Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Hansard source

I speak in opposition to this bill because at its heart it is cruel. It is a cruel piece of legislation and it is inconsistent with Australia's international obligations on the rights of the child and the United Nations High Commissioner for Refugees convention. This bill concerns complementary protection. Complementary protection, of course, is where a person seeks the protection of the Australian government through a particular type of visa because they may not be a refugee as defined in our migration laws. They may not fit the category of refugee in our migration laws, but they cannot return home to the country from which they have fled because there is a real risk that they would suffer physical harm were they to be returned.

If they were returned there is also a significant risk that Australia may breach our non-refoulement obligations under the International Covenant on Civil and Political Rights and the convention against torture, to which the Australian government and the Australian people are signatories. The examples of cases which may come under the guise of complementary protection include honour killings. They include forced marriages, sending women back to countries where they may be put into a situation of having to enter into a forced marriage, and, of course, female genital—sending a young woman back to a nation from which she has fled because, under custom and so-called tradition in the village that she may have fled from, female genital mutilation is undertaken, routinely.

In my view, people fleeing those situations—in particular, young women—should not be forced back to those countries. That is not consistent with Australian values. That is not consistent with international conventions that Australia has become a signatory to. Complementary protection was introduced into our migration system by the former Labor government in 2011. We did that because there were, increasingly, circumstances under which people seeking protection in Australia did not fit the legal definition of a refugee, under our migration laws, but deserved the protection of the Australian people and assurance that we were not forcing them into harm's way by sending them back to situations such as those I have just mentioned.

In 2014 the Abbott-Turnbull government introduced the resolving asylum seeker caseload bill. That sought to remove references, in our migration laws, to the refugee convention. Here we have an Australian government seeking to actively remove references, in our domestic laws, to a convention that Australia has been a signatory to since the end of World War II. They did this to try to limit the role of those international treaties, in court decisions, in Australia. This is because there have been a number of cases where refugees and potential refugees have been treated inhumanely by this government and have sought relief in courts throughout the country and have been granted that relief. They have been granted decisions in their favour. The minister for immigration did not like those decisions, so he sought to remove reference to the refugee convention from domestic laws.

In my view, that is not Australia being a good international citizen. That is not a case of Australia upholding human rights. That is not a case of Australia meeting the obligations that we have signed up to through international conventions and laws. That is why Labor is opposed to the passage of this legislation. In fact, Labor seeks to do the opposite. At our national conference in the middle of 2015 we adopted a platform, when it comes to migration and asylum seekers, that reinstates references to the United Nations convention on refugees into our migration legislation. We have done that because it is a Labor value. We believe that Australia should be a signatory to those conventions. We should play our part when it comes to resettling refugees and providing people fleeing persecution with protection.

If we are going to do that—and do that earnestly—it involves ensuring there are references to those particular pieces of international convention that Australia is a signatory to in our migration laws. This bill is a consequential set of amendments resulting from the removal of that refugee convention from the act. The purpose of this bill is to amend the Migration Act to align the complementary protection statutory framework with the statutory refugee framework, as recently amended by the resolving asylum seeker caseload act.

The bill will, in effect, provide: protection is only available where there is a real risk of significant harm that relates to all areas of a receiving country; protection is not available if an applicant could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm—you could drive a truck through that and it is going to be something that will, no doubt, be subject to litigation in various courts throughout the country; protection is only available where the real risk of significant harm is faced by someone, personally, rather than being an indiscriminate risk of harm faced by the population, generally; protection is only available if effective protection measures are not available to an applicant through a state or non-state actor; and the ability of the Minister for Immigration and Border Protection to preclude merits review will be expanded to include an unsuccessful complementary protection applicant on character grounds.

This bill has the potential for certain problems—in particular, with regard to considerations of behaviour modification and how that would apply to those seeking protection on the basis of sexual preference or the reasonableness of finding alternative locations within the country of origin. The Parliamentary Joint Committee on Human Rights, in its report on this bill, noted:

There are divergent views as to whether or not under international human rights law an 'internal flight option'—the ability to find safety in one part of your home country—negates an individual's claim for protection against refoulement. The weight of evidence would suggest this is not the case.

In removing the requirement that the minister must be satisfied that it is reasonable for a person to relocate to an area of their home country, the bill would result in a person being ineligible for protection even though it may not be reasonable for them to relocate internally.

This would leave such individuals subject to refoulement in breach of Australia's international legal obligations.

There it is, in the report of the Parliamentary Joint Committee on Human Rights, in their own words: the operation of this act may leave 'individuals subject to refoulement in breach of Australia's international obligations'. For that reason, there are serious doubts about the merits of this legislation.

Although the explanatory memorandum clarifies it is the government's intention that this provision is concerned with reasonable modifications, the parliamentary joint committee expressed concern about the compatibility of this amendment with Australia's international human rights obligations

It said:

The obligation to protect against refoulement is not contingent on the oppressed avoiding conduct that might upset their oppressors. The courts have found that persecution does not cease to be persecution simply because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.

So, again, there are serious doubts about the operation of this bill and its effect on international obligations to which Australia is a signatory. That is why Labor is opposed to this bill.

It is a fact that the Australian success story is built on migration, and a lot of that has been humanitarian migration. In the wake of World War II, Australia opened its doors to the persecuted who were fleeing the aftermath of a devastating world war. Australia took refugees from the Indochina conflicts of the seventies and eighties, and now, of course, they are coming from the Middle East. Humanitarian migrants have become some of Australia's greatest business leaders, political leaders and sportspeople. It is because of our support for the United Nations High Commissioner for Refugees and the convention that Australia has been able to take such refugees, provide them with protection and see them go on to flourish: to run businesses and to become leaders in communities, political leaders and sporting champions in our country. This bill seeks to water down Australia's commitment to those conventions and in doing so to diminish that great tradition we have had in Australia of providing humanitarian protection for people consistently with the United Nations High Commissioner for Refugees convention.

So, in conclusion, I am opposed to this bill, because potentially it is seeking to send people back to dangerous situations, in breach of Australia's nonrefoulement obligations under those international conventions and covenants. Labor has produced a policy that Australians could be proud of, were we to be elected, in which we offer greater support for the United Nations High Commissioner for Refugees, we commit to restoring into our migration laws that reference to the international conventions to which Australia is a signatory, and, importantly, we will end the moral shame of children in detention as quickly as possible. It is for these reasons that Labor is opposed to this bill.

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