department's attempt to block the hole it perceives in our courts. That hole is the Federal Court's determination that the immigration department has a duty to deliver a sealed letter from the Human Rights and Equal Opportunity Commission to some detainees in Port Hedland informing them of their rights. In order to exempt the department from obeying the lawful order of the Federal Court, against which the department sought a 14-day stay, the government is seeking to change the legislation. That is an utter disgrace.

The matter has been canvassed in this place. Senator Spindler spoke to it. Senator Cooney is in the invidious situation of having to support his party when he has a clear understanding of the difficulties with and complexities of the law in this area. Senator Ellison, because he has been very constructive in his role as chair of the Legal and Constitutional Legislation Committee, is also well aware of the legal complexities of this case. Both he and Senator Cooney have added in a valuable way to the debate.

As I said, one reason this matter is urgent is that the parliament wants to do something that is presently illegal. It has to do it fast because it wants to protect a government department which—I have to give this to the department—is seeking to comply with legislation previously enacted in this place in order to prevent people in this country having access to and information about their human and civil rights.

The department is simply doing its job, carrying out the legislative burden placed upon it by this parliament. It is a chicken and egg situation. This parliament was forced into creating the earlier legislation, to use Senator Short's words, in order to preserve the integrity of our borders—as though we preserve integrity by denying people coming to our shores by whatever means their human and civil rights!

That is the first reason that has been put for supporting this motion. We have to suddenly make something that has been found illegal legal, so we had better act fast. Heaven knows how that affects the separation of powers. We can talk until we are blue in the face about that, because apparently this is likely to go ahead by dint of numbers rather than by content and arguments. I think there are three reasons why this exemption motion is being supported. The Labor Party is probably supporting this motion for two reasons. Firstly, the cloud which has been over their heads because of the previous legislation they passed means that they have some kind of obligation to support this new government, to push it even further and close up any loopholes that might have appeared in their previous policies.

That might be one reason, but there is another reason for supporting the exemption motion. The previous government had no commitment whatsoever to the cut-off motion. I believe they are seeking to undermine it by supporting as many exemptions as they can. In that way if by chance in the next election they gain government they will not have to bother with a Senate that demands appropriate scrutiny both in the community and in the parliament of legislation that is passed to it from the House of Representatives. I think that is a very disturbing reason.

As I have said, I think the former minister for immigration, Senator Bolkus, could have some face saving intentions in supporting the exemption motion, in not voting against the bill and in trying to expedite the bill as quickly as possible. But I think there is another agenda. I have been very discouraged in this session, which is nearly at an end, to see that the Labor Party has not declared total support for the principle of introducing a bill one session and debating it the next in order to ensure that this practice does not continue.

The third reason for supporting this motion comes from the government and it is on a more human level. They need this exemption motion brought on not only because of the matter to which I referred earlier but also because they are really stuck with their program. They have moved that we have another day of sitting tomorrow, they have some time left until 2 o'clock today to spend and they have no bills left. So they would quite like to see us debate at length this highly controversial bill. They know that there will be considerable debate from the Democrats and the Greens in this chamber. They know that it will be a lengthy procedure, and it will get them out of a very embarrassing situation.

The government are probably very pleased that I am taking this time to speak to the exemption motion, because that fills up some time about which they will not have to be embarrassed when the program collapses upon them. We have had a lot of rhetoric right through this session about how busy we are going to be and how we are going to have extra days of sitting. We have already given you an extra Friday, and we are giving you another one tomorrow. Apart from all this evening being filled up with valedictory speeches you have not got a program left. So that is another reason for rushing on the bill. I do not think that is a very good reason at all.

I would like to share with senators in this chamber something with which those who have been here before will not be totally unfamiliar, and that is the history of this procedural motion. The reason for this procedural motion goes back to 1992-93. Prior to the first session of the 1993 parliament, a log jam of legislation would come into the Senate in the last week, particularly on the last day. I think I have some graphs showing the numbers of bills that came through which I might incorporate later in my speech. I can remember that on 17 December, 1992 the Senate sat on the Thursday right through to beyond 5 o'clock on the Friday morning. I went home quickly, packed my things and got on the plane. I think I spoke at 2.00 a.m. and 4.00 a.m. and we did not start valedictories until very late. We were debating bills that had been introduced into the chamber only that very day. It was shameful.

Legislation was being pushed through without senators having any grasp whatsoever of what they were voting on. A lot of that legislation in the previous session went by the board. It had to be amended for inaccuracies, some aspects had to be recommitted and some disappeared from the scene indefinitely. A member in the other house, Mr Wilson Tuckey, had observed that for many years. I think this is the first time I have put on the public record why this procedural motion came about. When he noticed that, after the election in 1993, the two Greens would share the balance of power with the Democrats, he rang me up and said, `Senator, have you got any interest in the decorum and the correct procedures within the Senate?' I replied, `I certainly have and I would love to reform it.'

He said, `Well, have you noticed that there is a terrible log jam of legislation—a disgraceful log jam—that this government pushes through the House of Representatives, which, by dint of numbers, it can do nothing about, and then it pushes it through the Senate by pressure of the last hours of the session?' I said,` Yes, and I would be happy to move a procedural motion to address that, but I have no anticipation of getting the numbers of support in the Senate chamber.'

He said, very helpfully, `Well, leave that to me, Senator. I will speak to my colleagues in the Senate and persuade them that, if they have any aspirations to be statesmen and to have the Senate take its due and rightful role in the scrutiny of legislation, they should perhaps consider supporting your motion.' That was how it came about. I think it was one of the first times the `unholy alliance' phrase was used. I know it was raised with great wrath in the House of Representatives, and may even have come to this chamber.

As a result of that, a procedural motion was put in place on 18 August 1993, which was supported by the coalition, which allowed the principle of legislation which had been introduced in the House of Representatives very late in the session coming into the Senate, but being immediately adjourned to the first day of the next session. Of course, that was not greeted with great enthusiasm by the Prime Minister of the day. In fact, he called it a `constitutional impertinence' that we in the Senate should be telling the House of Representatives how they should conduct their business. As I pointed out to him, we were not doing that at all. We were simply making sure that we conducted our business with decorum, and whether they chose to or not was their responsibility. Nevertheless, if they were tardy in introducing legislation, they could not expect the Senate to suddenly push it through without doing its proper role as the Senate.

Just in passing, it might interest people that he said that not only was it a constitutional impertinence but also it could precipitate a constitutional crisis like that of 1975, and it could even bring down the government. I assured Mr Keating that my little procedural motion could not cause a constitutional crisis or bring down the government. His reaction to it possibly could, but my procedural motion could not.

We then had a very important series of debates in the Senate, with which people here are probably very familiar, where Gareth Evans was at pains to say that the measure was not needed, that it was a constitutional impertinence and that it would be the end of the world as we know it. In fact, maybe it was, for the Senate, because, reluctantly, the government came around to the view that it was sensible to take into consideration that it did not have the numbers in the Senate, and that it did have some responsibility to give due warning on legislation if it expected it to receive consideration and not be referred to a committee or be adjourned to the next session.

That principle of a cut-off motion then got translated into a procedural principle, which Gareth Evans enunciated, I think, on 25 August 1994—the principle that any legislation that was introduced in one session would be considered in the next session. That was a very beneficial thing.

However, there have been some notable exceptions to that all the way along the line, and that is where migration legislation comes in. My main reason for being concerned about the log jam of legislation in the last days was not the log jam per se, but the fact that the government had a very backdoor, underhand way of slipping through legislation which the parliament would not understand in its implications in relation to Federal Court matters.

On 6 May 1992, it had already done it. Some detainees in Port Hedland had a case that supported that they had been detained illegally upheld by the court. In order to pre-empt them being able to go on with an appeal, the government wanted to overturn that and make it mandatory to detain everyone when they set foot in this land. We did that on 6 May, with the coalition supporting the then government, with very strong and vocal opposition from the Democrats. I particularly remember former Senator Coulter, Senator Brian Harradine and I opposing that, but of course we were not able to prevent it, and that legislation came through.

The same thing happened on 17 December 1992 in relation to compensation that might be an entitlement of people who were illegally detained for the tight period between when they arrived, when their boats got destroyed and when the law was passed on 6 May. The government wanted to prevent them. I think we have had another one since then with the outrageous `dollar a day determination' that says that the compensation for illegal detention by the government is a dollar a day.

What we see is a very shameful history within migration legislation. It shows that there is something very wrong in this country's approach to asylum seekers and refugees who come to this country. Of course, we do not know, when a boat arrives on this shore, who are legitimate refugees and who are not. We have to assume that on those boats there are asylum seekers and refugees, and if we deprive them of their civil rights and their access to courts, we are, in my view, violating every commitment we have made to the international covenants on civil and political rights and the treatment of refugees.

My belief is that we are persisting down a very wrongful track, and to exempt this legislation is to put yet another episode into this shameful saga. My understanding is—we will discuss this more when the motion comes to pass because, regrettably, dint of numbers will make it come to pass, unless we had a conscience vote, which would be a rather wonderful thing to see in this chamber—that the principles underlying this particular case are that a boat named Teal, for the purposes of customs and immigration, had some detainees at Port Hedland who were allowed by the court to be handed a letter from the Human Rights and Equal Opportunity Commissioner which allowed them information as to legal advice that could be available.

To my mind, that we should be considering exempting a bill in order to prevent the department of immigration carrying out the order of the Federal Court is an unutterably dishonourable position. I will not speak further on this. I am sure I could have spent another 10 minutes elaborating but I will spare my listeners. I am also hoping that there will be people who have been sufficiently stirred by some of the matters I have raised to give consideration—even to rebut it; I do not mind—to what we are doing in this place. It is disgraceful. If it allows an opportunity for other speakers, it is appropriate that I conclude my remarks.

But I have to say in the strongest possible terms that the Greens could not ever support the exemption of a piece of legislation for the unworthy motives that are being presented today: not only to pre-empt the court and interfere with what I believe is a very important concept of the separation of powers by intruding the parliamentary will, but also for the unworthy motives of filling up the program and of undermining the very important principle that we introduce legislation with enough time for the community to give feedback and for the parliament to understand what it is doing.

The community has given feedback—and it could not be more strong in opposing the exemption of this bill from the cut-off. It is not as though we have to wait for the community to realise how wrong this is; it has been saying it. What we have to do is honour the community's voice and defer this motion to its rightful place, which is to the first day of the next session when the immigration department will have carried out its order. It can put up whatever shameful legislation it likes and we can give it consideration. But we should not be exempting this bill now, in order to pre-empt a decision of the Federal Court.