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senate vote 2012-08-16#8
Edited by
mackay staff
on
2014-02-24 16:28:17
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Title
Bills — Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; in Committee- Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 - In Committee - Sunset clause
Description
<p class="speaker">Sarah Hanson-Young</p><p>Yes, I do, Chair. I have some questions for the minister before I do that. Given that we have now no conditions in the legislation for how people are to be treated in these offshore dumping facilities, and given that there is no review of the conditions of these facilities, I would like to ask the minister what assurances we have that the physical situation on Nauru and Manus Island is any different than it was under the Howard government. I will ask one specific question: what is the minister going to do about the issue of malaria that children were subject to when detained on Manus Island under the Howard government?</p> <p class="speaker">Kate Lundy</p>- The majority voted in favour of an [http://www.openaustralia.org/senate/?gid=2012-08-16.300.6 amendment] introduced by Greens Senator [http://publicwhip-test.openaustraliafoundation.org.au/mp.php?mpn=Sarah_Hanson-Young&mpc=Senate&house=senate Sarah Hanson-Young].
- The amendment was:
- ''(a) the amendments (including any repeals) made by this Act have effect only for a period of 24 months from the commencement of this Act; and''
- ''(b) any Act amended by this Act has effect after that period of 24 months as if the amendments had not been made.''
- In other words, this amendment puts a [http://en.wikipedia.org/wiki/Sunset_provision sunset clause] on the amendments introduced by this bill.
- ''Background to the bill''
- This [http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1102135%22 bill] was originally introduced in the House of Representatives as the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011. It was drafted in response to the High Court's judgement in [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2011/32.html?query= ''Plaintiff M70/2011 v Minister for Immigration and Citizenship''] [2011] HCA 32, which put an end to the Labor Government's [http://en.wikipedia.org/wiki/Malaysian_Solution#Immigration Malaysia Solution] policy.[1]
- To this end, the bill amends the ''Migration Act 1958'' to replace the existing framework for taking [http://www.refugeecouncil.org.au/r/glo.php offshore entry persons] to another country for assessment of their claims to be refugees. The bill also replaces discretionary detention with mandatory detention for all asylum seekers at an offshore place, such as [http://en.wikipedia.org/wiki/Christmas_Island Christmas Island], and alters the ''Immigration (Guardianship of Children) Act 1946'' in relation to making and implementing any decision to remove, deport or take a non-citizen child from Australia by overriding the guardianship obligations under that Act.
- References
- * [1] Read more about the decision on Wikipedia [http://en.wikipedia.org/wiki/Plaintiff_M70/2011_%26_Plaintiff_M106_of_2011_by_his_Litigation_Guardian_v_Minister_for_Immigration_and_Citizenship here] and on ABC News [http://www.abc.net.au/news/2011-08-31/high-court-rules-on-asylum-seeker-challenge/2864218 here]. Read more about the effect of this decision on the Malaysia Solution [http://theconversation.com/malaysia-solution-high-court-ruling-explained-3154 here].
<p>Again I am compelled to refute the premise of the question that Senator Hanson-Young has put to the government. The government is confident that the protections are in place. By accepting the recommendations of the Houston report both in the spirit and as it is represented in this piece of legislation, we believe we satisfy both the spirit and the letter of those recommendations. I remind senators that this is part of a holistic approach to the challenge of orderly migration in our region and this legislation forms a part of that.</p><p>The final point I would like to make is again, contrary to assertions made by Greens senators, that in fact the rigorous nature of scrutiny afforded by the parliamentary processes already, through Senate estimates and through the chamber itself, as well as the additional scrutiny that will be levelled at the agreements with designated countries, will provide an unprecedented level of scrutiny and accountability and I think will satisfy the assurances the Greens are seeking with their proposed review, which we have not supported. It will not come as any surprise to my Senate colleagues that we will also not be supporting the attempt to have the bill cease to be effective from 16 August 2014.</p><p>I think we are at the point in the debate where the Greens, with due respect, continue to make their political point by moving this final amendment. However, in practical effect, this amendment would completely sabotage the operation of the framework we are constructing to provide an effective disincentive to the people-smuggling trade. In fact it borders on absurdity in that you can envisage, with such a clause in place, that people smugglers would spend the next two years compiling their passenger lists for when the bill ceased to be in effect. So we will not be supporting this amendment.</p> <p class="speaker">Sarah Hanson-Young</p><p>I will ask the minister again: what is the government going to do to tackle the issue of malaria, which children faced the last time they were detained on Manus Island?</p> <p class="speaker">Kate Lundy</p><p>In accordance with the recommendations we have accepted from the Houston report, we will, obviously, be adhering to our obligations for the health, wellbeing and welfare of detainees from Manus Island and Nauru.</p> <p class="speaker">Sarah Hanson-Young</p><p>What is the practical response to one of the well-known health issues which children faced when they were detained on Manus Island? What is the government going to do to protect children from being subject to malaria?</p> <p class="speaker">Kate Lundy</p><p>In referencing Manus Island as Nauru, as I just did, I should make the point that no designations have been made, that the conditions by which the designations will be made will be subject to an agreement being struck and that agreement being subject to the scrutiny of the parliament. I am confident that the issues and no doubt the various degrees of detail that Senator Hanson-Young is pursuing answers for right now will be addressed through the course of those agreements. I am sure that, if she took the time to convey her issues of concern, she should be confident these issues would be addressed. I am not in a position to provide detailed advice on what responses to these known challenges would look like at this time, so I would respectfully suggest, through you Mr Chairman, that Senator Hanson-Young's pursuit of the level of detail on which she is seeking assurances is beyond my capacity in this committee stage of the debate.</p><p>In saying that, it is not to avoid the issue. It is a course of the consequences as events unfold. Details of the arrangements would be negotiated with the appropriate stakeholder bodies, including the UNHCR, which I am sure, with this problem being well-known, as the senator claims, would have strategies to address it.</p> <p class="speaker">Sarah Hanson-Young</p><p>I would like to ask the minister whether the officers of the Defence Force who were deployed to Nauru this morning have been asked specifically to inquire into fresh water on Nauru. We know that the only water available on Nauru is that produced by the desalination plant, that there is no fresh water available on Nauru. During the Howard government's Pacific solution, fresh water was rationed to the detention centre. Have the members of the Defence Force deployed to Nauru today by the Prime Minister been asked to work out precisely how enough freshwater will be provided to look after the refugees we will be sending there?</p> <p class="speaker">Christine Milne</p><p>The minister and the coalition spokesperson, Senator Cash, have both gone on at length about how the parliament will be the ultimate place in which this will be scrutinised. You have just voted down a review. Are we going to move, as my colleague has said, for a sunset clause? We all know that in parliament we have people who have been exempted from appearing before Senate inquiries—people who have worked in minister's offices, for example, as Senator Sinodinos would know extremely well—as a result of a certain maritime incident. People were exempted from having to appear to be scrutinised by Senate committees because they knew what went on and did not have to appear to say so. Let us forget the notion that Senate estimates or any inquiries are going to get to the bottom of anything because we will just get, 'We will take that on notice; we will get something to you,' and we will get some document which says absolutely nothing or it will be exempted as cabinet-in-confidence or whatever else. So let us abandon the notion that you are going to get full-scale parliamentary scrutiny of what goes on in these places.</p><p>I ask the minister: will she now give an unequivocal guarantee to this parliament—since Senator Cash says she is satisfied the parliament is enough, that we do not need these reviews—that lawyers, members of parliament, human rights commissioners and the like will be able to visit the detention centres on Nauru and on Manus Island? They were not allowed to before when these detention centres operated, but now that the parliament is the scrutinising body, will you guarantee that parliamentarians, lawyers and humans rights bodies will have access to the detention centres?</p> <p class="speaker">Kate Lundy</p><p>Both senators are asking for a level of detail that is beyond the scope of arrangements that have been determined as yet. I will respond to their questions by saying that we will act in accordance with the Houston report recommendations. I am not in a position to convey to Senator Milne, through you Chair, details about access to the facilities. These things will be determined by the nature of the agreement that Australia has with the designated country, mindful of course that it is with another country. So I am not able to provide the detail with respect to the issue of access.</p><p>I take issue with the claim that parliament is somehow an ineffective watchdog or source of accountability. I reject that completely. I can assure you as a member of the government that we take extremely seriously the capacity of this parliament to scrutinise government's goings on. We are all here on that basis. We all carry with us a confidence in the parliamentary processes. I think that as senators and as members of the House we uphold the dignity and processes of this parliament. I think it is plain wrong to say that this is a place of ineffective scrutiny, thereby making a demand for other mechanisms. I believe the mechanisms we have put in place go well beyond those that have existed previously. It was never previously a requirement for offshore processing to strike agreements that endured the scrutiny of parliament. That is a recommendation we have accepted from the Houston review and it is one that I am very pleased to be presenting to the parliament. I am surprised at the scepticism being displayed by the Greens party about the veracity of this accountability measure.</p> <p class="speaker">Christine Milne</p><p>I can tell you, and everybody in this parliament knows, that it is a fact that when governments decide not to provide information they can easily do it through all sorts of processes that avoid FOI and that protect people in ministerial offices. I will be very interested in Senator Lundy's responses when we get to the bottom of how it is that the Minister for Home Affairs, Jason Clare, did not know until 9 August that there was a boat missing, in spite of the fact that the Palestinians had informed the government three weeks before that that was the case. No doubt the government will be very forthcoming. Now that we can have absolute confidence that nothing will be withheld from the parliament I look forward to that. I would like Senator Lundy to tell me, if she has such great confidence in the ability of the parliament to get to the bottom of things, how it is that we never got to the bottom of SIEVX and how it is that the parliamentary committee involved never got to the bottom of it. The ALP at the time agreed that we needed a royal commission, because people who were in ministerial offices were not required to front up and so did not have to say what really went on. There are people who do know what went on, but this parliament does not.</p><p>Let us get to the guts of what Senator Lundy was just saying about a review. It is not about asking for the detail of the review. You have said that there is no legally binding protection here, that the parliament will scrutinise the documents that are the arrangements. Then you have said that there is no need for those arrangements actually to be in the documentation that comes to the parliament, although it will be the parliament that scrutinises the arrangements. On that basis, I need to know that I as a member of parliament can go to Nauru and Manus Island and that I can be confident that lawyers and other people can go there and test whether or not the government is delivering what it says it is going to deliver, since there is no legal scrutiny available and no requirement to provide natural justice or guardianship for the children.</p><p>I might say, Senator Lundy, that the ALP at its national conference voted to say that children needed to have an independent guardian—not the minister, but an independent guardian. You have abandoned any guardian. There is no guardian at all for those unaccompanied children who might be sent offshore. I want an answer. It is not about providing the detail about how it is going to operate. I ask for an unequivocal guarantee that these detention centres will be open to the scrutiny of the parliament. Since you have removed the courts, removed natural justice and removed everything else, there is only the parliament. I want an unequivocal guarantee that parliamentarians, lawyers and human rights advocates will have access to those detention centres. Otherwise, there is no review, no accountability, whatsoever.</p> <p class="speaker">Kate Lundy</p><p>These issues are still to be determined, Senator Milne, through you Chair. I can reiterate that the agreements that Australia will pursue with designated countries will involve stakeholders, including the UNHCR. In offering you some assurance, I point to the context in which these agreements will be negotiated.</p> <p class="speaker">Sarah Hanson-Young</p><p>The current restrictions on media access to Australian detention centres were drafted using media restrictions to Guantanamo Bay as a model. That is the truth of the matter. It has been revealed through FOI from the minister's office and the immigration department that they were based on the guidelines for media access to Guantanamo Bay. I would like to know from this minister: will these offshore processing facilities be under the same media access guidelines?</p> <p class="speaker">Kate Lundy</p><p>I offer you the same answer I provided to Senator Milne: that these operational details are not known. They will be perhaps in some way subject to the agreements we strike with the designated countries, but I am not in a position to start foreshadowing such detail. I think it is well understood that these processes are yet to be undertaken. What we can commit to is reflecting both the spirit and the letter of the report prepared by the panel chaired by Angus Houston as we proceed to try to establish agreements with designated countries and, again, this will of course be subject to the scrutiny of parliament. Through you, Mr Chairman, as to this line of questioning, I understand completely the motivation but I am not going to be able to provide the detail that I think senators are now pursuing.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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