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senate vote 2014-12-04#12

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on 2014-12-11 14:19:09


  • Bills — Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; in Committee
  • Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 - in Committee - Keep schedule 3 as it is


  • <p class="speaker">Gavin Marshall</p>
  • <p>The next questions I intend to go to are government amendments (2) and (1) on sheet HA108.</p>
  • <p class="speaker">Kim Carr</p>
  • The majority agreed that schedule 3 should remain as it is (in parliamentary jargon, they voted that "schedule 3 stand as printed"). This question was put to the Senate after Greens Senator [Sarah Hanson-Young]( [introduced a motion]( to oppose the schedule.
  • ### What is Schedule 3?
  • The [bills digest]( highlights aspects of the schedule that are particularly significant. On the one hand, the schedule states that [regulations]( can (but don't have to) set out criteria for certain visa types (including permanent and temporary protection visas). On the other, it makes an application for one of those visa types invalid if there aren't any regulations setting out relevant criteria.
  • So, it's not necessary to set out criteria for these visas in regulations. But, if the [Immigration Minister]( doesn't, then it's not possible for people to make a valid application for those visas.
  • Senator Hanson-Young [was particularly concerned]( with how this schedule may threaten Parliamentary scrutiny of regulations. If the Minister introduces a regulation that Parliament disagrees with, normally Parliament will vote to disallow that regulation. But under this schedule, disallowing a regulation would make any visa applications relying on it invalid. This puts pressure on Parliament to leave regulations as they are even if it disagrees with them.
  • ### Bill's main idea
  • The bill's main idea is to speed up the management of [asylum seekers](' claims and support the Government's policies that stop asylum seekers from coming to Australia by boat (for example, by intercepting the boats and turning them around). It also re-introduces [temporary protection visas]( "because the Government is of the view that those who arrive by boat without a valid visa should not be rewarded with permanent protection" (see the [bills digest](
  • ### Human rights issues
  • Some of the changes made by the bill may go against Australia's [international law]( obligations. Particularly Australia's [non-refoulement]( obligations, which stop Australia from sending people to places where their lives or freedoms are threatened. Australia has these obligations because it signed up to the [Convention relating to the Status of Refugees](, the [International Covenant on Civil and Political Rights]( and the [United Nations Convention against Torture](
  • For example, the bill will insert a provision into the *[Migration Act 1958](* that says that Australia’s non-refoulement obligations are not relevant to removing people who are not citizens and don't have a visa. The [bills digest]( explains that this change would mean courts won't be able to stop the Government from removing people just because it is against Australia’s non-refoulement obligations. In other words, the Government wants to decide how to apply those obligations by itself, without any potential judicial oversight.
  • For more about which changes may go against these obligations and how, see the [bills digest](
  • ### Background to the bill
  • The title of the bill says it is about "resolving the asylum legacy caseload". This refers to the asylum claims made by [asylum seekers]( who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on [Nauru]( or [Manus Island]( The Coalition Government says this caseload of asylum claims is the result of the previous Labor Government's policies.
  • During the 2013 election campaign, the Coalition said it would address this caseload and the changes made in this bill are part of their effort to do this.
  • More information on the background to the bill is in the [bills digest](
  • <p>There is one question I would seek advice on. On the issue of cost for these additional places: what is the government's cost?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>The minister has indicated it is approximately or around $100 million.</p>
  • <p class="speaker">Kim Carr</p>
  • <p>The difficulty we have is that there have been various estimates given publicly. The minister on previous occasions has spoken of $3 billion out of the budget. Is the $100 million now the official estimate?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I am advised that it is the minister's estimate for this particular 7&#189; thousand.</p>
  • <p>Question agreed to.</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>I move amendment (8) on sheet 7629:</p>
  • <p>(8) Clause 2, page 2 (table item 2), omit the table item.</p>
  • <p>And the Greens oppose schedule 1 in the following terms:</p>
  • <p>(1) Schedule 1, page 5 (line 1) to page 23 (line 13), to be opposed.</p>
  • <p>Schedule 1 of the bill relates to the maritime powers being inserted into the Migration Act to overrule international law on the high seas. This schedule effectively allows, at the command of the immigration minister, our Navy and our customs officers to be directed to act illegally on the high seas. We know of course that there have been terrible situations where our Navy officers have been asked to do things that no person working for the Australian government and in the name of the Australian people should be asked to do. We know that because we saw it. We saw officers only this week pour their hearts out on the <i>7.30</i> program over the types of activities they had been asked to undertake whilst intercepting and turning around boats.</p>
  • <p>This schedule is all about removing Australia's obligations under international law and allowing the command of the immigration minister to reign high. This is an immigration minister who is already drunk on power. He already thinks he can do whatever he wants and now he wants to be able to tell our Navy to not follow international law.</p>
  • <p class="speaker">Kim Carr</p>
  • <p>I indicate that the opposition will be supporting the Greens on this. We oppose schedule 1 on the grounds that this represents a very clear attempt by this government to undermine the High Court. It is a very shoddy exercise here. The government is attempting to undermine a case that is currently before the High Court. A little while back this government took into custody 157 people and detained them on a prison ship for over a month. When that matter was brought to the attention of the courts this government protested vigorously and sought to undertake these measures to undermine the court proceedings.</p>
  • <p>This schedule, if carried, would scuttle the High Court case. It would render the precedent value of the present proceedings redundant. That is a case which is fundamentally about the powers of the government under the Maritime Powers Act. The High Court has a legitimate function to perform in assessing the government's actions. This is not about this chamber making a pre-emptive decision on that matter; it is about whether or not the High Court is an appropriate place to evaluate the government's actions.</p>
  • <p>It is simply inappropriate to walk down this path when the case is currently before the court. After the court has made its decision, then the government I believe would be entitled to put a proposition to the parliament, but I put to this chamber that to do so while the proceedings are under way is totally inappropriate. We strongly believe that this is not an appropriate use of this chamber. We ought to ensure that the proceedings before the court run their course. The High Court should be allowed to continue the work it has been able to do and that is why we are opposing this schedule.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I advise that the government will not be supporting Senator Hanson-Young's proposal. Schedule 1 of the bill clarifies a range of matters relating to the exercise of maritime powers. Maritime powers are used to respond to a range of threats to Australia's national interests, including the smuggling of contraband goods, protecting Australia's fisheries, protecting our ocean and coastal ecosystems from environmental damage, and countering people smuggling. The amendments to the Maritime Powers Act are focused on strengthening Australia's maritime enforcement framework and will provide greater clarity to the ongoing conduct of border security and maritime enforcement operations. These amendments do not seek to create new powers beyond what is already available to maritime officers; instead they clarify the intended operation of those powers and their relationship with the law.</p>
  • <p>If I can also address the comments that Senator Carr has made in relation to the matter that is currently before the court, there is nothing unusual about amendments to legislation wholly or partly in response to issues raised in a court case. Court cases can help to reveal when a piece of legislation is not being interpreted in a manner consistent with parliament's original intention, allowing parliament to address and rectify this through amendments. The proposed amendments do not affect the case before the High Court or undermine the ability of the court to consider and pass judgement on the applicable law, neither do they prevent the members from considering the court's judgement in time. The government is conscious that any potential adverse decision by the High Court will see people smugglers send the message that Australia is open for business. Introducing these amendments now will also limit the ability of people smugglers to trick vulnerable people into believing this message.</p>
  • <p class="speaker">Kim Carr</p>
  • <p>Minister, there is a pretty serious question here. You are quite right that parliaments do amend laws after courts have decided on a matter. It is very unusual to proceed in this fashion while a court case is actually underway.</p>
  • <p>The CHAIRMAN: The question is that schedule 1 stand as printed.</p>
  • <p>Question agreed to.</p>
  • <p>The CHAIRMAN: Senator Hanson-Young, your amendment (8) was really consequential on being successful with your opposition to schedule 1, so I think that has disposed of that, unless you have any objection. Senator Carr, (1) and (2) on sheet 7617 effectively were the same questions, so they are also disposed of, unless there is any objection. We now move to Australian Greens' opposition to schedule 2, which is outlined on sheet 7629, if that is convenient to you, Senator Hanson-Young.</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>The Australian Greens oppose schedule 2 in the following terms:</p>
  • <p class="italic">(2) Schedule 2, page 24 (line 1) to page 49 (line 23), to be opposed.</p>
  • <p>The Greens propose to delete schedule 2 from the bill. We know that much debate around this legislation has been focused on schedule 2. This is the part of the bill that includes legislating for temporary protection visas and allowing for regulations for SHEVs. The reason, fundamentally, the Greens do not support this schedule is because people who have been found to be legitimate, genuine refugees after all of the anguish they have been through&#8212;fleeing their homelands and going through the detention process&#8212;under this schedule will continue to live in limbo, effectively for the rest of their lives. Many of the 30,000 we are currently talking about are already having to live in the community in limbo. There is absolutely no genuine pathway to permanency outlined in this schedule at all. It is a long road&#8212;</p>
  • <p>The CHAIRMAN: Senator Hanson-Young&#8212;</p>
  • <p>I have this really irritating voice next to me and then I realise it is Senator Bernardi.</p>
  • <p>The CHAIRMAN: I know; I can hear it from here. I was not hearing it clearly. Senator Bernardi&#8212;</p>
  • <p class="italic">Senator Bernardi interjecting&#8212;</p>
  • <p>The CHAIRMAN: No, take your seat&#8212;take your own seat.</p>
  • <p>Sometimes I wonder whether we should have breathalysers at the doors in this place.</p>
  • <p>The CHAIRMAN: Senator Hanson-Young, resume your seat. There is no requirement for that. Senator Bernardi, I would ask you to remain quiet&#8212;silent, in fact.</p>
  • <p class="italic">Senator Bernardi interjecting&#8212;</p>
  • <p>The CHAIRMAN: If you are seeking to lag in Senator Lazarus as well, I am sure he will appreciate that. But you are the one I can hear, and I ask you to remain silent while Senator Hanson-Young is speaking.</p>
  • <p>As I was saying, this schedule, as it currently stands, does not create a permanent pathway for refugees. People who have been through the process and have been assessed as a refugee under the current schedule do not have a pathway to permanency. If you are on a temporary protection visa, you will never be given a permanent visa. That is what the minister has said, and that is what this piece of legislation currently before us tonight does. You may be able to opt to go on to the newly created SHEV under this schedule, but it is going to be damn hard for you to ever be able to apply for a permanent visa.</p>
  • <p>That is not just me saying that, it is the minister himself. The immigration minister himself stood up and said: 'There will be no permanent protection for refugees in this country. Good luck to them if they think they're going to get permanency, but it is a very high bar.' They are the minister's own words, that is the sentiment as outlined in this schedule. It is a pipe dream to think that there is any pathway to permanency under this schedule. It allows for the continued torture of people who just want to start putting their lives back together. You have to remember that this is for people who have already been assessed to be refugees. They have been in detention for years, many of them in the community on bridging visas for years&#8212;in limbo, not knowing what their future holds. Under this schedule they will stay there effectively forever. There is no pathway to permanency; it is a pathway to nowhere. That is why it needs to be removed.</p>
  • <p class="speaker">Kim Carr</p>
  • <p>Labor is resolutely opposed to the use of temporary protection visas as a quick fix to deal with men and women and children who are currently awaiting processing in Australian funded facilities. Temporary protection visas simply place people in a prolonged state of limbo. They serve as a stopgap that keep people in a cycle of uncertainty. They prevent them from contributing to the community and forging proper links in Australia.</p>
  • <p>When the parliament, and particularly this chamber, rejected the immigration minister's policy of bringing back temporary protection visas in December last year, the minister, in an act of petulance, stopped processing people&#8212;yes, that is right, Minister; I see you are in the chamber. You are clearly here because you cannot trust your senators to do the government's dirty work! We all understand the protocols here, and that is essentially why you are here. I see you nodding vigorously there, but the fact remains that you acted in a completely petulant manner because this chamber chose to reject the policy position that you adopted.</p>
  • <p>Any claim that TPVs serve as a deterrent to people seeking to risk their lives coming to Australia by sea is simply wrong. Australia has in fact been taken off the table with the regional settlement arrangements, which were introduced by Labor in July last year. This issue has absolutely nothing to do with any person who may seek to come here by boat. It relates to people already in detention who arrived before 19 July last year. For that group of people, Labor believe we need to have a sensible policy that sees them processed and, if they are found to be genuine refugees, allowed to settle in Australia.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>