Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Hansard source

I rise to argue strongly against the bill under consideration in this debate, the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. To put it simply, this law seeks to take us back to where we were prior to 2012. While I know that some people in this place believe that everything that has occurred post 2007 should now be undone as a matter of course, in this case we are considering a reversion that is neither sensible nor necessary, even with respect to achieving the government's desire to be tough at every turn. The focus of this bill is the complementary protection visa—a class of visa introduced in 2012 to deal more fairly and effectively with a small set of people who do not meet the narrow definition of 'a refugee' under the refugee convention but who nevertheless merit protection in Australia pursuant to other international human rights obligations on the basis that their return would place them at significant risk of harm.

The kinds of circumstances we are talking about include the prospect of torture or the death penalty, being subjected to cruel or degrading punishment, or being at risk of other inhumane practices like honour killings, slavery, forced marriage and female genital mutilation. I think the average person in the street would find it shocking if a woman at risk of stoning in another country for the so-called crime of pursuing a friendship or relationship of her own choosing would not be eligible for humanitarian protection in Australia of some form or other.

Helping people in such situations of danger is precisely the kind of common sense outcome that the complementary protection visa category exists to provide. In doing so, it draws not only on fairly straightforward humanitarian instincts and values, but also on the obligations that exist under human rights conventions that Australia is party to. These include the International Covenant on Civil and Political Rights and its second optional protocol aiming at the abolition of the death penalty, as well as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Indeed, the obligation to not return people to situations where they could face torture or slavery is such a fundamental principle of the international rule of law that it is known as 'jus cogens', a peremptory norm from which no derogation is permitted by any country.

Unfortunately, this bill makes it much harder and more complicated for Australia to comply with its international obligation to provide a safe haven for people at a real and serious risk of a fate we regard as utterly unacceptable, yet who are not, technically speaking, eligible for asylum under the Refugee Convention. Broadly speaking, it reverts to the situation that existed prior to 2012, where any consideration for grant of protection under the non-refoulement principles could only occur through ministerial discretion. In that way, the bill will return us to an administrative process that is more bottlenecked, less transparent and much slower. In other words, it will reintroduce all of the administrative and decision-making flaws that the Senate Select Committee on Ministerial Discretion in Migration Matters recommended be cured by the changes that were implemented in 2012. The bill has the substantial effect of removing complementary protection visas, a formal class of protection that has applied to fewer than 100 people since its introduction.

It has the administrative effect of making the consideration of complementary protection visas noncompellable, and any decision made nonreviewable. Again, I think most Australians would believe that, in a scenario where forcing someone to return to their country of origin would mean consigning them to a serious risk of torture, slavery or death, there should be an obligation to consider whether that person ought to be offered protection. And I also believe most Australians would expect that our decision-making process would allow any such decision to be the subject of appropriate review.

That is why, in its briefing note on the legislation, the Centre for International Refugee Law at the University of New South Wales said that, 'Repealing complementary protection would be inconsistent with Australia's international legal obligations and would create considerable bureaucratic inefficiencies.' The note also points out that the existing exception and exclusion clauses mean that complementary protection will not be provided in Australia to any individual judged to present a danger to Australia's security, with specific reference to applicants who have committed crimes in another country before reaching Australia. The advice states that, 'Character and security checks, including criminal checks, are also conducted before any visa is granted. It is therefore misleading to imply, as the immigration minister has done, that criminals will benefit from complementary protection.'

The figures available in September this year from the Department of Immigration and Border Protection indicate that only 55 out of 1,200 protection visas granted onshore were for complementary protection. As the Centre for International Refugee Law points out:

For those 55 individuals, the protection visa was often the difference between life and death.

It should go without saying that it is important to make and change laws carefully.

The changes that were made in 2012 in respect of complementary protection occurred after careful thought was given to the existing state of affairs and its manifest shortcomings. The opportunity to provide complementary protection has always been necessary to ensure the safe and humane treatment of a comparatively tiny category of people. It is a kind of protection that has been available and that has been provided from time to time under Australia's migration laws. All this bill will achieve is to make that protection harder to receive and harder to administer. It creates terrible uncertainty for vulnerable people. It puts too much power at the minister's discretion, with too little oversight.

They say you cannot judge a book by its cover, but you can sometimes judge a bill by its title, especially by the part within the parentheses. This is where some bright spark has no doubt put their political marketing skills to work in coming up with something that sends the right kind of bite-sized, chopped down, simplified and simplistic message. In this case, we have the delightfully bracketed 'Regaining Control Over Australia's Protection Obligations.' This is presumably designed to suggest that those obligations are not under control, or that they were previously under better control, either of which proposition is of course patently ridiculous. Australia has complementary protection obligations under international law, and we have provided safe haven in keeping with those obligations for many years. In keeping with our history as a migrant nation and our ethos as a compassionate, optimistic, outward-looking nation, we have provided safe haven to both refugees and to those seeking complementary protection. All this bill achieves is a return to a poor decision-making process. No amount of sloganeering about 'regaining control', 'sovereign borders' or 'three-star military operations' can change that fact. This is a poor law and it should be opposed by sensible persons in this place.

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