|
senate vote 2018-11-13#8
Edited by
mackay staff
on
2019-01-18 13:38:07
|
Title
Regulations and Determinations — Migration (Immi 18/019: Fast Track Applicant Class) Instrument 2018; Disallowance- Regulations and Determinations - Migration (Immi 18/019: Fast Track Applicant Class) Instrument 2018 - Disallow
Description
<p class="speaker">Nick McKim</p><p>I move:</p><p>That the Migration (IMMI 18/019: Fast Track Applicant Class) Instrument 2018, made under the Migration Act 1958, be disallowed [F2018L00672].</p>- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2018-11-13.173.2) to disallow [Migration (Immi 18/019: Fast Track Applicant Class) Instrument 2018](https://www.legislation.gov.au/Details/F2018L00672), which was introduced by Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Tas). This means that instrument will no longer have legal effect.
- ### What does the instrument do?
- Senator McKim [explained that](https://www.openaustralia.org.au/senate/?gid=2018-11-13.173.3):
- > *This motion seeks to disallow an instrument that the government is attempting to make which would expand the group of people who are subject to the fast-track application process for protection as refugees ... [T]he group of people that are currently classed as fast-track applicants had to arrive by boat without a valid visa between 13 August 2012 and 1 January 2014 and were not exiled to Manus Island or Nauru, provided that the minister has allowed them to apply for a protection visa and the person has made a valid application.*
- > *...*
- > *The instrument that we're seeking to disallow would, if it were not disallowed, apply the category of 'fast-track applicant' to people seeking asylum who arrived in Australia by boat before 2012, were assessed by the department as not engaging Australia's protection obligations and then challenged the department's assessments in the courts. Now what the government is seeking to do is to deny them the opportunity to fully explore challenges to the department's decision in the legal system. This is a significant denial of natural justice.*
- Read more about the instrument in its [explanatory memorandum](https://www.legislation.gov.au/Details/F2018L00672/Explanatory%20Statement/Text).
<p>This motion seeks to disallow an instrument that the government is attempting to make which would expand the group of people who are subject to the fast-track application process for protection as refugees. The definition of 'fast track applicant' is set out in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. The term currently includes all unauthorised maritime arrivals. That is, of course, the government's language, not that of the Australian Greens. That group of people are those who arrived by boat in Australia without a valid visa—and I make the observation that there is no offence under Australian law and that these people were acting entirely within their rights under international legal covenants that Australia has signed up to—between 13 August 2012 and 1 January 2014 and were not taken to Nauru or Papua New Guinea for offshore processing. I'm using the government's language here when describing it as 'offshore processing', as anyone who has been watching what has been happening on Manus Island and Nauru will be very clear in their minds that what these people are being subjected to on Manus Island and Nauru is in fact indefinite offshore detention. So the group of people that are currently classed as fast-track applicants had to arrive by boat without a valid visa between 13 August 2012 and 1 January 2014 and were not exiled to Manus Island or Nauru, provided that the minister has allowed them to apply for a protection visa and the person has made a valid application.</p><p>The minister can also, by instrument, extend the definition of 'fast-track' to other classes of people seeking asylum—and, in fact, that is exactly what this instrument that we are seeking to disallow today seeks to do. So, not content with the misery, the uncertainty and the injustice to which people who are classified as fast-track applicants have been subjected by this government, the minister now wants to cast his net even further back. The instrument that we're seeking to disallow would, if it were not disallowed, apply the category of 'fast-track applicant' to people seeking asylum who arrived in Australia by boat before 2012, were assessed by the department as not engaging Australia's protection obligations and then challenged the department's assessments in the courts. Now what the government is seeking to do is to deny them the opportunity to fully explore challenges to the department's decision in the legal system. This is a significant denial of natural justice.</p><p>The government's instrument that we're seeking to disallow today is not only a significant denial of natural justice but also an undermining of the rule of law in this country. It creates different classes of people in Australia—some who have access to certain legal options and others who do not. It continues the demonisation of people seeking asylum by the Liberal and National parties in this place in order to try to extract electoral and political benefit for themselves.</p><p>The Greens are not prepared to take this lying down. That is why we have moved this disallowance motion that we are currently debating. I can put our case to the Senate very clearly. People who end up in the fast-track process are not given a fair opportunity to put forward their case for asylum and to deal with adverse information affecting their application. The fast-track process limits people's right to appeal adverse findings to the Immigration Assessment Authority—which, as Legal Aid Victoria said last year:</p><p class="italic">Rather than being focussed on providing fairness to people seeking asylum, and on making correct decisions, the IAA can conduct only limited review according to limiting rules.</p><p class="italic">This is creating situations where people seeking asylum are blindsided by issues and evidence which they had no idea they needed to deal with. And these are profoundly disadvantaged people, in desperate need, colliding with an extremely complex area of law.</p><p>That's a neat summary of what the government is trying to do here: to make decisions that adversely affect some of the most disadvantaged people in our country, who are in desperate need and have been enmeshed in an extremely complex area of administrative law. Ultimately, in the view of the Australian Greens, the fast-track process has been set up by a government and ministers who simply don't want people to have a fair chance to apply for asylum in Australia.</p><p>We have seen the human costs of this government's policy around people seeking asylum. We know that thousands of innocent people who are guilty of nothing other than fleeing persecution and seeking a better life for themselves, the overwhelming majority of whom have been found to be genuine refugees, have been exiled to Manus Island and Nauru for over five years now. Over five years of their lives have been lost because of this cruel, horrendous policy that has created a humanitarian calamity in our offshore detention system. We've seen murders, assaults, sexual assaults, sexual assaults of children, riots, abuses and the trampling of human rights. This is a humanitarian calamity that is occurring in our offshore detention system. Those who were not exiled to Manus Island or Nauru have progressively had their rights eroded.</p><p>The Greens don't support any element of the fast-track process, because we think people in this country should have equal access to the law. You wouldn't think that's a controversial position, but it is for the Liberal and National parties in this place, who want to create two classes of people in this country and two different opportunities to access justice through our administrative and legal system. At every step the Liberals have reduced rights of appeal and procedural fairness and have increased the power of the minister for immigration. They're doing this because the courts are doing a far better job of ensuring human rights are respected in this country than this government ever has. It's an ongoing demonisation of innocent and vulnerable people.</p><p>We are seeking to draw a line in the sand tonight and say: 'Enough is enough. You cannot simply go on making more and more punitive laws to deny more and more people access to justice and the rule of law.' The government doesn't like what the courts are doing here. It's worth pointing out that the overwhelming majority of the children who in the last couple of months have been brought from Nauru haven't been brought out of the goodness of the heart of the government, the minister or the Prime Minister; they've been brought here because the courts ordered it. The courts made those decisions and the government had no option other than to comply with those orders and rulings.</p><p>We know that there are still $20,000 bribes on the table to try to convince people who were on Manus Island and Nauru to return to face the persecution from which they fled. The Liberals are currently trying to deport people back to North Korea, would you believe it? They've continually sent people fleeing war and persecution straight back to their home countries. In some cases they've handed these people straight into the arms of their persecutors, the people whom they fled, and this government sends them back to goodness knows what fate.</p><p>We know that the Liberals want the power to deport children so they can continue to run the racist scare campaign that they're currently running in Victoria. It is worth pointing out that the instrument that we are seeking to disallow here confirms that children of people the government has classified as fast-track applicants will also be deemed fast-track applicants. This instrument that we are seeking to disallow denies children access to natural justice in this country. What the government is trying to do here is an absolute disgrace. It is trying to create a legal framework which supports its own prejudices and its hateful world view.</p><p>We are proud to stand against the government this evening. We led the fight in parliament against the Liberals' attempts to reintroduce the White Australia policy by stealth. It was a battle that we won. For the first time in many years the government lost control of the <i>Notice Paper</i> in this place, and the then minister for immigration's hateful changes to the citizenship act were struck from the <i>Notice Paper</i> in this place. We stood up and helped lead the charge against the government when it tried to water down protections against race based hate speech in this country by eviscerating section 18C of the Racial Discrimination Act. We defeated its attempts to restrict family reunion visas to the very wealthy. We will keep on fighting this government until it is thrown out of office and these dreadful laws are struck from the statute book in this country.</p><p>If senators want to think about why they should support this disallowance motion this evening—it may come to a vote this evening or it may come to a vote tomorrow evening—I invite them to think about their values. If senators have got values about treating people equally, if senators have got values that support the rule of law as one of the absolute foundations of our civilisation and our society and if senators have got values around respecting people's human rights and treating people as they would wish to be treated themselves, then I invite them in the strongest possible terms to support this disallowance motion.</p><p>We as a parliament cannot continue to remove rights from desperate people, from vulnerable people, just because some people in this place think it will deliver them an electoral benefit. We cannot continue to remove fairness from our administrative and judicial systems. We cannot continue to create situations where vulnerable, desperate people are blindsided in the Immigration Assessment Authority by issues and evidence that they had no idea they needed to deal with. We cannot continue to profoundly disadvantage people who, in their hour of desperate need and vulnerability, collide with this extremely complex area of law. People in the fast-track process are not given a fair opportunity to put forward their case for asylum, and they're not given a fair opportunity to deal with the adverse information affecting their application.</p><p>The Australian Greens, in putting forward this disallowance motion today, are standing up for some of the most vulnerable, desperate and disenfranchised people who are currently in our country. If you don't look after the vulnerable, if you don't look after the disenfranchised, if you don't look after the desperate, that actually says more about you than it does about them. We want to give this Senate, when this comes to a vote this evening or tomorrow evening, the opportunity to show that the values that so many people claim as Australian—the values of a fair go, of mateship and of reaching out a helping hand to people who are in desperate need of help—are genuinely Australian values and values that are reflected in the parliament, which is here to represent the values of the Australian people and to make sure those values are reflected in our laws and our legislative instruments. That's why we bring on this disallowance tonight: so that every senator has an opportunity to do the right thing and every senator is given every opportunity to make sure that those values are real, true and reflected not just through Australian society but right into this building, into this chamber and into the heart of our democratic system. If we don't reflect those values in here, what does it say about us? I'll tell you what it says about us if we don't reflect those values; it says we're hypocrites and we're not doing our job to represent our nation's values.</p><p>There was a time, decades ago, when Australia was a shining light around the world for our global leadership on human rights. We have seen that consistently eroded. We saw that eroded in 2001 when the <i>Tampa</i> hovered over the horizon and, since then, it has been a race to the bottom in this place to try and deny as many desperate, vulnerable people as possible the legal rights that the rest of us enjoy.</p><p>We're not going to have a bar of it. We're standing here today and we are drawing a line in the sand. We are saying: 'Enough is enough. Stop demonising some of the most vulnerable people in our community. Stop trying to exploit desperate, vulnerable people for political gain. Stop trying to deny them the appeal opportunities and the review opportunities that the rest of us are lucky enough to have. Stop trying to undermine the rule of law in this country—one of the absolute foundations of our society. Stop trying to work around the courts because you simply don't like the decisions that they're making.' We're not going to stand up to reduce rights of appeal. We're not going to allow this reduction of procedural fairness to occur without fighting it all the way. We're going to stand up and we're going to give this Senate the opportunity to show that we can be better than what the government would like us to be.</p><p>We are here to hold this government to account; that is a core part of our job in this place. This vote will be an opportunity for senators to show whether they are prepared to stand up and hold this government to account or whether we are collectively going to roll over and allow this government, in its ongoing demonisation of desperate and vulnerable people who are seeking asylum in this country, to increase the group of people who will have their rights trampled by reducing their opportunities to challenge decisions made by the department with regard to their claims for asylum. I genuinely hope senators will join with the Australian Greens to disallow this instrument.</p> <p class="speaker">Nigel Scullion</p><p>I have a short statement on behalf of the senator responsible for government business. The government is aiming to resolve the legal error in the previous administrative protection assessments in a way that will facilitate status resolution activities and ensure removal can be affected in a timely manner where an unauthorised maritime arrival is found not to engage Australia's protection obligations.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
|