Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

I rise in continuance to lend some comment on the Migrant Amendment (Complementary Protection) Bill 2011. I started my discussion in the House of Representatives pointing out that this is one more iterative change to the policy of protecting our borders, one more in a long litany of disastrous changes that began in 2008. I made the point yesterday that in 2008, or prior to the last election in 2007, there were a handful of people in detention. Whilst a handful is generally a euphemism for a small number, I mean a handful. There were four and, I think, one child. The boats coming to Australia had, over many years, reduced to zero—at the most, there were three per annum.

Enter stage left the Rudd government and administration. In August 2008, the very effective policies that had stemmed the tide of people coming by boat to Australia were unilaterally stopped. In August 2008 they were pulled apart. Since 2008, 11,246 people have arrived on 224 boats. The government is desperately trying to seek solutions and has put together piecemeal approaches to try to stem the numbers. The government unilaterally dismissed offshore detention on Manus Island and Nauru with all sorts of hyperbole about how immoral such a thing was and how inhumane, and now of course the Prime Minister is in discussions with Manus Island and Papua New Guinea. Sheer hypocrisy. Using the same sort of inflated language they dismissed the temporary protection visas that, in concert with the Pacific Solution, had worked so effectively, and now the minister is looking at temporary protection visas for those who have committed some degree of crime while in detention.

The Migration Amendment (Complementary Protection) Bill is another piecemeal approach. I make it very clear: adopt the coalition policy sets that have stopped the boats in the past and I guarantee they will stop them again. Do not simply cherry-pick the bits that you think are politically saleable in this damaging affair that is the boat people, because it simply is not working. Since the last polling day, the total number of people who have arrived is 3,897, and they came on 69 boats. The total number of arrivals since Prime Minister Gillard became Prime Minister on 24 June 2010 is 83 boats and 4,694 people.

The government has completely, utterly, totally failed to protect our borders. It has weakened our national security, to the point where those three asylum seekers who were charged with setting fire to the boat, an action that cost a number of lives, were found guilty, given cursory sentences and then provided with visas to live permanently in Australia. If that does not put up a sign that says, 'Welcome, come along,' I do not know what does. We know that if you are in Afghanistan and are seeking asylum you have about a 10 per cent chance of making it to Australia. But, if you come across into Malaysia, where the persecution you are fleeing has gone and you are free, or if you fly to Kuala Lumpur, where the persecution you are fleeing from has stopped and you are now free, or if you go to Indonesia, where, again, you are free, and you then jump onto a boat to come to Australia, seeking a 'better' freedom, you have an over 90 per cent chance of being given a permanent visa in Australia, using the current appeals process. Iterative, piecemeal change is a disaster and does not work.

So here the government is with another amendment, another piecemeal change, to allow all claims for onshore protection to be considered under a statutory process, another process, for a single visa applicant against our non-refoulement obligations, in the same way that our non-refoulement obligations are triggered under the refugee convention. This bill is remarkably and substantially similar to a bill with the same name introduced in 2009 by the government, which the government let lapse. The differences between that bill and this bill are minor and technical and do not alter, ostensibly, the function of the bill.

In terms of definition, complementary protection is a term that describes a state's, Australia's, obligation to people when they do not meet the 1951 refugee convention definition but nevertheless are in need of protection on the basis that they may face serious violations of their rights if sent back to a country of origin. These amendments insert a statutory process to deal with applications, rather than have the minister consider applications against our international non-refoulement obligations when he is asked to exercise his interventionary powers. The minister's interventionary powers will remain, but clearly they are unlikely to be called upon in this area if the proposed statutory process is put in place.

Consistent with ministerial decision powers more broadly under the act, the minister's decision is, of course, non-appealable. The use of a ministerial decision process ensures broad flexibility in considering the specifics of each case. Looking at the facts, between 1 January 2010 and 20 October 2010, the minister finalised 1,690 requests for interventions. Of these, the minister granted visas to 438 people. According to the minister's office, of those 438 visas, only six satisfied the requirements of the proposed new complementary protection provisions. So we are putting in a whole new process, another piecemeal approach to dealing with the protection of our borders, ostensibly—looking at the minister's own numbers—for six people per annum when the minister's own ministerial prerogative and interventionary powers allow him to deal with them. This is a whole new process for six per annum. Surely the minister is not that busy that he cannot look at six cases per annum! Surely he does not need another process to deal with just six cases!

Consistent with the evidence previously provided to the Senate committee, DIAC and the minister's office have reconfirmed that they do not expect the number of applicants being granted protection visas under the complementary protection provisions to increase at all. So DIAC and the minister's office have indeed confirmed that that number of fewer than 10 per annum is about right. It begs the question why the government believes it is necessary to introduce a statutory framework to deal with fewer than 10 cases per annum, having just decided in 2009 to let the bill lapse. Why bother? Why bring it back two years later when it is 10 cases and dealing with them would take the minister a short amount of time? I am sure DIAC is suitably professional such that it can provide the minister with the advice he needs to make decisions, so why do this?

In evidence to the Senate committee DIAC advised that, of the 606 visas granted by the minister using section 417 powers in 2008-09, only 55 were granted out of the humanitarian program and that less than half of those cases involved non-refoulement issues. The minister's office has confirmed that no-one who would be considered under the new provisions who had previously failed to obtain a protection outcome under the current arrangements. They have also confirmed that the number of genuine applicants in this category is very small. I think the evidence is absolutely and utterly overwhelming that these measures will not add a single level of protection for those whose circumstances do not meet refugee convention criteria but who may trigger our non-refoulement obligations under other treaties and protocols. The government concedes that our current arrangements have honoured all treaty obligations in such cases. We consider that the ministerial intervention currently in place delivers flexible arrangements for individuals and families whose circumstances are one-off, unique and complex and who may be disadvantaged by codified criteria administered by officials. The minister is also responsible, and accountable, for decisions that he makes.

It should be noted that superseding ministerial intervention powers with these amendments for another process could create a surge of vexatious claimants who are encouraged to believe that the government has further unravelled strong immigration control measures. Under this proposal, vexatious claimants would be able to extend their stay by appealing the negative decision in the courts. So not only are we dealing with a minister who apparently does not want to exercise his intervention powers, for fewer than 10 cases per annum, but we are putting in place a process that will allow vexatious claimants to appeal to the courts to extend their stays.

To say this is simply outrageous does not even come close to where we are. There are no additional protection outcomes in this bill—none. It does not provide additional protection outcomes to those that are currently afforded in practice or in process as we speak. This bill will not lead to any greater protection and/or compliance with existing treaty obligations. And there is no suggestion that the Australian government has been in breach of any of these obligations. It therefore begs the question once more. We are not contravening obligations. We are looking at a very small number of cases—maybe six to 10 per annum—that are complex by their very nature. The minister has intervention powers under the act that allow him to make decisions that are non-appealable, but the government wants to throw that out and put in place a bureaucratic process that is appealable to the courts. And the government thinks this is a deterrent to people smugglers plying their vicious and horrid trade.

I simply say to the government: this bill cannot be supported. It has no level of protection. If anything, it further weakens protection. I plead with the government to heed common sense. The government has flip-flopped everywhere. It has gone from changing our strong regime in 2008 to then deferring the review of decisions for Afghan asylum seekers for six months and Sri Lankans for other time periods. It has gone from the never-never solution of East Timor to discussions now about Manus Island and a one-for-five swap with Malaysia—we give one but five come, and we pay for it all—putting aside that when people arrive in Australia there may well be provisions for them to appeal to the courts to extend their stay and not go to Malaysia. These are all things that perhaps have not been considered.

Considering the debacle that is the government's border protection regime, I plead with the government to exercise some common sense. History is always a great lesson. History shows that the Howard measures worked. They were an effective deterrent. They took away the product from these dreadful people smugglers, and people did not put their lives in their hands by taking leaky boats to Australia. There was integrity in our refugee process for people coming from offshore into our country. It protected our borders and, importantly, lives were not lost—all of which cannot be said for the government's botched approach to border protection.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I am very glad to follow the member for Fadden. I respect his background as a military officer. I respect the fact that he was elected into this parliament. I also respect the fact that he is tied by party discipline to bring sloganism and fearmongering into debates such as this. I am sure the member for Fadden would have been grotesquely upset that his leader tried to enter into negotiations with the member for Denison to increase our refugee intake by 100 per cent. By the way, we take 13,750 refugees a year. Those on the other side of politics were not prepared to simply say, 'That is what the figure has been all that time.' They said, 'We'll offer to double that if you vote for us and deliver us government.' So let us not get too moralistic about this. The opposition do not get wound up about the values or the principles involved or something as basic as doing the right thing. Their attitude is, 'Let's play party politics, particularly when it comes to the issues of refugees, because that is where we think we score political points.' That is essentially what we hear, particularly in these debates, and today is no different.

The Migration Amendment (Complementary Protection) Bill 2011 seeks to fill an administrative hole which currently exists in the Migration Act. The Minister for Immigration and Citizenship outlined that in his second reading speech. The bill will make Australia's migration process more efficient, transparent and accountable. Australia has a very proud history of welcoming immigrants and refugees. We are a good international citizen when it comes to welcoming new members to our community, because we know that immigration has been one of the most effective drivers of the prosperity of this country.

According to the ABS, I have the most multicultural electorate in the whole country. For the record, 20 per cent of my electorate is made up of people who speak Vietnamese at home. By the way, people who came to my electorate who are Vietnamese speakers have been there for no longer than 36 years, because that is when the Communist insurgency took over and Saigon fell. Australia, to its credit, at that stage took in excess of 200,000 refugees—boat people. It took those people in, and they have made an extraordinary contribution in the 36 years that they have been in this country. I get to see what they do; how they apply themselves; how they build, certainly in terms of assisting and developing our enterprise; what they do in our professions and trades; and how they commit to ensure that their kids get a very good education. Something that should not be forgotten is that a lot of people think that the Vietnamese do very well in school, and they do. I see mums and dads who are not necessarily doctors, lawyers or other professionals working two or three jobs to ensure that their kids get a good education and they are provided with tutoring, because those mums and dads know that, to make the adjustment to their new country and to be part of the prosperity of this country, education is a start. You only have to talk to high school principals to know how the partnership works between schools and the Vietnamese who were new arrivals to this country.

The point I am making is that 36 years ago they were boat people. I know that most of the young people in the gallery will not recall all that, but I vividly recall 1975 and the fall of Saigon and what that meant to this country. As a country we took a very clear position because we had a humanitarian issue to consider. We did the right thing, and there is no question that our country has been the economic beneficiary of the contributions made to this country by the refugees that we accepted from 1975 from Vietnam.

This amendment bill seeks to fulfil Australia's non-refoulement obligations under international law by incorporating these claims into existing processes of asylum applications dealt with under the Convention relating to the Status of Refugees. It would cover asylum seekers who are not refugees under the refugee convention but for whom refusing a visa would breach our non-refoulement obligations. This protection only exists for people after ministerial intervention, which is to some extent a very bureaucratic, ineffective and often very drawn out process, as most members in this chamber who have sought or been associated with claims seeking ministerial intervention in those matters can attest. Not only does the current system deny these applications a current level of fairness and due process but the minister does not have to intervene to provide this protection. There is no requirement to provide the reasoning for any ministerial decision and there is no review process for any decision that may be taken. This amendment bill is a simple one to that extent, fixing an aspect of our protection visa system which is currently stressful and time consuming for all involved.

It is not, as we have just heard from the member for Fadden, a case of going weak about protecting our borders. We were given a dissertation about how many people have arrived on boats. This does not apply to that. Just to give an example of the people who would be subject to this visa requirement, the types of claimants would include people who are at risk of being stoned to death for being homosexuals, women at risk of being subject to honour killings if they are returned to their land of origin and women fleeing ritual genital mutilation. They might not be considered refugees in the ordinary course of events, in terms of fleeing persecution for political or other reasons, but they are the people who are being looked at under the terms of this amendment bill.

However, under this proposed bill, the refugee convention will still be the starting point for assessing the applicants for protection visas, but if rejected the claims will then be assessed under Australia's obligations under other treaties for complementary protection. These are treaties we are all part of: the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Rights of the Child. We have all taken time in this House to take pride in the fact that we are part of these things, we support them and we promote them within our region. This is how the consideration is being made. People who will be subject to those treaties are the ones being considered for this complementary protection.

In essence, it will ensure that Australia is not returning people to a place where they may suffer harm or torture. Specifically, it will protect those who are at risk of arbitrary deprivation of life, such as having the death penalty carried out on them; being subject to torture; being subject to cruel and inhumane treatment or punishment; and being subject to degrading treatment or punishment. We are talking about people who are in genuine need.

What we were hearing from the other side is what we should be doing as a matter of course: how you divert boats and how you cull numbers. This bill goes to doing the right thing for people in genuine need. Unfortunately, some in the parliament will try to oppose this on the grounds that it is softening our border protection or our visa regime. This is not softening the regime. This is doing something that we as individuals believe to be right. I indicated as an example the people to whom this is likely to apply. It is not seeking to extend this other than to those specific cases—and I know there are not many. This is trying to get it right. This is also taking it out of the hands of politicians, and any judicial review will be conducted by our independent judicial system, by a judge. The opposition rail against that. It will not necessarily be a judge appointed by our side of politics, and that probably would not matter anyway because one thing that we do stand fast on in this parliament is the appointment of our judiciary. We see it and honour it as an independent jurisdiction being able to bring independent thought and give proper review of process. That is what this is seeking to do. This is not a softening of our protection visa system.

There are people in this place who believe there are simpler solutions to what is a very complex problem. This goes back to the whole issue about irregular immigrants to this country. They want to reduce everything to sloganeering. 'Stop the boats' comes to mind. They want to count how many boats arrive in this country and want to make sure that that is where they put the stake in the ground pinning Liberal Party policy. This is not what this amendment is about, and the member for Fadden should know that. It is a soft point with those opposite because they have now committed to oppose this. They want to make sure that the decision making on these classes of visa remains solely with the minister of the day as opposed to there being any external review process on decisions that are going to be made. If we are to believe in equity and humanity, we should measure up to the obligations we have signed on to in regard to those treaties as well as the international refugee convention of 1951, which we were a principal player in establishing.

Passing this bill brings us in line with the United States of America, Canada, the United Kingdom and nations across Europe, and also our neighbours across the ditch. It is true that New Zealand has got there before us. It has moved similar legislation or already has in place complementary protection systems. By passing this amendment to provide complementary protection, this parliament is following the recommendations of several of the parliamentary committees in this and the other place, the United Nations Committee against Torture, the United Nations Human Rights Committee and the United Nations High Commissioner for Refugees. Not only that, this amendment has the support of the key refugee advocacy groups such as the Refugee Council of Australia.

It is fair to say that the issue of asylum seekers is a vexed one for our community. We understand that. There are some in the parliament who are eager, maybe too eager, to exploit it. It is right that we move to ensure that we are not as a nation being exploited as a destination by people regarding us as an easy touch to migrate to. But when it comes to some serious issues of evaluating genuine need of protection, we cannot shirk our responsibilities. This is not about how we demonstrate how tough we are or about trying to out-hairy-chest one another in terms of how bold we can be in belting refugees. In my electorate 20 per cent are refugees—20 per cent of my electorate are Vietnamese people who have come in the last 36 years. They have made a genuine contribution, and that has obviously been replicated in many other electorates that make up this chamber.

This is a good, fair and just bill. It brings us in sync with international obligations. I commend the amendment to the House.

Alex Hawke (Mitchell, Liberal Party) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Complementary Protection) Bill 2011 and in doing so I want to state from the outset, after listening to the member for Fowler, that it is odd that we stand in this place today when our border protection system is in a mess, in complete disarray, and the government is asking us to pass a piece of legislation that will in effect solve no problem and make no difference to the current regime other than to demonstrate to people smugglers that the government has no understanding of the problems that face border protection and migrants. Let me outline what I mean. This bill will provide no additional protection that is not already afforded to people seeking asylum in Australia today. There is no suggestion that anyone in this chamber does not agree that we should meet our international obligations. In fact, there is no suggestion that Australia has not met its international obligations—none whatsoever. If any member of the government wants to state that their own government has not met our obligations, then come forward and do so. But of course that is not the case, and that is not why we are here today.

I reject this sort of legislation, the sort that comes before us when a government is in political turmoil and says, 'We need to do something.' I reject such legislation at this sort of juncture. We have a bill before us today that proposes to scale back the nature of ministerial discretion in our well-functioning Westminster democracy. If you said to me, Mr Deputy Speaker, 'I am nervous about the quality of many of the frontbench of the Labor Party in making decisions,' I would say to you, 'I understand.' If you said to me, 'There are some people there whose judgment I don't trust,' I would hear you on that. If people in the government want to say, 'We are nervous about the capacity of our ministers to make decisions in a parliamentary democracy,' I think a lot of people around this country today, after experiencing four years of this Labor government, would agree with that, particularly if they are in the pink batts industry or other key parts of our economy. But the principle is very important here, and what this legislation is doing is undermining our Westminster democratic traditions. I believe that passionately. The member for Fowler said there are people who might be sent back to face the death penalty because they are gay. Do we really think that the Minister for Immigration and Citizenship, who has the power under the act to exercise his discretion, would not exercise his discretion in that situation? That is the argument of the government back bench: 'We need a statutory process to replace the minister's intervention and discretionary powers under the act because, effectively, we do not trust his judgment.' That is what you are arguing. That is why we have this piece of legislation before us today.

I reject that. I am going to stand up for the minister for immigration. I note that many of the government backbenchers have raised this point. Maybe they are looking to get to the front bench, but I do not think that there is any minister in this government or was in our government, or in future governments, who would not act in a humane or compassionate way in those circumstances to ensure that our international obligations are met. There is a little bit of scoffing from one or two government backbenchers. There is no suggestion that Australia has not complied with its international obligations—none—and it is offensive for anybody to stand up here and say that it has not. I would defy any member of this place to do so and point to the examples.

We know that between 1 January 2010 and 22 October 2010 the minister finalised 1,690 requests for intervention. The minister granted visas to 438 of those people and, according to the minister's office, only six have satisfied the requirements of the proposed new complementary protection visa. So, once again, the first question and duty of a government is to say, 'What problem are we trying to solve?' If we are trying to solve the problem of six cases that met under this provision and say that we do not rely upon our ministers under the Westminster system, that is not an inspiration for a piece of law in this chamber.

The instinct of this government too often is to legislate first and not do something practical to fix it. We do not need legislation when we have a well-functioning system, when we are meeting our international obligations and when hundreds of years of parliamentary tradition, democracy and ministerial accountability apply and there is no suggestion that that system is not working. So, instead, we are going to add another piece of legislation for good governance to the statute books, as if that is the panacea for all our problems. What problem are we trying to solve?

The government has not made a case. We heard the member for Fowler talk about the fall of Saigon and some other distant topics. The member for Fraser read out some stanzas of the national anthem. He did not get all four or five of them in and he did not address why we need a law to do this. Neither have government members opposite made a sustained case about why we should add another law to the statute books. There is a very serious issue at stake in this bill. By putting a statutory process in favour of a ministerial power, you are actually reducing the flexibility of government. You are setting up your own government for further problems in immigration and in this domain.

It is our role as an opposition, as a coalition, to point out bad legislation—not to just oppose but to argue why we should not have another law added to the books when it will not work. In fact, using this kind of statutory process could easily attract vexatious litigants. I note that Dr Ben Saul—as pointed out by the shadow minister for immigration—of the University of Sydney was of the view that the criteria contained in the 2009 bill were poorly drafted. It was the result of the inclusion of unnecessary qualifying phrases and, far from creating certainty, Dr Saul thought this would invite needless litigation. That is very important for this House to note at this juncture.

The capacity for people smugglers to market, 'Once you get here, and once you have an issue that you may have back home, we can then go through a statutory process, then go to court and then tie this up for months or years of further legal process,' is a selling point for people smugglers. Again, from our point of view as a parliament, as a nation, we do not rely on ministers of the crown elected by the people of Australia sent to this parliament to administer acts of the parliament; we do not rely on their discretionary judgment to do these things?

There is a very serious issue and principle here in this legislation today that I reject. We ought to have our ministers firmly accountable for the decisions they make under the acts of parliament that this parliament passes. They should be held accountable for every decision. They should make decisions. They should not be afraid of making decisions. We know we have a government at the moment that is afraid to make decisions but, frankly, when you look at the facts and the figures there is no problem here that the government is trying to solve.

Of course, we take very seriously human beings who arrive here who could be threatened with death or other circumstances back home. Of course the minister should intervene when appropriate, as appropriate, in those situations. That is what is occurring already today. And, again, we do not have an answer about why we have this legislation here today, other than we have a political problem in Australia for the government, and that is that it has lost control of Australia's borders.

But just by passing a law we may not make things better. As Dr Ben Saul points out, there could be in that 2009 legislation, which is largely replicated before us today, the opportunity for vexatious litigants. From the shadow minister, the member for Cook, we have sought advice from the government about what agencies have been consulted on this legislation. We understand the Australian Federal Police, the Customs and Border Protection Service, ASIO and other relevant agencies have not been consulted about the potential impact of this measure and, at a time when we are asking them to do so much in relation to the processing of asylum seekers and to screen and do other things, I do not understand why wide consultation would not be sought on a bill that seeks to remove ministerial discretion and power. It makes no sense. The whole bill makes no sense.

Going further, for many of the provisions, I think there are some other important things. When this was last considered, Liberal senators in their dissenting report to the inquiry in 2009 made some very good points. This bill will add to the problems. We know that between the time of the bill's introduction in 2009 in the House and today the figures worldwide have become much worse. At the time of the bill being introduced, about 53 per cent of people who were in detention had been there for six months or more. That has now risen to 60 per cent of the record population of almost 7,000 in our detention network. We have a crisis in the fact that this legislation was dropped, which was a good idea, at the proroguing of parliament in 2009—let us abandon bad pieces of legislation, let them go and move on—and now we find that we are back here in a pure attempt to understand that the government is looking like it is doing something. In concluding, I want to say that the government is today positing that somehow this is going to improve the situation for asylum seekers in Australia or that it will add an extra layer of protection or an extra layer of being able to meet our international obligations. That is not the case. There is nothing that can be pointed to here that will demonstrate that. We are meeting our international obligations. There is no suggestion that the minister for immigration has not acted appropriately in exercising his discretion to grant visas, in using his discretion and the flexibility contained within that discretion to solve the problems of the complex nature of humanity and the people that arrive here. Nobody is making that argument here today.

What we are saying is that with our border protection in crisis—with almost 1,000 children in detention, with 7,000 people in camps in Australia today rioting, protesting, burning things on roofs—we do have a problem that must be addressed. This bill will not address it. This bill will go nowhere. This bill has the potential to cause further complexity and legal delay and problems in our system. I think it is the sloppiest and worst way of dealing with very serious problems, very complex issues and things that do require the attention of government and, sometimes—if I could say to the member for Fowler and some of the other government backbenchers—a firm hand. Being firm and being administratively competent is a better way of being compassionate than being completely emotional. Emotion tends to dominate the speeches of government backbenchers—pure emotion. They are driven by this constant idea that somehow, if we feel empathy for people, things will be better. Yet we find a thousand children in detention today. That is something that has to be addressed. We find 7,000 people in camps. There are riots. We have expanding detention facilities all over the country. We have more boats coming in than ever before. We have ships being wrecked. We do have problems.

The blind move in 2008 to weaken our border protection system in the name of compassion has led us to where we are today. Legislating to remove a ministerial power, a flexibility—a proper, functioning and lauded system such as the Westminster parliamentary democratic system, where ministers have discretion and have appropriate powers under acts—in favour of a statutory process, I contend and the opposition contends, will add to the problems in our system, not help fix them. So we warn the government and urge them to do things that will improve the state of our border protection system, to do things that will deal with the real problems that are out there, not to pass needless law that removes the discretion from their own ministers—the appropriate discretion to grant the appropriate visas to people in these very serious circumstances.

Laura Smyth (La Trobe, Australian Labor Party) Share this | Link to this | Hansard source

In any other circumstance it really has to be said that a discussion in this place about improving the consistency and the efficiency of the administration of justice and our system of law would be met rationally—in any other circumstance. But, when it comes to this particular issue and the particular people who are being made the subject of this issue, this is simply another opportunity for the opposition to chant, 'Stop the boats'—just another opportunity to chant the same thing. I have to say: I for one would be very happy at this point to send the hat around and ask members to contribute some loose change to maybe get a focus group together to consider a new three-word slogan, because it is getting tired. I think most rational Australians would regard it as extremely tired, fading and pathetic.

In making my remarks about the improving the consistency and efficiency of the administration of justice through the Migration Amendment (Complementary Protection) Bill 2011, we are not the only ones who have that view. Indeed, there are a number of organisations, a number of groups, that have recommended the introduction of legislated complementary protection. It has been recommended by several parliamentary committees, the Australian Human Rights Commission, the United Nations Committee Against Torture, the United Nations Human Rights Committee, the United Nations High Commissioner for Refugees and key refugee advocate groups such as the Refugee Council of Australia. So we are not exactly talking about people who are fringe dwellers; we are talking about people who pay due regard to the development of law in accordance with our international obligations, who pay due regard to development of law on these issues right around the globe.

I thought it was important to bring a little bit of balance back to the debate after the contribution of the last member, who seemed to be off in a world of unreality. I think it is appropriate to discuss the background of the refugee convention and where our international obligations, which are reflected in the legislation before us, are derived from. When we ratified the refugee convention and the protocol, we as a nation, along with the 141 other states party to those, committed ourselves to ensure that people could flee persecution on the basis of their race, religion, nationality, political opinion or membership of a social group, and seek asylum. We did ratify the convention over 50 years ago and we know that it has been relied upon by many around the globe—from those fleeing the horror of World War II to the present day. We know that the convention has been robust and that it has surely saved the lives of countless thousands worldwide. But, like any law which has been in place for some time, there are circumstances and there are types of treatment which were not contemplated at the time of establishment of the convention but which are nonetheless regarded by the bulk of the international community as forms of persecution. There are some circumstances which any right-thinking person would recognise as a serious violation of human rights but which are not specifically captured under the letter of the convention.

International human rights instruments and international human rights law in general has evolved and developed since the drafting of the refugee convention in 1951. Nations and their courts have recognised that refugee law needs to be interpreted in light of this. The principle of nonrefoulement is a principle of international law which forbids the expulsion of a person into an area where that person might again be subjected to persecution. We know that it is reflected in the refugee convention, but it is also reflected in other instruments to which we have become party over the years. Those include the ICCPR, the convention against torture and the convention on the rights of the child. This concept of nonrefoulement, as reflected in these instruments, prevents a state from sending people to places where they risk being tortured; exposed to cruel, inhumane or degrading treatment or punishment; subjected to the death penalty; or arbitrarily deprived of life. Those who are likely to be exposed to or who experience those kinds of circumstances but who do not fall within the categories of persecution contemplated in the refugee convention are not protected under the convention, but returning them to their home country obligations we know would breach Australia's non-return obligations. Under Australian law those people currently rely on the discretion of the minister of the day to enable them to remain in Australia and free from persecution. We know that is a form of complementary protection that does certainly exist. But the new complementary protection framework contemplated in the bill would clearly capture Australia's obligations under the ICCPR, the Convention Against Torture and the Convention on the Rights of the Child in relation to nonreturn.

Absent the provisions of the bill before us, there will continue to be no legislative basis in Australia pursuant to which a person who feared torture but did not satisfy the refugee convention criteria, for example, could claim protection. Unless the harm feared also satisfied those refugee convention criteria, Australian decision-makers would have no power to be able to make a determination based on a torture claim. A person in those circumstances, we know, could go on to appeal to the minister under section 417 of the Migration Act to permit them to remain here. But the minister is not required to consider any such claim.

There are a number of reasons why the current mechanism under section 417 of the Migration Act is simply not an adequate basis for complementary protection. Firstly, we know that the discretion is nonreviewable, which means that the decision cannot be the subject of appeal. Secondly, we know that the discretion is noncompellable, which means that the minister is not even required to consider the claim. Thirdly, even though the minister of the day has available certain guidelines under which they might consider any claim based on international law requirements, they are not required to be considered under the section 417 mechanism. And, finally, the reasons for the decision of the minister of the day are not necessarily required to be revealed or made clear. So, on any basis, we would have to say that this is a very wide discretion that is available to any minister under section 417.

This legislation has been considered for some time and considered in circumstances which apply to a minister of any hue. I note that the last speaker was keen to make the connection between the current Minister for Immigration and Citizenship and certain backbenchers' apparent concerns about his role in making determinations under section 417. I can certainly say that I have tremendous faith in the current minister for immigration and I know that this was one of the first pieces of legislation that he hoped to pursue in this place upon taking up his role. And what a responsible move that has been.

In addition to the matters which go to consistency, predictability, fairness and accessibility of justice, there is also a range of practical and administrative matters which mean that the complementary protection arrangements currently in place are really inefficient and inconsistent. A person seeking the exercise of ministerial discretion will frequently only pursue the exercise of that discretion after going through quite a futile process of applying for protection as a refugee aware that their claim will almost certainly be rejected. They proceed through the appeal process and then proceed to seek ministerial intervention. So it is very hard to see why the opposition regards this as a tremendously efficient process and something that is to be lauded.

This bill seeks to remove that artificial process and enable applicants to pursue a predictable, consistent process which is able to respond directly to the claim which they present. This has obvious consequences for improving the efficiency with which claims are dealt, limiting the hardship suffered by applicants during the claim process and freeing up decision-makers otherwise forced to consider claims which are almost certain to fail. These are all what would seem to be tremendously logical considerations. They are procedural considerations; they are things which reflect regimes that apply to other applicants for asylum. It is extraordinary that they are being opposed by the opposition today. Once again, it is merely an opportunity to grandstand on the 'stop the boats' slogan which we have heard so many times so tediously.

The introduction of a consistent process for handling these types of claims means that Australia will be less at risk of inadvertently breaching its non-refoulement obligations under international law. As a nation, we have a history of involvement with the development of international human rights law, particularly in the area of human rights. As a legislator in this place, I consider it to be of particular importance that we continue to be regarded as a country which complies with the international human rights obligations that we have signed up to. In that regard I note that most Western democracies have a formal system of complementary protection in place. This is hardly controversial territory. The European Union, Canada and the United States have already established complementary protection arrangements and we know that New Zealand has recently introduced complementary protection legislation. Once again, in a matter which is entirely rational and which is being reflected in legislatures right round the world in developed countries, we see that the opposition lags behind and that it simply sees these matters, which are of significant national and international importance and which go to our level of compassion as a community, as an opportunity to grandstand and secure political points.

We know that there are many truly horrific examples of cases which would be covered by complementary protection arrangements. These include circumstances of people who are at risk of being stoned on the basis of their homosexuality. The refugee convention does not contemplate sexual preference as a category of persecution nor does it deal directly with circumstances of women who are fleeing ritual genital mutilation or women who are at risk of so-called 'honour killings'. I am absolutely confident that all of these forms of persecution would very readily be regarded by most sensible Australians as utterly abhorrent and I am confident that the overwhelming majority of Australians would expect that our system of migration law would directly enable claims for protection on the basis of such abhorrent persecution to be heard in a consistent and predictable way. Unlike the observations made by members of the opposition, I know and members of this side know, and all of the organisations that I mentioned earlier which had recommended legislated complementary protection regimes know, that the introduction of such a regime does not represent a softening of Australia's approach to asylum seekers. The change is simply designed to bring the consideration of certain claims—

Opposition Members:

Opposition members interjecting—

Laura Smyth (La Trobe, Australian Labor Party) Share this | Link to this | Hansard source

I note that the members opposite who are interjecting are not on the speakers list at the moment and I would certainly invite them to make a contribution.

Opposition members interjecting—

Marvellous. We will certainly hear from one of the members opposite, but I presume that the member for Mackellar can put herself on the list if she wishes to make some remarks. The introduction of complementary protection does not represent a softening of Australia's approach. The change is simply designed to bring the consideration of certain claims within the existing protection visa process. There is no floodgates risk. We know that six protection visas were granted on the basis of complementary protection grounds in 2009-10. There is no floodgates risk.

This bill will enable us to properly fulfil our obligations under international law by determining consistently and in accordance with due process that individuals who are at risk of serious harm are not returned to danger. Importantly, the change envisages that beneficiaries of complementary protection will be granted the same rights as those who make their claims currently under the refugee convention. This bill will enable them to live in safety and dignity within the Australian community, and it does no more than ensure consistency with our international obligations and our current domestic arrangements. It reflects what I expect most Australians would regard as an appropriate response to circumstances where certain categories of people would be exposed to abhorrent harm were they returned to their countries of origin.

Don Randall (Canning, Liberal Party, Shadow Parliamentary Secretary for Local Government) Share this | Link to this | Hansard source

I am very pleased to speak on the Migration Amendment (Complementary Protection) Bill 2011. As we know, the purpose of this bill is to amend the Migration Act to introduce a statutory regime for assessing claims that may engage Australia's nonrefoulement—in other words, return obligations under various international human rights treaties, otherwise known as complementary protection. The bill proposes to assess such claims under a single protection visa application process, which means applicants who are found not to be refugees but who are owed protection on complementary protection grounds will be entitled to be granted protection visas with the same conditions and entitlements as refugees. In turn, the unsuccessful applicants will have administrative review rights equivalent to a person seeking protection under the 1951 Convention relating to the Status of Refugees. That is the purpose of the bill. We all know that, and I am not going to regurgitate what previous speakers have said.

In fact, there have been some very good speeches made on this today. I compliment the member for Cook—Mr Morrison, the shadow minister—and the member for Fadden, Mr Robert. I sat in this chamber and listened to their contributions, and I listened to the member for Mitchell, Mr Hawke, in my room. They gave very good examples of why this legislation is bad, and I will address some of that in a moment. On the other hand, the member for La Trobe, Ms Smyth, obviously had her staff write some notes, which she regurgitated—so out of touch with reality that anyone in Australia listening to this broadcast would realise that it was just the ideological mantra of her party, which is seeking to ram its policy down the throats of Australians, who do not want it.

At the end of the day, why are we in this position? The reason is that when this government came to power in the fantastic Kevin '07 election there were only four people in detention. What have we got today? In detention throughout Australia, and now it is going to be elsewhere in the world, there are over 7,000 people. How did this happen? It happened because the Labor Party coming into government put on the green light and said, 'If you can get to Australia we'll give you a visa. All you have to do is get here and we'll give you a visa.' On that point, you only have to go to the statistics, which have shown that, out of the thousands who have come already and been assessed, only a handful, in the tens, have been sent back to their countries of origin not deemed to be worthy of getting a visa in Australia. That reinforces what I am saying: get to Australia, get a visa. That is further reinforced by recent details. For example, Afghans applying offshore have a success rate of one in ten of getting a visa. Yet, of Afghans who make it to Australia or Australian territories, nine out of ten get a visa. I confirm my case: if you can get here, you get a visa.

This legislation is quite abhorrent for most Australians because it says that once you get here, and if you are actually deemed not to be a refugee and you want to stay here, you are going to have access to all the Australian courts available. Why has this not been a problem until now? It has not been a problem until now because, as I said, when we handed this place over, when the Labor Party took government in 2007, there were only four people in detention, so the courts did not need to act. Before then, before John Howard took his action to stop the boats, we had thousands of cases in the Federal Court. Of course you had activist judges, like Justice North, who basically reinterpreted the rules so that any sort of story was plausible enough to grant people their appeal. We dried up the system, and that is how we dried up the courts. Now the minister, who has an unappealable right to hear these cases himself, is saying, 'I'm going to put in a statutory mechanism which basically allows anyone who has been rejected to now use all the facilities of the Australian courts to give them a whole heap of appeal rights.'

A humble servant of the people like me would tell you that in my electorate this is abhorrent to people. Fathers trying to contest child issues in the Family Court and a whole lot of other people who are trying to get legal aid cannot get it. But it is immediately accessible under all our treaty obligations to those illegal arrivals that the Labor Party have now got a nice Orwellian term for—'irregular arrivals'. How good is that? In other words, illegal people turning up are now called 'irregular arrivals'. So at the end of the day the green light has been turned on, saying that if you can get to Australia you can get to stay here. And not only that—if we find that you are not genuine we are now going to open up the courts to you and you can go through all the appeal mechanisms in the courts. What was happening before, as we know, was that, if they got a negative decision in one court, they continued with this great industry of the legal fraternity to find another way through the courts to stay here. People were staying 10 years, having a family in that time. Then came the complication of what to do with the children who were born in Australia. We could not throw out the children because they were born on Australian soil. Under John Howard—and we had to use the whole scheme—for the purposes of migration we made our territories out of bounds. But the courts then said, 'No, we'll still hear the cases.' That is why they went to Nauru and Manus Island. So when you hear the Prime Minister and the immigration minister say, 'We're going to do a soft version of temporary protection visas and we're going to look at Manus Island because that seemed to work for the Howard government and might take a bit of heat off us in our electorates,' it is not the full monty because if you do not do the whole lot it does not work. If you do not put all the parts in the machine it does not work. You have to have protection visas as they were done under the Howard government, so that we could check they are bona fides in that period—three-year protection visas—and then they would go home if they were not deemed genuine.

People who got to Christmas Island and were sent to Nauru or Manus Island were outside Australia's court jurisdiction. That dried it up totally. But no, they are going to tinker around and now we are looking for a place, anywhere in Australia. As we know, they were not going to bring them onshore—another broken promise. They were not going to bring them to Australia. In my state, Western Australia, we have Curtin and Leonora—besides the Perth airport—and we are going to try to open up Northam. In South Australia we have Inverbrackie and in Queensland Scherger, and we are looking at Tasmania. Where will it end? We are running out of suitable Commonwealth land. In Darwin the minister said—he was very tricky—'We're going to build a detention centre because we're full on Christmas Island. They've been burning the joint down. It's only going to cost us $9 million.' What an absolutely fraudulent statement that was because he did not tell us it was going to cost them $25 million for releasing and renting the land—that is, far more.

This government are in such a malaise over migration. They do not seem to be able to say, 'We'll take the measures that will stop this.' We now have the Gillard-Brown coalition so they cannot do anything with the left of their party. Privately their members tell me, 'We're just so euchred over this. Our electorates are barking at us in an incredible way and, seriously, we just don't know where to turn. We hear bleats from the government caucus that it's an issue. Dougie Cameron is getting up and having a go'—all these sorts of things. They have a real problem and they cannot do anything about it.

The minister is now saying 'No worries' in the heat of this violently obscene debate. In Australia at the moment people hate seeing what is happening. On Anzac Day, when going around to all the ceremonies, people I do not know personally were coming up to me in droves saying, 'What are you going to do about this? When can we do something about what this government's doing to this country? They're traducing our reputation.'

Australia had a reputation of having a non-discriminatory migration system, one of the best in the world. When Australians went overseas, people would say, 'You Australians have got it right. You know who's coming, you know who's going and you know exactly where people are coming from and going to.' We are actually losing that reputation.

I want to turn to Malaysia quickly because it is an issue I am very concerned about. I have raised it in this House before. We are shopping around now with Malaysia and Manus Island. It would be funny if we end up trying to build one in Vietnam because they are still coming here by boat. I wonder whether we will end up in the Philippines. Even Brunei might do us a favour and let us build a so-called regional centre if we pay them off a bit. Malaysia seems very keen to do a deal. There seems to be a fair bit of money coming with it. Manus Island said they had never had so much money on the island before so they are going to do a deal.

This 800 for 4,000, the five to one ratio, is just laughable. People are laughing about it. They are even willing to talk about it publicly. They are coming up to us and saying, 'Can you believe we've got sucked into a regime and they're going to take 800 of ours'—I understand they are going to be hand picked—'and we're going to get 4,000 of theirs; what sort of trading is that?' Thank goodness they are not my banker or my financial adviser because that is one of the biggest dud deals I have ever seen.

That 800 are about three months worth of boats. When the 800 finish, it will all start again and we will have to find another country. So here we come Manilla. We will throw them in Manilla and they will again shop all around Australia. Should they get to Malaysia—there are stories about how Malaysia treats these people and that security is not so good—what if they get on a boat and come again to Australia? They will get in again through the back door. Malaysia is not taking them for good. Malaysia is not going to give them a visa. They are only taking them there to be processed. Then Malaysia might say, 'They're genuine refugees. Australia you'd better take most of the 800.' It is just an unbelievable and farcical deal.

I have raised this in this place before. Genuine people who are waiting in these places are seriously concerned that they are not going to get a fair go. I have raised the name of Mr Abdolhossein Harati, one of my constituents whose daughter is held up in Malaysia. I have already told the story of how he had to flee Iran because he was an enemy of the state. He and the government were at odds. He came through Malaysia and is now an Australian citizen. His daughter went to Malaysia with her husband but they became estranged. He took the daughter back to Iran. She cannot go back there to get the daughter so she is stranded in Malaysia. I have approached the minister personally. I have approached the department numerous times. Mr Harati is threatening a hunger strike in front of my office to try to get his daughter but she is stranded in Malaysia. Why can't we have her here? We have approached the minister. We have tried for this girl, Samira Harati, through the department so many times. She will be left out. If her father had $20,000, I suspect he would try to put her on a boat because she would probably get a visa given the way it is going.

We have all these anomalies. In Western Australia, we are short of unskilled workers. One-third of Perth's buildings cannot be cleaned due to the lack of unskilled workers. I have asked the minister to zone it as a regional zone for migration, like Adelaide, so that we can get skilled and unskilled workers in. But, no. We have people timing out on 457 visas who are going to go home because the bar has been lifted. The ASCO codes have been changed since they got their 457 visa. People want to continue to employ them, but they are timing out and they cannot apply again because in certain cases the ASCO codes no longer apply to them. This is one of the messiest things this government have done. The minister has brought a regime into this place which will see Australian courts choked with vexatious litigants who have been rejected and who will appeal their rejection. Pensioners and people on low incomes in my electorate who want to access the courts will not be able to because people in front of them will get access before them. It is a disgrace. (Time expired)

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

What a pleasure it is to rise after that 10 minutes of diatribe that contained nothing about the Migration Amendment (Complementary Protection) Bill but just typical dog-whistling from the opposition because they have nothing intelligent to say and nothing to actually put on the table—

Joanna Gash (Gilmore, Liberal Party) Share this | Link to this | Hansard source

What is your electorate saying?

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I will tell you what my electorate are saying. They are saying that we should be compassionate and we should be humane, something that you should listen to instead of worrying about whether the grass is being dug up as we try to make your electorate a better place and bring it into the 21st century.

I support the government's longstanding commitment to better protect those people who are unfortunately at risk from the most serious abuse of human rights. We are a generous nation, a country which has been built on fairness and mateship, a country which proudly defines itself by its liberty and its democracy. So we have an obligation to enhance, support and uphold the protection of human rights.

We must always be cognisant of the fact that there are many people across the world who do not have our opportunities, our privileges or the quality of life that we in Australia are fortunate enough to enjoy. With this in mind we must continue to do what we can to ensure that we have the right systems in place to process requests of people seeking asylum in our country, particularly if those seeking our protection are fleeing persecution, a violation of their basic human rights or even death in their home country.

This bill provides a criterion for the granting of a protection visa in circumstances where a non-citizen has been found not to be owed protection obligations under the refugees convention but where, as a consequence of that non-citizen being removed from Australia to a receiving country, there is a real risk that this person will suffer 'significant harm', as defined in the bill.

This bill will incorporate our non-refoulement obligations under international law into the current process for the assessment of asylum under the refugees convention which will allow claims to be considered under a single integrated protection visa application process. Non-refoulement obligations cover people who, if returned to their home country, would face a violation of their fundamental human rights such as being arbitrarily deprived of their life, being subjected to torture, being subjected to cruel, inhuman or degrading treatment, or having the death penalty carried out them.

We are a developed nation in our way of thinking. We are a nation which has a strong history in the protections of freedoms, a strong history in fighting for human rights, and we should never waiver from this proud history. The passage of this legislation will ensure that the structural procedure to assess the status of non-citizens is quicker, more efficient and transparent under existing international nonrefoulement. Importantly, this bill addresses the protection of asylum seekers from being returned to a country where their lives or freedoms could be threatened.

Complementary protection already exists in Australia. However, at the moment, it relies on the use of ministerial intervention powers and is considered only after primary and review refugee status determination has been completed. Currently, applicants have to go through a ludicrous charade, applying for a protection visa as a refugee already knowing that they are going to be rejected. Then they have to appeal that decision, again knowing they are going to be rejected, before eventually seeking the minister's personal intervention. Think about how much time and energy is being used to run this charade process for people already under personal distress. Also consider how much diversion and time is being used by officials to play this silly game. It is not only an inefficient use of taxpayers' funds and time; it relies on having a minister who is as compassionate and hardworking as the current minister. That is all well and good now, but in the future we may actually have a Liberal government, and we know their track record on hard work and compassion. They are absolute failures in that regard.

This bill seeks to remove this legal fiction and streamline the existing process. In essence, this amendment to the Migration Act 1958 will bring the consideration of the claims of asylum seekers into the existing protection visa process and eliminate the complexities and the untimely process that currently exists. Despite the carping from those opposite on the refugee situation, the bill does not seek to increase our refugee intake. Rather, it will ensure that people seeking the granting of protection will be processed efficiently and it could shorten the amount of time they are in detention and under personal distress. The bill will ensure that our non-refoulement obligations are integrated into a new complementary protection framework as contained in international human rights conventions including the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. Subsequently, these non-refoulement obligations will cover people who, if they were to be returned to their home country, would face breaches of their fundamental human rights. I want to keep pushing that point because it does not seem to be getting through to the other side. They do not seem to understand that we are actually talking about decency and humanity, two words which I am sure are not in the Liberal playbook. As the minister said, complementary protection would provide greater certainty and faster outcomes for vulnerable people at risk of violation. He said:

A woman fleeing a so-called 'honour killing' may not be covered by the Refugee Convention, whereas she will be covered through the inclusion of complementary protection in Australian law.

Women facing this kind of harm will have their claims considered more quickly under the integrated protection visa process.

This will bring Australia into line with many like-minded countries—including New Zealand and European and North American countries—which have already incorporated complementary protection into their own processes.

I concur with the words of Minister Bowen and the ideals to protect the most vulnerable in our global community.

On 21 March we celebrated Harmony Day, an annual celebration of our cultural diversity which coincides with the United Nations International Day for the Elimination of Racial Discrimination. The message for Harmony Day this year was 'Everyone Belongs'. Every Australian belongs to this nation, regardless of who they are or where they are from. Our history and our stories are what make Australians Australian. I truly hope that we can all embrace this year's theme. As community leaders we should be promoting and enhancing this message.

I would also like to take the opportunity to congratulate our government on our new national multicultural policy 'The People of Australia', which will build on our strong support for multiculturalism here in Australia. Multiculturalism has greatly enhanced and strengthened our economy and continues to further our national identity. It can be seen when you walk down the streets of our cities, suburbs, towns and regions. Effectively, it is what has helped establish and build our nation, the places that we know and love.

Despite the great work of the Gillard government in strengthening multiculturalism, surprisingly there are some people who continue to oppose, wreck and tarnish it. Some of those people hold their own interests above those of the people that they claim to represent. No surprises as to who they are! Remember that we had the shadow immigration spokesman tell the shadow cabinet that they should capitalise on concerns regarding 'Muslim immigration' and the 'inability' of Muslim migrants to integrate. It was reported very widely that shadow cabinet members were asked to bring three ideas to the table for the Liberal Party to focus on this year, and scaremongering, discrimination and promoting religious intolerance was all that they could come up with. If these are the best ideas that are being concocted and brewed in the dark, hazy party room of the Liberal Party and if this is the best that they have to offer the people of this country as the so-called alternative government, then we are in trouble. With this strategy, they are the only group out there making it difficult for any persons of various religious or cultural beliefs to integrate into our society, to be part of the Australian society. It is the Liberal Party who thrive on the creation of a societal divide for their own cheap and lazy political gain.

Unfortunately, we know that this has been a long-term strategy of the conservatives. They are always thinking of themselves rather than the Australian community and forgetting that it is our duty when we leave to have made this nation a better place than it was when we found it. As elected representatives, we have to strive to eliminate discrimination on all grounds—sex, race and religion—not encourage or feed it. I hope the Victorian Premier is listening, as he has been trying to wind back antidiscrimination laws. We must always be looking to the future, and building a world we want to live in, a world we want our children to grow and live freely in. We must continue to foster and nurture acceptance and tolerance, because if we don't do it, who will? If we as leaders do not lead, how do we expect others to follow?

This bill will go towards eliminating unnecessary processes for people at risk of torture, inhuman treatment or likely death so they receive a protection visa in accordance with Australia's existing international obligations. The Minister has stated that the Migration Amendment (Complementary Protection) Bill 2011 allows claims raising Australia's non-refoulement obligations under international human rights treaties to be considered through the same visa process as claims that raise obligations under the refugee convention. This is about helping vulnerable people, people at risk of the most serious forms of harm if returned to their country. Our international treaty obligations mean we cannot and do not send these people home. But, under existing processes, currently they are only able to get a visa through the personal intervention of the minister. This bill addresses that concern. With those few words I would like to wish this bill a speedy passage.

Yvette D'Ath (Petrie, Australian Labor Party) Share this | Link to this | Hansard source

Order! Before I call the next speaker, I acknowledge the visitors from Regents Park Christian School and Toongabbie Christian School in our galleries today.

Judi Moylan (Pearce, Liberal Party) Share this | Link to this | Hansard source

In addition to the refugee convention, Australia is a signatory to a number of international conventions that prohibit refoulement of people seeking protection. These agreements include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. Non-refoulement obligations arise where an individual currently on Australian shores is determined not to be a refugee under that convention but nonetheless would face a real risk of torture or cruel, inhuman or degrading treatment if returned home or would be exposed to the death penalty or other arbitrary deprivation of life. The obligation of nonrefoulement is described as complementary protection. Currently, requests for asylum based on nonrefoulement, other than under the refugee convention, can only be granted by the immigration minister. Ministerial discretion can only be invoked after an application has been refused by both a primary assessor and on a merits review. This bill seeks to establish a statutory regime where, instead of ministerial intervention, officers of the immigration department can determine claims based on both refugee and non-refoulement grounds. These grounds would be enunciated in law, and they would be judicially reviewable.

Strong parallels can be drawn between this bill and legislation enacted by the government in 1981, which introduced section 6A(1)(e) to the Migration Act. That paragraph allowed for the grant of an onshore visa to those who did not meet refugee criteria but still had 'strong compassionate or humanitarian grounds' for asylum. In giving evidence to the Senate Select Committee on Ministerial Discretion in Migration Matters in 2003, Ms Philippa Godwin from the immigration department commented that the provision:

… was an attempt to codify the concept of discretionary compassionate circumstances [but] it essentially just blew out and blew out until it became largely meaningless.

The expanded application of 'strong compassionate or humanitarian grounds' was due largely to judicial interpretation, and the resulting administrative difficulties were profound. Whilst it was estimated that less than 100 people a year would benefit from the provision, indeed 226 people were approved in the following year, 1981-82, rising to 3,260 approvals in 1987. By December of 1989, when the provision was then repealed, over 8,000 applications were outstanding. In further evidence to the committee, Ms Godwin stated:

… all of the information around [the section's] creation indicated that it was meant to be used in exceptional circumstances. The difficulty was that it was hard to prescribe objectively what those circumstances are.

The same difficulty is faced in codifying complementary protection. While the grounds for protection are set out in the relevant conventions, their practical application needs to balance the flexibility to provide protection when necessary with the need to ensure protection grounds do not blow-out beyond their original intention. Such a balance is difficult to achieve, as highlighted by the Refugee Council of Australia in a briefing note they provided on this matter. To quote from that note:

The threshold for standard of proof in relation to meeting the requirements for complementary protection has been set so high that it is inconsistent with international standards. If unamended, this legislation could result in the denial of protection to people who require it, putting Australia in breach of its human rights treaty obligations.

Associate Professor Jane McAdam, on page 4 of her submission to the Senate Legal and Constitutional Affairs Legislation Committee enquiry into this bill, submitted:

Since the purpose of the bill is to implement Australia's international human rights obligations … it seems only sensible and appropriate that Australian legislation reflect the language and interpretation of these obligations as closely as possible.

Minister Bowen has referred to honour killings and female genital mutilation as instances where this bill would apparently provide protection. The examples would fall under arbitrary deprivation of life and cruel or inhuman treatment respectively under the bill. Those sections, however, are qualified by proposed section 36 (2)(c), which provides that the risk of such events must not be one 'faced by the population generally' but one 'faced by the non-citizen personally'. Both Amnesty International and the Refugee Council queried the application of the proposed section 36. Amnesty noted on page 7 of their submission:

The requirement that the risk faced must not be 'faced by the population generally' may result in an applicant fleeing domestic violence to be excluded from protection on the grounds that the applicant originates from a country where domestic violence is widespread—

And, I would go on to say, even an accepted practice, as we know it is in some countries. The submission continued:

Additionally, the stipulation that the risk must be 'faced by the non-citizen personally' has the potential to exclude, for example, applicants who have not been directly threatened with female genital mutilation but due to their age and gender face a probable risk that they will be subjected to the practice upon return.

Whilst Amnesty International, the Refugee Council and the Senate committee itself all recommended that the provision be clarified, none were able to suggest an appropriate definition that struck a balance between protecting intended beneficiaries and, at the same time, ensuring the scope was not open to widespread, unintended, claims. Being unable to appropriately define the circumstances that give rise to protection is a critical deficiency in this bill. If the provisions are interpreted narrowly, excluding the very people they are intended to protect, then applicants still have to apply for ministerial intervention. On the other hand, if the provisions are too wide, then, as happened under the system operating in 1981, the process can become administratively unworkable, overwhelmed by cases never intended to give rise to protection. People could spend even greater amounts of time in detention as the immigration department works through the expanded volume of claims.

Further, it is unclear to me why the very people this bill seeks to assist are currently not successful under the refugee convention. There are five threshold categories under the refugee convention, one of which is persecution based on being a member of a particular 'social group'. Many examples that would fall under complementary protection have been accepted or favourably viewed by the High Court as falling under the social-group protection. Current Australian law, informed by the reasoning of High Court decisions, should already operate to protect many of the people that are claimed to be solely reliant on ministerial intervention.

So, rather than enacting legislation that could possibly exclude the very people it seeks to assist, a prudent approach would be to revise the policy guides available to departmental decision-makers when assessing claims in the first instance. To avoid doubt, that guidance could, for instance, specifically state that women fleeing genital mutilation are considered to be part of a 'social group' for the purposes of the refugee convention, ensuring that people who legitimately deserve protection are not rejected on technical grounds. This requires no amendment to existing legislation, is consistent with High Court interpretations of the refugee convention provisions and relieves the burden on the minister, without changing the existing processing system. I find it quite paradoxical that the parliament is considering this bill today, in light of the government's recently announced 'Malaysian solution'. The intention of codifying complementary protection grounds, as described on page 1 of the explanatory memorandum to this bill, is to:

… better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

And what is the government doing in relation to the Malaysian solution? It is directly placing people into a situation where they are at risk of the most serious forms of human rights abuses. How can the government make such a pious claim in light of its new policy? The Malaysian solution will transfer people seeking assistance to a country not signatory to the refugee convention, with the added stipulation that they shall never be allowed to settle in Australia.

I commend Amnesty International for its recent report on the dire conditions facing refugees in Malaysia, and I commend the reading of that report to every Australian. I acknowledge the great difficulty the staff of Amnesty International have had in undertaking the task of documenting the plight of refugees in Malaysia. Amnesty International points out that, as Malaysia is not a signatory to the refugee convention, it does not distinguish between refugees and illegal migrant workers. In 2002 the Malaysian government passed a law endorsing caning as a form of punishment for immigration violations; a punishment that the UN warns could be considered as cruel, inhuman or degrading treatment. While we can understand the difficulties faced by Malaysia, with over 90,000 refugees within their borders to care for, we cannot condone the terrible conditions refugees are subjected to in that country. Once again, I refer this parliament and the public in general to Amnesty's report, which makes sobering reading indeed.

The government has placated its policy with a promise to accept 4,000 refugees from Burma, and in doing so claims to be laying the foundation for a regional solution to this problem. I put it to you that this is a deal that the government conceived in secret, that is politically expedient and that plays to the political cycle. But it is hardly a foundation for a durable solution in a region that continues to face a flow of refugees and the challenge of how to deal with people smuggling. The government should be working constructively to share in the management of the flow of refugees in the region and should reject policies that simply deflect our responsibilities onto other countries, which often bear a disproportionate share and in some cases are less well equipped to care for refugees. I think that it is a diplomatic disaster as well as a humanitarian disaster to shovel our responsibilities onto countries that are much less better equipped than our country to deal with this flow of refugees that we are currently witnessing.

In conclusion, as a co-convenor of the Amnesty International Parliamentary Group I commend the work of Amnesty International, which has consistently campaigned for a humane and durable solution consistent with Australia's international obligations.

Stephen Jones (Throsby, Australian Labor Party) Share this | Link to this | Hansard source

Australia is a nation built on immigration. Indeed, this phrase has been repeated so many times that it is almost a part of our commonsense. Paradoxically, we are also a nation that has, with each generation, wrestled with the idea and the consequences of immigration: what it does to our identity, what it does to our community and what it does for our economy. As we have engaged with this debate, we have usually come to the conclusion, the right conclusion in my view, that migration has not only made us a more prosperous and interesting place but has helped to draw this small and new nation situated at the bottom of the globe closer to other countries in our world. It also breeds a love of country in those who have made Australia their home, as a letter published recently in the Illawarra Mercury shows. The letter said:

I want to thank Australia and all Australians for giving me and other immigrants the chance to live here permanently as a citizen. It is a beautiful country with very good people and I think I am spending the best days of my life in Australia. I also think that, if someone lives here once, they cannot live somewhere else. It is like heaven to me. So, again I say thanks and wish Australia the best of luck in the 2011 Cricket World Cup.

The Migration Amendment (Complementary Protection) Bill 2011 reflects our values, which were demonstrated in that letter. It demonstrates to the world that we are a humane country willing and capable of providing refuge to those who have or may suffer extreme persecution or torture in their country. We will do this in accordance with Australian and international law. We will do this in an orderly and transparent way. This bill introduces complementary protection arrangements into all claims that may engage Australia's non-refoulment obligation under certain human rights instruments. Complementary protection describes a category of protection for asylum seekers who are not refugees under the 1951 refugee convention criteria but who deserve our protection because returning them home would mean they would face a violation of their fundamental human rights, a violation which may include being arbitrarily deprived of their life, being subject to torture, being subject to cruel, inhumane or degrading treatment, or having the death penalty carried out on him or her.

In international refugee law this is known as a non-refoulment obligation. Australia's non-refoulment obligations arise under various international human rights instruments, such as the International Covenant on Civil and Political Rights; the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment; and the Convention on the Rights of the Child. This means that, as a signatory to these conventions and these treaties, the obligation to abide by them has existed in international law but has not, as yet, been integrated into Australian domestic law. The introduction of complementary protection arrangements into Australia's immigration laws has, as previous speakers have indicated, been advanced on a number of occasions and has most recently been discussed in a Senate inquiry into the matter.

Introducing complementary protection arrangements into applications for a protection visa will mean that there will be a clearer, more efficient and transparent mechanism to deal with these claims. That is because at present this is dealt with by ministerial discretion and the consideration of complementary protection occurs only after all primary and review refugee status determinations have been completed.

As you would expect, the existing legal process takes time, during which these people are detained in Australia's immigration detention system. It is not fair to individuals, should their claims subsequently be found to be valid, and it is not an efficient or a humane way to deal with people facing these situations.

Under the system proposed in this legislation, a complementary protection system would be integrated as part of the protection visa application process. This will mean that people will be held in detention for shorter periods of time due to a more streamlined process. With regard to complementary protection it is important to note that not everyone who arrives in Australia seeking asylum will satisfy the definition of 'refugee' as set out in the 1951 Refugee Convention, yet these people, who are often stateless, may still be in need of our protection.

Under this amending legislation, for a person to fall within this non-refoulment obligation they must be at real risk of significant harm. The danger of harm in this regard must also be personal and present. This harm must also be a necessary and foreseeable consequence of their removal from Australia. These criteria are strict and mean that substantial grounds have to be established to receive complementary protection under this arrangement. Examples of some categories that may come within this consideration for complementary protection include homosexuality and women at risk, particularly single women.

We know that there are still too many countries in this world where people do not all share the high level of human rights and equal opportunity that we in Australia take for granted. The serious levels and types of discrimination against women in a number of countries around the world are well known by members in this place. For example, we know that in the United Arab Emirates it is sanctioned by the state that a husband can beat his wife, provided no bones are broken. In Pakistan, two women a day die as a result of honour killings. Some three million women every year are exposed to the risks and the terror of genital mutilation.

What we as Australian parliamentarians know is that the danger of harm in situations like this is purely personal and therefore falls outside the definition of refugee under the 1951 convention and because we—at least on this side of the House—believe that people in this type of situation deserve to have their applications for complementary protection dealt with in a timely and efficient manner, as we propose in this legislation.

The introduction of an administrative process to deal with complementary protection will remove this consideration from the Minister for Immigration's discretionary powers and will thereby increase accountability and transparency, which is a good thing.

I am sure that there will be those opposite—and we have heard a few speak in this debate—who may seek to portray the introduction of complementary protection as a softening or a confusion of the government's policy and who will seek to cause concern and confusion in their communities regarding Australia's immigration policy. Regrettably, many of those who choose to trade in fear and division when it comes to Australia's treatment of refugees and asylum seekers do nothing to add to this debate. The base politics of fear, practised by the opposition, is in fact a barrier to reaching sensible policy solutions to the issue of asylum seekers that were so passionately and recently advocated by the member for Pearce in her contribution to this debate. It is somewhat difficult to be heard above the shouting by those opposite on this issue, but that does not mean that we will give up trying to reach sensible policy outcomes. Despite this, I think there is a broad consensus that it would be good to stop refugees paying people smugglers to get on a boat for the highly risky trip to Australia. Labor's approach is to work within our region to develop regional solutions to this problem. Our recent agreement with Malaysia is an example of this.

This agreement, which will be concluded under the regional cooperation framework agreed to at the Bali process ministerial conference in March, is aimed at breaking down the business of people smuggling in a sustainable way. We know that the best way to deter people from getting on a boat to Australia is to clearly demonstrate that it simply does not work. We hope that, with no guarantee they will end up in Australia, people will be less likely to risk the perilous journey by boat. However, in taking this course of action, we also need to be mindful of our international obligations by, in return, accepting a significant number of refugees from Malaysia over the next four years. We cannot adopt an isolationist posture on these matters—that is not the way to get regional cooperation. It has already been pointed out in the course of this debate by the member for Pearce that Malaysia has in excess of 90,000 refugees within its borders. That somewhat puts our domestic debate into perspective, when we consider that at present we are offering humanitarian visas to somewhere in the order of 12,000 to 13,000 refugees—a small fraction of the 90,000 who are living in refugee camps in Malaysia at present. There are equivalent numbers in Indonesia and elsewhere around the region.

Our traditions and history of doing our part as a good international citizen, including in the global response to the mass movement of those seeking asylum, are reflected in the legislation before the House and our approach to a regional solution to people smuggling, mass migration and dealing with refugees. I commend the bill to the House.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Complementary Protection) Bill 2011. It adds nothing to our current immigration laws. The Minister for Immigration and Citizenship rightly has the power to make these decisions and, as the opposition understands it, there has not been an example where the minister has not been able to use his power to make these decisions. So, this bill gives no additional power to those who seek to flee the circumstances outlined by the member for Throsby. I am sure we would all agree that people do deserve a compassionate response. When in government this side of the House had the same approach.

The bill really sums up the Labor Party's failure in this area. It was interesting that the member for Throsby sought to do what so many of those on that side do and go down the path of abuse of those on this side; trying to act in a sanctimonious fashion about their failure in this area. In my electorate we are seeing the consequences of the failure of the Labor Party to manage the border protection issue properly. They try to be soft but hard—they pretend to be tough with a proposal like the Malaysian proposal, but members on this side have had to put up with Labor Party members telling us for so long that we could not go back to Nauru because they were not a signatory to the UN Convention, but of course Malaysia is not a signatory to the UN Convention. Somehow that is different. Somehow that is better. Somehow that does not matter. Somehow that is a perfectly reasonable solution. They are panicked, because they are going into their electorates and being told by their constituents that this failure has got to stop. The policy approach by this government is causing massive consequences in communities across our country. It is undermining the value that we put on these issues. Labor Party members are seeking to engage in the politics of personal abuse and to question the motives of those of us on this side.

I can tell you, Mr Deputy Speaker, that my electorate is suffering under the consequences of this failure, with the Inverbrackie detention facility causing untold pain and anguish in our community. The front page of the Sunday Mail in Adelaide last weekend highlighted example after example of community concern about the Inverbrackie detention centre—just one of the facilities that have been opened up, building the detention centre revolution across our country. Any unused army barracks around the place will be used by this government because they have failed to manage this border protection issue properly.

This is another example of this failure. They try to pretend on one side that they are tough, with the so-called Malaysian solution, but on the other side they claim that they are being humanitarian and soft and are creating some new provision—a provision which of course already exists. There is a sop to the left and then a sop to the right, as occurred last weekend. The problem is the inconsistency of policy, like when the government changed this law back in August 2008. That has led to over 200 boats and 11,000 people arriving since then. That is creating a risk for the people who get on these boats, all because the people smugglers are back in business. This bill creates another product for people smugglers to sell, and that is why we will oppose it. There is no evidence of a need to change. No evidence has been presented by the minister or by those on the other side that there is any need to change the law. The minister has the power to do what this bill seeks to codify.

What we are debating today is a further example of how the government has so badly mismanaged this issue. They do not know whether they are Arthur or Martha; they do not know whether they are tough, with Malaysia, or they are soft, with this bill. They were soft in 2008 when they found a solution and created a problem. This bill adds to the failure of the government to deal with the issue properly—11,000 people, and we see the consequences of delays with riots at Villawood and riots at Christmas Island and riots at Curtin. There is a $1.75 billion blowout over and above what was already allocated in the budget, with the additional money having to be found through a $2 billion whack at middle-income families to pay for the blowout. This bill is a further example of the complete failure of the government to deal with this matter properly. The response from those opposite is so predictable. It is the politics of personal destruction. They question the motives of those of us on this side—

Bruce Scott (Maranoa, National Party) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.