Shayne Neumann MP
Federal Member for Blair

Australian Labor
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MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING COHORT) BILL 2016

09/11/2016

I speak in relation to the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 to say that Labor opposes this particular bill.

According to the UNHCR the number of displaced persons fleeing from war, conflict or persecution is the highest since World War II, with Syria the epicentre of this. There are, according to latest figures, about 65 million persons around the globe who are displaced. Labor believes that Australia must do more, and we should participate in world affairs and do our bit in relation to this global humanitarian crisis.

We believe in a compassionate approach in relation to asylum seekers which enables refugees to live and integrate in this country, which was built on migration. Labor strongly believes in a multicultural society, and Australia has been blessed and economically developed by the multicultural community we have become over the years. We have always committed ourselves to participating in leadership of the global work that is done in South-East Asia and the Pacific, and Labor believes we as a country should do more in the leadership of South-East Asia and the Pacific to look at regional humanitarian frameworks to enhance the situation and address the asylum seeker challenge that we face.

Labor took to the last election a commitment that we would increase our annual humanitarian intake. We urge the government to do more. We recognise that the government has made a commitment to increase the humanitarian intake, but we think we can do more than that. We have committed ourselves to a strong and independent voice within government to advocate for children, and we urge the government to adopt Labor's policies in relation to an independent children's advocate with resources and statutory powers to pursue the best interests of children, including the power to bring court proceedings on a child's behalf.

We urge the government to legislate for mandatory reporting of child abuse in all offshore and onshore immigration detention facilities. Labor is at one with the government to protect our borders and to shut down people-smuggling operations.

These are criminal cartels, and we should not give them any succour or any support. Labor took a position in the 2013 election that no asylum seeker who came to Australia by boat would ever be resettled in Australia.

The government is deliberately misrepresenting Labor's statement for base political purposes.

The legislation before the chamber goes well beyond what the government has said. It prevents a person who comes by boat from ever coming to Australia under any circumstances. The legislation specifically says that an application for a visa is not a valid application.

It could lead to absurd outcomes in relation to work, business, tourism, or even families. Who is to say that the member for Dickson, the current Minister for Immigration and Border Protection, is the guardian in relation to this?

The powers under this legislation are personal to him and non-compellable. He can exercise many of these powers by legislative instrument.

Let's be clear: this is an overreach by the government, by a Prime Minister desperate to appease the right wing of his political party, to secure his leadership and maintain it, and to appease One Nation. It is more about votes and preferences in WA and Queensland in forthcoming state elections.

The Minister for Immigration and Border Protection has been incompetent in relation to securing viable third-party or third-country resettlement arrangements. This government has been in power for three years, yet the people languish on Manus and Nauru with no prospect, at this point in time, of their being resettled.

Labor's policy has always been to keep our borders secure. We want to make sure we close down the route between Java and Christmas Island, and keep it closed down. We want to make sure that people-smugglers are out of business, and we will work with third countries as a priority in relation to these issues.

But this is legislation out of desperation—desperation in terms of the leadership of the Prime Minister. It seems ridiculous. It is unnecessary legislation and it is nonsensical.

The government has come up with many excuses for this, but I want to get past their bellicosity—their bullying, their posturing, their posing—and the diatribe and the demagoguery we have heard from the Prime Minister and the Minister for Immigration and Border Protection. I want to have a look at what the bill actually says, because it is critical for those who might be listening.

The bill amends the Migration Act and regulations to make any and all applications for a visa invalid where the applicant is part of a regional processing cohort. A designated regional processing cohort is defined as persons who are unauthorised maritime arrivals and after 19 July 2013 are taken to a regional processing country and are at least 18 years of age on the only occasion after 19 July 2013 when they were taken to the regional processing country or indeed transitory persons in respect of the same definition. The definition of a transitory person is so broad—the government has attempted to scoop up as many people as possible.

According to the independent departmental briefing that the opposition has received, about 3,100 persons are affected.

This includes asylum seekers who are currently in regional processing centres on Manus and Nauru; those living in onshore detention in Australia in places such as MITA, Villawood and Maribyrnong; those living in community detention in Australia on bridging visas or other temporary arrangements; those persons who voluntarily return to their country of origin from Manus and Nauru; and the few genuine refugees who have accepted a resettlement option, including into Cambodia or Papua New Guinea.

By legislating that visa applications by these people are invalid, the bill implements a lifetime ban on any visa at any time for these people, including for travel to visit family, for tourism or for business or study in Australia. The immigration and border protection minister would have us believe that it is okay to permanently ban these people because he can use ministerial discretion to let a person into Australia.

It is true that the bill gives the minister broad discretion to make a determination to waive these provisions in the public interest for an individual or a class of persons specified in a legislative instrument. But hidden in the legislation is a caveat that the immigration minister does not have a duty to consider whether to exercise his discretion in given circumstances.

What does this mean for asylum seekers? Put simply, the effect of this legislation is to shift exclusive control over access to Australia by former asylum seekers to the immigration minister—the minister who really has no compellable obligation in certain circumstances to adhere to their request. This cohort of people will be entirely dependent on the good grace and discretion of the member for Dickson to let a person into the country.

This is the same individual who earlier described refugees as illiterate and innumerate people who would take Australian jobs or languish on the dole and use free health services within Medicare. This is not good public policy. The bill means that the minister would need to intervene and apply ministerial discretion in circumstances in which former asylum seekers—genuine refugees in third countries—would be banned from visiting for tourism, for business or even to visit family. Just think about this situation.

The minister would have to intervene to allow a doctor to visit Australia to perform surgery or attend a medical conference, or someone who then became a politician in that third country to undertake a political exchange or a study tour or visit Australian sister cities, or elite athletes from competing in upcoming sporting events like the Commonwealth Games, or to affect future Australian Olympics bids where there was a recognised refugee Olympics team, or former refugees from visiting family members in Australia or visiting tourist sites in Australia, such as the Great Barrier Reef, Uluru and other holiday spots on a tourist visa, or business owners or employees from visiting Australia to discuss the expansion of companies, businesses or franchises into the Australian market.

Australians would be surprised if they were to discover that the maintenance of family relationships in this country is dependent on the member for Dickson. I do not know about you, but I do not think Australians trust the member for Dickson to make independent, fair and good decisions in the national interest on such applications. We need an orderly migration process.

We will not achieve this by giving the minister the discretion to make it up as he goes along. And the minister has form in this space. He is not known for being across the detail of his portfolio, and last week only added fuel to the fire. We took this bill seriously.

We considered the legislation in detail. We took it to shadow cabinet, to the relevant caucus committee, and our caucus voted unanimously to oppose this bill. Can the Turnbull government say the same?

At times in the last week it became evident that the senior ministers in the Turnbull government do not understand the legislation. And it is no surprise, because the immigration and border protection minister himself struggled to get his own story straight.

he Turnbull government has been incapable of articulating a consistent policy rationale for this legislation. The story seemed to change as members of the government added their own views. When they were asked whether refugees living in the Australian community on bridging visas would be affected by a lifetime ban on visiting Australia, in the space of 24 hours the immigration minister's office said yes, the foreign minister's said no, and the Minister for Health and Aged Care said no and then 'I don't know'. Where has the foreign minister been in all this? She is responsible for Australia's relationships with our international partners.

The foreign minister has skin in the game, too, and she has been missing in action in this space. Neither the immigration minister nor the foreign minister has been able to secure durable third-country resettlement options for those persons on Manus and Nauru. They simply cannot get the job done.

But I digress. It is worth outlining what other members of the government have said, and I will start with the Assistant Minister for Industry, Innovation and Science, a former assistant minister for multicultural affairs. I presumed that he would be across the bill.

On Monday he waded into the debate, and I would like to thank him for that, because the assistant minister, who was described as 'a strong supporter of immigration', is reported in The Age as saying: … the changes would merely ‘formalise’ existing protocols making it difficult for asylum seekers to obtain visas. Under the status quo, former asylum seekers considered to be at risk of breaching their visa conditions and staying in Australia were already likely to be rejected.

This is just gibberish, as far as I can see. It just confirms that the government has the powers and can do what the legislation is purporting to do anyway. It really is extraordinary that he could not get it straight either.

Senior members of the government know that it is already difficult for asylum seekers to obtain a visa to enter Australia, and we already have processes in place to reject applications where the government has well-founded concerns. But the assistant minister was not the only one to speak out.

The immigration minister's own comments show that he is making it up as he goes along.

Last Sunday week, the Prime Minister and the immigration minister stood together and claimed that this legislation is important to send a strong message to people smugglers to stop the boats.

That would be fine, and maybe the Australian public would accept it, if, up until last Sunday, the government had not argued until they were blue in the face and bragged about the fact that the Turnbull government had already sent strong messages to people smugglers and they had already bragged that they had stopped the boats for over 830 days.

The message from the government has changed, but the headlines on the minister's website have not: '800 days without an illegal boat arrival'; 'The coalition has stopped the boats'; 'Two years of not having illegal arrivals, because we've stopped the boats.'

Then there were the comments on 27 July from Rear Admiral Peter Laver, Commander Maritime Border Command, who, in a joint press conference, said: Working unilaterally and with our partner countries in the region, we have been able to significantly disrupt and degrade people smuggling networks throughout our region and ensure that people don't undertake perilous voyages in dangerous conditions by boat to attempt to come to Australia.

In the event that people attempt this voyage, we're absolutely certain that we have the assets in place to disrupt and interdict those ventures and take them back to the countries from whence they departed.

The boats have stopped, and the bipartisan policy that combines offshore processing and boat turnbacks, when safe to do so, works. We took amendments to our national platform in 2015 and adopted turnbacks when safe to do so. So, if this policy works, why does Australia need the legislation before the chamber today?

The clear answer is that we do not. The next excuse provided by the minister was that the legislation was needed to send a message to those people currently on Manus or Nauru who are waiting for government policy to change.

The immigration minister said in his joint press conference with the Prime Minister on 30 October: It is very difficult when people smugglers are messaging to them, where we have advocates here messaging them saying 'Don't accept packages, eventually you will come to Australia.'

The minister forgets that many of these people currently have nowhere to go. The minister has failed to secure resettlement arrangements and he has failed the people on Manus and Nauru for three years—he and his predecessor, the now Treasurer. Next, the minister really outdid himself. He claimed that Australia needed to impose a lifetime ban on asylum seekers because we were going to be overrun with sham marriage.

He said on 30 October: There is intelligence that I've seen about people wanting to travel to Manus Island to marry some of the people from the regional processing centre, to try and create a process where they might come here on a spouse visa. That is not acceptable.

 It is a claim he repeated all week, seemingly forgetting that Australia already has in place a robust program to access the genuine nature of relationships as part of the partner visa process. If the department has doubts about the genuine nature of a relationship, they can, should and do reject such visa applications.

The government also has a robust compliance program in place to prevent, catch and remove people who overstay visas, and there has been no suggestion that this program is not equipped to manage future risks associated with issuing short-term visas to members of this cohort.

By 3 November, the minister's sham marriage claims were in tatters, as migration experts contradicted the claims. Kerry Murphy, a credited migration specialist, described the idea that new legislation was needed to prevent such relationships as 'frankly ludicrous'.

He told The Guardian: You're looking at a process the department deals with very regularly. This is nothing new. Why not let the application go through the existing law that's already there? The legislation is there and being used, probably on a daily basis. There's no reason or logic why the law needs to be changed for such a small group of people.

Natasha Blucher, a detention rights advocate for the Asylum Seeker Resource Centre, said: If the department is worried it means they don't have confidence in their own internal processes. As far as I am aware there's a high threshold of evidence to show a relationship is not a sham relationship. She went on to say that she was unaware of anyone in the offshore centres seeking out a 'sham relationship' in the hope of obtaining an Australian visa.

From Labor's point of view, the final nail in the coffin came on Monday when I was briefed by the department. Remember: we only got the bill last Friday and there was no explanatory memorandum. I finally got a briefing over a week later, on the Monday, from the department. Independent department officials confirmed that there have been no partner visa applications from asylum seekers who are currently in Manus and Nauru and who are in a relationship with someone living in Australia.

They went further and said that there was a rumour that 'maybe' one application had been received from someone who had been on Manus or Nauru in the past, was now in another country and had made an application for a partner visa—'maybe'; it might occur; it might happen; it might be there. But we cannot legislate against rumours and speculation.

The minister has been unwilling and unable to produce any credible evidence that this measure is needed. Its cause to wonder: do we need to legislate against a real threat of sham marriages or if the problem is only in the head of the member for Dickson? Finally, when the minister knew he was losing public confidence, he claimed this legislation was needed to pave the way for a third-country resettlement option with another country.

Let me be clear, we need to get the people off Manus and Nauru. These people are being held in indefinite detention for too long. But the government have provided no credible evidence that there are any agreements in place with third countries for resettlement or that they have any in the works. They have not told the opposition and nor have they told the Australian public.

Even if there were, there is no evidence that this legislation is required to secure that resettlement to a third country or countries. In briefings on Monday, the department representatives confirmed that no country had asked Australia to adopt this legislation to facilitate a regional resettlement agreement.

No-one has asked us to do so. So why is the government taking this drastic step with this legislation today? This legislation is a distraction. It is a distraction from the government's abject failure to secure third-party resettlement arrangements for asylum seekers on Manus and Nauru, and that is where their priorities should be.

The only possible deal on the table was with New Zealand, and the government have not taken that up. Instead, they choose to let these people languish. The immigration minister on 31 October said: Settlement in a country like New Zealand would be used by the people smugglers as a marketing opportunity. I say to the minister: really?

Remember this is the same minister who justified conditions on Manus and Nauru, comparing them to refugee camps in Jordan, saying the conditions were better. One would hope so. They are Australian government funded facilities and we are spending millions of dollars in this process. We have an obligation to treat people fairly and to make sure people are safe there.

I note the government failed to support Labor's Senate inquiry in relation to the Nauru files and the allegations of abuse, mental health and harm issues on Manus and Nauru.

The government have been abject in their failure in terms of transparency and accountability, and voted against that Senate inquiry, which will now report by March next year. When asked about this particular bill—a New Zealand option, the idea that people from Manus and Nauru would be resettled there—the conservative New Zealand Prime Minister John Key said: 'We have no intention of having separate classes of New Zealand citizens.' And then he ruled out an agreement for refugees granted New Zealand citizenship to be unable to travel to Australia.

So John Key, the Prime Minister of New Zealand, has said he does not want second-class New Zealand citizens, and that is something which, I imagine, other countries would also believe. It is hard to think that this legislation would help facilitate people being resettled. It is more likely to be a hindrance to being resettled, because other countries would have people coming to them, who, if they became permanent residents or indeed citizens, would be second-class citizens in terms of travel to Australia.

The measure for third party resettlement that the government is trying to bring in has been destroyed—in terms of its credibility as a necessity by the comments made by the New Zealand conservative Prime Minister. There are concerns that have been raised in relation to this particular legislation. We are a signatory to the refugee convention and the provisions there. There are concerns that have been raised in terms of the legality of this particular measure.

I have asked the government for a copy of any legal advice that confirms the bill is in keeping with our international and domestic obligations. The government has declined to provide that legal advice and preferred to keep it secret from the opposition and the public.

It is little wonder people are concerned about this—people such as Ben Saul from the Challis Chair of International Law at the University of Sydney. He publicly raised concerns about the bill breaching Australia's international obligations.

He argues that it breaches article 31 of the refugee convention as well as Australia's family reunion obligations under articles 17 and 23 of the International Covenant on Civil and Political Rights. What about families?

When asked about how this bill could tear apart families and put strain on relationships, the immigration minister in a press conference on 2 November said those families would have to relocate to a third country. He said: … we may be able to reunite families, for example, to take up third-country settlement options, if that's an arrangement that's appropriate … Honestly, this minister is clueless on this issue.

If the government wants to talk to the opposition, we are happy to work with the government to provide bipartisan support in getting people off Manus and Nauru and to make sure that people living on Manus and Nauru are treated with dignity and respect. We want to make sure that our borders are secure but also that people who are in Australian government funded facilities are looked after. The idea that somehow, in 10, 20, 30, 40 or 50 years time,

someone assessed as a refugee who has become a citizen of another country would be prevented from coming here on a short-term visa, for work or for business opportunities—opportunities which might enhance Australia's economic or tourism development, bringing in more money to Australia—or indeed to visit their family, is ridiculous and absurd. It is not Labor's policy. There is no credible evidence why this legislation is needed in the circumstances.

The legislation has no basis in good public policy and it will not achieve the outcomes the government suggests, in terms of preventing sham marriages. If the government thinks there is a problem with sham marriages, come and talk to us and we will look at further legislative changes which might enhance the government's ability to prevent sham marriages. But it has not done that at all. The perverse outcomes I have outlined are simply unacceptable.

If there is a problem, the government should talk to the opposition about this, not turn to dog-whistling and demagoguery. That is not the answer. They did not speak to us before they had that press conference last Sunday week about this. The minister did not talk to me about it. The Prime Minister did not talk to the Leader of the Opposition about it. It seems this government is committed to reaching out to the far Right. T

hey are spooked by Pauline Hanson and One Nation, and the Prime Minister is insecure about his leadership—it is quite clear. All they want to do is talk about these types of things. We saw it on display yesterday. But this is a distraction from their complete failure to secure third-country resettlement arrangements and get these people off Manus and Nauru. One Nation has made a comeback in the Senate, and they are worried about it.

Make no doubt about it—the Turnbull government has pulled this idea straight out of the One Nation playbook, and Senator Pauline Hanson was the first person to welcome the idea and claim credit for it. She tweeted: Good to see that it looks like the government is now taking its cues from One Nation. Just like last time.

I hope the Prime Minister is happy with himself. He should be very proud of this legislation. We thought he was a small-l liberal and believed in things, but he is cuddling up to One Nation. Is this why the Prime Minister got into politics—to bring legislation like this before the chamber? It is a disgrace.

Rather than playing petty politics, muddying the waters with rumoured third-country deals and doing One Nation's bidding, the government should be focusing on securing third-country resettlement options. That is where the government's focus should be. They have utterly failed.

We are willing to work with them, but we will not support this demagoguery. We will not support this legislation, and I urge crossbenchers and everyone in this chamber to oppose it.

ENDS