Refugees – some middle ground is opening up.

See below a speech made in the Senate on 4 December by Senator Xenophon. The Senator was one of six cross-bench senators who negotiated with the government for a compromise on the contentious Migration Bill.

Senator XENOPHON (South Australia) (12:17): Australia’s migration policies have always had a long and vexed history. They have been, and rightfully so, open to significant scrutiny from international and domestic courts, independent experts, interest groups and the electorate. It has and will continue to be a passionate debate about a wicked and vexed issue. For me it is always important, always, to remember that we are dealing with legislation that relates to people, our fellow human beings. They are not numbers; they are not the myriad of labels that have been applied to them by all sides of the debate; and they are not political inconveniences, punching bags or props. They are mothers and fathers, sons and daughters, friends, neighbours and acquaintances. They are, in short, people just like you and me who have found themselves in extraordinarily difficult circumstances—some, unimaginable circumstances. So I would like to approach this debate with respect, with compassion and with dignity.

This has not been an easy process for me. On one side this bill does contain a number of measures that I am not comfortable with. But on the other side, if we do not act, the 30,000 people currently awaiting processing will continue to be left in limbo. If this bill does not pass there is also the real risk that the government will use a nonstatutory process instead, which will not result in any better outcomes for the people who are currently in Australia. This problem is a true Hobson’s choice: we are left to decide between two potentially negative outcomes.

Back in 2012 the former government put up a number of proposals, the so-called Malaysia solution, which was rejected by the then opposition and the Australian Greens. I remember at the time—I remember well—I was in hospital and I asked for my vote to be recorded. There is a saying: ‘Not to have the perfect should not be the enemy of the good.’ As imperfect as the former government’s solution was, it was preferable to doing nothing. We saw more and more drownings, more and more people pass away, and more and more people fall victim to people smugglers and the awful consequences of that.

What is being proposed by the government here is by no means perfect—in fact, it is quite imperfect—but the consequences of not supporting it will mean that asylum seekers will be in a worse position, in my view. It also has to be noted what the immigration minister said a few moments ago. He has agreed, as part of a process of constructive engagement with crossbenchers, to increase the humanitarian intake by 7,500 people—a significant increase. My view is that we should double the humanitarian intake or more. We are a big country with a big heart. But I am trying to deal with the actual political realities here. We have an opportunity to increase significantly the humanitarian and refugee intake by 7,500 people on top of the 13,750 per annum. We have an opportunity to have something like 25,000 people on bridging visas have work rights for the first time. We have an opportunity to significantly improve the lot of those individuals who have been left in limbo. The reality is that under the former government border control, immigration policy, was out of control, and that is something we need to take into account.

I have met with many interest groups and representatives, including Amnesty International and also Paris Aristotle of Foundation House and the former government’s expert panel. My view on this issue changed when I saw what Angus Houston, what Paris Aristotle, and what Michael L’Estrange said in that expert panel. I congratulate former Prime Minister Gillard for having the foresight to set up that panel—to actually have a circuit breaker to try to look at this in a different way, because to me it meant that we needed to consider the awful moral dilemmas that we had to deal with. I thought the panel headed by Angus Houston came up with a number of sensible proposals.

In that context, I have approached the government to request changes to the bill and to migration policy to improve the conditions for the men, women and children who are awaiting processing. That doesn’t mean that we cannot still advocate for a significant increase in the humanitarian intake. It does not mean that we stop being critical of the government’s policies, but if we do nothing, if we do not support this bill, then I believe fervently that what will happen is that asylum seekers will be worse off if this bill is not passed, as imperfect as this bill is.

That is the moral dilemma; that is the wicked problem.

I want to make it clear that my vote for this bill is conditional on these changes and those circulated by the Palmer United Party. The government has taken my concerns into account and, I understand, will be circulating amendments to that effect. As such, I will not speak to those amendments in detail, but I would like to take this opportunity to outline the changes that I have proposed. I also want to make it very clear that these proposals do not necessarily represent my ideal outcomes. They do not, but they do make important steps forward—and I do not believe they should be rejected because they are only ‘good’ rather than ‘perfect’.

Firstly, I have proposed changes to allow people holding TPVs or SHEVs to travel outside Australia where the minister is satisfied there are compassionate or compelling circumstances and the minister has approved that travel. That has never occurred before, either under this government or under the previous government, and I think that is an important concession. This would cover circumstances where a TPV or SHEV holder wants to travel to visit family in circumstances such as significant family illness or death. While I would prefer to allow family reunification on these visas, I believe this is an important step in granting these visa holders rights that go some way towards acknowledging the importance of family.

Secondly, I have proposed changes to ensure that, through the use of a disallowable instrument, the fast-track process only applies to the legacy caseload. This will make sure that the use of this fast-track process will be subject to the scrutiny of the Senate. Thirdly, I have proposed changes to the definition of ‘manifestly unfair’ in relation to the rejection of claims so that it more accurately reflects language used by the UNHCR—and that is important. I think that is a benchmark that we need to look at very carefully.

Fourthly, I have proposed some changes to the fast-track review process to ensure that it is not only efficient and quick but must meet the natural justice provisions already included in the Migration Act. This will help to ensure that decisions take natural justice into account within the confines of the act and so are more balanced and fair. I have also proposed changes to the requirement for the review to take new information into account. My specific intention in this case is to ensure that information that was not provided for personal reasons, including mental health reasons, can be taken into account. One example that has been put to me are the many cases of sexual or other assault, where the victim may not volunteer that information in the first instance. I think all of us can appreciate the reasons behind not sharing that information—the shame and the trauma that may prevent someone from speaking out. My proposal to the government was that this type of information and these circumstances must be taken into account, and I believe these changes will improve the review process in that regard.

Fifthly, I have raised concerns relating to the non-refoulement provisions and how we can be sure that a person being returned to a country is not facing persecution. In this case the government has agreed to use phrasing similar to that of the UNHCR to define both when a person is considered to be part of a particular social group and what effective protection measures should be taken into account when considering if that person should be returned. I believe these definitions will bring Australia more in line with UNHCR best practice in terms of defining and applying these clauses.

Further, I have advocated, as have others, for an increase in Australia’s humanitarian intake and to extend work rights to people on bridging visas. I have always been a strong advocate of increasing our humanitarian intake. I believe the government could go further, but I do acknowledge the increase they have proposed will make a real difference—7½ thousand people. That is 7½ thousand people who can be taken in through that humanitarian and refugee intake and who can be part of our community. I do not want to throw that away. That does not mean that my colleagues in the Australian Greens or the opposition cannot say that we should double it—I think we should—or that we should have a much bigger humanitarian intake, a much bigger refugee intake. It could be an issue at the next election. I do not have an issue with that—it ought to be. But I do not want to throw away this opportunity to have 7½ thousand more people come in to this country through that humanitarian and refugee intake process.

Extending work rights to those on bridging visas is also vitally important. Participating in the workforce, even in a small way, makes people a part of our community and society. It gives them, quite simply, a reason to get up in the morning—to feel valued and that they are making a contribution. I do not want to pretend that any of these measures is an ideal outcome or that they represent what I would see happen in the perfect world. But they will make a true difference to the people who are here right now, who are in detention right now, who are waiting to be processed right now. This may not be perfect, but it is good. It is also important to remember that this is not the end of the debate. These measures do not mean that I, as many others, will stop pushing for improvements. They are merely the next step, not the final one, and I would urge my colleagues to support this bill.

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