|
senate vote 2012-08-16#5
Edited by
Natasha Burrows
on
2013-09-13 10:25:08
|
Title
Bills — Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; in Committee- Bills - Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; In Committee
Description
<p class="speaker">Sarah Hanson-Young</p><p>I want to ask the Minister for Multicultural Affairs some general questions about the bill. My first question is: could the minister point to the particular part of the bill that ensures that this legislation is consistent with the refugee convention?</p> <p class="speaker">Kate Lundy</p><p>I direct the senator to proposed section 198AA—Reason for Subdivision, where in paragraph (b) it states:</p><p class="italic">… offshore entry persons, including offshore entry persons in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be an offshore processing country;</p> <p class="speaker">Sarah Hanson-Young</p><p>I take issue with the minister's answer, and I see that it took quite some time to get the appropriate place in the bill. The truth of the matter is that this bill is not consistent with our obligations under the convention. All we need to do is to point to the articles in the convention that say that people should not be discriminated against by signatory states based on their mode of arrival. Yet this bill deals only with the expulsion, the transfer, of people who arrive here by boat.</p><p>There are other articles that are important under the convention that are not upheld by this legislation and that are, in fact, absolutely stripped away. As you very well know, Chair, this is the whole purpose of this particular piece of legislation. The minister spoke earlier in her summary of the debate on the second reading, saying that the whole point of this legislation was that the High Court had ruled out the transfer of refugees and asylum seekers to Malaysia under the government's people-swap deal. The reason the High Court ruled that out was that it would be in contradiction to the obligations that are currently in the Migration Act which import our obligations under the refugee convention. The whole point of this bill before us today is to circumvent the High Court's ruling, to make sure that this government can act outside of our obligations under the convention, to act outside of our obligations under international law.</p><p>I draw the minister's attention again to the comments made by the Secretary-General of the UN, Ban Ki-moon, overnight. He put a very clear proposition to the Australian government, reminding it of Australia's obligation under the convention. It is clear to everybody else that this piece of legislation is inconsistent with our obligations under international law. It is the entire reason the bill has been introduced. It is thumbing its nose at the ruling of the High Court and the protections that we are meant to uphold.</p><p>The government may very well like to physically transfer people offshore—out of sight, out of mind—but there is no ability under international law to transfer our obligations to people. Yet what the government has done in this bill is to strip out of our domestic law our obligations to people. In all of the things that the Houston report refers to that need to be considered, if we are to transfer people to a third country, whether it be for processing or not, there needs to be basic access to services, adequate accommodation, legal assistance and a guarantee of protection, yet none of that is in this bill. It has been absolutely stripped out in total contradiction to the convention.</p><p>My question to the minister is: is keeping people in army tents 'appropriate accommodation' as per the request of the Houston report?</p> <p class="speaker">Kate Lundy</p><p>I challenge the senator's assertions directly. In fact, I point the senator to proposed section 198AB and I reference directly the explanatory memorandum of the bill, in which paragraph 118 states:</p><p class="italic">New subsection 198AB(3) provides that in considering the national interest for the purposes of —</p><p>the previous subsection—</p><p class="italic">the Minister:</p><ul></ul><ul></ul><ul></ul><ul></ul><p>So, in this way, we are able to provide the assurances that those conventions are able to be upheld and, as I said, we disagree with the interpretation that the senator is taking of our bill.</p> <p class="speaker">Christine Milne</p><p>I thank the minister for her comments but, looking at proposed section 198AB, all the minister has to do is get an assurance or a document from the country and there is nothing legally binding, is there? What I understand here is that there is a specific reference throughout this that assurances referred to in proposed paragraph 198AB(3)(a) need not be legally binding. Is that not precisely what the High Court said as to why the government was in breach of Australia's obligations under our Migration Act which domesticates international law? Is it not true that it says specifically that this new subsection says that any assurances the minister may get from any country or any place that they deem to be a designated country, whatever assurances they get, do not have to be legally binding and therefore are only as good as the paper they are written on?</p> <p class="speaker">Kate Lundy</p><p>I am advised that the point Senator Milne makes—that they do not have to be legally binding—is the case. The accountability measure nonetheless is that the minister needs to present those to parliament; therefore the minister is accountable to the parliament.</p> <p class="speaker">Christine Milne</p><p>So that is it. We now have absolute clarity that people can be sent away to another country on the basis of a piece of paper and an assurance from that country that the minister and that country have said, 'Look, we are not going to send those people back to where they came from, or anywhere else, and we are going to treat them however we want to treat them,' and that the assurance is not legally binding. It is just a letter and an assurance from that country and the minister's only accountability is that he or she will table in the parliament that letter of assurance, that document, that says the country said they would do it, and that is an end to it. This proves beyond anything else that this legislation is to get around the High Court of Australia's interpretation of our obligations. That is why they struck down the Malaysia solution. What it was offering was not legally binding in Malaysia, so they struck it down.</p><p>This is the Gillard government, with the support of the coalition, abandoning and getting around the High Court's interpretation of our obligations. That is precisely what this is doing and that is made perfectly clear here. Whatever the minister gets does not have to be legally binding and their only accountability is to put that letter on the table and say: 'There you go. That's the assurance I got from Nauru. That's the assurance I got from Malaysia. That's the assurance I got from PNG. That's what they said they'd do.'</p><p>What monitoring will take place as to whether that country will send any of these people somewhere else?</p> <p class="speaker">Kate Lundy</p><p>Regarding your comment, 'Is that all?' in terms of the levels of accountability, these considerations would be made in full consultation with the UNHCR in the context of the regional arrangement. So it is misleading to express what I have described in the way that you have and I wanted to clarify that.</p><p>Further, I would like to extrapolate the process of bringing the documents to the parliament and that accountability mechanism. The new subclause 198AC(2) provides:</p><p class="italic">The Minister must cause to be laid before each House of the Parliament:</p><p class="italic">(a) a copy of the designation; and</p><p class="italic">(b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be an offshore processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by that country; and—</p><p>that is, that relating to their obligations under the refugee convention—</p><p class="italic">(c) a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and</p><p class="italic">(d) a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and</p><p class="italic">(e) a summary of any advice received from that Office in relation to the designation; and</p><p class="italic">(f) a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.</p><p>I think that satisfies the question that you just put to me.</p> <p class="speaker">Christine Milne</p><p>Far from satisfying it, for the benefit of the parliament I will read out what the national interest means. The explanatory memorandum states that it has:</p><p class="italic">… a broad meaning and refers to matters which relate to Australia’s standing, security and interests. For example, these matters may include governmental concerns related to such matters as public safety, border protection, national security, defence, Australia’s economic interests … Measures for effective border management and migration controls are in the national interest.</p><p>In other words, in determining the national interest in relation to this designated other country, the minister is going to be overwhelmingly focused on what we have heard as the rationale for this in the first place—that is, deterrence and border security, not humanity, not compassion and nothing about the responsibilities we have to human rights. In fact, it is going to be about effective border management and migration controls. That is what the national interest is. That is going to be the overwhelming view of the minister and that is the rationale for this legislation—and we have heard that from day one.</p><p>All we have heard from you so far, Minister, is that the High Court told us that the reason Malaysia did not stand up is that there was nothing that said Malaysia's undertakings had to be legally binding in Malaysia. Now we have a specific part of this legislation which makes it very clear that whatever the minister tables in the Australian parliament is merely an assurance from another country. There is nothing legally binding about it; therefore, no-one can assume that anything can actually be upheld under the law.</p> <p class="speaker">Kate Lundy</p><p>I again refer to the explanatory memorandum. The purpose of the new clause 198AB is to set out what factors the minister must have regard to as part of the national interest—this very point you are making. It also makes clear that the minister may have regard to other factors they consider to be relevant to the national interest, but that they are not bound to do so. Given the country does not need to be a signatory to the refugee convention, the explanatory memorandum states that the minister must have regard to whether it has given assurances to the effect that:</p><ul></ul><ul></ul><p>I think this clearly satisfies your complaint about the nature of the national interest. In fact, the minister must have regard to these issues relating to the rights of the refugee and the refugee convention.</p> <p class="speaker">Michaelia Cash</p><p>In relation to the process under new clause 198AB, 'regional processing country', and, in particular, subclause (1)(b), can the minister confirm that it is the parliament, by affirmation of both houses, that must approve a country as an offshore processing country, and it is the parliament that is going to be the arbiter of whether the conditions in the other country are to our satisfaction?</p> <p class="speaker">Kate Lundy</p><p>When the designation is initiated, it must start by referencing directly the agreement of both houses of parliament. That satisfies the point you are making.</p> <p class="speaker">Michaelia Cash</p><p>My point is in relation to the comments made by Senator Milne that under this bill, the highest law in the land—the parliament—will determine whether a country is an offshore processing country, and that all that this bill does is say that Nauru and Manus Island satisfy all the requirements that this parliament requires them to satisfy.</p><p>That the highest law in the land—the parliament—under this bill is going to be determining</p> <p class="speaker">Christine Milne</p><p>I want to go back to the question I asked the minister. She said that the minister will have sought confirmation that the country to which a refugee is sent will have given an assurance that they cannot be sent back to the place where they came from or to another country. I specifically asked what is the process for that. Are we assuming that Australia will oversee any of the transfers? How would we even know if somebody in a refugee camp in Malaysia was sent back to Afghanistan? If we did know that, what would we do about it?</p> <p class="speaker">Kate Lundy</p><p>The process would be that the arrangements between Australia and that country would be agreed to, and that of course would be subject to scrutiny through the process of approval through the parliament. It is quite a simplistic thing to say 'but what if'—the fact is that we are confident that when those agreements are in place those conditions will be honoured.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>- <p> This is a vote on the amendment proposed by Senator Sarah Hanson-Young. This amendment would require that the Immigration Minister ensures that a person initially transferred to a regional processing country is transferred to Australia within 12 months of their arrival in a regional processing country. </p>
- <p> Someone who votes aye for this amendment supports these measures. The majority voted no to this amendment, so it was unsuccessful. </p>
- <b>Background to the Bill</b>
- <p> This Bill was introduced in response to the High Court's judgement in <i> Plaintiff M70/2011 v Minister for Immigration and Citizenship </i> [2011] that ruled that offshore processing of asylum seekers was invalid. As a result, this Bill amends the <i> Migration Act 1958 </i> to replace the framework for allowing the offshore processing of persons for assessment of their claims to be refugees. The Bill also replaces discretionary detention with mandatory detention for all asylum seekers at an offshore place, such as Christmas Island. This Bill also alters the <i> Immigration (Guardianship of Children) Act 1946 </i> in relation to the making and implementation of any decision to remove, deport or take a non-citizen child from Australia. The <i> Migration Legislations Amendment (Offshore Processing and Other Measures Bill 2011 </i> overrides the guardianship obligations under the <i>Immigration (Guardianship of Children) Act 1946</i>. </p>
- <p> More information about this Bill and the context surrounding it can be found<a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1102135%22"> here</a>. The text of the proposed amendment can be found<a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fr4683_amend_17c23f20-83d3-49e4-b196-d1d125622a07%22;rec=0"> here</a>. </p>
-
|