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Friday, 28 June 1996
Page: 2560

Senator SPINDLER(1.36 p.m.) —For a while I thought there would not be very much that I could agree with on what Senator Bolkus was putting before the chamber—until he suggested that we should review the number of refugees that Australia is prepared to take. In response to some murmurings by the government that they might cut that back, I certainly agree with the need to assess what we can do and to leave the intake at the number of refugees that we now take.

As a relatively affluent society, I believe that we have a responsibility to hold out a helping hand to those that are in need. While the argument about the total number of intake will rage backwards and forwards, the Australian Democrats have always put the refugee intake as one of their priorities.

Similarly, I agreed with Senator Bolkus when he said that the special assistance program is a useful and cost effective program. More than that, it is an essential program which assists in the resettlement of migrants coming to this country. Once again, I make this warning: the other organisations—the non-government organisations and social welfare organisations—will have to bear the brunt of this measure if it proceeds. Many people could finish up on the streets and homeless, and the suicide rates and illness that we experience could increase. That is what we experience whenever there is a dysfunction in our society and whenever a large number of people are neglected by whichever government is in power.

However, when Senator Bolkus spoke about a crisis, he left me wondering where the crisis was. Does 700, 800 or maybe 1,200 asylum seekers mean there is a crisis? Should we really be afraid to be flooded by that number of people? Are we so afraid that we are prepared to disregard one of the basic principles—namely, that someone on our soil who is considering going before an Australian court is entitled to know whether or not he or she has a chance to succeed and what rules govern the particular situation? Are we really saying that we are facing a crisis or a flood and are therefore prepared to forgo one of the cornerstones of our system of legal government—the rule of law?

I believe that this country has, amongst its many assets—perhaps as its foremost asset—the rule of law. Every citizen can go before a court and challenge the government and challenge those stronger than themselves. This actually distinguishes us from a society where people are ruled by the executive government at will—in other words, by a tyranny. Surely we have plenty of examples of that. Indeed, many of the refugees who are reaching our shores have come from countries like that.

Quite a few years ago, I came to Australia from Europe. When I was in Europe, for a number of years during my childhood I experienced conditions that I was glad to escape and I am glad I do not have to experience again. Hopefully, my children will not have to experience them. That is why I value and try to guard jealously the rule of law in this country. I believe that is the hallmark of a civilised society. We all crave that protection—the protection of being secure and of not finding somebody knocking on your door at midnight saying, `Come with me.' We want to be free and secure and, for that, we need the rule of law. Once we start saying that principles do not matter and that the cost of some court cases is more important than the principle of providing information on people's legal rights, then I believe we have started to dismantle the rule of law. I will come back to that issue.

Senator Bolkus also harked back to a previous debate which said that, in determining whether or not a person is a refugee, we should accept under the comprehensive plan of action the judgment made by other nations—that we should trust what is being done in the Philippines, in Indonesia and in other countries, where legal issues are not handled in quite the same way as they are in Australia. We all know they are handled differently.

There is evidence, for instance, about corruption at the refugee camp in Galang. People are being bribed, but we are supposed to disregard that and as an independent, sovereign nation say, `We will accept the judgment of a legal system that has been shown to be corrupt.' That just shows to what extent some of the senators in this place are prepared to compromise the principles I would have thought they held dear.

On the main question we are dealing with—the Migration Legislation Amendment Bill (No. 2) 1996—I want to say that I really wonder how the normally civil libertarian convictions of the socialist left of the Labor Party can reconcile their position and deny people information on their legal rights. They are the principles that they have professed to hold dear. For that matter, I would ask this question of the Minister for Immigration and Multicultural Affairs (Mr Ruddock): how can a Liberal, a person who professes to hold dear the principles of civil liberties, decide that we should save a few dollars but give up the principle of providing information on a person's legal rights?

The Democrats believe that the minister should accept the offers made by the Human Rights Commissioner and the ombudsman for them to handle complaints made under their respective acts until 20 September 1996—as if the Migration Legislation Amendment Bill (No. 2) had been passed in its present form—and ensure that there is an amendment to the bill so that the offer can be given effect. I would have thought that was a useful suggestion.

If that procedure is not acceptable, we can simply put a three-month sunset clause in the bill. That would make sure the bill comes back to parliament after further thought has been given to this very weighty issue which has quite significant consequences. I understand that, so far, the minister has decided not to move in that direction, and that is very regrettable.

What we are dealing with here is an organisation in Australia that has been charged with being the watchdog over human rights, the Human Rights Commission, and the Ombudsman, who is charged with the duty to check government action and to be available to citizens who cannot obtain justice in any other way. They have been charged with watching over the level of human rights that this country is able to maintain but they will be prevented by this bill from providing information on people who are seeking asylum and who have been detained until their refugee status is decided one way or the other.

There are a number of very disturbing aspects of this bill. Many of these have been raised in the Scrutiny of Bills Committee report which was tabled in the Senate on Wednesday 26 June. Notwithstanding the unanimous decision by the Scrutiny of Bills Committee, there are some significant dimensions of Australia's obligations as an international citizen, particularly as they pertain to the adherence to this nation's obligations under the various international human rights instruments which should be taken into account.

Australia, unlike many of its neighbours, ostensibly treats human rights as a national priority. Governments in this country, of all political persuasions, in international fora have championed the cause of human rights. The work of the former Prime Minister Mr Malcolm Fraser regarding the system of apartheid in South Africa immediately springs to mind. It is therefore with more than a passing glimpse that the international community looks at Australia's domestic scene to ascertain whether we practise what we preach.

In this decade alone we have had cause to be embarrassed internationally by a less than glowing record on domestic human rights standards. Immediate examples include the Toonen v. Australia case before the United Nations Human Rights Committee and the disgraceful record of Aboriginal health and deaths in custody. It is ultimately an issue of national and international credibility.

Human rights instruments, in any case, are minimum standards. They do not bestow superior treatment on those they are designed to protect. They exhibit very minimal benchmarks that members of the human race should enjoy as part of their inalienable rights. Increasingly, however, it is becoming necessary to apply those standards to people who are marginalised, dispossessed or in some other way forced to the fringes of human existence.

In Australia, the issue is recognised as being of such importance that we have created a statutory supervisory body, as I have said, known as the Human Rights and Equal Opportunity Commission. Along with non-government organisations such as Amnesty International and the International Commission of Jurists, the Human Rights Commission provides additional checks and balances on governments, which serve to enhance our standing as a free and democratic society.

It is, therefore, with much suspicion that we should look at attempts to legislatively curtail the Human Rights Commission's jurisdiction and capacity to act. The deprivation of a person's liberty by a state is a matter of international concern. One needs only to read the volumes of cases reported by Amnesty International and the abstract sorrow they entail to get an appreciation of how important a person's liberty is. The recent examples of Aung San Suu Kyi in Burma and President Mandela in South Africa are highly salient, showing how tyranny can prosper simply by locking people up when governments determine that those people are undesirable.

It is therefore against tyranny that international instruments such as the Covenant on Civil and Political Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the Standard Minimum Rules for the Treatment of Prisoners seek to regulate acceptable boundaries in the exercise of legislative, executive and even judicial power.

It is clear that, should the Migration Legislation Amendment Bill (No. 2) become law, Australia will be in breach of its international obligations. These are not my assertions but those of the Human Rights Committee in Geneva. Article 9 of the International Covenant on Civil and Political Rights states:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

In general comment No. 8, the Human Rights Committee, whose decision in the Toonen case prompted the Australian government to introduce the Human Rights (Sexual Conduct) Act 1995, said:

Article 9 which deals with the right to liberty and security of persons has often been somewhat narrowly understood in reports by state parties, and they have therefore given incomplete information. The committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control—

I continue the quote:

It is true that some of the provisions of article 9 . . . are only applicable to persons against whom criminal charges are brought, but the rest, and in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention.

In addition, article 10 of the ICCPR states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

With regards to article 10, the committee also said that there must be concrete measures taken by `competent authorities to monitor the effective application of the rules regarding the treatment of persons deprived of their liberty' and that arrested or detained persons should know these rules and should have access to effective legal means enabling them to ensure that those rules are respected, to complain if the rules are ignored and to obtain adequate compensation in the event of a violation.

Quite apart from those international instruments mentioned, there is also serious consideration which needs to be made concerning the International Covenant on Civil and Political Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the Standard Minimum Rules for the Treatment of Prisoners. If it is the intention of the government to relieve Australia from its obligations under these instruments, then that provision should be included in the bill. Then at least we would be honest about it. Then we would know that we are prepared to abrogate that this government and this Labor Party are prepared to remove our obligations under international human rights covenants.

In addition, there are certain protocols which need to be followed before a nation can withdraw from treaties and covenants which it enters into. The Department of Foreign Affairs and Trade, which was not called before the committee to give evidence the other night, nevertheless, must remain in the realms of conjecture as to whether the government has that intention. I understand that it has some concerns about how other countries are going to view our actions if we proceed with this legislation.

If this parliament enacts this bill, we will have taken a very critical step that this nation and this parliament may well regret in the future because we are doing no more and no less than denying our human rights obligations and the rule of law in this country, which should be available to every person on Australian soil within the jurisdiction of our courts. To say that we are prepared to simply cast these considerations aside because it is inconvenient and because we do not want to engage in the very often costly process of allowing these people to challenge in court decisions that are made by government departments, then I believe we are denying a very critical principle on which this nation and the way we are governed depends.

I believe we will rue the day if we give up our principles for such considerations, which in any case appear to me to be insubstantial. A few hundred refugees are called a flood and a few hundred refugees cause a crisis, and for that we are prepared to give up our principles? No, the Democrats say.

The ACTING DEPUTY PRESIDENT (Senator Teague) —Before I call Senator Chamarette, I take half a minute to observe that in a few minutes I will be relieved from my duties here in the chair for the last time and I will step down from chairing the Senate, which I have been very happy to do for each week of our sittings in the last nine years—half of the time I have been a senator in this chamber. It has been a particular personal honour for me to act for the President and the Deputy President of the Senate during all these years.