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Monday, 9 December 2002
Page: 7497

Senator STEPHENS (8:43 PM) —During the course of the Senate Legal and Constitutional References Committee's inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, we were presented with very little evidence to suggest that this legislation will be able to achieve its stated aims. It is a piece of legislation that in fact has the potential to do more harm than good. According to the Minister for Immigration and Multicultural and Indigenous Affairs, the bill has the aim of border protection. It is intended to prevent people from using excised offshore places to achieve migration outcomes. Its aim, then, is to prevent people from entering Australia without a visa.

However, I am not convinced that excising almost 5,000 islands along Australia's coastline, many of which are very close to the mainland, will in any way add to the efficacy of the existing system. This bill may well prevent people from using excised offshore places to seek asylum, but it is likely to encourage them to head for the mainland instead. The committee found conflicting reports amongst and between government departments as to what role this excision could play in the border security of Australia. The one thing that they could agree on was that excising islands so close to the mainland would force boats to make that extra step and land on the mainland itself. So, like the Pacific solution, this bill can be seen as nothing more than a PR exercise. It sounds tough but in fact it achieves little.

This government has engaged in what has become an extremely dangerous world contest with other destination nations to develop the harshest deterrence mechanisms, because in the current system there is a sense that the country with the weakest deterrence mechanisms will be targeted. This is a gross and punitive waste of resources in an international competition that no-one can win. Labor has proposed to work cooperatively with other nations to stop competing to deter asylum seekers and start developing multilateral policies for resettling or repatriating them. This is not a situation we can ignore. It is not going to go away. This bill is yet another Howard government mechanism to make it look like it is doing something about the problem when really it is just biding its time, wishing it would all go away.

The minister has claimed that such legislation `will significantly reduce incentives for people to make hazardous voyages to Australian territories'. Many submissions to the inquiry questioned whether this will be effective as a deterrent: `What,' they asked, `is standing in the way of them simply landing elsewhere?' Obviously, the danger of a journey to Australia on an overcrowded boat is a much stronger disincentive than questionable migration outcomes. If someone is fleeing their home or, as is so often the case now, travelling to join a family member who is in Australia on a TPV and has no right to family reunion, the incentive to find somewhere safe for them and their families is particularly strong.

But this bill will not deter asylum seekers from coming to Australia, as the islands it has excised are simply too close to the mainland. Deterring people smugglers from making the journey would be a legitimate policy aim, but this is clearly not the aim of this legislation. I am quite sure that people smugglers would not offer a money back guarantee if their cargo did not achieve migration outcomes.

Apart from the fact that the legislation will not achieve its stated aims, the major concern that I have with it is that it has the potential to add to the costs—the financial, social and political costs—of the disaster that has been the Pacific solution. According to the repeated pledges of the Australian government to the people of Australia—and to Nauru and to Papua New Guinea—the processing of asylum seekers in these Pacific nations is a temporary measure. The government, however, has budgeted $430 million over the next four years for offshore processing in Pacific island countries. The memorandum of understanding between Australia and Nauru and Papua New Guinea also allows for the situation to continue for `as short a time as is reasonably necessary'— in other words, the time frame is open ended. This causes enormous difficulties for these countries and, in my view, is an unnecessary extension of the policy of detaining people in conditions far worse—and at far greater expense—than those in Australia.

In 2001-02, the detention of asylum seekers on Nauru and Manus Island cost the Australian taxpayers more than $150 million. While expenditure on the Pacific solution and aid to Nauru continues to soar, Australia has been cutting funds to the UNHCR. From 2000 to 2002, funding of $14.3 million was allocated to the UNHCR in the budget. Core funding in the 2002-03 budget has dropped to $7.3 million, although now the UNHCR will be able to compete with other organisations for additional funding. While the minister claims that refugee flows must be addressed at their source, the Australian government is cutting funds to the very agency responsible for dealing with the refugee crisis at its source.

Under Labor, funding to the UNHCR will be increased to $25 million. Labor will also abolish the special program funding introduced in the 2002-03 budget. This shows a real and serious commitment to addressing refugee flows at their source—we have yet to see such a commitment from the government—not only in terms of funding for the UNHCR but also in terms of aid priorities. Labor has also committed to boosting aid to address the root causes of refugee movements, contributing to lasting solutions not unworkable stopgaps. As Margaret Piper from the Refugee Council of Australia noted:

Iran has 2.5 million asylum seekers and gets $30 million from the international community. Now we are spending—if estimates are correct—between $350 to $400 million on trying to keep out a couple of thousand people. If we were to spend even a portion of that on helping Iran, these people would not have to look to the smugglers to get on the boats to come halfway around the world to risk their lives to get to somewhere where they have protection.

Using foreign aid to buy the assistance of poorer nations, as this government has done with Nauru and PNG, is a case of really misplaced aid objectives. Pacific expert Greg Fry of the Australian National University argued that the policy:

... has serious political implications for a number of Pacific states. It has also damaged the way Australia is seen in the region and has acted against the Australian Government's other foreign policy goals in the area (such as promoting responsible governance).

Aid should not be used as a bargaining tool in this way with Nauru and Papua New Guinea. This policy has damaged Australia's reputation in the Pacific, with the focus on the Pacific solution seen to be overshadowing key priorities in the region—not least of which is the significant number of internally displaced people and refugees in neighbouring Pacific countries, including the Solomon Islands, Bougainville and West Papua. An Oxfam report states:

... over $40 million has been spent to establish and run the camp on Manus Island for less than 400 refugees, while church and humanitarian agencies are using limited resources to support over 6,000 West Papuan refugees and border crossers living in official and unofficial camps along the border with Indonesian-controlled Papua. There are also some 17,000 internally displaced people within Papua.

My concern is that this legislation will create more offshore entry persons, continuing this misuse of justice and funds. This policy was developed in an ad hoc manner and has left the government with promises it cannot keep and people found to be refugees waiting an indeterminate time to be resettled. It makes no sense to create more offshore entry persons when the government already has a major problem on its hands with those who have been taken to a declared country over the past 14 months.

During the 2001 election campaign, in relation to asylum seekers who were to be detained in the Pacific, Prime Minister John Howard stated, `They are not coming to the Australian mainland; that is one choice that is not available.' Despite such pledges, a total of 281 of these refugees have so far arrived in Australia for permanent settlement under the Pacific solution. There have been 701 approvals for asylum seekers on both Manus Island and Nauru to date. It is taking the Australian government a considerable length of time to find resettlement places for the remaining refugees, with no solution to this problem in sight. Practically, the result of this is the continuing detention of people who have been found to be refugees. Clearly this is not a preferred outcome, by any means. If the majority of them, as seems set to happen, end up in Australia, the whole exercise will have been nothing but a waste of money—an expensive and politically expedient diversion.

There are also pressing concerns as to what will happen to those whose applications for asylum have been rejected and who cannot be returned. Nauru and PNG do not want them to stay indefinitely, and it is not clear whether they can be forcibly repatriated. These people are stuck in limbo because the government did not consider the results of this policy beyond the 2001 election date. As Oxfam-Community Aid Abroad found in their report of August this year into the Pacific solution:

The Australian government has not been transparent with the Australian or Nauruan public about the length of time to be taken for the processing of applications.

A lack of transparency can be a feature of bad policy and also a corollary to it. There is very little information in the public sphere about conditions of detention on Nauru and PNG, and certainly there is not enough public scrutiny. This has led to problems in detention conditions and visa processing that would have raised much more alarm had they occurred in Australia.

Labor's plan to maintain Christmas Island as an excised place is, unlike the government's policy, well considered. Conditions of detention on Christmas Island will not be inferior to those on the mainland. There will also be transparency in relation to the conditions of detention and the asylum claims processing regime, with an expert committee, the Asylum Seeker Claims Processing Review Committee, overseeing the development and functioning of the processing regime. Unlike the Liberal government, Labor will not need to hide its actions. Processing on Christmas Island will be fast, fair and transparent, and there will be no long waits for resettlement, because Labor will take its responsibilities seriously and resettle in Australia all those found to be refugees.

The delays in processing applications on Nauru have seriously disadvantaged hundreds of Afghan applicants because of the regime change in Afghanistan. These delays, and the lack of clarity as to the future of the policy, have created major difficulties for the Nauruan government. This legislation, in an attempt to deter asylum seekers by excising islands close to the Australian mainland, is just another example of this government's misplaced priorities and open hypocrisy in its stated attempts to deal with the international refugee crisis. Detaining asylum seekers on Pacific Islands was supposed to be a short-term fix. It was not a measured or considered policy, and now we are seeing its results. These results include political instability in Nauru and PNG, regional ill-will towards Australia, delays in visa processing, a lack of resettlement options for those assessed to be refugees and an absolute blow-out in the costs. It would have been more efficient, cheaper and more humane to have processed these asylum seekers in Australia.

The Oxfam report, in relation to children detained on Nauru and Manus Island, states:

A particular concern is the status and welfare of these children, who don't have access to the kinds of educational and welfare facilities available to children in Australian detention centres—

which are of themselves inadequate. There are currently 157 minors on Nauru and 34 on Manus Island—that is 191 children in total. More children are held under the Pacific solution than in onshore immigration detention centres. These children have all been detained for between 12 and 14 months. During committee hearings, a DFAT representative admitted that Australia had not raised with Nauru or PNG the relevant international obligations such as the Convention on the Rights of the Child.

Mr John Hodges, the Chairman of the Immigration Detention Advisory Group, which reports to the Minister for Immigration and Multicultural and Indigenous Affairs, said:

Nauru is by far the worst of the detention centres ...

He admitted:

... the facilities are just not as good as they are in Australia.

I am concerned that the results of this legislation would be to detain more children in conditions that are worse than those in the mainland detention centres. There is less transparency and there are fewer procedures for determining the situation of children in these detention centres than there are on the mainland, and conditions for children in mainland centres are in themselves causing widespread concern. When questioned by the Senate Select Committee on a Certain Maritime Incident about educational facilities on Nauru and Manus Island, Mr Hodges mentioned only one detainee who spoke fairly good English and was teaching classes. Mr Hodges said:

Education facilities I believe are lacking a little.

Clearly, as Mr Hodges pointed out, there are difficulties in educating children in a detention centre environment, but this is not a reasonable excuse to ignore the question altogether. When asked by the committee whether there had been any sort of qualified assessment of the education needs of the camp populations, the head of the minister's immigration detention watchdog said that he did not know. Education is a basic right for children; it is so in Australian domestic law and in the Convention on the Rights of the Child.

The UNHCR also raised concerns about the nature of the visas that offshore entry persons are able to apply for. The granting of a temporary protection visa, they argue, should not be defined as resettlement, as it is not a durable solution for a refugee. TPV holders at the moment have no access to family reunion or travel papers and are given little support to settle into the community. This legislation has serious adverse implications for the rights of refugees to family reunion. Members of a family who arrive separately are assessed individually, which allows for family members to be taken separately to a declared country, even if a member of the family is residing in Australia on a TPV. As the UNHCR put it:

This right includes maintaining family unity for members arriving in Australian territory together, as well as assuring family reunion for members arriving separately. When coupled with the use of Temporary Protection Visas by Australia, which do not provide for family reunion as a basic individual right, the impact of such State action may result in a breach of Australia's formal obligations under various human rights instruments, including the Convention on the Rights of the Child, as well as ignoring standards that Australia has helped to create and promote.

Labor recognises that the current system of TPVs is not working. The lack of access to settlement services and family reunions creates an underclass of visa holders who have little means of building a life for themselves in Australia and are welfare dependent. Under Labor, the TPV will be of a shorter term, after which an asylum seeker's claim will be reassessed. If circumstances in their country have not changed, they will be granted a permanent protection visa with rights to family reunion. The change that will have the most significant impact on current TPV holders is that, under Labor, they will have access to settlement services, including English language training and the full range of Job Network services.

Despite its stated aim of deterrence and border control, this bill has clear potential for unintended consequences. Obviously, these had not been thought out in the implementation of the original raft of legislation, as can be seen by the subsequent return to Australia of refugees from Nauru and Manus Island, and clearly they have not been thought through here. A high proportion of those who try to come to Australia via people smugglers are women and children trying to join family members. I for one am not willing to risk more children being detained on Nauru or Manus Island for extended and indefinite periods of time.

This bill is a diversion. It is part of a strategy of focusing attention away from important questions and drawing the eyes of the nation, using the language of fear, to a phantom threat. I would like to quote from Minister Ruddock's second reading speech on this bill. He said:

The choice for the opposition is now clear. They can either support strong and effective border controls or they can contribute to the weakening of Australia's borders and the perils arising from this action.

What is this if it is not the language of fear? This legislation does nothing to strengthen Australia's borders. It is not effective border control. It is a line in the sand, and if we were under some kind of peril it would not be enough to protect us. The government seem to think that there are only two choices. They think that because they have not made the effort to consider other options and because they feel there is no political mandate in innovative solutions. All they can think of doing is adding an ineffectual extra to an already failing system. It does not convince me and it will not convince the Australian people either.