Senator Andrew Bartlett
Portfolio: Immigration and Multicultural Affairs
| Dated: 24 Sep 2001
Location: Parliament
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Senator Bartlett speaks to the Migration Amendment (Excision From Migration Zone) Bill 2001, Migration Amendment (Excision From Migration Zone) (Consequential Provisions) Bill 2001, Border Protection (Validation And Enforcement Powers) Bill 2001, Mig |
Senator BARTLETT (Queensland) (7.50 p.m.) —As I said earlier on this migration legislation, this is a dark day for democracy in our country and it is a dark day in the history of this parliament. In some ways it is ironic that it is almost the 100-year anniversary of the passage into law of the Immigration Restriction Act 1901. Nowadays that act is repeatedly pointed to as one of the most shameful aspects of our nation's history, and it was put through at a time of great community anxiety and apprehension about illegal migrants and people from overseas flooding our country and destroying our way of life. We now know, 100 years down the track, that our way of life has been enhanced by migrants and refugees from all parts of the world. The Immigration Restriction Act 1901 is pointed to as one of the more shameful acts in our parliament's history and, given that it was one of the earliest acts passed, an indictment of the parliament that passed it. One hundred years later, many aspects of the Immigration Restriction Act 1901 actually have some very disconcerting echoes.
The act was titled `An act to place certain restrictions on immigration and to provide for the removal from the Commonwealth of prohibited immigrants'. The act specifically provided for people to be detained and for vessels to be detained. It provided for people who were arriving on vessels to be removed. It provided for anybody who enabled or assisted a person to immigrate illegally to be convicted of an offence. What we are talking about 100 years later, despite the continual disinformation and misuse of the phrase by the minister and others in the government is not illegal immigration. We are not actually dealing with illegal immigration, and one of the many myths that should be punctured in this debate is the myth that people do not have a legal right, under international law or under our own domestic law, to arrive in a country without authorisation and seek protection, if they believe they are genuinely experiencing or fleeing persecution: they do have that right, under international law and under our own act. We, as a country, have the right to assess that claim and deport them, if the claim does not meet the definitions required under our law. So we are not talking about illegal immigrants at all; we are talking about people who are exercising their legal rights. We are also not talking about protecting our sovereignty or protecting our borders. Our borders are protected. All the people that all these acts deal with are detected and assessed; they are removed if they do not meet our legal requirements to stay, and they remain if they meet the requirements of our law. So our borders are protected. The integrity of our sovereignty is protected. These bills are being used as an excuse to deal with something that does not exist.
We have also had repeated statements that Australia is the most generous of all countries, except possibly Canada, in relation to the provision of assistance for people who are seeking asylum. Again, the facts do not bear this out. I acknowledge that there are different definitions in different parts of the world, so there are always some imperfections related to comparing figures—that can work both ways of course—but the UNHCR track these things and, if we look at their statistics for asylum applications lodged in Europe, North America, Australia and New Zealand in the first six months of this year, Australia ranked 12th in the first part of the year, with 3,400 in the first quarter of the year and just under 3,000 in the second quarter. This compares with countries such as Germany, which had over 40,000, and France, which had over 20,000, and the list goes on. Similarly, in relation to applications lodged, our overall number is significantly below that of many other countries, and so it is a complete furphy to suggest that we are more generous than other nations. Sure, if you just count people from offshore, we do not do too badly: we are ranked about third on a per capita basis at the moment, behind Norway and Canada. However, if you include onshore arrivals and people having to deal with asylum applications, we come quite a long way down the list, on a per capita basis. There are 687 per million people in Australia, compared with 2,400 in Norway, 2,480 in Switzerland, 1,000 in Canada, 2,778 in the Netherlands and 957 in Germany. So let us not accept this myth which is being peddled, among all the other myths, that we are more generous and are pulling our weight more than anybody else. We do have a good history not just in relation to offering people protection but in supporting the refugee convention, which encourages international cooperation in the provision of assistance and protection for people fleeing persecution. However, that reputation has been well and truly trashed by this federal government and, unfortunately, we are seeing a deliberate use of political opportunism to generate fear, apprehension and hatred in our community, where it did not exist before.
The government is pointing to opinion polls as an indication that they have public support for what they are doing. Indeed, a reasonably comprehensive poll done by Morgan recently did indicate public support for the government's policies on this issue: people were asked whether people who arrive here without authorisation should be accepted here and processed or pushed out to sea. To our great shame, over 60 per cent said that they should be pushed back and somewhere around 20 per cent said they should be assessed here. One of the most shameful aspects of that survey was that, when the same question was asked in 1979, the results were almost completely reversed. That was at a similar time, when we were under pressure from boat arrivals, but the numbers were almost reversed: the majority believed that we should assess people here and the minority suggested that we should send them back. To me, that is this government's legacy, in terms of the social division, fear and hatred it has sewn for its own political ends not just in the last few weeks but consistently over the last few years. Through disinformation, demonisation, distortion and blatant fabrication, they have generated fear and apprehension in the Australian community which, in my view, is a compassionate group of people at heart. That is the legacy we are left with: we are a divided nation, with increased tensions and mosques being bombed here in Australia. It is a legacy that this Prime Minister is willing to generate, simply in order to try to win himself an election, and history will judge him for that. It may judge him as an incredibly clever and ruthless politician, but it will judge him as somebody who did not act in the national interest and was willing to put his political interests ahead of the good of the country.
I have only 20 minutes to discuss these seven bills, which gives me less than three minutes per bill. Virtually all these bills have very significant ramifications, and I thank the many people around the country who have tried to provide commentary, particularly on the three pieces of legislation that were only introduced five days ago. They have tried to at least give some indication and commentary on what the ramifications of those bills will be.
Let us just step through a bit of what we are dealing with this evening in relation to the seven bills. The Migration Legislation Amendment Bill (No. 1) 2001 seeks to limit the ability of the asylum seeker to have an independent review of the decision made by the Department of Immigration; seeks to place time limits on applications to the High Court; limits the ability of the Federal Court to hear certain matters, and aims to prevent multiple party litigation, or so-called class-actions, which currently save resources of the court and provide test cases for migration law. This bill was examined by the Joint Standing Committee on Migration. The Democrat and Labor members of the committee reported that the bill should be opposed and, indeed, that the case the department put justifying the need for this bill was flimsy at best.
The Migration Legislation Amendment (Judicial Review) Bill 1998 [2001] introduces a privative clause which further limits the jurisdiction of courts and their ability to review administrative decisions under the Migration Act. It prevents people basically from having access to justice. It prevents any protection for people in ensuring their legal rights for assessment by the Administrative Appeals Tribunal of their asylum claims or, indeed, any migration matter. It is not just refugees; it is also people applying to the Migrant Review Tribunal. It is already difficult. There are already significant restrictions on what can be reviewed and what grounds there are for appeal to the courts. Those restrictions were introduced for the same justification—`We need to restrict the avenues and grounds for appeal, to stop people from using the courts, to stop them delaying their departure, to stop the cost to the taxpayer. We need to deprive people of their legal rights because of this so-called abuse of the system.'
What happened? The number of appeals went up dramatically. It will be interesting to see what happens as a consequence of these changes. Judicial review is important because there is a public interest in having bureaucrats and officials abide by the law, irrespective of whether the litigant is a citizen or a non-citizen. Let us not forget—and it is not being melodramatic to remind the Senate of this—that these decisions of the Refugee Review Tribunal are literally life and death decisions. It is a heavy burden for them. To remove any opportunity for judicial oversight, I believe, is a grave mistake. Judicial review is an important discipline on decision-makers and, without it, it can become a matter of whim whether to obey the law or not.
The Border Protection (Validation and Enforcement Powers) Bill 2001 has several main purposes. It retrospectively validates the legality of actions taken by Commonwealth officers in relation to the Tampa. It provides additional statutory authority for future action in relation to vessels carrying unauthorised arrivals and the arrivals themselves, including the power to detain. It introduces mandatory sentencing—I believe an unparalleled provision in Commonwealth law—for people involved with people smuggling, and it prevents civil proceedings being instituted in relation to any activities involved in removing boats from Australian waters. It provides significant extra powers and, again, puts government and government officials very much above the law. It is an incredibly dangerous act on its own, and I think for the Senate to be considering it and passing it without a proper examination of its impacts is an indictment. Many of the criticisms that were rightly made in this place three weeks ago with great passion by many opposition senators about the Border Protection Bill 2001 still remain. There have been some modifications but a lot of the valid criticisms that were made then still remain. It is a very unfortunate outcome that the ALP has agreed to support this particular bill.
The Migration Amendment (Excision from Migration Zone) Bill 2001 is purely a device to allow the government and the Department of Immigration and Multicultural Affairs to achieve their long-term objective of exempting their refugee status determination processes from proper review. It is basically a mechanism to give the government and the department absolute power without any opportunity for oversight by any independent body with any powers at all. It will also set up, via the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001, categories of second-class and third-class visas, and creates yet another class of refugees. It will not deter; it will simply make life an even bigger burden for people who have already suffered and this, in turn, will be burdensome for the taxpayers.
The Migration Legislation Amendment Bill (No. 6) 2001 is the bill that went to the committee inquiry you have when you do not have a committee inquiry. It was taken back from the committee by the vote of the Senate today before we got a chance to start examining it. But, even in the brief time that we did get to examine it, we have had significant evidence provided—and I thank those people in the community who went to the trouble of providing submissions. There was a range of groups, and it is worth noting the groups that have expressed significant concern about and opposition to this raft of legislation. There was a range of legal groups, advocacy groups, people that have worked on a daily basis with this area of law who have pointed out flaw after flaw in the package of bills and many, many dangers in relation to what it will mean.
It is worth quoting the UNHCR in their statement to the Senate Legal and Constitutional References Committee last Friday in relation to the Migration Legislation Amendment Bill (No. 6) 2001. This bill seeks to narrow the definition of refugee. The UNHCR submission raised a number of concerns with various aspects of the bill. It stated:
The UNHCR remains concerned about other provisions contained in section 91R which restrict the definition and application of the notion of persecution, and—
this is a damning phrase—
which could exclude refugees who, in our view, should be covered by the refugee convention.
If there is one thing that is at the heart of the refugee convention, it is the principal of non-refoulement, or not returning people to a situation where they may be subject to persecution—to be blunt about it, not sending people back where they might get killed. The UNHCR has quite clearly stated that that bill alone raises that risk, and it was clear from the evidence provided that that was a potential consequence of just that one bill.
Unfortunately, the UNHCR has not provided us with much feedback in relation to the Border Protection (Validation and Enforcement Powers) Bill 2001, the Migration Amendment (Excision from Migration Zone) Bill 2001 or the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001, but I think it is eminently reasonable to assume that there are significant concerns in relation to those. It is eminently reasonable to assume that because there had been significant concerns produced by other people. Indeed, the Human Rights and Equal Opportunity Commission produced a scathing critique of those bills. There was a unanimous resolution passed today by the Uniting Church National Assembly and Synod of Victoria expressing grave concern about these bills.
It is these groups that are concerned with the welfare of people, particularly vulnerable people, who are trying desperately to send us, as legislators, a message, and we should not close our ears to that message. If we do, we will be abdicating our responsibility as legislators and as people who should be leaders in this nation. We should be leading, and it is the absence of leadership that has led to that change in figures where instead of 20 per cent wanting to send people back 20 years ago it is now over 60 per cent.
That is a failure of all of us, me included. We have all failed to show the necessary degree of political leadership to stand up against the voices of ignorance, of disinformation and intolerance as well as the deliberate purveyors of hate in community—the Alan Jones's, the Piers Ackerman's—who deliberately seek to inflame and distort and create suspicion and hatred. We have a responsibility to stand up against that and we have failed to do that effectively. The consequence is this batch of legislation that we are seeing before us, a batch of legislation that will be, unfortunately, almost definitely passed by the Senate by the end of the week. I do not do this very often, but I was given a Bible when I came in here and I thought I might finish with a very apt phrase from Jesus:
... I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in
.........
whatever you did for one of the least of these brothers of mine, you did for me.
We hear a lot of talk about our Christian heritage in this place, and this is a very fundamental part of the New Testament—which has stuck in my head even from childhood, so I knew it was there—that we should look to a bit more often.
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Information provided by the Australian Parliamentary Library.
This document is of Draft Status
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