MIGRATION LEGISLATION AMENDMENT BILL (NO. 2) 2000 Second Reading
6 February 2001
Mr ALBANESE (Grayndler) (6.20 p.m.)â€”I am very pleased to have the opportunity to support the shadow minister for immigration in opposing Migration Legislation Amendment Bill (No. 2) 2000. This bill is the latest in a series of changes that the Minister for Immigration and Multicultural Affairs has made to the migration regulations since coming to office four years ago. In essence, this bill seeks to deny justice to visa applicants who beieve they have a legitimate case to put before the courts. The bill is so controversial that I am sure it raised the hackles of more than a few government MPs with legal trainingâ€”so much so that I believe they were probably quite relieved to see it whisked off to a committee last year. Many of them probably wish it would stay there permanently.
This bill needs to be viewed in the wider context of the human rights meltdown that is taking place on the government front bench. The Australian government’s actions and inaction in the field of human rights over the last 12 months in particular give we Australians cause to hang our heads in shame. This is a government that refuses to put a stop to the mandatory sentencing of young, mainly indigenous people in the Northern Territory over trivial offences. How can any fair-minded person accept that theft of a crayon or a bottle of cordial is anything more than a misdemeanour; yet the Northern Territory deems all property offences to be criminal acts.
When this issue came before the House last year, the crocodile tears coming from the moderates on the other side of the House were laughable. We saw members of the government speaking in favour of a bill that they subsequently voted against. Then, hard on the heels of the disgraceful inaction over this, the immigration minister and the foreign minister took on the UN.
Mrs Gallusâ€”Mr Deputy Speaker, I raise a point of order. The legislation is about migration and not about mandatory sentencing and a whole lot of other issues.
Mr DEPUTY SPEAKER (Hon. D. G. H. Adams)â€”I thank the parliamentary secretary.
Mr ALBANESEâ€”I can understand why a moderate such as the parliamentary secretary is ashamed of the government’s position on this and indeed on any issue related to human rights. As Australians, we are proud of our role in setting up treaty committees. The government, however, seems to think that these treaties were not designed to criticise usâ€”just all the other countries that violate human rights. But close scrutiny of the government’s treatment of indigenous Australians and onshore asylum seekers is not something it welcomes.
The government is also in the business of legitimising the rule of indicted war criminals, much to the chagrin of western European countries and the US. For example, when the rest of the world was condemning Slobodan Milosevic as a war criminal, the government sent Charles Stuart, our new ambassador to Yugoslavia, to meet him within days of him taking up his new post. In September last year the people of Yugoslavia spoke loud and clear when they handed the presidency to Vojislav Kostunica. But wait; there’s more. As a final insult to indigenous Australians, the government has tried to deny the stolen generations.
The fact is that this bill is yet another example of the government’s attempts to restrict the rights of its citizens and of people who believe they have a case for permanent residence. You only have to look at the appalling conditions in immigration detention centres all over Australia to see that this government is doing all it can to act tough over the issue of asylum seekers. In places like Woomera and Port Hedland we had cases of young children being put in conditions about which they said they would rather go back to their country of origin and face potential death than put up with.
There are two sections of this bill that I wish to speak on. Schedule 1, part 1, of the bill seeks to introduce a new part to the Migration Act. Under part 8A, section 486A will set a 28-day absolute time limit on applications to the High Court for judicial review. Setting such a time limit is a contentious act. Section 75(v) of the Constitution states that, in all matters in which a writ of mandamus or prohibition or injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction. The 28-day time limit constricts a person’s ability to seek leave of the High Court, and as such this bill is contentious and it can be argued that it interferes with the exercise of judicial power. There is something that we Australians hold sacred in our Constitution and that is the separation of powers. The basic premise is that the legislature should not interfere with the judiciary. It is hardly surprising, however, that the government seeks to interfere in this case, given that its inaction has given tacit support to the Northern Territory legislature’s interference in its judiciary with the imposition of mandatory sentencing. So, while there is no question that this bill is just another example of a mean-spirited government, there is a big question over the legality of these proposed changes. While the government may have received advice that this provision is valid, the comments of Chief Justice Gleeson and Justice McHugh in the case of Abebe would suggest otherwise. The justices said:
But once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred upon him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue, …
This is why I am pleased to support the shadow minister’s amendment. The rationale behind this bill is to discourage a person from taking his or her case to the High Court, thus reducing the workload of the High Court. However, the bill is just as likely to produce the opposite effect. Solicitors may decide to start their cases in the High Court in order to get in before the 28-day cut-off. Matters can always be remitted back down the system, and this may well become the most pragmatic option. So the bill may actually be responsible for clogging up the courts even more.
I accept that in the majority of cases the department and the tribunals make accurate and fair decisions. However, it is a fact that officers of the Commonwealth occasionally get things wrong, and this was a point that was not lost on the people who drafted our Constitution. I might add that it is not a point lost on this minister, who has intervened more than any of his predecessors to grant ministerial discretion, and in many of those cases I welcome the minister’s decision to do that. But you cannot have it both ways. You cannot say, `I have a right as a minister to intervene because the system gets it wrong,’ and then at the same time try to restrict people’s legal options. The court system allows people with a genuine case to seek justice. Therefore setting a 28-day limit on accessing the High Court interferes with the pursuit of natural justice.
I believe there is another agenda at play here in this bill. This bill is part of the minister’s mission to limit the access that non-citizens have to judicial review. It is the minister’s belief that all court action is taken purely to stretch out a non-citizen’s illegitimate attempt to remain in Australia. Whilst in some cases that might be true, it is certainly not true in all cases, and these are the people who deserve their day in court.
Schedule 1, part 2, of the bill is also of great concern to me. Here the minister seeks to prevent representative, grouped or class actions relating to visas and decisions to deport and remove unlawful non-citizens from being heard in the Federal Court and High Court. The rationale behind class actions is to prevent drawn-out legal processes by allowing people in the same circumstances to present one case instead of multiple cases. The minister is very dismissive of such actions. In keeping with his belief that all applications are vexatious, the minister wants to close this right of appeal as well. I concede that some class actions have been frivolous, but many others have not. When introducing this bill to the House last year, the minister stated that of the 14 class actions that have been commenced since October 1997, the 10 that have been decided were dismissed. What the minister conveniently failed to mention was the success of Fazal Din v. Minister for Immigration and Multicultural Affairs in the Federal Court. Clearly not all class actions are vexatious. Even when class actions are unsuccessful, it does not mean they are without merit. In the case of Macabenta v. Minister for Immigration and Multicultural Affairs, the justices of the High Court were not unanimous in their ruling, ruling in favour of the minister by two to one. In other words, one justice of the High Court was prepared to grant leave to appeal. David Bennett QC, who represented the applicants, had this to say:
The issues raised are novel and important issues arising in the law of racial discrimination and in my view the applicants were well justified in bringing the proceedings.
David Bennett is now the Commonwealth Solicitor-General, so I would have thought that even the minister must have some respect for his opinions. There were approximately 3,500 people involved in this particular class action. Clearly there was merit in their case and, as a result, these people would have been justified in pursuing their individual casesâ€”3,500 people clogging up the courts to litigate a common question when only one decision needed to be made. This bill does nothing to rationalise the cost of court action. In reality it may well have the opposite effect. Even the explanatory memorandum concedes this point. The minister is dismissive of the use of the courts by appellants seeking to have their migration cases heard. However, he is not averse to using the judicial process when it suits him. To quote from the department’s annual report of 1998-99, the minister sought judicial review of 34 portfolio tribunal decisions, appealed to the full Federal Court in 26 matters, and sought special leave to appeal to the High Court in eight matters. This bill would seem to be a case of `Do as I say, not as I do.’ I have no doubt there are many members of the government backbench who are privately very uncomfortable with the changes contained in this bill, just like they are uncomfortable with a government that says it is legitimate to inject people in detention centres, like something out of some bad rerun of World War II.
Sitting suspended from 6.31 p.m. to 8.00 p.m.
MIGRATION LEGISLATION AMENDMENT BILL (NO. 2) 2000
Mr ALBANESE (Grayndler) (8.02 p.m.)â€”The Migration Legislation Amendment Bill (No. 2) 2000 is an attack on a person’s right to seek justice. The government are trying to take away a generally accepted right from a very vulnerable group of people. If they get away with it, who will they target next? People seeking judicial review in the area of social security, perhaps. We have already seen attacks on the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. This government attacks legitimate legal rights whenever it is convenient. That is the context in which this bill must be considered. It is a context involving a minister who has, I must say, had a proud history in the past, crossing the floor over the issue of a racist or discriminatory immigration policy. This is a minister who stood up to his own party.
Unfortunately, with bill after bill before this House, it is very difficult to distinguish the views of the Minister for Immigration and Multicultural Affairs from the views of the former member for Oxley in terms of political intent. Let us have a look at some of the things which have been wound back. First of all we had the three-year waiting period, a measure which has seen a number of migrants to this country left in poverty, left homeless and left relying on charity to provide the basic essentials of life. With regard to refugees, we have seen them vilified. We have seen a linking of the onshore applications with offshore applications so that the minister has been able to go around and say, `These people who are applying onshore are illegal,’ which is not true and he knows it is not true under the United Nations definition of refugees. We have seen a minister who has said that people should wait in an orderly way in the queue overseas, when he knows that is simply not possible for people from countries such as Afghanistan, where the Taliban regime is abhorrent to any decent democratic person who supports human rights. To suggest that it is possible to wait in orderly queues in some of those countries is simply not feasible. We have seen, with that linking, the minister arguing that these people are taking the places of those people who are applying offshore. That is only the case because the minister has linked those two numbers which previously were not linked. That is consistent with the vilification that has occurred. These people have been branded as illegal. They have been branded as criminals and drug peddlers, when there is no evidence that the refugees themselves are in that situation.
The fact is that the Labor Party, and anyone who supports the plight of refugees, does not support the people smugglers, who are prepared to make profit out of people’s misery. That is not in question, and action against people smugglers is something that I support. However, the vilification of the refugees themselves that has occurred is entirely inappropriate, and the treatment of these detainees is entirely inappropriate. My colleague the member for Chifley, Roger Price, has pointed out in articles published this week that a three-year-old boy and his father have been held in isolation in a dark, dank hellhole at Port Hedland detention centre. This man was being punished for a hunger strike, and he and his three-year-old son were held for 14 days in Third World conditions in a locked cell in the isolation block. What sort of nation are we that in the year 2001 tolerates that in order to appeal to some rednecks in our society? What sort of society are we when we have a minister who advocates giving people injections and drugging themâ€”a minister of the crown who once stood up for human rights and has the hide to wear an Amnesty International badge on his lapel?
Many of these detention centres are run by private enterprise, but the only growth in building and construction announced by this government in three budgets has been the building of detention centres. Other countries do not do that. There are more people going to countries such as Italy in a week than come into Australia and make onshore applications in a year. Yet this minister pretended that there were whole villages packing up and coming to Australia. What happened to them? They did not arrive. We hear very little from this minister about the hundreds of people who have been so desperate that they have drowned, people who have died on their way to Australia. That shows the desperation of these people. It also shows the callousness of the people smugglers who are involved, but let us not blame the victims of oppression in reactionary regimes such as Afghanistan for wanting a better life.
The Vietnamese boat people who came in the 1970s have made an outstanding contribution to Australian society. Just as some people objected to that occurring on narrow, bigoted grounds, so this minister is prepared to appeal to the bigots, to the point where he goes overseas and says, `If you come here, you will be the subject of racist attacks. You are not welcome. This is an intolerant society.’ That is what the minister said when he toured these countries. But it is not uniform because the minister has also made a decision to grant 200 special applications to members of the SLA, the South Lebanon Armyâ€”people who were engaged in militant conduct and violence against the people of south Lebanon on behalf of the Israeli occupation. That occupation had been roundly condemned and, under UN resolution 425, finally Israel has withdrawn. These people can be settled either where they are in Israel or in other parts of Lebanon, but no, we have a special category introduced.
Those 200 special applications will result in many more than 200 people coming here. What do they have in common? What they have in common is an extreme right-wing view. They are people who have been involved with the Falangists in Lebanon and have been responsible for violence against the Lebanese people. Yet that is okay, according to the government: `We will open up immigration for them because they may settle in marginal seats and will tend to support the conservative side of politics.’ Many of them are right-wing reactionaries, but that is okay, according to the government. This minister has compassion for those people but not for women escaping places where they have enforced clitoridectomies and such barbaric behaviour. It is time that the minister stopped the vilification of refugees. It is time that we Australians reasserted ourselves as a compassionate nation, in recognition of the fact that we are the country we are because, whether people be Irish Catholics or Vietnamese refugees or any other race, wherever they have come from, people have come to Australia and made it the great country that it is today. (Time expired)