Senate Hansard Extract - Senator Bartlett - 18 August 2005

Senator BARTLETT (Queensland) (11.57 am)-in reply-this debate is actually about the Democrat motion to disallow regulations that excise thousands of Australians from Australia's migration zone. Senator Marshall's contribution perhaps went a bit wider than that, but there is some relevance there. Obviously there must have been, or else someone would have raised a point of order. The relevance is that Senator Marshall outlined details of the Palmer report and the debacle in the immigration department around the Cornelia Rau issue but, much wider than that, the intrinsic failures and massive flaws in the way the immigration department currently operates and has been operating for a long period of time under this government and this minister under the Migration Act.

These regulations allow the immigration department to operate totally outside that act altogether for people who are not in the migration zone. Senator Marshall has outlined a damning indictment of how badly this government and this department fail in treating people with even basic decency and duty of care, let alone legal rights. While they are operating under the law as it stands with all its flaws, what this regulation will allow if it is not disallowed is for them to just disregard that law altogether for anybody who arrives here in those areas that are excised from the migration zone.

While the government and the minister say, `Yes, we have got a real problem in the immigration department, there is a real culture problem, a management problem, all of those things; we are going to change the culture; we're going to make it more responsive, more accountable, less mistakes,' at the same time they bring in a regulation that removes any sort of accountability-that removes the whole law. How can you possibly say that the government is genuine about changing the culture of the department and the people in it and how they operate when the minister is saying, `Here you go, if you can catch people in this part of Australia, you have got free rein; no law at all; nothing to worry about'? It is farcical and it puts squarely, front and centre, that any suggestion that there is a genuine culture change being driven by this minister and this government is a joke.

That is why this disallowance motion is so important: it sends a clear signal that we are not going to go back to the bad old days of these farcical, ridiculous, quasi-legal fictions that have led to the sorry situation that we now have with our immigration department.

Let me emphasise that, when our immigration department is as dysfunctional as it is now, it is not just a problem for a few thousand refugees and asylum seekers. Our immigration department directly deals with millions of applications and people each year. It directly affects the lives of huge numbers of Australians in all sorts of ways into the future. For that department, in such a key public policy area, to be so dysfunctional is a serious problem for all of us. Yet at the same time we are putting in place something that says, `We're still going to allow you to operate in this legal shadow land where there are no rules at all.' Let me take this opportunity to remind the Senate and the public that there are still 32 people suffering enormously on Nauru. I last saw them earlier this year and they were suffering hugely then. Some of them were in a terrible state. It is now many months later; the fourth anniversary of the Tampa rescue is coming up in a week's time. A small number of those people were on Nauru from the very start-they were not on the Tampa but on the Manoora, the Navy vessel that dropped them off. It needs to be said that, while it is pleasing that Labor is supporting this disallowance motion and has supported previous disallowance motions, the regulation itself is only possible because the Labor Party supported the government's legislation in 2001 in response to the Tampa incident, and it is my understanding that it is still Labor policy to support Christmas Island being excised from the migration zone.

So whilst Labor's position is clearly an improvement on the government's-and I always welcome and am keen to encourage improvements, not just expect all or nothing overnight-it does need to be pointed out that until the policy shifts to remove this whole concept of some parts of Australia being allowed to operate outside the law then we will still have this significant problem and that principle will still be there. There is nothing special about islands; they do not have any special legal status that means that they have a different application of the law from anywhere else and we should not be running any suggestion that there is. Once we allow such a precedent to stand-that in parts of Australia the law does not matterthen obviously it can be expanded to other areas. The government can point to it and say: `We've been doing it here. Let's do it with something else.' I see Senator Scullion is in the chamber, fleetingly; it looks like he is going out the door again. He has been the only member of the government to come in and defend these regulations. The minister has not come in to put the government's case. These are regulations gazetted through the minister, who put them forward. It is delegated legislation, so it is equivalent to the minister bringing legislation into this Senate. Where is the minister? No disrespect to Senator Scullion, but why is he the only one who has come in to defend the case? Why can't the minister come in and put the case?

The minister has not responded to the Palmer report. The minister has not responded to so many of these other crucial issues in migration. One thing I will say for the previous minister, Minister Ruddock, is that at least he would be on the front foot and very strongly defend the rationale and the legality of various things. I strongly disagreed with him, obviously, many times, but at least he would take up the fight, not have a bit of bluster and a press conference and then disappear. Having said that, given that Senator Scullion's contribution was the only one putting the case opposing the motion for disallowance I need to respond to some of the points that he put forward.

Senator Scullion said that border protection is a very sophisticated challenge and needs very sophisticated answers. I agree: it is a sophisticated issue. It is far wider than just asylum seekers; in fact, I really do not see asylum seekers as a border protection issue at all because they are always detected, they always were detected and they always want to be detected. There are no people coming into this country who are more consistently detected and more thoroughly assessed and examined. So I do not see asylum seekers as a border protection issue. But how we deal with unauthorised arrivals is a sophisticated and difficult issue. It is a hard issue. It does need sophisticated answers.

That is why this regulation is a joke: it is not a sophisticated answer; it is a farce. The principle behind it subverts the rule of law.

There is no legal logic behind why different law is applied in some parts of Australia and not others. It tries to reinforce a subconscious message-that we need a barrier of islands around the top of Australia to protect us from this so-called threat. However, history shows that the vast number of those islands are not ones that will attract asylum seekers first; the mainland is much closer than most of those excised islands. It is basically a stunt to send a political message to the Australian people.

Senator Scullion said that these regulations very clearly impact on only one group of people: people smugglers. I have spoken out, as have many others, against people smugglers. All of us in this chamber, I believe, want to discourage people from arriving here on boats. As Senator Scullion rightly said, it is very dangerous. They are dealing with criminals, they are putting their lives at risk and they are the subject of extortion. But the fact is that if people have no other option when they are fleeing persecution-as we have seen and as history shows going back to 1945, which led to the refugee convention-then people will take whatever options are available to them.

This government has done some good things. For example, getting people assessed by the UNHCR and overseen and assisted by the International Organisation for Migration in Indonesia is a positive thing, as long as the people who are assessed as refugees can find a place where they have viable protection.

That has not always happened. They can be found to be a refugee by the UNHCR but then be stuck. Some of the people who drowned on the SIEVX had actually been assessed as being refugees by UNHCR in Indonesia, but no other country could be found for them in the foreseeable future so they made the tragic choice to go on that boat.

To suggest that the only people who are impacted are people smugglers is simply wrong. Firstly, the vast majority of people smugglers get away with it scot-free. It was only due to enormous public and political pressure that a couple of the people involved in the SIEVX tragedy bore some legal responsibility, one of whom was sentenced in Brisbane last month to, I think, nine years jail. Only a very small number of people smugglers have been impacted. The people who have been impacted in a very severe way have been refugees. I mention again, as one example, the 32 who have been imprisoned on Nauru for four years now-almost as long a sentence as the person seen as the mastermind behind the whole SIEVX tragedy got in Egypt.

It is simply not true to say this only impacts on the people smugglers; it is impacting on refugees. Immense suffering, harm and misery were caused to those refugees because of the measure passed by the Senate in 2001 and, if we expand it now, we clearly run the risk of it impacting on other people.

They are the ones who will be hurt. To suggest it is only going to harm people smugglers is a furphy.

Senator Scullion drew a very long bow when he said it was a necessary quarantine measure because terrible invasive species can be on board these boats. That is true. But these boats, more than any others, are detected whenever they arrive because they want to be detected. We can actually check them for quarantine purposes. The risk is with the boats that come here and we do not get to see what is on them. It is drawing an extremely long bow to say that we need this as a quarantine measure. That would be the case anyway, even without examining how poor this government's commitment is to quarantine. Senator Heffernan from the government has done a good job during a Senate committee by putting a spotlight on the continuing decline in the strength of the government's commitment to genuine quarantine provisions. It is even the case that plants that are on the quarantine alert list are allowed to be sold in nurseries to gardeners throughout Australia. So much for commitment to quarantine! The government representative stated that we have never refouled a refugee in the history of this government. To be polite, I think that is very much in dispute. The Edmund Rice Centre has done a lot of work in this regard, because nobody else from the government could be bothered to do it. The Edmund Rice Centre has explored statements like the one made by the government, and I think it would strongly question such statements. At the moment, a Senate committee is inquiring into some of those issues. I invite senators and others to read the book Following them home that was recently released-I cannot remember the name of the author off the top of my head, I am sorry. The book follows some of the people sent back from Australia. Again, I think we need to question this blanket statement that we have never sent anybody back to danger.

We had the final furphy when the government said: `If we disallow these regulations then it will send the message back that we are open for business. It will open the floodgates. There will be an open door policy. People will pour in if we disallow this.' The obvious counter to that is: the Senate has disallowed these regulations, I think, four times before and no floodgates opened and no people poured in. I think it is quite clear that it did not happen then and it will continue to not happen.

We then had the unfortunate but, nonetheless, instinctive response from the government that the people who support this disallowance motion support people smugglers; you are either with us or against us. Anybody who disagrees with this appalling undermining of the rule of law, this massive infliction of enormous suffering on refugees, actually supports people smugglers. So much for a sophisticated argument and a sophisticated position from the government! I do not think it helps the debate to descend into that sort of thing.

If we are going to be talking about attacking people who traffic in human miseryand of course people smugglers traffic in human misery-frankly, this government has generated a lot of human misery, and the Senate has assisted the government by passing some legislation that allows it to do it, I might say. But the human misery is out there; it is out there in the Australian community now with thousands of refugees. The human misery is there on Nauru, with 32 totally traumatised and massively damaged people-probably, irreparably damaged. There is human misery. The cost has been met by the Australian taxpayer-hundreds and hundreds of millions of dollars-and more is needed. I think it will cost $330 million to build another 800-capacity facility on Christmas Island. It is an extraordinary waste of money.

There is the human misery and there is the cost to the taxpayer.

I call on all government senators to consider this issue. I know there are some within the government who are not comfortable with the continuing direction of this government and the continuing state of our Migration Act and how it impacts on many people.

I do not want to play politics and criticise them if none will vote with the Democrats and the opposition parties on this motion. I recognise you have to choose your moment as to when you take that walk across the floor. You cannot be doing it every day of the week. I do signal that there are occasions when there are important matters of principle and important signals to send in a range of different ways. I urge them to think about it on this occasion. If they cannot on this occasion, I urge them to recognise that this area is one that still needs ongoing action.

The fact is that the government has proceeded with these regulations after the debacle of the Palmer report, after all the pledges about a change of culture and after the agreements that were reached between the Prime Minister and those Liberal Party MPs-Mr Georgiou and others-who stood up to make a point on these matters. They do need to recognise that more needs to be done. Whether this is the right time for them to take that stand is for them to say. This issue will undoubtedly continue to result in other votes being taken in the Senate into the future. At some stage, we do need to start winding back some of the incredibly unjust and legally tenuous aspects that are still entrenched within the Migration Act and its regulations. Voting for this Democrat motion for disallowance is one opportunity to do that.

Question put:

That the motion (Senator Bartlett's) be agreed to.

The Senate divided.

[12.19 pm]
(The President-Senator the Hon. Paul Calvert)
Ayes............ 32
Noes............ 36
Majority......... 4


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