Andrew Giles (Scullin, Australian Labor Party) Share this | Hansard source

I join other Labor speakers in speaking in opposition to the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. In a sense it is difficult to know where to start in responding to the contributions of government members in the debate on this bill, perhaps with the exception of the member for Solomon, who did turn to some of the provisions of the bill before the House. So perhaps I will start by saying this: it is so telling that government members had so little to say on the provisions of the bill before us—significant provisions that raise real issues of human rights, as well as practical consequences for vulnerable human beings. I wonder if this is another sign of the sophistication in policy debate our new Prime Minister promised us, but of which we have seen so little.

I said that the member for Solomon did turn to some of the provisions of the bill, but in doing so I am not quite sure that she advanced the case of the government. In referring to the work and the submissions of UNSW, I think she will find that the regime she was complimenting was in fact Labor's complementary protection regime, the regime this bill, if enacted, would go quite some way towards dismantling. Given the significance of these issues, it is not good enough that government members have made contributions to this debate that are really about the recital of rhetorical talking points, rather than dealing with the significant issues that are presently before the House.

The member for Grey made some wide-ranging reflections on the governance of Germany, and made a terrible and I think disturbing conflation between acts of terror and people seeking asylum. Of course, people seeking asylum are in many cases, in the world as it is today, fleeing terror. But he is right to look at the wider context and the challenge it poses in a world where 60 million people are forcibly displaced. This is a world where there is no place for self-satisfaction.

Last week Human Rights Watch issued its yearly report, the 2015 report. This makes troubling reading for human rights, right around the world, and for what it says about Australia when it comes to how we treat those seeking asylum here. It is troubling also to read today about reports on people in our care, in Nauru. While those issues are not directly on point, it is very challenging for anyone to read the circumstances of a five-year-old boy who may be forcibly returned to a place where he apprehends he may face significant harm.

So, as we grapple with the moral and the practical challenges of dealing fairly with those seeking asylum here, we should and indeed must also consider our wider obligations to vulnerable people around the world. The member for Melbourne's contribution, which I was in the House for most of, was unhelpful in some respects, I think, particularly in also cleaving to his rhetorical devices, with references to the 'old parties', and claims of superiority flowing from that. That is particularly offensive, because it is only Labor that is grappling with these great moral and practical challenges. But the member for Melbourne did make one important point. The circumstances with which we are faced set out a great challenge for all of us here, not only to be better in Australia but to be exemplar as to be champions of human rights abroad.

So it is in this context that I rise to speak on the bill before the House, a bill that comes before us today in effect by reason of the removal of the refugee convention from the Migration Act, the principal act, as a consequence of the passage of the caseload act. That was a bad law, and this bill would compound its damage. The removal of the convention is not the only ill that we should be concerned of—it is also the limitations, through the passage of that bill, again compounded here, but through the limitations of the role of international law, through treaties and case law.

Let me be clear, as the shadow minster was. Labor supports the international framework for protection, so Labor strongly opposes the changes that are before us, which took place in that bill, and is committed to restoring the convention, in substance and in detail, in terms of reinstating those references into the principal act. This, like the matters before us, is not simply a technical matter, although these questions before us do raise a number of concerns in relation to good, indeed proper, legislative practice, but also in relation to certainty of application, and some consequential matters. It is unclear whether unintended and perhaps deeply unfortunate consequences might flow, especially in relation to the changes going to the behaviour modification limb.

Of course, the matters before us go literally to questions of life and death. When we talk about complementary protection we are of course talking about whether we are to return people who have sought our help back to the places from which they have fled—people, as the member for Kingsford Smith reminded the House, who may be subject to honour killing, forced marriage or female genital mutilation.

When Labor put in place a statutory complementary protection regime, this was welcomed and endorsed by stakeholders such as international as well as Australian human rights agencies, legal bodies, churches, refugee and asylum advocates, and many NGOs, as demonstrated in the relevant Senate inquiry before that bill was passed. The importance of this framework remains today. This is why bodies like the Law Council of Australia join Labor in opposing this legislation. At the very least, government members should pay careful attention to the views of the Law Council. They should also have regard to what David Manne of the Refugee and Immigration Law Centre has said:

These provisions run the very real risk, if they pass into law, of seeing people sent back to extremely dangerous war zones.

We have heard very little to rebut this expert opinion. It follows that we should be hearing from the government a credible—indeed, compelling—case for change. We have not, of course; we have just heard triumphalist rhetoric.

This legislation is intended to align the statutory framework recently adopted in relation to refugees with that for complementary protection so that protection would be extended only where there is a real risk of significant harm extending across all areas of a country, where effective protection measures are not available at all in the receiving country, and where reasonable steps cannot be taken to modify behaviour so as to avoid a real risk of significant harm. This is qualified such that it does not extend to the modification of behaviours fundamental to identity or where there are conflicts with innate or immutable characteristics—but I will come back to the meaning of that qualification later. Through this regime, the risk must be faced personally rather than as a generalised risk within the receiving country. This is also a point to which I will return. Lastly, consistent with the attitude of this government's criticism generally, the regime would enable the minister to preclude merits review. This would be expanded so as to include unsuccessful complementary protection on character grounds. These limitations are significant and they are excessive. Concerns arise in respect of all of these limbs and the mechanism reducing access to merits review.

Labor in government introduced a regime of complementary protection in 2011, reflecting the views at that time of the UN Human Rights Committee—that is, we put in place a new statutory ground through which protection visas could be granted. This regime recognises that there are people who are not refugees but who, nonetheless, are entitled to protection because they cannot be safely returned to their home country. We have an obligation that we have entered into of non-refoulement under the International Covenant on Civil and Political Rights and the convention against torture. I recall that the coalition, when they were in opposition, opposed such a statutory scheme on the basis that this was a 'softening'. What appallingly inappropriate language given the stakes. I note that, in this regard, the government have progressed somewhat in that they have apparently abandoned their earlier plan to completely abolish the statutory framework for complementary protection. This is a step forward, but we have before us a very thin justification for those measures, which are before us in a significantly watered down and important regime. It is extraordinary, the world being what, sadly, it is today, that Minister Dutton could suggest that the existence of a consistent pattern of mass violation of human rights would not meet the relevant threshold. As Mat Tinkler of Save the Children has said in response to this contribution of the minister:

Australia must not take a simplistic, isolated attitude to what is increasingly a global complex issue. At a time when more than 60 million people worldwide have been forced to flee their homes from conflict, persecution and mass human rights violations, now is not the time to further tighten the rules and limit life-saving protection.

He is right; the minister is wrong.

The Parliamentary Library's Bills Digest, unlike the minister's contribution, has been very instructive in relation to the bases by reason of which it is said this bill is warranted. It details a long and confused history of attempts to legislate in this area by the government, leading up to this bill, and refers to three bases. Firstly, it remains that, while it has been asserted by the minister that this bill relates to the implementation of election commitments, no such commitment can be identified. Secondly, it is said—and the member for Solomon touched on this—that consistency is required with the statutory framework applicable to refugee protection, but it does not say why this should be so. Indeed, I am particularly indebted to the Bills Digest for reminding me that the government previously sought the opposite. They previously sought to make amendments to the opposite effect through the Migration Amendment (Protection and Other Measures) Bill 2014. That is very agile, I guess. Any excuse will do when it comes to limiting human rights. Thirdly, it is said—and this is a matter that was touched upon briefly in debate—that there are some issues in relation to unsuitable persons being afforded protection here. If this is in fact presently a problem, there is no evidence before us in support of this, merely some assertions. The non-refoulement obligation, of course, is absolute and flies in the face of this proposition. I note that the statement of compatibility that came with the bill asserts that the provisions of it are consistent with Australia's non-refoulement obligations, but it is very difficult to see how this can be so. I see that the Law Council of Australia has disagreed very forcefully. I find their submission persuasive, much more persuasive than the efforts of the minister.

I will touch briefly on some of the considerations going to the particular limbs set out within this legislation, firstly that going to the issue of internal relocation. In this regard, while the explanatory memorandum seeks to clarify the effect of this series of provisions, it really does not. There is a deplorable uncertainty here, particularly given the consequences for human beings. I read with interest the view of Professor McAdam from UNSW, that body referred to by the member for Solomon, which speaks very clearly against the approach embodied in the legislation before us. I note in this regard also the concerns of the Parliamentary Joint Committee on Human Rights, which go to the issue of refoulement and make the point that to rest on departmental policy, as we would effectively be required to do here, is an insufficient safeguard. Regarding the limb which goes to the question of effective protection, again we have a significant change in circumstances where the case for change has simply not been made out and very real concerns have been expressed by experts in the area—again by Professor McAdam, in this case in a joint submission with Associate Professor Michelle Foster, which refers to the many practical issues which cloud the operation of these provisions, in particular the role of non-state actors. There is also the issue of modification of behaviour, a terribly Orwellian concept. Here again the explanatory memorandum purports to reassure, but real issues remain, particularly when it comes to the question of employment, which is not an issue the government appears to have explored effectively, and concerns also arise in respect of the effective reverse onus that is imported through the bill. Lastly, we have the exclusion provision. The parliamentary committee expressed significant concerns with that, and rightly so.

Let me state again my firm opposition to the bill. The bill before us contains some very significant changes. They have not been accompanied by any meaningful justification. They contain further significant departures from our international obligations and, indeed, from the international protection framework that we should be an exemplar of. But, fundamentally, I am opposed to this bill—like the shadow minister and my Labor colleagues—because it raises the very real prospect of sending people who have sought our help back into harm. That is something we cannot do.

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