18 December 2012

Judi Moylan on our asylum obligations

Below is a simple, elegant and courageous speech by Opposition Member for Pearce, Judi Moylan MP, made in the House of Representatives on Tuesday 27 November 2012 during the debate on the Second Reading of the Migration Amendment (Unauthorised Arrivals and Other Measures) Bill 2012.

Mrs MOYLAN (Pearce) (18:40): Before I speak to the bill I would like to acknowledge in this chamber
the very courageous and wise words of the member for McMillan. I feel privileged indeed to count him as a friend and to have him as a colleague in this place.

The Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 gives effect to recommendation 14 of the Houston expert panel, which proposed excising the Australian mainland so that a person arriving by sea, without a visa, cannot apply for a protection or other visa unless the Minister for Immigration and Citizenship determines that it is in the public interest to lift that restriction.

The practice of excising parts of Australian territory started in 2001, and a bill to expand the excision of the Australian mainland was introduced and passed in the House of Representatives in 2006. As my colleague said, he and I and other colleagues, the former member for Cook, who is somewhere in the gallery, and the former member for Kooyong, opposed that bill at that time. But so concerning were the measures outlined in that bill that the Senate Legal and Constitutional Committee, chaired by then government Senator Marise Payne, recommended that 'the bill not proceed'. It was withdrawn when it was clear it would not pass the Senate—not because of the terrible ramifications of that piece of legislation, but because it simply was not going to pass in the Senate, and that would have been an embarrassment to the government.

The report included a number of recommendations to limit the effects of the bill should the government still elect to introduce it. These were fairly extensive but went to transparency, procedural fairness, special consideration for women and children, parliamentary and/or ombudsman scrutiny of operations on Nauru and Manus Island and a sunset period of 18 months for
the operation of the legislation.

This bill before the House has the same intent. It effectively warehouses people in a foreign country and continues a pattern of punitive, arbitrary, indefinite, mandatory detention. These are people: men, women and children who have not been convicted of any crime. May I say, that in looking at these issues over a lengthy time line—I think it has been a 10-year period—there has been more than one inquiry a year into the effects of mandatory detention, and all of them have warned government of the dire consequences of this policy. Yet governments of both persuasions have ignored all of those reports—some of them from their own parliamentary committees.

What really concerns me is that this legislation places these people out of reach of the Australian legal system and casts doubts as to whether any review process will ever be available to them. Our democracy is underpinned by the rule of law, which requires, as a minimum, access to judicial review of administrative action, the right to a fair trial, the right to private communication with a lawyer and access to the courts. This bill is a crack in each of those foundation stones of our democracy. That is why people out there ought to be concerned about the passage of such legislation in unseemly haste in this place. We should ask the  question: who or what will protect these people from processing errors? Who or what?

In justifying these extreme measures, the expert panel report provided just two paragraphs of reasoning for such a draconian piece of legislation. On the statistics alone, it is difficult to justify the excision of the whole mainland. In the decade since 2001, a total of five boats have managed to get as far as the Australian mainland —and those five boats carried only 86 people. This is not an avalanche, a tsunami or an invasion. It is hardly a number to give rise to the implementation of such
an extreme piece of legislation—a piece of legislation which discriminates against an asylum seeker simply on the basis of the mode of travel they used to come to this country.

Yet we continue along this path, with this bill being the final legal brick in the creation of fortress
Australia. Let us be clear: Australia has signed the refugee convention, but it seems the government has no intention of meeting its obligations under that agreement. This bill, combined with the recently passed Migration Legislation Amendment (Regional Processing and Other Measures) Bill, the existing legal framework, the memorandum of understanding between Australia and Nauru and Papua New Guinea, and the new no-advantage test, completes a cunning suite of legislation and international agreements devised by government to effectively avoid Australia's obligations under the refugee convention.

I read a wonderful article in the Canberra Times this morning. It was by Professor William Maley from ANU and Penelope Mathew and was entitled 'Bowen's asylum line is illegal.' They note:

First, international law is underpinned by the simple but powerful principle of 'pacta sunt servanda', namely that every treaty in force is binding on the parties to it and must be performed by them in good faith. In the exercise of its sovereign capacity, Australia, when it acceded to the Refugee Convention, made a solemn set of commitments to other states. If it were to dishonour those commitments, it could hardly expect to be taken seriously if it then complained when other states chose to dishonour their commitments under a whole range of treaties and conventions from which Australians stand to benefit.

The article was worth reading in its entirety and I had a conversation just this afternoon with William Maley on these issues.

Under this new regime, asylum seekers will, at the very least, spend years languishing in detention in foreign countries even if they have been assessed as a refugee, and they may never be able to successfully apply for asylum in Australia. A dissection of the suite of measures uncovers the devil in the detail. Take, for instance, Nauru. The MOU states that refugees will be processed under Nauruan law. This is confirmed by Australia's Department of Immigration and Citizenship in material given to asylum seekers. But, to apply for an Australian refugee visa under regulation 866.21 of the Australian Migration Act regulations, the applicant must be a person to whom 'Australia has protection obligations under the Refugee Convention.'

This is an incredible sleight of hand. It is difficult to see how any asylum seeker can argue Australia's protection obligations are applicable when they are determined to be a refugee in Nauru, under Nauruan law, which is now a signatory to the refugee convention. When I speak to lawyers, it is clear that they can barely understand the complexities in this suite of legislation. Consider the consequences for just one moment. We have shovelled off these desperate people to a country which simply cannot absorb or resettle them, in the process potentially extinguishing any legal claim they have to resettle in Australia. They will, as a result of the government's deliberate policy choice, languish in detention centres offshore for years at Australian taxpayer expense.

I hear speeches in this place about the huge cost of our asylum program. We could avoid that by treating these people decently, resettling them quickly and processing their claims quickly and efficiently. I will not go into that right now, but there is no justification for the huge expense to Australian taxpayers of this flawed policy. We need to ask ourselves what value we place on the rule of law if we are prepared to extinguish it for a political purpose. There can be no other reason for the sweeping changes in this bill.

Consider, for instance, the fact that, from 1 July 1998 to 27 July 2012, there were 79,498 protection visa applications from people who arrived in Australia by air. This is more than double the total number of people arriving by boat over the same period and it is 924 times more people than have arrived on the Australian mainland. Yet this bill will not affect air arrivals. These people, some of whom arrive in Australia with no intention of returning to their country of origin, will not be removed to an overseas detention facility. They will have access to merits review and will live and work in the community despite the fact that, statistically, only about 20 per cent to 30 per cent of them qualify for refugee status. That compares to 90 per cent of the people who arrive by boat qualify. How can this glaring difference in the way people are treated be justified? Why do we continue to demonise and penalise people who arrive by boat? It is difficult to accept the argument that Australia's approach of stripping away the protections contained in an international convention designed to protect human dignity and respect for human life should have any legal or moral force.

Addressing this issue requires more than tag lines. We must engage in a constructive regional dialogue and must first work to find durable policies in the source countries. We must use diplomacy and work with our neighbours in the region to address the common concerns about refugee flows, not just to resolve the political problems in Australia but to seek cohesive, humane policy for the region. This should include consultation with countries in the region to seek agreement to set up UNHCR approved regional processing centres and it should include a commitment by Australia to lift its refugee intake to a more realistic level. Under this process, people could not pick and choose a country to resettle in but would be allocated, as has been done successfully in the past, during the Indochinese conflict for example. I know that was slightly different, but there is no reason why this cannot be achieved. It is harder, it is slower but it is more sure.

Perhaps also it is time to discuss with the UNHCR the renegotiation of our humanitarian intake so we
can relieve some of the pressures in the region, be good neighbours and take the bulk of our humanitarian intake from the immediate region, where the problem currently exists. These are matters worthy of discussion if we really want to stop people losing their lives crossing the ocean between Indonesia and Australia.

It will not be a quick political fix that resolves these matters. Rather, it will be the intelligent, diligent
application of diplomatic skills and goodwill, and sensible policy making and sensible legislation. It may take longer but it will be surer and will produce a much improved humanitarian response.

I would like to finish with another quote from the article by Bill Maley and Penelope Mathew. The article begins:

Australia's refugee policy is now in a total mess. Rather than being guided by principles or even a measured
pragmatism, it reflects the knee-jerk response of politicians who are desperate to win votes from the least informed parts of the electorate.

Like my colleague the member for McMillan, my heart is heavy when I have to come into this place and once again speak in this way about legislation being considered by this House.

In all conscience I cannot support this piece of legislation.

Source: House of Representatives Hansard, Tuesday 27 November 2012, pp. 78-80.

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