Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

This bill is little more than a stunt to further the belligerent rhetoric of this government in the area of asylum seekers. When one looks beyond the Orwellian title of the bill—the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013—and examines what in fact it does, one can only say that it is a great shame that this government is not prepared to act on evidence but is prepared to introduce bills like this that simply rip up well thought through processes that were put in place following a decade of consideration of this particular area of government administration. It is something to be very alarmed by.

You can see from something that the minister said in his second reading speech that it is probably best to describe this bill as using a sledgehammer to crack a nut if indeed there is any real problem at all that warrants this legislation being brought in. The minister said in his second reading speech that since the legislation that is now to be repealed came into effect on 24 March 2012 there have been only 57 applications that have satisfied the requirements for the grant of a protection visa on complementary protection grounds.

We also need to put in context what this piece of legislation is dealing with. It is not dealing with people who come to Australia seeking the protection of the refugee convention and seeking to call in aid the non-refoulement, the non-return, provisions of the refugee convention. Rather, it is seeking to deal with another category of people who come to Australia seeking our aid. Those are people who would be at significant harm were they to be returned to the countries from which they came. Significant harm is defined in the legislation as it presently stands—the legislation that this bill would repeal—as actions including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Examples of these would be so-called honour killings or forced marriages and the like.

It is in recognition of the need for there to be a visa category that protects people in those situations who are not otherwise protected by the refugee convention that we introduced this system of complementary protection. This is not new. Australia has for some time been a party to the International Covenant on Civil and Political Rights, the second optional protocol aimed at the abolition of the death penalty, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—sometimes known by the acronym CAT—and also the Convention on the Rights of the Child. Because Australia is signatory to all those international conventions, we as a country have accepted that we have international obligations. What this system of complementary protection does—dealing as it does with quite a small number of people who come here seeking our aid—is to enable recognition in a formal way of the possibility of a visa being granted to the small number of people who are not covered by the refugee convention but who are covered by various obligations that Australia has under those other international conventions.

What is disappointing about this bill and the explanation given for it by the minister in his second reading speech is that it completely fails to say anything at all about the long history of consideration of ministerial discretion under the Migration Act. And it does have a long history. It is a history that is a sorry one, because we saw right through into the early 2000s a tremendous rise in the number of decisions being made by the minister. In recognition of that, a Senate select committee was established. Its name was the Senate Select Committee on Ministerial Discretion in Migration Matters. It reported in 2004. It made some very sensible suggestions to the then Howard government as to the way in which ministerial discretion—the sole ministerial discretion—could be reduced.

It suggested among other things that the government give consideration to adopting a system of complementary protection to ensure that Australia no longer relies solely on the minister’s discretionary powers to meet its non-refoulement obligations under the convention against torture, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. That was recommendation 19. The then government ignored that recommendation and indeed ignored all of the recommendations that were designed to reduce the number of ministerial interventions.

It is an almost unique area of government policy. Here, the minister is not dealing with issues of broad policy and not making determinations about competing issues that arise in determining those broad policy outlines but is rather involved in minute decisions on individual cases by the thousands. That is what ministerial discretion is about. It has been recognised for many years that this is not an appropriate way to manage a migration system, let alone the asylum seeker aspects of the system.

To that end, the new Labor government, when it came to office at the end of 2007, commissioned an eminent former public servant and current businesswoman, Elizabeth Proust, to conduct an exercise to bring this area of administration up to date. She produced a report for the government on these ministerial discretions. The suggestion that she made—and she recognised that it would require some quite substantial reconstruction of aspects of the Migration Act—was that the Senate select committee recommendations from back in 2004 should be acted upon. The Howard government had failed to act on the recommendations of the Senate select committee.

Our government, on coming to office at the end of 2007, recognised that there remained a problem with the proliferation of ministerial discretionary decisions and invited Elizabeth Proust to report on this area, which she did. The suggestions that she made were to the effect that people who are in need of complementary protection—people to whom Australia's obligations under these various international covenants are triggered—should be able to go the Refugee Review Tribunal. That would create transparency in the system and not leave them in the situation which this government wants to put them back in: of relying solely on a ministerial discretion.

What is now to happen to people who almost by definition are people who are in dreadful circumstances, who are terrified of what is to become of them, who have fled some other place because of the threat of the death penalty or torture or cruel or inhuman treatment or an honour killing or a forced marriage, is a great shame. Those people, whose lives are on hold, are now to be made to go through a whole regime of applications and rejections knowing that they will not succeed because their particular circumstances are not covered by the refugee convention, knowing that at the end of all of these refusals they will have to rely on a ministerial discretion.

This is consistent with everything that this government has done in the asylum-seeker area in that it is a move away from transparency, it is a move away from reliance on an open system of courts and tribunals and it is a move away from published criteria. So it is no surprise to see in the explanatory memorandum that one of the things this bill does is simply remove a series of definitions from the Migration Act. It removes the definition of cruel or inhuman treatment or punishment, removes the definition of degrading treatment or punishment, removes the definition of significant harm, removes the definition of torture and removes from the consideration of the situation of people seeking visa protection all reference to the international conventions that I have already mentioned—the International Covenant on Civil and Political Rights, the Convention against Torture and the Convention on the Rights of the Child.

It is a very sad development that, in pursuit of what is not much more than rhetoric and sloganeering by this government, we have what amounts to a stunt. This bill is being brought to this parliament as a stunt so that the minister can pretend that by removing access to the Refugee Review Tribunal, by removing transparency, by forcing people who are in dire need to go through an empty process that cannot produce a result for them—knowing that at the end of this empty process they then have to go to the minister—he is 'regaining control over Australia's protection obligations'. It is little more than a joke.

The government deserves to be condemned for bringing this bill to the parliament at all and for ignoring all the work that has been done, for ignoring all of the earnest and proper consideration that was given to this by a Senate select committee almost 10 years ago, for ignoring the very detailed consideration given to it by the eminent former public servant Elizabeth Proust and for ignoring the detailed consideration and work done by the former government over several years. We are in a position where this small number of people—and I stress again: it is a small number of people—whose processes here are being changed solely so that this minister and this government can pretend that by this legislative action they are doing something that has any real effect in relation to asylum seekers. I stress again: it is a very small number of people indeed. The minister makes that clear in his second reading speech by referring to 'only 57 applications who have satisfied the requirements for the grant of a protection visa on complementary protection grounds'. Why would a government seek to interfere with a system that is working, with a system that is transparent, with a system that is known to people working with asylum seekers and to lawyers working in this field? The minister does not point in his second reading speech to any problems, other than the unsupported suggestion that the provisions that are now being repealed are—to use the minister's words—'complicated, convoluted, difficult for decision-makers to apply and leading to inconsistent outcomes'. He gives no examples of that and no basis for suggesting that this is difficult to apply.

The provisions that are being repealed form a system that is transparent, a system that people can understand, a system that tells people that their particular situations are able to be considered and demonstrates that Australia takes its responsibilities under the International Covenant on Civil and Political Rights seriously, that Australia takes its responsibilities under the Convention on the Rights of the Child seriously and that Australia takes its responsibilities under the Convention against Torture seriously.

The minister's second reading speech goes on to assert that—again, it is the kind of characteristic attack on the courts that we have come to expect from this government already—the courts 'have since broadened the scope of the interpretations of these obligations beyond that which is required under international law'. The minister gives no examples to support that assertion—and that is, I would suggest, because he cannot. Were that the case, one would expect a minister acting responsibly to explain and give examples of occasions on which the courts have broadened the scope of interpretation of these obligations. Sadly, this is yet another example of a government that is committed to secrecy and committed to furthering the belligerent rhetoric that we have become used to in the area of asylum-seeker policy from this government.

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