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Australia's Refugee Excision Zone
This is the Excision Zone map (click for larger version), from Excising Australia: Are we really shrinking? (Parliamentary Library, 31/08/2005)

The Senate debates Australia's 'Excision Zone'

Australia is killing the UN Refugee Convention reach from thousands of islands

Around the time of the Tampa stand-off in 2001, John Howard's government created the notorious "Excision Zone", where Christmas Island, Ashmore Reef and the Cocos and Keeling Islands off the coast of Australia were excised from Australia.

Yes, that's right, they were being excised - for refugees and asylum seekers that is.

The meaning of this extraordinary legislation was, that "for immigration purposes" these islands were not part of Australia - i.e. Australian legislation formulated to fulfill our obligations under the United Nations Refugee Convention did not apply: Australia would no longer have to treat asylum seekers "with common UN decency" if they landed on one of these islands.

Labor's response

There's no reason in 2008 for anyone in Labor to argue that the issue of John Howard's extraordinary excision zone 'has not been discussed'. When the former government pushed through changes to that exclusion zone for refugees in 2005, Labor supported a Disallowance motion put by Democrats Senator Andrew Bartlett.

To make things even more extraordinary, the Labor opposition party in Federal Parliament - at that time led by Kim Beazley, agreed and did not oppose this Bill when it was rushed through Parliament.

Just to clarify the meaning of the Refugee Convention: it is an asylum seeker's internationally recognised right to sail to any country that signed the United Nations' Refugee Convention and seek for help and protection against persecution, also if that is unannounced and uninvited, or without "official" papers or personal ID material.

Quick links to the page sections

The hyperlinks below jump to the page sections. The page includes the speeches to the motion by four Labor Senators on the final day of the debate.

Related pages

30 March 2008 - Labor abandons its 'small' Excision Zone and chooses John Howard's radical version - 'Refugee advocates have accused the Federal Government of abandoning its softer approach to asylum seekers after Immigration Minister Chris Evans said he was yet to decide whether Labor would reassess the status of 4600 islands 'excised' from Australian territory for the purpose of immigration law.' This page follows the debate.

Howard wants it all

But there was more to come ... John Howard wanted it all: he wanted to excise all surroundings of Australia; he wanted to excise all islands. So, Howard, who could be very, very patient when he was Australia's Prime Minister, waiting for years to pounce and strike, waited. He waited until his Coalition government controlled both the Lower House - the Parliament - and the Senate. So once the Senate turned over in July 2005 as a result of the changes brought about at the Federal election in December 2004, Howard struck. He did not need to change legislation, he just had to change "the regulations" governing the laws that had previously been passed.

Andrew Bartlett's motion

Come in Senator Andrew Bartlett (Australian Democrats), who had, for years now, worked tirelessly to oppose all draconian Immigration legislation that undermined the universal rights for refugees and Australia's decency and good standing as an international citizen.

Once the regulation change had passed, allowing for the excision of no less than 4,600 islands off the west, north and east coast of Australia, Andrew Bartlett put a Motion of Disallowance in the Senate, hoping to be able to stop this awful construct that would 'repel refugees' who needed our help.

Labor joins Greens, Democrats

This time, Labor Senators vote with the Greens and Democrats and support Bartlett's proposal to disallow this unprecedented and vast excision zone, but together they just don't make the numbers. The motion is defeated along party lines on Thursday, 18 August 2005.

Below are the speeches to the motion by four Labor Senators on the final day of the debate (links to the transcripts below): Linda Kirk, Joe Ludwig, Trish Crossin and Gavin Marshall, and the speech in reply by Andrew Bartlett.

The speeches are followed by the votes following the call for the Senate division.

Migration Amendment Regulations 2005 (No. 6), Select Legislative Instrument 2005 No. 171

Senator Bartlett gave notice to move the motion on the next day of sitting (10/8/2005).

The Senate debated the motion on 10/8/2005 - debate was adjourned. Debate continued on 11/8/2005 - debate was adjourned.

The Senate continued the debate on 18/8/2005 but did not agree to disallow the Regulations.

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance

Debate resumed from 11 August, on motion by Senator Bartlett:

That the Migration Amendment Regulations 2005 (No. 6), as contained in Select Legislative Instrument 2005 No. 171 and made under the Migration Act 1958, be disallowed.

Senator Linda KIRK (SA)

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance
Thursday, 18 August 2005

Senator KIRK (South Australia) (10.44 a.m.) --- I rise to continue my remarks in relation to the Migration Amendment Regulations 2005 (No. 6) and the motion moved by Senator Bartlett. As I was saying when I spoke last week on this motion, the Labor opposition opposes this decision by the government to excise a large number of Australia's islands from its migration zone, this time by way of regulation. The government enacted these regulations on 21 July 2005 --- in other words, shortly after assuming control of the Senate --- in the knowledge that this time its regulations would be able to stay in place and that it would be very difficult for the Senate to disallow them.

I, and many others, find it quite astounding that the government continues to dig in its heels on this issue, stubbornly refusing to let go of its unduly harsh, punitive and heartless approach to immigration matters and to the plight of asylum seekers generally. The Palmer report, which we are all familiar with, made it very clear that DIMIA is due for a complete overhaul. Mr Palmer said that 'reform needs to come from the top'. These regulations that we are looking at today are an indication that the current Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, and the department are in serious need of a shake-up. It really is time now for the Prime Minister to remove Minister Vanstone, ditch these regulations and implement a complete cultural change in the department --- the cultural change that Mr Palmer advocates.

Turning in detail to the regulations, they are designed to amend the Migration Regulations 1994 and prescribe that certain islands that form part of Queensland, Western Australia and the Northern Territory, as well as the Coral Sea Islands Territory, be made excised offshore places as defined in paragraphs (d) and (e) in section 5(1) of the act. The government initially sought to excise over 3,000 islands from Australia's migration zone by way of regulations made on 7 June 2002. Quite rightly, these regulations were disallowed in the Senate at that time. The government then tried again, this time by way of a bill in 2002 and a further bill in 2003 but, again, on both occasions, these bills were defeated in the Senate.

The regulations that we have before us today are similar to those contained in the previous bills. As I said in my speech in 2003 --- and I repeat it today --- these regulations are self-defeating, will do much harm to Australia's international reputation and will show the government's defiance of international law, conventions and proper practice. These regulations will do very little to achieve the government's stated aim of border protection. The regulations seek to extend the definition of 'excised offshore place' under the Migration Act so that any person arriving on these excised islands would be deemed an offshore entry person. As a result, they could not make a valid application for a visa.

Some of these thousands of islands are so close to the Australian mainland that they can be seen by the naked eye. In some cases, you can even walk to them. We have to ask ourselves why asylum seekers, after a dangerous journey, often in a leaky boat, would land on an island with mainland Australia in sight. In my view, this is beyond comprehension. The effect of the regulations will be to establish mainland Australia as the goal for asylum seekers arriving by boat. They will not stop asylum seekers from coming to Australia. Desperate people who are fleeing their countries will do whatever they can, and there is no doubt that asylum seekers are desperate people. These ill-conceived regulations in this form will not form any part of a long-term solution to border security.

What I have just said was the conclusion that was reached by the Senate Legal and Constitutional References Committee, of which I was a member at the time, and still am. The committee inquired into the bills and reported to the Senate in October 2003. We received a number of submissions to that Senate inquiry. In the submission made by the Australian Federal Police, it was acknowledged that the then bill would 'draw people towards the mainland'. The department, DIMIA, told the committee that the bill would require people smugglers to bring their vessels closer to mainland Australia. In answer to a question on notice, DIMIA acknowledged this when they stated:

The Bill, by extending excised offshore places to islands off the northern coast of Australia, and therefore requiring people smugglers to bring their vessels closer to mainland Australia ...

In other words, they were recognising that the effect of the bills for the people smugglers who bring asylum seekers to our country will be that they will be required to bring them closer to the Australian mainland. Not only will these people smugglers bring their human cargo closer to the mainland if these restrictions are in place but they will also put those people in greater danger than at present. The International Commission of Jurists argued before our committee:

... by forcing refugees fleeing persecution by sea to push on for the mainland in order to activate their rights under the [Refugee] Convention, Australia is placing them in a more perilous situation with further grave risk to their health and safety, particularly in areas with coral reefs.

After hearing evidence given to the Senate inquiry into the 2003 bill, I was left wondering when the government would begin excising parts of the Australian mainland from the migration zone. The Prime Minister has claimed that excising parts of the Australian mainland is an absolutely ludicrous proposition, and I agree. But does that mean that he never, ever will seek to introduce either a bill or regulations into this place that would have that very effect?

The Senate committee that I referred to earlier heard a number of concerns during the course of its inquiry. Many witnesses warned that potential breaches of Australia's international obligations would be brought about by the bills and the regulations that we have before us today. The committee heard of significant concerns in this regard from the United Nations High Commissioner for Refugees, from international law experts, and from legal and human rights groups --- as well as from many other individuals and organisations.

It was made clear to us during the course of the committee's hearings that the refugee convention applies to all of sovereign Australia, and this is based on our signing of the Vienna Convention on the Law of Treaties 1969. Article 27 of the treaty provides:

... a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Much of the evidence that the committee received did concern Australia's international obligations, particularly the obligation of non-refoulement of refugees under the refugee convention. When Australia signed the refugee convention, it committed this country, through article 33(1), to the non-refoulement of refugees. This article prohibits Australia from returning a refugee 'in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened'. This article also extends to chain refoulement, whereby Australia shall not send a refugee to a country where he or she will be returned to the place of persecution. Similar obligations are imposed under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child, to which Australia is also a party.

There were serious concerns expressed to the committee that offshore entry persons could remain on an excised island and be left, in effect, in a legal limbo, having no recourse or responsibility to apply for a visa and also no right to judicial review. Such persons may be unable to apply for a visa while still in Australia, yet be barred from initiating any legal proceedings. As a consequence, the individual would be left, as the committee heard, in legal limbo --- in no man's land, so to speak.

Under section 494AA of the 2003 act, certain legal proceedings relating to offshore entry persons are barred. These include proceedings relating to an offshore entry, to the status of an offshore entry person, and to the taking of a person to a declared country. Although this provision recognises the jurisdiction of the High Court under section 75 of the Constitution, this would be of little practical benefit to an asylum seeker.

The committee also heard submissions that article 31 of the refugee convention is another international obligation which is not complied with in the terms of the then bill. Article 31 deals specifically with people coming directly from a country where their freedom is threatened and states that no penalties shall be placed upon them for their illegal presence.

As has been emphasised many times before in this chamber, these regulations and the bills which were before the Senate in 2002 and 2003 are simply a short-sighted attempt at border protection. The minister, Senator Vanstone, has not taken on board the recommendations of Mr Palmer, and she is continuing to pursue the same old stunts. These regulations will do absolutely nothing to address the need for reform in the area of immigration, and they will do absolutely nothing to address the complete cultural overhaul of immigration detention in this country which Mr Palmer recommended. I urge senators to vote to disallow these regulations.

Senator Joe LUDWIG (QLD)

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance
Thursday, 18 August 2005

Senator LUDWIG (Queensland) (10.57 a.m.) --- Senator Kirk is right. The Minister for Immigration and Multicultural and Indigenous Affairs brought these regulations forward when the Senate was not sitting. Think of the gall of it all: you have a department that is in complete disarray because of her mismanagement. You would imagine that, after 9 long years, this government would have got the management of the migration area right. We have seen failure upon failure by the government in this area, and it still does not stop. Here they are again, serving up another failed piece of legislation and using regulations to do it. You would really start to wonder, but there is no longer time to wonder.

This minister should take responsibility and do the right thing. Rather than that, she serves this up as a way of saying, 'Here is another fiasco to add to all the other fiascos, failures and mismanagement.' I am referring, of course, to Migration Amendment Regulations 2005 (No. 6). These regulations prescribe islands that form part of Queensland, Western Australia, the Northern Territory and the Coral Sea Islands Territory as excised offshore places under the Migration Act 1958. This decision by the minister for immigration is to excise a number of islands from Australia's migration zone. It is again indicative of a government that is not willing to implement cultural change. It is a government that fails to recognise what it needs to do. This minister simply will not take responsibility, will not manage her department, and uses this as a cloak to try to take her other issues off the boil. They are not going to go off the boil, and this just adds one more to them.

This latest attempt to excise these islands raises alarm bells about whether the government has any intention of changing the culture of the immigration department at all. The latest excision is an appalling example of the government's surrendering the full rights of territory as a stunt. It is another attempt by the Liberal government to divert attention away from the minister's lazy mismanagement of the immigration portfolio instead of doing what needs to be done. Sidelining the minister for immigration would be a good start.

The government is again attempting to excise a few thousand Australian islands from the migration zone. The Howard government seems to have abandoned the concept of border protection and replaced it with border surrender. The excision does not strengthen Australia's border protection; it weakens it. How does writing off parts of Australia strengthen border protection? That is not the way to do it. Border protection does not just involve people smuggling; it also requires stopping firearms, drugs, plants, animals and diseases.

What has the government done to address the real problem of border protection? Mr Philip Ruddock, in his capacity then as the minister for immigration, admitted that none of the government policies had any effect on the number of unauthorised arrivals in Australia. The removal of even more islands from Australia's migration zone is not a step towards tougher border protection policy; it is a step back.

The Howard government initially excised or removed over 3,000 islands from Australia's migration zone by regulations made in 2002. These regulations were rightly disallowed in the Senate. The Howard government then introduced the Migration Legislation Amendment (Further Border Protection Measures) Bill --- to which I would add the words 'not true' --- into the House. The Senate rightly rejected that bill on 9 December 2002. On 26 March 2003 Mr Philip Ruddock, the then minister, tried again and introduced the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2] into the House of Representatives. Again, and appropriately, the Senate rejected that bill.

Here we are, a couple of days into the sitting of the new Senate, where the government has a majority, and this bill has turned up again --- another stunt by this government. All the platitudes and assurances that it was softening its hardline administration of immigration have been forgotten. The minister seems to think we have moved on and it is old news. It is not old news; it is still current. The minister has not addressed it. She has done nothing to correct the record, to ensure proper administration in the migration area and her department and to take responsibility.

These regulations are similar to the previous bills. The regulations excise or remove from the Australian migration zone the following: all islands that are part of Queensland and are north of latitude 21 degrees south, all islands that are part of Western Australia and are north of latitude 23 degrees south, all islands that are part of the Northern Territory and are north of latitude 16 degrees south, and the Coral Islands territory. They are seeking to make all of these islands not part of Australia. They are excising them for the purposes of the migration legislation.

Many of the islands in the proposed expanded excision zone are small and uninhabited. It should be noted that in any event many of them lie very close to the Australian mainland. Many of the islands which are caught in the excision or removal are not in the direct path of the likely border interdiction or where the people smugglers and boat people are going to come. This is an unnecessary carte blanche excision of 3,000 islands, and it can only be a stunt.

It is important to look at the legal effect of the excision as well. Let us assume that these regulations are passed. With the government majority, I am sure they are going to crunch it through. What would happen if a boat reached the islands? Excision is not a stop sign; it does not turn a boat around. It is a different processing regime in a different place. Presumably, the asylum seekers involved would be taken to Nauru for processing, which the government cites as being in line with the UNHCR standards. People would get processed there and sorted into refugees and non-refugees, but they would not have access to medical care, including mental health care, which is so desperately required by many people caught up in the government's policy of indefinite detention.

Let us not forget that four years on there are still people left on Nauru. In 2001, 1,547 asylum seekers were taken to Nauru and PNG, with almost 1,000 being resettled. Just fewer than 600 refugees have been granted visas to settle in Australia, while New Zealand was quick to respond by resettling around 360 refugees. The Nauru experience has been that Australia generally takes the refugees and resettles them here, despite the government's rhetoric time and time again leading the Australian people to believe that this would not happen.

We remember the Prime Minister carrying on about the asylum seekers on the Tampa. He said that not one of them would set foot on Australian soil. Remember the Prime Minister saying that the asylum seekers involved in the 'children overboard' web of lies were not the sort of people he wanted in Australia? He was not being honest with Australian people then --- and he is still not being honest today --- about the 'children overboard' affair or about what would happen to asylum seekers caught up in the so-called Pacific solution. So much for the Prime Minister's claim that not one refugee would be allowed to set foot in Australia.

The Senator Vanstone express is moving through, but it is not only about these regulations that came before us in the break; it is about other things that happened in the break which should be being addressed and are not. If you were going to look at regulations that should be brought forward, why not look at regulations to deal with one of the other issues that occurred that the minister still has not come into this parliament and provided a cogent ministerial statement about?

A couple of those issues are worth reiterating. One is the GSL debacle. How could you end up with the GSL operated van tour of Australia? Those unfortunate travelling detainees under the minister's responsibility ended up in what can only be described as a horror ride. Detainees were locked in the back of a van for 10 hours, apparently with no food and certainly not sufficient water and without toilet breaks for an extraordinary length of time. These issues should be addressed by the minister, but they are not. What we find is another stunt in terms of the excision. In its management of migration centres and of contracts in the migration field this government can only be described as morally bankrupt.

Rather than punish GSL for their appalling record, it appears the government is planning in fact to reward them. The Financial Review of 14 August 2005 said that the outcome of the Palmer report may deliver a 'handsome financial windfall to the owners of private detention centres'. If that is not right, then the minister should correct the record. The minister should come down here and say, 'This is not going to happen. I am the responsible minister and I am going to fix it.' She should not leave it to the departmental secretary to come out and say, 'It is my job now to fix it.' It is another sidelining of these issues by this minister. She is not prepared to tackle them head-on and deal with them. It is a clear case of government rewarding incompetence when it should be punishing it.

At the same time we heard the minister argue that the fact that 56 people were detained was old news. Let me say that I think they would have had a different view about having been detained for 21 days plus. That is how the answer to my question came back --- 21 days plus, not 21 days for X number, or 30, 40 or 50. We do not know how long they were detained. We do not know what nationalities they were, whether they were Australians or whether they have been returned or whether they have been provided with a clear explanation. It might be the case that at the point of detention it might have been reasonable. But after 21 days plus how can she say it continued to be reasonable to detain these people without explanation?

We do not know the full story yet, because the minister has not been able to provide the answer. I am hopeful that she will provide it today. Certainly she has got the opportunity before we rise today to come down and tell us what went on and how long those people were there. She has the opportunity to inform us so that we can then ask what she has done about it. It is not sustainable to argue that at the point of detention it may have been reasonable. After 21 days plus how can she say it has continued to be reasonable to detain these people without explaining to them what she is doing and how she is working through the issue?

These people were subsequently released as people who should not have been detained, as far as I can tell from the record. At some point the minister has failed to recognise that you have to ask the question not once at the point of detention; you have to continue to ask the question every day at every point to ascertain whether or not it continues to be reasonable to detain people. At 21 days plus the big question mark would have to rise in the mind of bureaucracy and in the minister's mind whether it was still reasonable to continue detention. You cannot detain people just because you do not know who they are or because you are trying to resolve their identity. You have to say that they are unlawful noncitizens or they are not. That is the point of it all, and in these instances the minister has not provided the explanation about their detention --- what efforts were made to determine their identity and at what point she determined they were not unlawfully detained and what happened to them after that.

It is indicative of a government not committed to openness and accountability. That is what it is about and that is what the minister needs to address. She has failed to address it by all accounts when you look at the record. Instead, we have a willingness to deny, hide, obfuscate, misdirect, fudge, distract, mislead and probably cover up and distort as well. Rather, the minister should confront the truth in this. This culture of concealment keeps coming up. But it does not stop with the department. It seems to go right up the chain and the minister must be part of it. You ask whether the culture started in the department and crept upwards or whether it started with the government and the minister and crept downwards. I suspect it is a top-down outcome rather than a bottom-up one.

The so-called Pacific solution is nothing more than an expensive detour sign. It is not a stop sign. When you look at excision with this regulation, it is not going to affect the outcome that the minister wants. It can only be a way of taking the parliament and using a regulation to say, 'What I would rather you argue about is excision over here,' rather than the minister accounting for her department, for the Palmer inquiry, for the GSL contract, for the Wang children, for the 201 people who were --- as far as we can make out --- detained, and for those 56 who were detained for more than 21 days. Those are the things that the minister needs to come and account for. The minister also needs to account for the ANAO report and the contracts which indicate some god-awful failings within the department. That is what the minister needs to come and account for. We have not heard her account for any of that. A ministerial statement would be nice. We could at least take note of that and argue about those issues. Instead, we have to argue about the delegated legislation, this regulation. It is not even a bill. She is not even game to put a bill back in here so that we can argue about that. She had to use the cover of recess to sneak the regulation through.

Labor understands the concerns of Australians and shares their view that unauthorised boat arrivals are the worst of all possible outcomes both from the Australian point of view as a nation managing its borders and from the point of view of the asylum seekers who risk, and all too often lose, their lives on the journey. Australians rightly all want a managed and fair system. But are we going to get that from this government? I think not when you look at the minister's ability to run the immigration detention system.

Labor would run a quick, fair and transparent processing regime on Christmas Island and on mainland Australia that would determine 90 per cent of refugee claims in 90 days. Genuine refugees would be quickly identified and released, while failed claimants would be quickly returned to their place of origin. Labor would administer better health and security checks. More importantly, Labor would initiate ASIO security checks on the lodgment of a claim for asylum, rather than the steps this government takes.

We have GSL as well. Labor would immediately end the contracts with Global Solutions and it would seek not to have a profit motivated private company running Australian detention centres. The operation and management of these facilities would be immediately returned to public hands under a Labor government. That is where they should sit. The minister still has not looked at that other than, as I said earlier, coming back down to this parliament and saying: 'We've had a look at the contracts. We might penalise them over that horror journey those detention persons were in. We might take a bit of money off GSL for that but, in the scheme of things, we are going to reward GSL with a bigger slice of the pie.' Not to pick on the particular company --- they are motivated by profit --- but what we really need is people who are going to look after a detention system, care about a detention system, who have administration and are able to be publicly checked as to how things go on, with clear lines of accountability back to the minister. That is what is required. Instead, we have the minister serving up another piece of delegated legislation seeking to excise 3,000 islands. It is a shame that this minister will not take responsibility for her portfolio.

Senator Trish CROSSIN (NT)

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance
Thursday, 18 August 2005

Senator CROSSIN (Northern Territory) (11.16 a.m.) --- I rise to speak in this debate about the Migration Amendment Regulations 2005 (No. 6) which the Democrats have sought to disallow. I think this is another case of, 'Honey, I've shrunk the borders again.' This is not the first time I have spoken on this matter in this chamber. Of course, we have had this issue come before us a number of times now and it has been disallowed by the Senate for a very good reason: the policy is illogical. The policy to excise quite a number of islands from the northern region of this country has no logic behind it. The government has simply chosen to do this again because it can --- because it has the numbers --- without any explanation, discussion or consultation and without any clear plan about where the handling of migration policy in this country is going. So, in the still of the night, towards the end of July, we notice on DIMIA's web site the regulations are up and running again. This is our attempt to bring some balance and a sense of cohesion and logic to the policy debate about migration in this country, something that this minister clearly does not have a handle on.

This, of course, is not the first portfolio she has not had a handle on. I remember that in 1998, when I first came into this chamber, the minister in charge of immigration matters these days was the then minister for higher education and totally responsible for gutting from that sector of education billions of dollars. So we are now dealing with a minister who has a track record of being totally hands-off and for not providing any direction or assistance to the department, managing the migration portfolio by regulation rather than substantive changes to the act. These regulations go to some 4,891 islands, which range from places as large as Groote Eylandt, Elcho Island or Bathurst and Melville islands off the tip of Northern Australia to rather large sandbars.

On those islands we have a total of about 20,629 people living. I know they were not consulted about this. In fact, they were not consulted about this the time before or the time before that. You may well remember that in 2002 when this came before us as legislation there was an attempt to quickly run around the islands and release some information package about what this legislation was to mean --- before, of course, the legislation was even introduced. We had a situation where this government made an announcement and then ran around to Indigenous communities trying to sell this proposition. A certain senator on the other side, who I will not name, involved in a Senate inquiry at the time was known, and was seen on Elcho Island, to be encouraging Indigenous people as to what to say to that inquiry. He now quotes back those words from those Indigenous people in support of why these regulations should be maintained. But those Indigenous people were never given an opportunity to have the effect of these regulations, or the legislation at the time, clearly explained to them. There was an information kit and a CD produced and sent out to all these communities, and then the legislation did not get through the Senate. So when I go out to Indigenous communities they now say to me: 'What happened with that legislation? I thought we'd been excised for two years. What's going on? The government, on the one hand, gets these information kits out there and, on the other hand, you're telling us the legislation did not go through the Senate. And now we have regulations again.'

I was on the Tiwi Islands just two weeks ago. People out there are totally confused about what all this means. Why is that? Because we do not have a minister that is in control of the portfolio. We have a minister that wants to dump this mess on people in the immigration department and get them to sort it out. What are Indigenous people actually saying? 'Don't you care about our islands? Does this mean that the federal government can just strike them off the migration map whenever they like?' Yes, it does. That is exactly what they have just done. They have excised them for purposes of the migration area. 'What does this mean?' they say to me. 'Does this mean that if we now get a boat here anyway, no-one will come? Does it mean we should still get these people on board if they need assistance? What exactly does it mean for these people and when is this government going to be very clear and precise about where this policy direction is going?'

Indigenous people say to me, 'It doesn't make sense to us,' and I raised this in my speech in 2002. At Croker and Goulburn islands, Indigenous people do not actually see water as an obstacle. They are attached to the land. People at Goulburn and Croker islands actually have connections with Oenpelli and Maningrida. It is a huge triangle out there. The fact that the sea runs through the middle of that land does not mean the same to Indigenous people that it does to you and me. So they are totally confused by this.

It has never been clearly explained to these people. Even now, the implications have not been explained to these people. That is because we have a minister who seeks to regulate the migration area that she is responsible for by regulations, not by legislation introduced into this parliament, so we cannot actually have another full and proper inquiry into this matter. When that does happen, the minister wants to simply walk away from the mess. That is exactly what Mick Palmer has highlighted in his report.

I know this is not a debate about the Palmer report, but this is a debate about the mess that the immigration department is in --- not because of the hardworking officials that I come across on a day-to-day basis, who answer my many queries about sponsoring people, visa applications and migration matters and who are trying their darnedest to make some sense of the act that they have to work under, but because there is no direction from the top. The minister must take responsibility here and provide very clear and concise opportunities for her officials in the government to be able to put in place what this government's policy is --- but I am not really sure what this government's policy is, in some respects.

The Palmer report clearly showed that, after nine long years of the Howard government, the department of immigration is in a total mess. It has developed a culture of assumption and cover-up where departmental officers have minimal training and understanding of the act they are supposedly administering. If you read the Palmer report you will see that Mick Palmer makes it very clear that there need to be massive cultural changes within the department. The answer to that, as far as I have seen, is that the minister has just thrown a couple of million dollars at it. We have not actually seen any cultural change emanate from the minister or the minister's office. In his report, Mr Palmer acknowledged that the speed of change in the immigration and detention environment had put pressure on staff but he also said that it had led to policy procedures and enabling structures being developed on the run. This is a very clear example of that, isn't it?

I note that Senator Scullion, in his speech, said that this is an essential piece of legislation to ensure that the environment is protected. I do not actually understand where you are coming from there, Senator Scullion. If you are actually talking about the fact that the government assumes it will now be able to stop boats coming through the waters --- boats that may have all sorts of substances on them --- this legislation does not guarantee that. This legislation does not guarantee those boats will not continue to come. I might add it has been many years since a boat has come through those waters. But it does not guarantee that even legal boats coming through those waters will not bring with them substances that will be harmful to the environment.

What about the illegal fishermen we found up the creek at Maningrida a couple of weeks ago? The silly thing about these regulations is that the Tiwi Islands are less than 20 kilometres from Darwin and we have had illegal fishermen up the rivers at Maningrida. So is this a deterrent? I think not. If I were in a leaky boat and I got as far as Goulburn Island, I am pretty sure I would not get off there. I would keep going until I saw the big lights of Darwin city. The group of Vietnamese people who arrived a couple of years ago made it to the Western Australian border. They were not silly enough to head for an island; they made it to the mainland. So there is no evidence that this will be a deterrent. What it is evidence of, though, is that this is a department that is having to cope with policy on the run.

Let me give you another example of that. I am amazed at the way in which this minister controls or tries to control where and when detention centres are built and placed in this country. We have detention centres at Maribyrnong, Villawood and Baxter. About four years ago we had an announcement that a detention centre at Christmas Island would be built at a cost, which is rising every month because the costs are escalating there, of $220 million. The detention centre was going to be built in one year. There was a huge flurry of activity. We had to have this centre built within a year. Four or five years on, it has still not been completed. So I suspect the cost of $220 million is rising.

At the same time in Darwin, we had this temporary processing centre built on the corner of the Stuart Highway and Amy Johnson Avenue. That cost $7.4 million. It consists of about 100 demountables and it is alleged it could house up to 450 people. In the time that I have been asking questions at estimates about this temporary processing centre, we have had razor wire on the top of the fences moved to the bottom of the fence, at a cost of $48,000, and additional fencing and shrubs and palm trees put around it because we want to hide it as it is an eyesore, at a cost of $16,000 and $32,000. I now read that it is costing around $118,000 a year to maintain. But not one person has ever stayed in that processing centre.

Then last year we saw it suddenly renamed and become the Coonawarra detention centre. We were told it is now going to be used for illegal fishing people. It is about time illegal fishing people were taken off their boats and put on land, but now we are told the Coonawarra detention centre is actually going to become the Darwin detention centre and it will house illegal immigrants as well as illegal fishing people.

Minister, where is the clear policy direction here? You have got Baxter, Villawood and Maribyrnong operating, you are trying to build a Taj Mahal on Christmas Island, but at the same time you want to extend the Coonawarra detention centre to become the Darwin detention centre and you say you will be putting illegal asylum seekers in there as well. I would have thought it is a bit of overkill here. We have not had these people coming to this country for many years. At the very least, I would have thought that Maribyrnong, Villawood and Baxter would cope with the numbers. I have never been convinced that there was a need for a detention centre on Christmas Island. I am even less convinced that there is a need to continue with the one in Darwin.

I notice that yesterday the Public Works Committee presented a report revealing that, lo and behold, this government has now asked for a further $8.125 million for the Darwin detention centre. Yet we have been told for five years it was ready to house people at the drop of a hat. Obviously that was not the case. So, Minister, what is really happening in your portfolio? Where are you really going with all of this? The representation from the Public Works Committee is that women and children should not be housed there. The Northern Territory government and the Darwin City Council are very angry that there is a detention centre on the Stuart Highway as you drive into town that is now going to be called the Darwin detention centre. At the very least, people are saying, 'Don't call it that.' We try to promote Darwin as the tourist destination of the Top End of Australia, and as you drive in along the Stuart Highway you are confronted with an eyesore that has never been used.

The government has also announced that it wants to sell the Coonawarra base on which this detention centre sits. Well, there is a little problem: I do not think anyone would want to buy the base. What would they use it for: an industrial estate, a housing estate? Why would you want to buy an estate that sits right next door --- and I am talking about less than 10 feet next door --- to a detention centre? I noticed as I drove to the airport on Monday that the washing line of the very last house on the Coonawarra base is probably only five steps from the fence of the detention centre. I would have thought the best way to go would be to remove that facility from there and relocate it or at least create another smaller facility just for illegal fisherman.

Darwin does not want that detention centre. I suspect that Senator Hill has had quite a few headaches in trying to decide who is going to buy his base when Senator Vanstone's detention centre is right next door to it. But we have heard no comment from the minister about that. There has not been any view expressed by Senator Vanstone about this detention centre in Darwin: why it is needed, why it has now been renamed three times or why the boundaries of the detention centre keep changing. It was for emergency purposes; now it is for fishermen; now it is for asylum seekers; now the Public Works Committee is saying, 'Don't put women and children in there.' Senator Vanstone, what is happening? What is your clear policy direction in this instance? What is the direction for the people of Darwin, for the people in the immigration department who are trying to deal with this, or even for your colleague Senator Hill, who is trying to sell off the land? This is just another example of a minister who has no handle on what is happening in her portfolio and seeks to ensure that her poor departmental officials have to carry the load for her ineptitude and incompetence in trying to have a clear and succinct policy. The Darwin detention centre is one example. The excision of these islands is another example.

When I was overseas in Vietnam this year at the invitation of the World Bank, I spent the time with about 12 other people from around the world --- politicians from Korea, India, Pakistan, Sweden, Germany, France and Italy. All of them --- even the politician from Sweden and the politician from France, who were elected under conservative governments --- said to me: 'Australia ought to be ashamed of the way it is treating its people over there, you know --- ashamed of the way it treats refugees and asylum seekers.' They cannot understand why it is, given our vast resources, our land, our opportunity and what they believed was a country of some social justice, that we do not take these people in and try to solve the problems for them and then, if they are not refugees, send them home --- no-one is resiling from that.

Instead we act like bully boys in the South-East Asia region. Without a proper dialogue with South-East Asian countries and without any discussion with Indigenous people as to why we are doing this, in the still of the night we just excise the islands. And we somehow pretend that this is going to further fix up the flow of refugees around the world who want to come to this country. I do not believe it will do that. I do not believe that that is at all what will happen. I think that, if there are people out there who want to trade in human misery and encourage people to come to this country on a leaky boat, the asylum seekers will now simply attempt to get to the mainland, as the Vietnamese people have done. Mind you, all of those Vietnamese people have now been seen to be genuine asylum seekers. So what are we actually proving here? I also note that nearly 90 per cent of those people who were taken to Nauru have now been assessed as genuine asylum seekers. We may have quite a number of people trying to get to this country, but at the end of the day they turn out to be people who have genuine cases and are accepted by this country.

This is another example, I believe, of an illogical policy --- a policy that does nothing to assist our status and image internationally as a nation that cares about asylum seekers and refugees. It does nothing to improve our relationship with Indigenous people, who are even more confused about what they would say is 'white man's law'. It does absolutely nothing to ensure that officials working in Immigration, Customs and Quarantine are assisted by the policies of this government and particularly by the policies this minister purports to have control over.

The immigration department is in a mess. We are about to start an inquiry into the administration of the Migration Act, which will almost become a Mick Palmer report II, I would say. This is a minister who clearly needs to get some control over her portfolio. She needs to provide that portfolio with strong and clear directions and policy guidelines so that not only her department knows what they are doing but the rest of this country can clearly get a handle on where this government is going, and so the government does not continue to make policy on the run.

(Time expired)

Senator Gavin MARSHALL (VIC)

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance
Thursday, 18 August 2005

Senator MARSHALL (Victoria) (11.36 a.m.) --- I too rise to join the debate on the motion for disallowance of the Migration Amendment Regulations 2005 (No. 6). In doing so, I think my contribution to the debate needs to be in context of the competence of the department that administers the regulations that we are moving to disallow today. Nothing does this better than the Palmer report itself, so I want to spend some of the early part of my contribution going through some of the key points identified by the Palmer report.

Having read the Palmer report, what I can say is that it is explosive --- an utter indictment of the highest order of this government, its immigration ministers and their maladministration. It is a sad report on an immigration detention regime that is completely out of control. It highlights a department of immigration in a shambles and totally incapable of delivering correct and just outcomes: it is beset by incompetence, poor training and, it would seem, many hopeless personnel. The report paints a picture where totally inadequate health care is afforded to people whose liberties have been taken away from them and who are in the care and responsibility of the state. It is a depiction of an awful incarceration environment dressed up as an administrative process. It really is a terrible read all over.

The circumstances surrounding Cornelia Rau's illegal and wrongful 10-month-long immigration detention are a national disgrace and can easily be put into the context of this debate. So too are the circumstances surrounding the deportation of Australian citizen Vivian Alvarez Solon. While we knew these facts before the inquiry and examination took place, the Palmer report vindicates them. While it does vindicate them and shed light on a number of problems within the immigration department, the inquiry and examination leading to it simply could not, with the terms of reference and powers given to it, get to the bottom of every problem that exists in this department. What the Palmer report does is skim the surface. On any reading of the report, that is clearly obvious.

While it is an excellent report, and I congratulate Mick Palmer and those involved with it, it simply did not have the teeth or resources necessary to assess all of the problems with the immigration detention regime and inside DIMIA or to pose recommendations for change in this regard. What the Palmer report does is prove beyond doubt the need for a royal commission into the entire department and all of its actions. The report proves to anyone who cares about the rights and plight of people caught up in immigration detention or those who may have mental health problems that there are some very serious problems within the department that date back a very long time. If we are to ensure that similar indictments, illegal and wrongful detention and/or deportations do not occur again in the future then we must get to the bottom of all the problems that exist and find solutions for them. I submit that only a royal commission can do this.

Mr Acting Deputy President, so that you understand the gravity of the situation I speak of, let me inform you of a number of the issues raised by Mr Mick Palmer in his report. In terms of the training and skills of DIMIA officers in relation to detention matters, Palmer found that many DIMIA officers who use the detention powers under section 189(1) of the Migration Act 1958 had little understanding of what, in legal terms, constitutes 'reasonable suspicion' when applying it to factual situations. He noted:

In particular, there appeared to be a general lack of understanding on the part of officers of their legislative responsibilities under the Act.

He went on:

... the level of knowledge and training of many officers is inadequate.

What is obvious, and Mr Palmer noted it, is that operational experience in these circumstances may exacerbate problems rather than add value. With regard to Compliance, this is what he had to say in the report:

Many current compliance officers have had very little or no formal training for their role. As a consequence, they have only a limited understanding of the legislation they are required to enforce, the powers they are authorised to exercise, and the implications of those powers.

He went on:

In a recent formal interview a senior DIMIA executive asserted that the power to remove from Australia a person reasonably suspected of being an unlawful non-citizen 'does not require a decision' because it is required by the Act. Even when questioned about the importance of review and supervision to ensuring the propriety of any action to remove a person, the interviewee seemed reluctant to accept that supervision and review of decisions to detain and remove are crucial to good governance and operational integrity.

Such an attitude is very worrying.

It is also interesting to note, as Mr Palmer did himself, that his concerns were 'overwhelmingly based on the statements of field and operational staff' themselves. The Palmer report, notwithstanding its inadequate powers, still manages to bring to light, on the evidence it obtained, total and utter incompetence within DIMIA.

The report also highlights the poor detainee identification investigation processes employed by DIMIA. Mr Palmer found that inquiries about detainees' identifications were assumption based, narrowly focused, unplanned and not subject to any review, and he noted in the report:

These are fundamental flaws in the inquiry process --- not only as they affected Cornelia Rau but also, in their wider application, as they relate to detainee identification more generally.

Case management was also revealed as being 'disjointed, fragmented and poorly coordinated'. The report notes that, each time Cornelia Rau was moved, a new case manager was appointed to her case and started with very limited knowledge of her history. It also noted that she had two case managers while at Baxter. According to the report, it is apparently normal DIMIA practice not to send a detainee's file with them to Baxter when they are transferred from interstate. Instead, the file is forwarded to the removals policy and operations section in Canberra. As such, Ms Rau's file did not accompany her to Baxter. Mr Palmer noted:

This is not only bad practice: it defies commonsense. Good decisions can only be made on the basis of accurate and complete information.

It was also revealed that detainees' health and general records are not kept together. Mr Palmer noted:

Had Anna's case management linked her general and medical health records, contacts and observations (as recorded in daily incident sheets and other records) and had this collected information been objectively assessed and reviewed as part of developing a comprehensive and evolving personal profile, Anna would have received more appropriate care and been transferred much sooner to an immigration detention facility. It is also possible that, had wider avenues of inquiry been pursued within the first few weeks of her detention, Anna might have been identified as Cornelia Rau and been released.

The fact that these avenues were denied to Anna is an indictment of the system.

Indeed, it was.

Cornelia Rau's six-month long detention in Brisbane Women's Correctional Centre, where she was treated like any other prisoner, was also examined in some depth. Mr Palmer noted:

The basis on which Anna was detained and managed in BWCC was flawed. DIMIA has ultimate responsibility for the health and welfare of immigration detainees, but the current processes for monitoring and managing immigration detainees in BWCC are ineffective and do not enable DIMIA to properly discharge its responsibility. Competent management and oversight of Anna, conducted in accordance with DIMIA's own instructions, would have resulted in her being removed from BWCC much sooner than she was.

It was also noted that no concerns were expressed about the appropriateness of Anna's detention in prison and, despite a requirement to visit her monthly, a DIMIA officer visited her on only three occasions during her six months detention there.

The report noted:

During interviews with the Inquiry, a DIMIA officer with direct responsibility for this area expressed the view that DIMIA paid Queensland Corrective Services $95 a day for each detainee and therefore Queensland Corrective Services had total responsibility for the care and management of detainees in its custody. The executive did not see DIMIA as having any day-to-day responsibility in this area. Such a lack of understanding --- and, indeed, the attitude that would underpin it --- is of serious concern to the Inquiry and it is indicative of the level of operational oversight that occurred during the time Anna was in prison in Brisbane Women's Correctional Centre.

This is simply unbelievable.

Moreover, the entire agreement between DIMIA and the Queensland government over immigration detention was found to be totally inadequate. The inquiry found that arrangements made under the 1992 agreement are still in place despite no official agreement having been signed between the departments since 1995. Mr Palmer noted:

Even at the executive level, there is an inadequate understanding of the separate and joint responsibilities and accountabilities of the parties to these arrangements.

These are examples of the incredible maladministration that the Palmer report uncovers.

I understand that a new or renewed formal agreement has now been signed by the two governments and I welcome that. However, the agreement does not address a number of the more problematic aspects of detaining immigration detainees in jails. Let me go to the underpinning culture of DIMIA. The report states:

... although the Inquiry became aware of a number of inappropriate or defective agreements, arrangements and instructions, it is the strength of the immigration detention culture that is of greatest concern. The deficiencies in practices and procedures can be remedied, and many instructions are being amended. But the attitudes of the people who have responsibility for managing these instructions will take much longer to change. Old values and attitudes must be removed, and a new, enabling culture must be fostered.

* * * * * *

The present culture seems to have operated to stifle original thought, inhibit individual action, and discourage wider consultation or referral. This must be changed. In particular, dramatic changes to the behaviour of executive management in the immigration compliance and detention areas will be necessary. If the required attitudinal improvements are to be achieved at the operational level, change will need to be embraced at the executive level and be led by the executive. The precondition to effectiveness is fundamental cultural change.

They are not my words; they are a direct quote from the report. And similar comments depicting an appalling and totally unacceptable culture within DIMIA pervade the entire report.

Here are a few other examples. Page 166 of the report states:

Despite the best efforts of what is generally a highly committed workforce, DIMIA has struggled to do justice to the onerous responsibilities it has to government, immigration detainees and the Australian people. The Inquiry formed the view that many of the weaknesses and deficiencies it identified are the consequence of poor structure and a culture preoccupied with process and quantitative, rule-driven operational practice.

Page 168 of the report states:

Within the DIMIA immigration detention function there is clear evidence of an 'assumption culture' --- sometimes bordering on denial --- that generally allows matters to go unquestioned when, on any examination, a number of the assumptions are flawed.

For example, the following is assumed:

Such perspectives reflect a culture of denial and self justification that the Inquiry found to be at the heart of the problem.

All those previous assumptions cannot on any logical reading be assumptions that should not have been challenged throughout the department.

Page 169 of the report states:

The Inquiry found that these attitudes and perspectives were not, as some believed, confined to operational levels but were pervasive at senior executive management level. Executive managers, including Assistant Secretaries, should be in the vanguard of corporate leadership and should not be shackled by process-driven thinking and unable or unwilling to question existing structures, processes and procedures.

* * * * * *

There is a management attitude that does not question the instructions and processes and seems to attach little value to explaining to staff the operating context and the purpose of the instructions and processes. The attitude emphasises process and is silent on outcomes. This is dangerous in a volatile portfolio.

On pages 171-172, the report notes that the combination of the pressures just discussed 'has given rise to a culture that is overly self-protective and defensive' and which presents itself as 'largely unwilling to challenge organisational norms or to engage in genuine self-criticism or analysis.'

From page 193, we see that:

In the Inquiry's view, change seems to be crisis generated and not initiated by self-criticism of departmental actions, processes and outcomes.

At page 194 the report says:

Throughout all aspects of both the Inquiry and the Examination there was, with few exceptions, ... consistent evidence of reluctance at middle management and senior executive management levels to accept responsibility and acknowledge fault.

Put quite simply, as Mr Palmer does on page 160:

The Inquiry's investigations and its discussions with independent expert bodies, detention facility operators, medical services providers, Baxter immigration detainees, advocates, visitors and other interested parties led it to conclude that there are serious problems with the handling of immigration cases. These stem from a deep-seated culture and attitudes and a failure of executive leadership in the compliance and detention areas.

What an indictment indeed Mr Palmer has made on this department.

The report identified many more problems with the health services and mental health services afforded to immigration detainees, including Cornelia Rau. While I do not intend to go through every detail of the mismanagement of Cornelia Rau's personal health issues while she was in DIMIA's care, I do wish to address the wider issues that became apparent because of it.

In terms of DIMIA delivering poor health care to detainees in its care, the report notes that:

At issue are the prevailing culture, lack of assertive leadership, uncertainty about roles and responsibilities, lack of appropriate training, lack of arrangements for effective communication, poor coordination and consultation, and a failure of management responsibility and oversight.

At Baxter, the report notes:

The adequacy of health care falls short because the 'standards' set in the contract [between DIMIA and the private contractor managing Baxter] through the Immigration Detention Standards are neither measurable nor clear statements of requirement. The performance measures are exception based and not supported by any quality assurance mechanisms.

Terms used in the standards include 'timely and effective' with regard to access to primary health care, and for that to be conducted in a 'culturally responsive framework', whatever that means. There is no effective quantifiable way to assess the performance of these requirements. They are completely and totally inadequate. And, as the report notes, 'the Standards do not take account of the quality of care or how that should be measured.'

It was also noted that a health advisory panel, made mention throughout the so-called standards, was not even yet established. The report noted with reference to Rau, and I quote:

With a performance management regime that does not manage performance or service quality or risks in any meaningful way, it is not surprising DIMIA was caught unaware. The system did not 'fail': it was ill-conceived and could never deliver to the Commonwealth the information on performance, service quality and risk management that DIMIA was confident it would.

Having noted that:

... repeated studies of national prison and refugee populations have found that incarcerated people have a much higher incidence of psychological and psychiatric morbidity than the general community --- anything up to 50 per cent higher ---

the report found that there are totally inadequate psychiatric services available at Baxter. The report noted that in the four months that Cornelia Rau was detained at Baxter, the consultant psychiatrist from New South Wales who attended Baxter on a fly-in, fly-out basis had visited the centre only once. It noted that, and I quote ---

(Time expired)

Senator Andrew BARTLETT (QLD)

Migration Amendment Regulations 2005 (No. 6)
Motion for Disallowance
Thursday, 18 August 2005

Senator BARTLETT (Queensland) (11.57 am) --- in reply --- this debate is actually about the Democrat motion to disallow regulations that excise thousands of Australians from Australia's migration zone. Senator Marshall's contribution perhaps went a bit wider than that, but there is some relevance there. Obviously there must have been, or else someone would have raised a point of order. The relevance is that Senator Marshall outlined details of the Palmer report and the debacle in the immigration department around the Cornelia Rau issue but, much wider than that, the intrinsic failures and massive flaws in the way the immigration department currently operates and has been operating for a long period of time under this government and this minister under the Migration Act.

These regulations allow the immigration department to operate totally outside that act altogether for people who are not in the migration zone. Senator Marshall has outlined a damning indictment of how badly this government and this department fail in treating people with even basic decency and duty of care, let alone legal rights. While they are operating under the law as it stands with all its flaws, what this regulation will allow if it is not disallowed is for them to just disregard that law altogether for anybody who arrives here in those areas that are excised from the migration zone.

While the government and the minister say, 'Yes, we have got a real problem in the immigration department, there is a real culture problem, a management problem, all of those things; we are going to change the culture; we're going to make it more responsive, more accountable, less mistakes,' at the same time they bring in a regulation that removes any sort of accountability --- that removes the whole law. How can you possibly say that the government is genuine about changing the culture of the department and the people in it and how they operate when the minister is saying, 'Here you go, if you can catch people in this part of Australia, you have got free rein; no law at all; nothing to worry about'? It is farcical and it puts squarely, front and centre, that any suggestion that there is a genuine culture change being driven by this minister and this government is a joke.

That is why this disallowance motion is so important: it sends a clear signal that we are not going to go back to the bad old days of these farcical, ridiculous, quasi-legal fictions that have led to the sorry situation that we now have with our immigration department. Let me emphasise that, when our immigration department is as dysfunctional as it is now, it is not just a problem for a few thousand refugees and asylum seekers. Our immigration department directly deals with millions of applications and people each year. It directly affects the lives of huge numbers of Australians in all sorts of ways into the future. For that department, in such a key public policy area, to be so dysfunctional is a serious problem for all of us. Yet at the same time we are putting in place something that says, 'We're still going to allow you to operate in this legal shadow land where there are no rules at all.'

Let me take this opportunity to remind the Senate and the public that there are still 32 people suffering enormously on Nauru. I last saw them earlier this year and they were suffering hugely then. Some of them were in a terrible state. It is now many months later; the fourth anniversary of the Tampa rescue is coming up in a week's time. A small number of those people were on Nauru from the very start --- they were not on the Tampa but on the Manoora, the Navy vessel that dropped them off. It needs to be said that, while it is pleasing that Labor is supporting this disallowance motion and has supported previous disallowance motions, the regulation itself is only possible because the Labor Party supported the government's legislation in 2001 in response to the Tampa incident, and it is my understanding that it is still Labor policy to support Christmas Island being excised from the migration zone.

So whilst Labor's position is clearly an improvement on the government's --- and I always welcome and am keen to encourage improvements, not just expect all or nothing overnight --- it does need to be pointed out that until the policy shifts to remove this whole concept of some parts of Australia being allowed to operate outside the law then we will still have this significant problem and that principle will still be there. There is nothing special about islands; they do not have any special legal status that means that they have a different application of the law from anywhere else and we should not be running any suggestion that there is. Once we allow such a precedent to stand --- that in parts of Australia the law does not matter --- then obviously it can be expanded to other areas. The government can point to it and say: 'We've been doing it here. Let's do it with something else.'

I see Senator Scullion is in the chamber, fleetingly; it looks like he is going out the door again. He has been the only member of the government to come in and defend these regulations. The minister has not come in to put the government's case. These are regulations gazetted through the minister, who put them forward. It is delegated legislation, so it is equivalent to the minister bringing legislation into this Senate. Where is the minister? No disrespect to Senator Scullion, but why is he the only one who has come in to defend the case? Why can't the minister come in and put the case?

The minister has not responded to the Palmer report. The minister has not responded to so many of these other crucial issues in migration. One thing I will say for the previous minister, Minister Ruddock, is that at least he would be on the front foot and very strongly defend the rationale and the legality of various things. I strongly disagreed with him, obviously, many times, but at least he would take up the fight, not have a bit of bluster and a press conference and then disappear. Having said that, given that Senator Scullion's contribution was the only one putting the case opposing the motion for disallowance I need to respond to some of the points that he put forward.

Senator Scullion said that border protection is a very sophisticated challenge and needs very sophisticated answers. I agree: it is a sophisticated issue. It is far wider than just asylum seekers; in fact, I really do not see asylum seekers as a border protection issue at all because they are always detected, they always were detected and they always want to be detected. There are no people coming into this country who are more consistently detected and more thoroughly assessed and examined. So I do not see asylum seekers as a border protection issue. But how we deal with unauthorised arrivals is a sophisticated and difficult issue. It is a hard issue. It does need sophisticated answers. That is why this regulation is a joke: it is not a sophisticated answer; it is a farce. The principle behind it subverts the rule of law. There is no legal logic behind why different law is applied in some parts of Australia and not others. It tries to reinforce a subconscious message --- that we need a barrier of islands around the top of Australia to protect us from this so-called threat. However, history shows that the vast number of those islands are not ones that will attract asylum seekers first; the mainland is much closer than most of those excised islands. It is basically a stunt to send a political message to the Australian people.

Senator Scullion said that these regulations very clearly impact on only one group of people: people smugglers. I have spoken out, as have many others, against people smugglers. All of us in this chamber, I believe, want to discourage people from arriving here on boats. As Senator Scullion rightly said, it is very dangerous. They are dealing with criminals, they are putting their lives at risk and they are the subject of extortion. But the fact is that if people have no other option when they are fleeing persecution --- as we have seen and as history shows going back to 1945, which led to the refugee convention --- then people will take whatever options are available to them.

This government has done some good things. For example, getting people assessed by the UNHCR and overseen and assisted by the International Organisation for Migration in Indonesia is a positive thing, as long as the people who are assessed as refugees can find a place where they have viable protection. That has not always happened. They can be found to be a refugee by the UNHCR but then be stuck. Some of the people who drowned on the SIEVX had actually been assessed as being refugees by UNHCR in Indonesia, but no other country could be found for them in the foreseeable future so they made the tragic choice to go on that boat.

To suggest that the only people who are impacted are people smugglers is simply wrong. Firstly, the vast majority of people smugglers get away with it scot-free. It was only due to enormous public and political pressure that a couple of the people involved in the SIEVX tragedy bore some legal responsibility, one of whom was sentenced in Brisbane last month to, I think, nine years jail. Only a very small number of people smugglers have been impacted. The people who have been impacted in a very severe way have been refugees. I mention again, as one example, the 32 who have been imprisoned on Nauru for four years now --- almost as long a sentence as the person seen as the mastermind behind the whole SIEVX tragedy got in Egypt.

It is simply not true to say this only impacts on the people smugglers; it is impacting on refugees. Immense suffering, harm and misery were caused to those refugees because of the measure passed by the Senate in 2001 and, if we expand it now, we clearly run the risk of it impacting on other people. They are the ones who will be hurt. To suggest it is only going to harm people smugglers is a furphy.

Senator Scullion drew a very long bow when he said it was a necessary quarantine measure because terrible invasive species can be on board these boats. That is true. But these boats, more than any others, are detected whenever they arrive because they want to be detected. We can actually check them for quarantine purposes. The risk is with the boats that come here and we do not get to see what is on them. It is drawing an extremely long bow to say that we need this as a quarantine measure. That would be the case anyway, even without examining how poor this government's commitment is to quarantine. Senator Heffernan from the government has done a good job during a Senate committee by putting a spotlight on the continuing decline in the strength of the government's commitment to genuine quarantine provisions. It is even the case that plants that are on the quarantine alert list are allowed to be sold in nurseries to gardeners throughout Australia. So much for commitment to quarantine! The government representative stated that we have never refouled a refugee in the history of this government. To be polite, I think that is very much in dispute. The Edmund Rice Centre has done a lot of work in this regard, because nobody else from the government could be bothered to do it. The Edmund Rice Centre has explored statements like the one made by the government, and I think it would strongly question such statements.

At the moment, a Senate committee is inquiring into some of those issues. I invite senators and others to read the book Following them home that was recently released --- I cannot remember the name of the author off the top of my head, I am sorry. The book follows some of the people sent back from Australia. Again, I think we need to question this blanket statement that we have never sent anybody back to danger.

We had the final furphy when the government said: 'If we disallow these regulations then it will send the message back that we are open for business. It will open the floodgates. There will be an open door policy. People will pour in if we disallow this.' The obvious counter to that is: the Senate has disallowed these regulations, I think, four times before and no floodgates opened and no people poured in. I think it is quite clear that it did not happen then and it will continue to not happen.

We then had the unfortunate but, nonetheless, instinctive response from the government that the people who support this disallowance motion support people smugglers; you are either with us or against us. Anybody who disagrees with this appalling undermining of the rule of law, this massive infliction of enormous suffering on refugees, actually supports people smugglers. So much for a sophisticated argument and a sophisticated position from the government! I do not think it helps the debate to descend into that sort of thing.

If we are going to be talking about attacking people who traffic in human misery --- and of course people smugglers traffic in human misery --- frankly, this government has generated a lot of human misery, and the Senate has assisted the government by passing some legislation that allows it to do it, I might say. But the human misery is out there; it is out there in the Australian community now with thousands of refugees. The human misery is there on Nauru, with 32 totally traumatised and massively damaged people --- probably, irreparably damaged. There is human misery. The cost has been met by the Australian taxpayer --- hundreds and hundreds of millions of dollars --- and more is needed. I think it will cost $330 million to build another 800-capacity facility on Christmas Island. It is an extraordinary waste of money. There is the human misery and there is the cost to the taxpayer.

I call on all government senators to consider this issue. I know there are some within the government who are not comfortable with the continuing direction of this government and the continuing state of our Migration Act and how it impacts on many people. I do not want to play politics and criticise them if none will vote with the Democrats and the opposition parties on this motion. I recognise you have to choose your moment as to when you take that walk across the floor. You cannot be doing it every day of the week. I do signal that there are occasions when there are important matters of principle and important signals to send in a range of different ways. I urge them to think about it on this occasion. If they cannot on this occasion, I urge them to recognise that this area is one that still needs ongoing action.

The fact is that the government has proceeded with these regulations after the debacle of the Palmer report, after all the pledges about a change of culture and after the agreements that were reached between the Prime Minister and those Liberal Party MPs --- Mr Georgiou and others --- who stood up to make a point on these matters. They do need to recognise that more needs to be done. Whether this is the right time for them to take that stand is for them to say. This issue will undoubtedly continue to result in other votes being taken in the Senate into the future. At some stage, we do need to start winding back some of the incredibly unjust and legally tenuous aspects that are still entrenched within the Migration Act and its regulations. Voting for this Democrat motion for disallowance is one opportunity to do that.

Question put:

That the motion (Senator Bartlett's) be agreed to.

The Senate divided. [12.19 p.m.]

(The President --- Senator the Hon. Paul Calvert)

DIVISION: NOES 36 (4 majority) AYES 32 PAIRS 3

Allison, L.F.   Bartlett, A.J.J
Bishop, T.M   Brown, B.J.
Campbell, G.   Carr, K.J.
Conroy, S.M.   Crossin, P.M.
Faulkner, J.P.   Forshaw, M.G.
Hogg, J.J.   Hurley, A.
Hutchins, S.P.   Ludwig, J.W.
Marshall, G.   McEwen, A.
McLucas, J.E.   Milne, C.
Moore, C.   Murray, A.J.M.
Nettle, K.   O'Brien, K.W.K.
Polley, H.   Ray, R.F.
Sherry, N.J.   Siewert, R.
Stephens, U.   Sterle, G.
Stott Despoja, N.   Webber, R. *
Wong, P.   Wortley, D.
Abetz, E.   Adams, J.
Barnett, G.   Boswell, R.L.D.
Brandis, G.H.   Calvert, P.H.
Campbell, I.G.   Chapman, H.G.P.
Colbeck, R.   Coonan, H.L.
Eggleston, A.   Ellison, C.M.
Ferguson, A.B.   Ferris, J.M. *
Fielding, S.   Fierravanti-Wells, C.
Fifield, M.P.   Heffernan, W.
Johnston, D.   Joyce, B.
Kemp, C.R.   Lightfoot, P.R.
Macdonald, I.   Macdonald, J.A.L.
McGauran, J.J.J.   Minchin, N.H.
Nash, F.   Parry, S.
Patterson, K.C.   Payne, M.A.
Ronaldson, M.   Santoro, S.
Scullion, N.G.   Troeth, J.M.
Trood, R.   Watson, J.O.W.
Evans, C.V.   Humphries, G.
Kirk, L.   Hill, R.M.
Lundy, K.A.   Mason, B.J.
* denotes teller

Senator Vanstone did not vote, to compensate for the vacancy caused by the resignation of Senator Mackay.

Question negatived.