11.12.13 Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013

Mr HAWKE (Mitchell) (10:14): I rise in support of the Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013. I want to take the member for Corio up on some of the points that he made, because I think he does typify the ignorance of the Labor Party in relation to the cause of the problem that we have had of losing control of Australia's borders over the last six years. The member for Corio makes the point exactly that this only affects a small number of people. There is no question that Australia will continue to meet its international obligations in relation to refoulement. It is simply a matter of the administrative mechanism, in effect, that we use to deal with handling our international obligations.

Of course, the member for Corio says, 'Well, really there's no issue here.' The member for Corio needs to understand that there is an issue here, created by Labor's change to this bill in the previous parliament. It is that, by changing the system from an arrangement of ministerial discretion into an administrative function— (Quorum formed) It is no surprise that the Labor Party are seeking to run and hide from this issue, because this is part of the changes that Labor made that put the people smugglers back in business. They lack understanding that ministerial discretion was perfectly appropriate to meet our international obligations and that by changing this they offered another product for the people smugglers to sell to their poor victims overseas. That is why Labor want to hide from this debate. That is why Labor do not want to hear from the government, which, at the time, warned the opposition, the then government, that these changes would enhance people smugglers' operations.

The member for Corio quoted the principal member of the Refugee Review Tribunal, Kaye Ransome. He should have read on, because her evidence to the Senate estimates committee in November was particularly notable about this matter. She said that a person's criminal history is not taken into account when considering such cases 'under the complementary protection criterion itself'. This is exactly the point of the debate we are having about this bill. The minister needs flexibility to deliver these decisions in relation to complex cases of refugees, complex cases of protection, complex cases to meet our international obligations. This administrative process, with a criterion that does not include the criminal background of people that we are offering protection to or may have obligations to, is exactly the point. That inflexibility and that lack of forethought have really given the people smugglers the opportunity to say to their victims: 'We can set you up with another administrative process. We can give you something where you can stay in Australia longer than you would have otherwise if the minister had the chance to exercise his discretion.' As the member for Corio points out, there are only 83 matters—a small number of matters—in relation to this. There is no question that the Minister for Immigration and Border Protection is overstretched. That is purely a subjective argument from the member for Corio. I want to uphold, in this place, the ability and the power of the last minister to make these decisions. I want to go through these criteria shortly.

This is about our international obligations under refoulement: arbitrary deprivation of life; having the death penalty carried out; been subjected to torture; or being subjected to cruel, inhumane or degrading treatment or punishment. There is no question that any government of any persuasion in Australia would take these international obligations seriously. It was foolish of the last Labor government to go down this path, because there was no benefit to the system. But there was the creation of yet another product for the people smugglers to sell. That was the point that we made in opposition. That was the point I made when I spoke on these changes in the previous bill.

These changes will bring back a regime that is internationally consistent. The member for Corio acted as if we were going to do something outside of the mainstream. Most jurisdictions around the world have ministerial discretion as a key component of the international obligations under refoulement. It is the most mainstream thing to do. It is the most sensible thing to do. To suggest that any Australian minister for immigration would not take seriously these most serious conventions under international obligations is offensive. It is offensive to the previous ministers for immigration in the Labor government as much as it is offensive to suggest that this Australian government would not take seriously these very serious conventions and our very serious obligations.

It begs the question as to why it was necessary in the first place to introduce complementary protection into this statutory framework. I have already highlighted the comments of the principal member of the Refugee Review Tribunal that it does not allow for flexibility and does not allow consideration of all of the necessary elements, such as people's criminal background.

It is not about a particular case. The member for Corio was keen to talk about a particular case that is still the subject of consideration. It is not about any individual case; it is about the process and the criteria that the government is able to consider. By outlining particular criteria, you lose the key element of flexibility and discretion. That is why the Westminster system invented, and developed over a long time, the convention and tradition of ministerial discretion—exactly for these sorts of complex cases. It is almost unbelievable that it is suggested that you could outline a criterion that would take into account all of the complexity of the situation of people seeking refuge in Australia. What we can be sure of is that, if we allow for ministerial discretion, if this bill passes the House, the department, the minister and his advisers will have the ability to provide advice about the complex backgrounds of particular people applying for refugee status, to make sure that, if they have a genuine fear, a genuine prospect, of being tortured or being subject to the death penalty, that can be considered.

But let's be very frank here: the Labor Party needs to understand there are people that game the system. There are people smugglers out there—the Labor Party has never understood this—that are deliberately trying to game our system and our laws. People in the legal fraternity, the political fraternity and the human rights fraternity in Australia sometimes seem to forget that people smuggling is a criminal enterprise. It is the most insidious of criminal enterprises. It is what Kevin Rudd, the former Prime Minister, referred to as the most evil trade on the planet. They deliberately look at our laws, our procedures and our administrative arrangements and attempt to game our system. They are doing it right now. We saw just in the last few days that people smugglers are willing to put a two-year-old baby on a boat and send the boat offshore knowing that it will sink and that the poor child will meet its death. Those are the kinds of people we are dealing with. They will take cash off those poor people, including those with young children, and send them off to their deaths.

Like everyone in this government, I have compassion for people seeking refuge. I have compassion for the people getting on those boats. But I have no compassion for the people smugglers. And I have no compassion for people who come here and attempt to game our system and our laws, thereby denying genuine refugees, people with genuine claims under our protection regime, the chance to come here.

Labor's changes in the past parliament were so ill-considered. All genuine applications against Australia's international non-refoulement obligations should be subject to ministerial discretion, not an administrative procedure. In the debate that we had back then, Labor never made their case. The Labor members here in the House at that time included the member at the table, the member for Fraser. In the last debate that we had about this, the member for Fraser came in here and read out two stanzas of the national anthem, as if reading out the national anthem was somehow pertinent to the debate.

The member for Fowler, who called this motion here in the House—

Dr Leigh: Deputy Speaker, I rise on a point of order. The member is misleading the House. I think he must have me confused with someone else.

Mr HAWKE: Well, we'll see. We'll go get the Hansard.

The DEPUTY SPEAKER ( Mr Mitchell ): That is not a point of order.

Mr HAWKE: I have got no problem—we will go get the Hansard and I will remind you. I have your greatest speeches on CD, mate, in my office, playing around the clock! The member for Fowler—I was here and I remember this debate very clearly—said that there was the potential that we may send someone who was gay back from Australia to their death. All these examples were provided—and in preparing this speech I have checked a few things, member for Fraser, including your contribution—and the Labor Party tried to suggest there was a problem that needed to be solved.

But, of course, they never made the case—just as they have not made a case here today—that this administrative regime would be superior to the long practice of ministerial discretion, used in many jurisdictions around the world, and we have not heard one today. We know that it is contributing to the problem. It is adding to the products that people smugglers can sell around the world. This is a serious concern. This legislation is not something we are doing lightly. We warned the last government so many times about so many things, and this was one of them—that, by removing ministerial discretion and putting inflexibility into the system, more legal avenues and more chances would open up not for genuine refugees to apply but for people smugglers to offer product to people who were not genuine refugees.

That is why we have only seen 87 cases, a particularly low number. The member for Corio says, 'Well, this is only a small matter; it's only 87 people.' He is exactly right about that. That is why we need to go back to ministerial discretion. We need to do that because, just for the sake of 87 people—people who would get protection from Australia anyway under decent ministers on both sides of this House, who would never violate international conventions and requirements—we have given the people smugglers a big leg-up.

Labor need to understand that they cannot stand in the way of solutions to the problem that we are facing. The Australian people elected this government with a mandate to stop the boats. They have given us a mandate to stop the people smugglers. Labor need to understand that this is organised crime. It is the most serious organised crime racket in our region. We need to shut it down. We need to change our systems and processes to take into account the fact that it is sophisticated organised crime, constantly adapting to our changes in law. The people smugglers had the Labor Party's measure when Labor were in government. The people smugglers knew every change and every nuance, and they knew nothing would be done to stop their trade.

A new government is here. It has been elected with a mandate to do this. We warned about this in opposition. The government's warnings and fears, even while they were in government, about us somehow bringing in a brutal regime were unfounded and unreasonable. I can tell you that Australia will always meet its international obligations in relation to these very serious conventions. This government will not resile from the task of stopping people smugglers at the same time.