Hon Judi Moylan

Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 - Second Reading

Mrs MOYLAN (Pearce) (11:59): Can I begin by associating myself with the comments made by the member for New England about the work of the informal cross-party group and the goodwill that really existed within that group to try to find a sensible way to break the deadlock that this parliament found itself in earlier. I thank the member for New England for so capably chairing that group, in the times that we met, and I look forward to continuing to work with him and my other colleagues to better understand the complex suite of issues that this parliament is going to continue to be confronted with.

Angus Houston, Paris Aristotle and Michael L'Estrange, having wrestled with a very complex matter, have endeavoured to find a way out of the impasse of the previous sitting of parliament. I would like today to record my thanks to them for the comprehensive package of measures that they have recommended. I feel that I can confidently endorse many of those recommendations.

The bill before us today, the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, is the legislative response to facilitate one of those recommendations. I welcome the fact that central to the suite of policy suggestions by the expert panel is a recommendation that encompasses a joint approach with the region to develop common standards of protections and processing and durable outcomes by way of a regional framework, something that I have often spoken about in this place and beyond.

Importantly, as part of that central recommendation, is the commitment of Australia to increase its refugee intake in the humanitarian refugee program. There is, undoubtedly, an expectation by the expert panel that these measures and a no-advantage policy will work to stop the boats from leaving Indonesia and other destinations. Arguably, the tension for us as policymakers in this place is the desire to prevent more deaths at sea and to offer protection to those confronted with arguably one of the worst human dilemmas: to be forced to take a decision to leave one's homeland under the threat of persecution or death and to seek asylum in a foreign land.

Much has been said and written about the value of so-called deterrent policies and, to date, few have worked effectively. The reality is that desperation drives people to take unimaginable risks. As Malcolm Fraser said:

… a democratic government such as Australia … could never be nasty enough to match the terror, the persecution that is meted out by the Taliban …

The suggestion of the expert panel of no advantage means a return to the so-called Pacific solution. This bill will facilitate that policy in both UN convention countries and non-convention countries through the use of a disallowable instrument.

This legislation circumvents the High Court ruling on the previous legislation of the government to enable the Malaysia swap deal. This bill strips out the ordinary protections of law which have previously been afforded people found to be refugees under the UN convention. In the unfettered power that this legislation confers on the Minister for Immigration and Citizenship, transfers of asylum seekers to third countries can take place without restriction or without consideration of the adequacy or the existence of human rights laws in the country to which asylum seekers may be transferred. The exile is, to say the least, a bit open-ended, as no disadvantage will ensure that those taking a risky boat journey will wait the same amount of time they would have if they were waiting in Malaysia or Indonesia. Some may say that that is fair. The difficulty is how we measure that. On the radio this morning I heard Rick Towle, the UNHCR representative for the Asia-Pacific region, speaking about the difficulty of that because, in a practical sense, it may be for an entire lifetime. At this time the government is unable to tell any of us how that will be calculated, so conceivably people may remain there for a lifetime.

Apart from these issues, I do have grave reservations about how this bill and these powers may impact on children and, in particular, on unaccompanied minors, as the bill seeks to 'clarify the provisions' of the Immigration (Guardianship of Children) Act 1946, the IGOC Act. This will mean that the minister no longer has guardianship responsibility once minors are transferred to a third country. Again, this matter was raised in that High Court decision. I would not be so concerned about this, because it has been a point that I argued under the previous government, if we could find a way to ensure effective protection for people transferred to non-signatory countries or signatory countries. I would not be comfortable with it, but I would go along with it. I have to say that I had rather a robust argument on this matter with the former Prime Minister. Indeed, the expert panel was advised by John Menadue and Arja Keski Nummi, of the Centre for Policy Development, that whatever decisions are taken about offshore processing we need to ensure there is a robust framework of effective protection.

The difficulty that I see with this bill before us today is that there is nothing in it which would give any of us in this place comfort at this moment that those effective protections will be in place. That, again, was a critical issue in the recent High Court ruling on the Malaysia swap legislation. It is central to the decency of any policy that we pass in this place. It has been a matter of faith for many that the return to asylum seeker centres on Nauru and Manus Islands would stop the boats and that offshore processing is an effective deterrent. In my view, these dry and formulaic arguments should not be allowed to mask the now known consequences of such a policy. In July, Wendy Bacon, writing in New Matilda, wrote about our 'Nauru amnesia'. It is a sad litany of events when people are put on places like Nauru and Manus, including: a lack of public scrutiny; shameful physical facilities, including an understaffed and underequipped hospital; and indefinite detention in places that offer no permanent resettlement options.

The original agreement with Nauru was for six months, but many detainees—including young children—were there for years. The President of Nauru was not, at that time, at all happy about that situation. There were physical and psychological consequences which are still being felt today. Many critical reports were made by government and non-government agencies who visited Manus Island and Nauru. These agencies made sensible recommendations about how we could improve our treatment of these people from a humanitarian perspective. It always grieved me that we either discredited, in many cases, or ignored that advice.

It is sobering to examine the incremental, but in my view regressive, suite of refugee asylum policies we managed to pass or put up in this parliament in the years up to 2005—and now we are going beyond that. I said 'up to 2005' because that was the period covered in From White Australia to Woomera: the Story of Australian Immigration, a book by James Jupp. He explains:

In its long history of refugee settlement Australia had:

never forcibly removed asylum seekers from its territory until all avenues of appeal had been exhausted;

never transferred asylum seekers outside its territory to camps managed on its behalf and at its expense;

never denied the possibility of permanent residence and family reunion to those eventually accepted as refugees;

never experienced mass protests and hunger strikes at detention centres;

never redefined its borders to exclude offshore territories; and

never alienated most of those engaged in refugee settlement work.

In my view, today we add to this policy regression.

It is very clear that nothing I do or say today is going to change what happens in this parliament—that this legislation will pass. I do understand that there is immense public pressure, but I think we all really need to search within ourselves to see if we cannot perhaps do better than what this bill offers. It concerns me deeply that we continue with policies which are, I feel, so disproportionate to the actual dimensions of the issue Australia faces.


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