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Friday, 28 June 1996
Page: 2563


Senator CHAMARETTE(1.58 p.m.) —Before I begin, may I express my appreciation to you, Acting Deputy President Teague, for your conduct in the chamber and your servility always to the Greens and to me, in particular. Thank you.

The Senate has before it yet another migration bill, the Migration Legislation Amendment Bill (No. 2) 1996, concerning the treatment of asylum seekers in this country, the boat people, those who came believing that in Australia the rights, freedoms and legal standing of people are respected more than in their own countries. I am not quite sure how many times during my four years in this place the Senate has amended the Migration Act in relation to refugee and asylum seekers. At least four come to mind, but I think it may be more. Senator Spindler assures me it has been more.

As has happened on more than one previous occasion, this bill is in response to a court case which the Department of Immigration and Multicultural Affairs lost. The substance of the bill relates to the right of unauthorised boat arrivals to have access to legal advice. It seeks to alter section 193 of the act to make explicit the actions which are not required of an officer of the department in relation to a person in immigration detention and to reverse the decision in the Federal Court that the human rights and equal opportunity act has priority over the Migration Act. The bill also seeks to amend section 256 of the Migration Act to make explicit the right of a person in detention to request visa application forms.

This bill echoes a bill from the previous government which included the bizarre wording that `not even a court may order the person's release'—that is, from immigration detention. We must remember that this is not supposed to be custody. It is custody in every sense of word, but, as Senator McKiernan has often said in this place, these people that have fled and arrived in boats, often in very traumatic conditions, are free to leave and go back to where they came from. It is nonetheless detention and it is nonetheless bizarre that not even a court may order a person's release from that detention.

The bill now before the Senate takes this thinking a step further by seeking to remove the protection of the common law from section 193. Furthermore, the bill seeks to make the ability to create written submissions to the Human Rights and Equal Opportunity Commission or the ombudsman a mandatory part of every asylum seeker's curriculum vitae. I refer to the proposed wording of new section 193 (3).

In light of answers to my questions about the decrease in the ombudsman's budget and the likely reduction in the number of complaints the ombudsman is able to investigate, this section may prove to be an even bigger stumbling block to applicants for refugee status than it appears to be on the surface—goodness knows it is bad enough already. I issued a press release entitled `Is accountability a one-way street?', which deals with the funding cut for the Commonwealth ombudsman's office. I did that because I wanted to say that we seem to be quite happy about using the slogan of accountability to justify enormous policy changes.

One example is ATSIC funding. However, when it comes to the government being accountable and funding properly the accountability mechanisms that are available to ordinary citizens to challenge government departments, such as the Department of Immigration and Multicultural Affairs, the funding is being cut by 16 per cent. The complaints that can be dealt with are likely to drop below 50 per cent simply because of the cuts to the funding and the probable drop in staffing levels. There will be certain difficulties in addressing very important inquiries such as the NOMAD crash and the ATSIC Burnt Bridge inquiry.

We have, on one hand, a government that is saying accountability is very important yet, on the other hand, its accountability to the people and the accountability of government departments does not seem important. I think we should remember that. The Human Rights Commissioner—I might add that the Human Rights and Equal Opportunity Commission is suffering in the same way as the Commonwealth ombudsman's office is in terms of funding cuts—Mr Chris Sidoti, held a media conference about this legislation last week. I am sorry I was not able to be there as it must have been very powerful. Mr Sidoti reminded those present of some of the words of the Australian national anthem:

For those who've come across the seas

We've boundless plains to share

I thought that was very interesting because I had been to the memorial at St Christopher's in Manuka for those who died in the tragic Black Hawk accident. We sang both verses of the national anthem. It is unusual to sing both verses. I was choked with emotion on that occasion and I nearly choked when I was reminded of the second verse of Australia's national anthem. I think it would do my colleagues in the chamber who are planning to support—


Senator Woodley —Read them out.


Senator CHAMARETTE —I have not got all the words here, but I will bring them down so you can use them in your speech. Our colleagues in the chamber should be aware that when we sing our national anthem we are actually giving the lie to the kind of attitude it represents. When we present legislation in this chamber we try to push it through in the space of one week and we do it by dint of numbers by both major parties voting together. I will rely on Senator Woodley to give you the words to the whole anthem, but the most powerful words are:

For those who've come across the seas

we have boundless plains to share

Mr Sidoti also drew attention to some statistics about people who have applied for and been granted refugee status in recent years. Up to June 1994, 856 people arrived by boat unauthorised, of whom 394 were granted residency—that is, 46 per cent. From July 1994, 1,622 people have arrived, of whom only 78 or 4.8 per cent have been granted residency. How can this be? The refugee application process did not suddenly change in July 1994. The definition of a convention refugee did not change. Australia did not withdraw its status as a party to the refugee convention. What then happened?

The evidence points to only one conclusion, and if I may use biblical language to describe the change, the government hardens its heart against the asylum seekers. Sadly, the change was made with the support of both major parties in the parliament and hence we do not anticipate a more humane approach with the new government.

In 1994 the coalition did develop a conscience and heart in relation to these matters. It was a wonderful occasion when they refused to vote for retrospective legislation to do a dollar a day compensation for illegal detention. I may be wrong about the details, but I do know that the coalition actually stopped the bipartisan inhumanity of its immigration policy over the last four years that I have been in this place. Unfortunately, because there was the potential for that bill being used as a double dissolution trigger they reneged and went back to their current position. Now in government, regrettably, they seem to be firming up their stance. I only hope that this is not the case.

Throughout the sordid history of Australia's response to the boat arrivals since 1989, the government has worked extremely hard to turn public opinion in favour of its harsh and unfeeling policy. As I have pointed out on numerous occasions, this is in marked contrast to the climate of welcome created by the Fraser government in the aftermath of the Vietnam War when far greater numbers of people arrived by boat than are doing so at present.

I also think both major parties were attuned to the political nature of criticisms in the community. In relation to the gun control laws they have stuck true to principle, they have not been swayed by loudness of voices and they have listened to the silent majority; whereas in relation to immigration policy they are determined to listen to the loudest and strident voices. They have turned a deaf ear to the silent majority—the compassionate and caring citizens of Australia who would not wish to violate anybody's human rights or ill-treat people who arrive on our shores, who would want fair and just processes to be available to everybody in this country. As I was saying, during the Fraser government far greater numbers of people arrived by boat and there was a compassionate response from the government of that time.

The community has been bombarded with government statements that the boat people are queue jumpers, that they are the victims of unscrupulous entrepreneurs in other countries who are making money by providing boats, that they are being used by touting lawyers who want to make money out of the misery of others, and that they are not refugees anyway. Let us look at those arguments. If people who arrive by boat are queue jumpers, then it is high time the refugee convention was rewritten, because the convention describes as a refugee a person who is outside their home country and is unable or unwilling to accept the protection of their own country. I have often wondered where the queue is. It must be a very long queue by now, as there are upwards of 25 million refugees around the world according to the United Nations High Commissioner for Refugees.

What about the unscrupulous boat providers? Certainly, people are reported to have paid large sums of money to get a place on a boat. That presumably implies that someone is getting rich from this trade in uncertainty. But what does that have to do with Australia's obligations to assess their claims for refugee status? What about the touting lawyers? As Mr Sidoti pointed out in his communication to me, there are many lawyers in this country who have jeopardised their financial wellbeing through their willingness to take on the cases of asylum seekers on a pro bono basis. They have shown precisely what the phrase `pro bono' should mean: work for the good; work for the good of the community. I commend the many lawyers I have seen who have taken on very heavy and traumatic case loads because of what they have to contend with.


Senator Woodley —There are some very good lawyers in this country.


Senator CHAMARETTE —There are some very noble and good lawyers in this country; there are others that might not be quite as popular. I should say here that, to condemn people because they do pro bono work for the good of the community, is just outrageous and disgraceful. I am afraid that I have heard it mentioned many times in this chamber by colleagues.

I am also informed that at present there are only three boat people cases before the Refugee Review Tribunal and 70 cases subject to litigation. That is hardly a picture of masses of lawyers running around the country propping up their practices by taking on boat people as clients. When they are not even paying, I think that is a very long bow to draw.

Finally, the government argues that these people are not refugees. The usual lines are that they are economic refugees—whatever that may mean—or that they are simply trying to improve their economic lot and are not refugees of any description. They must be rather like the early settlers, if this definition is supported. They must be like our ancestors who arrived on these shores. Apparently it was okay in those days for them to be so-called economic refugees who were seeking to improve their economic lot.


Senator Cooney —Some of our ancestors didn't have any choice.


Senator CHAMARETTE —I think some of our ancestors didn't, Senator Cooney. I should not joke because I think this is an extremely serious point. People are being written off because of the words and phrases they use.

What we have to bear in mind is that asylum seekers do not label themselves with a little badge before they leave their home country. They do not say, `I am an asylum seeker.' They flee for their lives. They do it in secrecy, and they might use all their financial means to try to secure passage on a boat. When they arrive on our shores and see people in uniform, are we really entitled to assume that they will say, `Ah, a wonderful department of immigration officer whom I can trust immediately with the stories of my persecution back home, even though I can't speak his language and I don't know who this person is.' That is the problem we have.

We really do not know that the communication is there for us to assess whether they have the capacity to know whom to speak to and what words to say. To define them as economic refugees because of their phrasing or because of the way they seek to express their reasons for being here in response to questions that they may or may not understand and implications that they certainly do not understand is another matter. No-one is arguing that everyone who seeks refugee status will be granted protection, but the refugee convention makes it abundantly clear that the question of whether a person is a refugee can be answered only in terms of the individual case. Blanket decisions are not possible where refugees are concerned.

At times the previous government sought ways to overcome that requirement—for instance, with the decision to sign a safe third country regulation pertaining to Sino-Vietnamese in China. That was one of the decisions I forgot when mentioning the numbers of disgraceful pieces of legislation that have come into this place. That move was one of the more reprehensible steps along this long and sorry road, because it ruled out whole categories of people who might seek asylum here while still upholding the need for individuals in other groups to prove their case for protection.

However the government might like to paint the picture, the fact remains that there are refugees among those who arrive without authorisation—whether they are 4.6 per cent or 46 per cent. The record proves that 46 per cent of boat arrivals who came before July 1994 were granted refugee status. They were found to be refugees. Even after the hardening of the government heart in July 1994, people have been granted refugee status. Even under the grudging, miserly system which now prevails, people are being recognised as refugees. So now we have more legislation to change the rules.

The rules being changed now are an attack on fundamental human rights for everyone in this country. This legislation strikes at the heart of this country's human rights structures. If the parliament is prepared to countenance this change, it demonstrates an extremely worrying trend in the way this country values the rights and freedoms of individuals. The bill seeks to make sure that no-one will be able to volunteer information about legal advice and protection visa applications to people in immigration detention. Not only will no-one be able to; the Human Rights and Equal Opportunity Commissioner is not allowed to and the Commonwealth ombudsman is not allowed to volunteer information about legal advice and protection visa applications.

People so being held are to be entirely on their own. We are asked to pass a bill which contains a provision which, if it were not so serious, would be funny. It is a laughable situation, except that it is an extremely black, tragic comedy. Proposed new section 193(3) proposes that the government may deny legal advice and other information to an asylum seeker unless the asylum seeker makes a written complaint to the Human Rights and Equal Opportunity Commission or to the Ombudsman. The mental image is staggering. A boatload of people arrive on the north-west coast of Australia. The people are picked up and transported to Port Hedland detention centre. Of course, the first thing they will do is ask for pen and paper so that they can write a complaint. No doubt, they will even ask for stamps and we could just about anticipate that future legislation will make explicit that asylum seekers are entitled to stamps.

The irony of that is this: I wonder how many senators think that people arriving from another country—probably one with an authoritarian government, possibly with a corrupt local bureaucracy—will think their way through the arcane provisions of Australian migration legislation and realise that they will need to write such a complaint. We also ask whether English is their language and whether they can write in English. Is that the picture? If they do not have to write this letter to the Human Rights and Equal Opportunity Commissioner in English, I wonder what the name is for the Human Rights and Equal Opportunity Commissioner in every language from which asylum seekers come. Maybe we should provide that information in the legislation too—that they have to use the right name. Is that the picture that the parliament wants the world to have of Australia's commitment to human rights?


The ACTING DEPUTY PRESIDENT (Senator Colston) —Order! The honourable senator's time has expired.


Senator Chamarette —Mr President, I seek leave to incorporate the remainder of my notes in Hansard .

Leave granted.

The notes read as follows

It puts me in mind of some of the more bizarre experiences one reads about when people come into contact with bureaucracy. One of my staff was once asked to prove that he had not applied for a sales tax rebate on a car he was taking out of the country. I ask honourable senators to ponder the likelihood that a person, with no assistance from the management or staff or the detention centre, with no access to legal advice, is going to arrive at the conclusion that they have to write to another part of the bureaucracy to raise a complaint so that they can then have access to legal advice?

This government, like its predecessor, has already argued that `we need to have control over our migration program' and we cannot have people arriving without authorisation. Fine, but what about the exceptions which exist?

What about the visa-free entry for wealthy Indonesians who want to play games at the Christmas Island casino? How certain is the government that everyone who comes is honest, upright and true? What about the reports of money laundering through the casino which we keep hearing? What about the discussion about allowing tourists from certain countries to come in visa-free?

Why is it that when business is involved, mountains of obstacles can move aside, but when the human rights of boat people are concerned, mountains of obstacles are built up, and piled one on another if people discover that the mountain can be climbed?

This legislation demonstrates yet again just how fragile the human rights structure in Australia is. It can be swept aside whenever human rights become a nuisance to government. In this case, the govern ment has decided that even the protection given to people under the common law is a nuisance, and so it is writing the common law out of Section 193 of the act.

I think it was Senator Bourne, during the debate on exempting this bill from the `cut off order', who pointed out that this bill seeks to make it as difficult as is human possible, for an asylum seekers to get the information necessary to gain access to that human rights protection which Australia is so proud of in international circles.

Last Friday night a Sino-Vietnamese couple with a severely disabled baby was deported from Port Hedland. It was a disgraceful episode which demonstrates in the starkest terms possible the heartlessness of this country's refugee process. The department received an opinion from a specialist at the Division of Molecular Medicine of the John Curtin School of Medical Research that, considering the lack of appropriate medical care available in China, sending this child back is a de facto death sentence. The couple were denied access to the chaplain of the detention centre before they were put in a paddy wagon and taken to the plane.

Is this how Australia wants to be known around the world?

Human rights, of course, are in the eye of the beholder. This country provides military training to members of the Indonesian armed forces, who then use that training when they deal with people in East Timor, in Aceh and in Irian Jaya. The previous government told us that one of the reasons for providing such training was so that the attitude to human rights of the Australian military would `rub off' on to the Indonesians. This is, of course, a process of osmosis.

But osmosis is a two way process, and in recent times we have become concerned that more of the Indonesian attitude is rubbing off than the other way around. For instance, when protesters in Australia burnt Indonesian flags last year, the then Minister for Defence, Senator Ray, instantly argued for laws banning burning flags. That is the sort of response to protest that you would expect from a closely controlled society like Indonesia, not an open and free society like Australia.

I believe that Australia's refugee assessment process is starting to look like the sort of process that one would expect to find in a country which is not a signatory to the Refugee Convention. It looks like the process of osmosis is working to water down the commitment to human rights in this country.

Mr President, this bill is a disgrace and should be rejected accordingly. In the interests of the powerless, the voiceless, in the interests of those who have no say in the affairs of nations, I urge honour able senators to vote against it in spite of their party position.

Debate (on motion by Senator Short) adjourned.