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Wednesday, 20 August 1980
Page: 524


Mr Les Johnson (HUGHES, NEW SOUTH WALES) - Mr Deputy Speaker,the House is debating the Immigration (Unauthorized Arrivals) Bill 1980. The stated purpose of the Bill is to prevent profiteers - some would say racketeers - from exploiting people wishing to leave their country of origin and seek entry to Australia. The Parliamentary Library's summary of the legislation is to this effect:

To prevent commercial attempts to bring to Australia by sea or air passengers who have not received previous permission to enter.

I think that is a succinct account of the legislation. The Bill is directed against immigration rackets, often involving large numbers of refugees and organised by unscrupulous traders in human suffering and misery. The honourable member for

Maribyrnong (Dr Cass), who led for the Opposition in this debate, has indicated that the Opposition generally supports the aims of the legislation and considers unacceptable the practice of arranging for profit the importation of people in contravention of the immigration laws of the country. So the Bill is not being opposed, but certainly the Opposition is taking the opportunity to indicate that it does not regard the legislation as being totally desirable. Possibly there is something wrong with the drafting; the Bill is a little lazy in its definitions. We find some vulnerabilities which involve encroachment on the established concepts of justice.

The Minister for Immigration and Ethnic Affairs (Mr Macphee) in his second reading speech gave an account of the exploitation of refugees who have been landed at Asian and Australian ports. He mentioned the five large freighters filled with Vietnamese who had paid large sums to leave their homeland. He said that each of those ships carried between 1,500 and 3,000 passengers. When returning by sea from Canton, on the mainland of China, to Hong Kong I remember seeing one of these ships, which had run aground on a beach at Hong Kong. The refugees were scrambling ashore as best they could with their few possessions, and the authorities of Hong Kong were seeking to assist them, lt was a rotten, rusty old hulk which had gone very close to being broken up for scrap iron. It could easily have foundered on the way to Hong Kong and its cargo of passengers been drowned in those perilous seas or exposed to the ravages of rape and the pillage of pirates - not infrequent occurrences in that part of the world. The exploitive and merciless entrepreneur who had registered his rotten, rusty, risky hulk under a foreign flag, a flag of convenience - I think it was the flag of Liberia - had already pocketed his ill-gotten gains. This is a very unhappy practice to behold.

The Minister instanced the case of the vessel Southern Cross, which sailed into Indonesian waters. He referred to the Hai Hong, which arrived off Malaysia, to the Huey Fong and the Sky Luck, which cams into Hong Kong, and to the Tung An, which went to the Philippines. Over the last five years Australia has received 53 small boats carrying a total of 2,067 boat people, or refugees. No doubt many boats have foundered on the way to Australia, and possibly hundreds or even thousands of people have been lost to the ravages of the seas. All these arrivals have been characterised by some controversy, as Australians do not always understand the international obligations this country has. Australia is a signatory to an international convention which places the onus of humanitarianism on us in a very justifiable way. All told, between 1975 and 30 June 1980 Australia has accepted for resettlement 37,913 Indo-Chinese refugees and displaced persons. I do not think that number of people necessarily has remained in Australia, but a large number has. I have before me a document from the office of the

United Nations High Commissioner for Refugees, which provides statistics of Indo-Chinese refugees and displaced persons and indicates the places to which they have gone for resettlement. I seek leave to have this table incorporated in Hansard.

Leave granted.

The table read as follows -

 

 


Mr Les Johnson (HUGHES, NEW SOUTH WALES) - I thank the Minister and the House. The figures show that to the end of June 1980 no fewer than 223,339 refugees from Indonesia were accommodated in various countries. There were 94,486 boat people and 1 28,853 land people. It is interesting to look at the table. I have mentioned that Australia has taken 37,913 Indo-Chinese refugees. To mention just a couple of other countries, New Zealand has taken 2,667, the United Kingdom 10,001, Canada 58,701, the German Federal Republic 14,209, little Hong Kong 9,372, an amazing demonstration of human concern, Italy 2,273, and Japan 540. It has often been contended that a greater effort could have been made by Japan. The United States has taken 254,852 refugees during that period, and many other countries are mentioned in that table. Of course, honourable members have had contact, as has the Australian citizenry generally, with many of these people, and we have found them to be very good settlers. At the East Hills migrant centre, which is in my electorate, over the last three years we have had 357, then 1,165, and this year 900 people domiciled at the centre. They seem to be effectively assimilated and are well regarded by the Australian community.

As a matter of philosophical conjecture, it is worth considering whether there are other ways of assisting refugees to leave their countries. Australia is a signatory to the Convention Relating to the Status of Refugees. We became a party to that Convention on 22 April 1954. In addition, there is the 1 967 Protocol Relating to the Status of Refugees. Article 31 of the Convention, under the heading 'Refugees unlawfully in the Country of Refuge', contains the following provision:

1.   The contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1 , enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2.   The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

They are reasonable and considerate provisions, designed to assist people who suffer these unfortunate circumstances. Having seen the extent to which countries are prepared to co-operate to facilitate the acceptance and movement of refugees, I put it to the House that a case exists for reasonable conjecture as to how people can otherwise be moved from their perilous situations. I take as an example people in Vietnam who have opposed and are disliked by the current regime. Some may contend that their lives are threatened and their freedom is to be curtailed. They could virtually be at the end of the plank, at the tip of the peninsula. Who will facilitate their movement from their country if in fact their movement is essential for survival? The whole purpose of this legislation is to heap our venom and our hositility on the people who move in to facilitate the transportation of refugees. Australia seems to be taking the view in the Convention to which it is a party that it is reasonable for refugees to seek to leave a country which threatens their well-being and, if they are successful, to be harboured, cared for and accommodated in very considerate ways.

If we do not like the fact that people with ships are moving in to shift refugees from the shores of Indo-China to Asian ports or to Australia, we have to consider who should undertake that process. It seems to me that a vacuum exists that ought to be filled. It might be reasonable to suggest that the agency of the International Red Cross for example could be charged by the United Nations with the responsibility for shifting these refugees so that these unscrupulous, exploitive and entrepreneurial people whose lousy, rusty ships are likely to sink along the way are not discharging this obligation. What is wrong with the United Nations High Commissioner for Refugees being charged with that responsibility? It has already been proved that a quarter of a million people are seeking to leave Indo-China as legitimate refugees. Yet the Government is simply saying in its legislation - justifiably in my view - that it is bad for people to exploit refugees. Who can reasonably be expected to fulfill that obligation without being the subject of penalties? So many instances have occurred around the world in recent times- there are many comtemporary examples - of people having to flee their regular place of abode that this kind of philosophical question should be examined carefully. I hope it will be examined by the Minister, possibly in a more international atmosphere.

Whilst the general aims of the Bill are unequivocally supported, the Opposition does not believe that the provisions included in the Bill contain sufficient checks to ensure that there is no miscarriage of justice. In short, the provisions of the Bill vest wide, almost unfettered, powers in the Minister and his Department. The objectives of the legislation could have been achieved without the inclusion of such enormous discretionary powers and wide-ranging draconian penalties. The Bill provides for a fine of $100,000 or imprisonment for up to 10 years or both for the master and members of the crew of an aircraft or ship which brings in five or more unauthorised persons. Owners, agents or charterers who are parties to the bringing of unauthorised people to Australia are liable to the same penalties as any person who unlawfully seizes an aircraft or vessel for such purposes. This is a blanket provision applying to the key personnel and the secondary personnel. It seems to me that there is scope for discretionary penalties in respect of the seriousness of the offence created. The Opposition questions the wide-ranging application of this penalty provision to cover members of the crew of ships and aircraft equally as it does the master.

The statutory defences under clause 6, which deals with unforeseen emergency and the right of innocent passage for ships, does not exempt crew members obliged to carry out their duties. Under the Bill the onus of proof for the statutory defences to the penalties in clause 6 has been placed on the defendant, which is a reversal of normal practice. The defendant has to establish to the satisfaction of the court that the emergency landing or entry into Australian territorial waters with more than five people without authority was in consequence of an unforeseen emergency. This matter is the subject of an amendment to be moved by the Opposition. The onus is not to prove on the balance of probabilities. In the Opposition's view the case can be made for placing the onus of proof on the prosecutor. Accordingly, we will seek to amend the legislation in that way.

Clause 8 imposes penalties of $5,000 or imprisonment for two years or both on masters and members of the crew of ships who, through act or omission, directly or indirectly permit any prescribed person to disembark in Australia. The extension of this provision equally to cover crew members seems unjustifiable. Another provision which does not clearly define the situation or is inadequate in providing safeguards against unwanted prosecution is clause II. It is not clear whether this clause establishes a statutory right to challenge legally the reasonableness of the period in a notice requiring the conveyance from Australia of specified passengers. The wording of the clause permits the interpretation that the period is determined by the authorised officer and no submissions by the defendant can be made after the period is set. In short, the provisions of clause 1 1 are ambiguous and inadequately defined. A defendant would not be clear as to his obligations. The penalty for failure to comply with the notice is $5,000 or imprisonment for two years or both in respect of each relevant passenger to whom the requirement relates.

Clause 12 allows members of the Australian Federal Police or the police force of a State or Territory or any other officer authorised by the Minister to arrest without warrant a person whom he reasonably believes to be a passenger who has breached disembarkation provisions under the Act. This needs some justification over and above the justification so far given. The person arrested is to be brought before a prescribed authority - a magistrate, I believe - within 48 hours. The Act does not ensure that the defendant is protected by the normal legal rules of evidence otherwise applying in our courts. This provision obviously needs clarification. Sub-clause (7) gives the prescribed authority power to investigate the matter without regard to legal forms and releases the authority from being bound by the rules of evidence. Clause 18, which requires masters of aircraft and ships to repair their unsafe aircraft or ships within a period specified in the notice, gives no right to the master to challenge the time given to carry out repairs on the grounds that it is, for example, unreasonable. Failure to comply carries a penalty of $100,000 or 10 years gaol or both. This, of course, is the same penalty as is imposed for the principal racketeer. Again, it is very hard to justify.

There are many other provisions to which I will not have time to refer. Clause 26 gives power to officers of the Department of Immigration and Ethnic Affairs and to Customs officers to arrest without warrant a person whom they reasonably think has committed an offence under this legislation. I hope that when we reach the sunset stage of the legislation which is provided for in clause 31 we will have a good look at these excessive provisions and the rough justice which seems to be involved. I recommend that the Minister use the intervening period to talk this matter over with the Attorney-General (Senator Durack) so that this legislation can be brought into line with the principles of justice which predominate in this country.

MrDEPUTY SPEAKER (Mr Millar)Order! The honourable member's time has expired.







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