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Legislative Assembly for the ACT: 2002 Week 14 Hansard (11 December) . . Page.. 4333 ..

MS TUCKER (continuing):

The excision zones which were created by the Liberal federal government, with the support of Labor, just before the last federal election effectively and morally exempt particular islands of Australia from obligations under refugee and human rights conventions. Australia is shirking its international obligations under the Refugee Convention by placing barriers upon people seeking asylum. Article 31 of the Refugee Convention, to which Australia is a signatory, states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Excision means that we do not consistently apply this principle. If you arrive by plane on the mainland, as most do, this principle applies-to the extent that the rest of our migration laws allow. But if you arrive by boat on one of the excised islands, you cannot present yourself to an authority to any effect, unless you can convince the minister to grant you special permission. This is not the first time a wave of people have sought asylum in this country. It is not the biggest wave, yet it is the first time our government has seen fit to change the borders to deal with it.

The lack of appeal rights on refugee decisions is another major issue. It is absolutely essential that full AD(JR) rights be reinstalled. These rights ceased to apply in 1994. Since then, there has been a progressive tightening by the parliament of the grounds of appeal upon which asylum seekers can rely, to the point where an objective observer could only conclude that the current situation is incompatible with the claim that we are living in a democracy which has strong judicial review powers over decisions of the executive.

The privative clause that came into force on 2 October 2001 applies to almost all decisions made under the Migration Act. It affects decisions about spouse, student, business and refugee visas. The privative clause is an extreme parliamentary response, usually seen as appropriate only in wartime. In fact, there is a High Court challenge to the constitutionality of the privative clause because it has been argued that the privative clause removes the court's constitutionally enshrined power to review the actions of the department of immigration. But then, I guess Mr Ruddock must think this is a war-a war on helpless, vulnerable people who thought they would find protection in Australia.

Practically the only ground of appeal against a decision that is subject to the privative clause, as determined in the watershed Hickman case, is that the decision was made in bad faith. This means that Refugee Review Tribunal and Migration Review Tribunal decisions are protected from appeal on the grounds of, for example, failure to address a claim, failure to look at a document, inconsistent internal findings, making unreasonable findings about evidence, misconstruction of the law and contravention of the Migration Act itself. I wish the Attorney-General were listening to this. This is an absolute travesty of justice. It is totally unwarranted and, as Attorney-General, I would think he would be as concerned as I am.

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