Deborah O'Neill (Robertson, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Complementary Protection) Bill 2011. I believe that this bill addresses sensitive issues which we on this side of the parliament view with complete seriousness and responsibility.

In the electorate of Robertson, as in most electorates in Australia, the issue of asylum seekers and unauthorised migration is an issue of considerable discussion at this time. I understand that Australians hold very strong views on some elements of the discussion that is underway; but we have never resiled from the fact that we accept and understand fully our human rights and international obligations and that these must be upheld and complied with. I believe that this bill certainly achieves this objective. In fact, it represents a necessary reform in the migration jurisdiction. This reform will streamline the means by which the Department of Immigration and Citizenship can assess asylum seekers who are not refugees under the refugee convention but whose return would breach Australia's non-refoulement obligations.

This legislation has the potential to significantly improve the outcomes of people who are seeking asylum who come from particularly difficult situations. As stated in the title of this bill, these protection obligations are complementary to our obligations under the refugee convention. This bill gives, once and for all, full recognition to these responsibilities in addition to providing an integrated means through which the Department of Immigration and Citizenship can address applications based on non-refoulement. Currently, the non-refoulement obligations can be assessed only by the minister and cannot be taken into account by the department of immigration or independent merit review process. This means that the assessment of refugee claims based on non-refoulement depends solely on ministerial intervention based on executive authority.

I sincerely believe that a thorough statutory process for assessing claims based on non-refoulement is desperately needed. Indeed the statutory process proposed in this bill would enable refugee claims to be assessed more quickly and in a more comprehensive manner. Further, this bill provides for a more efficient, transparent and accountable system when assessing these complementary protection claims. The integrated approach will involve a single protection visa application process. Asylum seekers who have been refused refugee status may nonetheless be granted a protection visa on the basis of Australia's non-refoulement obligations. If a decision is not made in the favour of an asylum seekers, then this legislation will provide that asylum seeker with access to internal merit review.

This legislation is designed to put in place a clear procedure which ensures that asylum claims are assessed in a manner that provides appropriate procedural fairness to the claimant. Such claims currently can only be determined at the discretion of a minister. Whilst those opposite support the continuation of this system, we believe that it results in undue uncertainty for asylum seekers. Also, by having applications for protection visas based on non-refoulement obligations determined through an integrated system with a merit review, there is far less chance of judicial review being required. Such a process makes it easier to ensure that decisions are made according to law and that the requirements for natural justice are properly provided for. This would decrease uncertainty and may decrease the need for the Federal Court to hear so many migration matters. Such reform can only be described as a positive development. It is fundamental that the parliament also consider the humanitarian need for this legislation.

These humanitarian needs include the grave need to consider the welfare of asylum seekers who have been refused refugee status but for whom their return to their homeland represents a great danger. Non-refoulement obligations are contained in the human rights instruments to which Australia is party, 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, as stated by the Minister for Immigration and Citizenship. Unlike our obligations under the refugee convention, our non-refoulement obligations under these instruments are absolute and cannot be derogated from. I challenge those opposite to claim that it is not in the best interests of our nation that we take into account our international obligations when amending the Migration Act—

(Quorum formed)

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the Migration Amendment (Complementary Protection) Bill 2011. But can I say that these bills keep coming in the same way that the boats keep coming into Australian waters. Until the policy of this country is changed with regard to border security, then the boats will still keep coming and these ineffectual bills will still keep coming before the House.

The bill will not provide additional protection outcomes—certainly not more than what is already provided for. It will not give greater protection. Nor will it allow for improvements in compliance with our treaty obligations. It is also important to note that there have been no breaches of any treaty obligations by our country.

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

Order! Would those members who are still in the chamber and out of their place conducting little conversations please either resume their seats or leave the chamber.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

Thanks, Mr Deputy Speaker, but I would have carried on regardless. What this bill presents is another opportunity for those who wish to come to this country by any means possible, and in fact it will increase the menu from which those who seek to bypass legitimate processes can choose.

We know that the Migration Act prescribes the reasons in the refugee convention for fleeing persecution—those being race, religion, nationality, social group or political opinion. These constitute the usual reasons why a person would be eligible for a protection visa. I note from the minister's second reading speech that the reason for this bill is to acknowledge that there are others that can also be fearful for their safety, but who, because they do not fit into one of those categories, cannot be considered refugees and whose applications must be rejected by the department and then by the Refugee Review Tribunal.

Clearly under treaties such as 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, Australia has an obligation to not send such people back—the non-refoulement obligation. This is what is known as complementary protection.

The government proposes to establish a statutory regime whereby the visa applicant can apply for protection immediately under complementary protection arrangements and not apply as a refugee as defined under the convention. This would mean that the minister would not normally be involved unless the applicant was rejected under these new arrangements and then made an application to the minister for intervention. What leaps out at me is that such a change would result in endless appeals once again afflicting the protection visa and humanitarian entry program.

As previously said, the changes would increase the options for court processes when in fact the reality is that the current system involves a very small number of people. I understand that around 25 people were in this sort of category in the 2008-09 financial year, and six in the period from January to October 2010. In fact, all information from DIAC and the minister’s office suggests that these numbers are expected to be pretty much consistent in the future. Clearly the presence of such a bill in this parliament is a significant step for such a small number of cases. What we do know is that, in 2008-09, 55 visas were granted by the minister under the humanitarian program and less than half involved non-refoulement matters.

Furthermore, between 1 January 2010 and 22 October 2010, of the 438 visas granted by the minister, only six would have been covered under the provisions of this bill. It really does make it difficult to appreciate the need for this bill given the numbers involved. So I would say the demand is low, and the need is even lower, considering the state of our treaty obligations and compliance, which is exemplary.

I wonder why the government let this bill lapse at the end of the last parliament when the Senate Legal and Constitutional Affairs Committee finished dealing with it in late October 2009. This bill is essentially the same as the one left to languish by the Labor government in the previous parliament. This version does insert a new subclause 36(2)(b) that sets out a number of exclusion clauses, such as those guilty of committing serious crimes. It states that a real risk only exists if it is faced by the non-citizen in question, and not if it is a general risk faced by the population of a country.

My concern revolves around adding to the appeal and review process rather than the minister dealing with any such cases and considering the specific issues that are involved. There is no doubt that the system has been clogged with a series of bad policy decisions by this government, and they should be very careful about making another bad call which would further congest a system struggling under the weight of people and appeals. Still, the lawyers will no doubt appreciate what this bill will provide for them.

As the minister said in his second reading speech in February 2011, under the changes envisaged in this bill the non-refoulement obligations will not be engaged in every case. He said that there must still be substantial grounds for believing that, as a necessary and foreseeable consequence of being returned, there is a real risk that a person will suffer significant harm. What this opens up is a level of subjectivity that will be grist for the lawyers' mill, and that subjectivity does not currently exist because the minister’s decisions are not exposed to court appeals.

The danger here is that an instrument intended to only be used in exceptional circumstances will quickly become commonplace, and the number of claims being made on these grounds will blow out. We know this because we have seen it before.

I know this Labor government is not particularly good at learning the lessons of history, but the fact is that in the late 1980s, it was a Labor immigration minister, Senator Robert Ray, who abolished arrangements that are strikingly similar to what is contained in this bill. Back then, a series of court decisions, well-intentioned though they may have been, led to a completely unsustainable situation whereby an applicant only had to demonstrate that if they were forced to leave Australia their situation would ‘evoke strong feelings of pity or compassion in an ordinary member of the Australian public'. As a result, applications flooded in, to a point where an instrument that was intended to produce about 100 successful applicants per year was subjected to around 8,000 claims covering 10,000 individuals. That is no way to run an orderly migration system.

It is certainly the case that the people on the streets of Cowan have given me a clear message on matters to do with those that come by boat. From my recent doorknocking in the north of my electorate the message is clear. The people are outraged by all the special deals that are being done. The detainees play sport and take art classes, then earn points for free nose-hair trimmers, cigarettes, phone cards, snacks et cetera. What a special deal that is. These are the sort of deals that irritate people on the streets of our country.

And it is these same taxpayers that are paying the price for this government’s failures. The budget handed down by the Treasurer contained over $100 million to deal with court appeals that flow from the High Court’s decision to strike down the former non-statutory process for considering refugee assessments. In the last year, the costs of maintaining Australia’s detention network have blown out significantly. There was $1.75 billion in the budget this week for offshore asylum seeker management alone.

The current system is equipped to identify and deal with legitimate claims without opening up the entire process to vexatious applicants and turning the entire system into a lawyers' picnic in the sorts of cases that we are discussing today. Section 195A of the Migration Act permits the minister to grant a visa to a person in detention if the minister considers it in the public interest to do so. That is an entirely appropriate flexibility in the current system. In my view, the changes the government is proposing in this bill pose an unacceptable risk to the stability of our migration system—a system that is already staggering under the weight of this government’s ineptitude. Most Australians will rightly be wary of any changes this government tries to make to our migration system—its record does not exactly inspire confidence.

Since Labor changed Australia’s border protection policies, 224 boats—or probably more—have arrived carrying over 11,000 people. This includes the boat that was set alight and the one that crashed at Christmas Island last year resulting in significant fatalities—a great tragedy. These are the boats we know about. The tragic reality is that there are likely others which have set out on this dangerous course and not made it.

This government’s own figures show that, if an Afghan applied for a visa offshore, they stood a one-in-10 chance of success. Of those Afghans who arrived here illegally by boat, nine out of 10 got a positive visa assessment. What sort of message does this send? How does this serve to discourage people smuggling and people risking their lives on the seas?

Clearly, I am of the view that the effort that was put into creating this bill and focusing on this bill should have been put into creating a policy that actually returned control of our borders to this nation, rather than promoting the people-smuggling trade. Indeed, we understand that, in drafting this bill, the government did not seek input from ASIO, from Customs and Border Security or from the Australian Federal Police. If this government were serious about border security, it would surely have made at least some rudimentary inquiries to those charged with protecting Australia’s borders.

This bill does nothing to discourage illegal boat arrivals. It will not deter people smugglers. It will not ensure that legitimate refugees are processed more efficiently. It will not reduce the burden on taxpayers. What it will likely do is clog our courts with thousands of vexatious applicants, all of which will have to be considered, and see a system that already moves at a slow place grind to a halt. So far as I can tell, the only winners from this bill will be the lawyers and the people smugglers. Why not instead return to a policy that worked and that is infinitely cheaper than the costs of running this currently failing set of policies? Why not reopen Nauru? Why not reintroduce temporary protection visas and the 45 day rule?

These are some of the policies that would make the difference and take things back to those days where the Australian government actually had control of the borders—which has not been the case since this government changed the policy in 2008. The bill does nothing to restore that control, and instead provides further incentives for illegal immigration. It runs contrary to this government’s claims to be cracking down on people smugglers—and it is certainly against the wishes of my constituents in Cowan, who are tired of seeing their taxes wasted on this Labor government’s failed policies.

Julie Owens (Parramatta, Australian Labor Party) Share this | Link to this | Hansard source

This bill is about stripping away complexities for people who seek the protection of Australia who, if returned home, would be at risk of torture, inhumane treatment or likely death but do not qualify as refugees. At first glance it seems counterintuitive that a person who, if returned home would be at risk of torture and inhumane treatment or likely death, would not qualify as refugee, but it is in fact the case. The refugee convention is quite specific about the conditions you have to meet under the refugee convention—that is, persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion.

For example, it is not certain that a girl who would face a real risk of female genital mutilation would always be covered by the refugee convention. It is also not clear that a woman at risk of so-called honour killings would be covered by the convention and in some countries where victims of rape are executed along with their attackers that woman also may not be covered under the refugee convention. So there are many people facing appalling circumstances who seek the protection of other countries but cannot do it under the refugee convention.

In the 2009-10 budget the government announced that it would implement a system of complementary protection for people to whom Australia has a non-return obligation under international human rights treaties other than the 1951 Convention relating to the Status of Refugees. There is no internationally accepted definition of 'complementary protection'. The term is not a term defined in any international treaty. However, the term broadly describes protection obligations arising under international law. Such obligations are in addition or complementary to the protection obligations that arise under the 1951 refugee convention, which provides protection to refugees under those specific definitions.

Australia does have non-return obligations when people in those appalling circumstances seek the protection of Australia. Australia, of course, does not send people back to death or possible torture. What currently happens is that a person who may find themselves under one of those circumstances at risk of likely torture or death or inhumane treatment on return applies for a protection visa under the refugee convention. Applicants who are found not to be refugees then go through the appeals process and, of course, are rejected. Then the minister considers their situation under ministerial intervention. So it is a very, very long process for a person who simply could not be returned to their country of origin for fear of persecution, torture or likely death.

It is an extremely inefficient process. Even the Migration Review Tribunal, who might understand that a person is likely to eventually be accepted under ministerial intervention, must reject the application on appeal as the person does not fall under the refugee convention. Relying upon ministerial intervention powers to consider complementary protection claims is incredibly inefficient. The ministerial powers do not come into effect until after the person has been refused a visa both by a delegate of the minister and on review by the tribunal. This means that under current arrangements people who are not refugees under the refugee convention but who may engage Australia's other non-return obligations must go through the entire visa process before their claims can be considered by the minister—again, an incredibly inefficient process.

Under this bill protection visa applicants will continue to have their claims first considered against the refugee convention's related criteria set out in Australia's migration legislation. Applicants who are found not to be refugees under the convention will have their claims considered under the new complementary protection criteria. This approach recognises the primacy of the refugee convention as an international protection instrument supported by the UNHCR, but it establishes new criteria for the grant of a protection visa in circumstances that engage our other non-return obligations under human rights treaties.

Australia will not return a person to a place where they are at real risk of significant harm contained in the relevant human rights treaties, including the arbitrary deprivation of life, having the death penalty carried out, being subjected to torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment. So it is quite a simplification of the process for people in quite desperate circumstances. Putting people through lengthy processes unnecessarily is not humane, and I am very pleased to see us move towards introducing this system of complementary protection.

Australia has a long and proud tradition as a protector of human rights and it is a reflection of this tradition that Australia is a party to the major UN human rights treaties, including the 1951 convention; the 1967 Protocol relating to the Status of Refugees; the 1966 International Covenant on Civil and Political Rights, to which Australia became a party in 1980; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the 1989 Convention on the Rights of the Child.

I am incredibly proud to speak on this bill. It will be an important addition to our system that provides protection to people at serious risk of harm in their country of origin. I am pleased to commend the bill to the House.

Teresa Gambaro (Brisbane, Liberal Party, Shadow Parliamentary Secretary for Citizenship and Settlement) Share this | Link to this | Hansard source

Mr Deputy Speaker, I draw your attention to the state of the House.

The bells having been rung—

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

Order! A quorum not being present, the sitting will be resumed in eight minutes.

Sitting suspended from 10:11 to 10:19

The House having been counted and a quorum being present—

Louise Markus (Macquarie, Liberal Party) Share this | Link to this | Hansard source

It is good to see that government members have actually turned up in the House.

Honourable Members:

Honourable members interjecting—

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

Order! Would those who are leaving the chamber do so quietly and not conduct a second conversation out of their place. The member for Macquarie has the call.

Louise Markus (Macquarie, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Complementary Protection) Bill 2011. This bill will change decision making on complementary protection claims from the current ministerial intervention arrangements to a statutory process through the department of immigration. It seeks to introduce a statutory framework which includes additional criteria and new definitions into the assessment process for determination by the department, and it seeks to establish the same administrative review rights as for people seeking protection under the 1951 refugee convention. The changes pose challenges for this nation and the need for an orderly, compassionate and fair system to operate.

The proposal outlined in this bill is not new to this House; it was first introduced on 9 September 2009, where it lapsed and the parliament was prorogued for the 2010 election. A similar bill was actually removed in 1989, just eight years after being introduced. While it was claimed initially that only 100 successful applicants per year would be processed, by the time the legislation was repealed there were 8,000 outstanding applications.

Complementary protection broadly describes protection obligations arising under international law. These obligations are in addition and complementary to Australia's existing protection framework, the foundation of which is the 1951 refugee convention, which provides protection to refugees. For over 60 years Australia's asylum and humanitarian program has brought many people to our shores who have made valuable contributions to the nation and their local communities. Australia is a signatory to a number of international conventions, agreements and covenants, including the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the United Nations Optional Protocol to the Convention against Torture. These instruments obligate Australia under refoulement non-return provisions to provide protection to people who, while not meeting the 1951 refugee convention definition, still need protection on the basis that they face serious violations of their rights if sent back to their country of origin.

Currently, the minister can make decisions in respect of claims for complementary protection through the ministerial intervention process, which is non-transparent and non-appealable. The minister does not have to explain or justify the decision to exercise or not exercise the discretionary powers. This raises one very important question: if people seeking complementary protection are already being dealt with through the current process, why does the government need to amend the legislation? This is legislation for legislation's sake. Australians have every right to ask why this government continues to waste time and taxpayers' dollars on adding layer upon layer of bureaucracy instead of tackling real issues that face everyday Australians.

One wonders why the minister seeks to transfer his discretionary powers to a statutory process determined by unelected officials, when we look at the statistics on complementary protection. For example, as the shadow minister has already highlighted, the minister's office has advised that in the 10 months from January 2010 to October 2010 the minister finalised 1,690 requests for intervention. Of those, the minister granted visas to a total of 438 people. Of those, only six people met the complementary protection provisions.

The minister's office has confirmed that they do not expect the number of applicants being granted protection visas under the proposed complementary protection provisions to increase at all. Given the history of previous similar bills, I find their assurance questionable. It begs the question: what minister would relinquish discretionary powers for six people? There are only three plausible explanations: the minister has decided that complementary protection is too small an issue to be bothered about; the minister has found a way for unauthorised arrivals to apply for protection in a visa class, complementary protection, that is now proposed to include a larger range of definitions and will now be open to broader interpretation—a visa class that will be appealable if the first decision is not favourable; or, the minister has decided that the department should take the heat on an issue that is front of mind for the nation at the moment.

Immigration policy is this government's Achilles heel. The government does not have the courage to admit it is wrong or that its failed policies have put Australia's immigration program, its resources, its people and its budget under enormous strain. The government does not have the courage to acknowledge that a significant section of the Australian community is concerned that the government has lost control of its borders. I speak to many people in my electorate of Macquarie, people who support the relaxation of immigration processes and people who believe the process should be tougher. All are concerned about the riots, the reports of overfull detention centres and the waste and mismanagement of budget blow-outs in the immigration portfolio. We cannot afford to spend dollar after dollar on the current government's immigration policy, because of the government's economic mismanagement, while our own citizens are struggling to make ends meet. This government has clearly failed, yet it is still pursuing additional legislation such as this bill.

What concerns me about this bill, which can only be described as another example of policy on the run, is that the government has refused to consult even its own agencies on the viability of this amendment. The legislation was considered by a Senate committee that received 36 submissions but, in a break from customary practice, did not hold any public hearings. Only 19 days were available for submissions. Within a month, a report was tabled. Even the committee referred to the 'constrained circumstances' of the recommendations. Why the rush?

My understanding is that, although the minister received strong representations from the refugee advocacy sector, the minister neither sought nor received advice from the Australian Federal Police, Customs and Border Protection Service, ASIO or any other relevant agency. I call on the minister to confirm that he has or has not consulted with the relevant agencies established to protect Australia's border security and to what extent, if any, these changes will not act as an incentive for people smugglers? It appears from the lack of consultation that this government does not believe that research and consultation are worthy of consideration when it comes to changing legislation.

We are a compassionate nation, recognising the need to offer a new and better life to those in need. Indeed we have always been such a nation, one that dared to share the Australian dream with those escaping war-torn Europe after the Second World War and with other individuals and families escaping persecution in other parts of the globe over the past 60 years. Many migrants who have come to this nation have committed themselves to working hard and to raising their families. Their contribution helps to build a stronger Australia for the generations to come. I am concerned that the opportunity that Australia offers will be denied possibly to the Australian-born as well as to new arrivals if Australia is placed in such a precarious financial position that it cannot support the standard of living that we enjoy today.

This bill is but one example of how this government operates. The changes proposed, in particular the definitional changes, the impact on resources for the department and the legal costs arising from access to administrative review have polarised this debate. Comments from refugee advocacy groups such the Refugee Council of Australia, who want the definitions more specific, are that 'The threshold requirements for complementary protection are too complex and restrictive, potentially leading to inconsistencies in decision making and the denial of protection to people who require it'.

Arguments against the bill cite the criteria as 'poorly drafted' and that they could lead to greater uncertainty and invite needless litigation. Indeed, there is a view that the decision to provide a new pathway for asylum claims for those who arrive illegally and are not refugees will place another product on the people smugglers' shelf.

The current ministerial intervention process is a safeguard that has been in place for decades and it has been effective. Codification removes discretion which has applied on a case-by-case basis and has helped genuine refugees languishing in camps around the world.

In addition, the risk that the bill will encourage the lodgement of non-refugee protection applications and the making of false asylum claims has to be considered, because the claims under the proposed bill will run the full length of the process, then be subject to appeal. Primary decisions would be appealable, adding to the already lengthy waiting time for unresolved cases. If this minister had a clue about the best interest of the nation, he would put this legislation back on the shelf and come up with solutions for the present crisis, not introduce something that will only add to the challenges. The coalition is united on this issue. We stand ready to implement a much stronger and more encompassing policy when elected to government. The coalition maintains that the current system of ministerial discretion in cases where complementary protection is in play is more than appropriate.

On this occasion, it is clear that the Gillard Labor government has sought to position itself on one side of the debate. The Gillard Labor government has chosen to ignore its responsibilities to the nation as a whole, by refusing to consider other voices of concern. This kind of legislation, underpinning flawed policy, is symptomatic of, as our Prime Minister put it, 'a government that has lost its way'.

Tony Zappia (Makin, Australian Labor Party) Share this | Link to this | Hansard source

I take this opportunity to speak on the Migration Amendment (Complementary Protection) Bill 2011. I would have thought that this bill would have had bipartisan support, but instead we have seen coalition speaker after coalition speaker coming into this House and opposing the bill, opposing what I think most fair-minded people would consider to be a very sensible measure. And they do so for no better reason than political opportunism, linking this bill to the issue of boat people arrivals in this country and rerunning their rhetoric on the refugee issue, in particular making claims that this bill is another example of being soft on border protection. Nothing could be further from the truth.

I suspect many coalition members would privately support this bill, because this bill is long, long overdue. It should have bipartisan support, because this bill has been supported by several parliamentary committees, the Australian Human Rights Commission, the United Nations Committee against Torture, the United Nations Human Rights Committee and the United Nations High Commissioner for Refugees and it is a bill that is very similar to legislation that has already been adopted in New Zealand, in many European countries and in North America.

In addition, Australia is a signatory to 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. All these conventions which Australia is a signatory to contain provisions very similar to what is in this bill.

Nonrefoulement 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 or cruel, inhuman or degrading treatment or having the death penalty carried out on them. Examples of cases covered by complementary protection include people at risk of being stoned due to their homosexuality—persecution because of sexual preference is not a category of persecution contemplated by the refugee convention, yet some people, if they are sent back to their home countries, may well be stoned; women fleeing ritual genital mutilation; and women at risk of so-called honour killings. With these sorts of examples, I find it very surprising that so many members from the coalition have come in and opposed this bill.

In 2009-10, as has been pointed out, there were six protection visas granted on these grounds, plus four visas granted to dependants of those six applicants. It is not a lot. Are the opposition members who criticise this bill saying that those six people and others that fall into similar categories should have been sent back home? If they are, then I believe they should hang their heads in shame, because what they are really saying is that those people should be sent home to a place where they might be persecuted or even put to death.

At present, only the minister can approve their stay. The department cannot do so. The last speaker referred to ministerial intervention and said that this is about the minister relinquishing his ministerial intervention discretion. That is simply not the case, and I will come back to that a bit later. At the moment, in order to trigger ministerial intervention, the applicant goes through a farcical, time-consuming, expensive and futile application process, knowing full well that, at the end of the process, the department does not have the ability to approve the application. Then, because it has been refused, they can seek ministerial intervention. If that is not bureaucratic and time consuming, then what is? I would have thought the Australian public would have been critical of a process that costs so much money, not just to the applicant but to the department that administers this piece of legislation. We go through a charade just so that the minister can then be asked to intervene. My understanding is that the minister has something like 4,000 cases a year referred to his department for his intervention. Obviously, not all applications are believed by the minister to warrant his intervention, but that is still 4,000 cases. I am sure the question here has nothing to do with whether it is six or 10 or 12; the question here is about getting the process right.

If members believe that the minister should continue to use his intervention in order to determine these cases, then I ask them this: why don't you suggest in turn that every single immigration case that comes before the department be referred to the minister? If you believe this category ought to, then surely you must believe all the other categories ought to be as well. Quite frankly, every immigration case is unique, every immigration case has merits, both for and against, and with every immigration case there is an opportunity in some process for ministerial intervention if it is applied for—so we might as well simply not have a department and refer all immigration cases to the minister.

The reality is that is not the way that you administer government and there is a very important principle here: ministers as individuals should not be assessing every immigration case that comes up. Governments and ministers formulate policy and departments administer policy, and that is how good government works. By all means, and I have no qualms about this at all, question the policy when it comes into this place and question the legislation and debate it, but once it is in place it is the government departments that ought to administer it. In fact, that is how good government works because it means you do not have political interference in cases where you should not have it.

There has also been the claim that this legislation will create a flood of applications of similar kinds if it goes through this parliament and that we will see so many more people wanting to come in under those grounds. My point for coalition members is this. Should the question be about how many applications come in or should the real question be: if applications come in are they legitimate? If they are legitimate then I go back to what I said earlier: are members opposite seriously suggesting that if legitimate cases come before the government we should reject them? To my mind that is the question that they should be asking themselves. They are making the claim about how this will open the floodgates but not one of them has come into this place and shown any evidence that that has been the case in the European countries, New Zealand or North America where similar legislation applies. So until they do so they are purely issuing unfounded claims and statements.

The opposition believe that they are on a political winner with this issue by linking it to the boat people issue. They want to keep alive the debate about refugees coming to this country and keep alive their simple slogans. We have heard them time and time again from members opposite who have come into this place to debate this bill. They never let the facts get in the way of their rhetoric, and again we are seeing that with this matter.

A number of them referred to the current refugee issues associated with Australia. They failed to acknowledge that right now there is a global refugee problem. At the end of 2009 there were 43 million displaced people worldwide. Fifteen million were refugees and almost one million were asylum seekers. In recent weeks, not recent years, we have seen almost 20,000 refugees arrive at the Italian island of Lampedusa. In the USA each year some 50,000 refugees arrive, in Canada 33,000, in Europe roughly 275,000 and in Australia just over 6,000—a stark difference from what is happening around the world, yet if you were to listen to members opposite they would have you believe that Australia is a country in which everybody is trying to seek refuge. In fact, it is my understanding that right now in Malaysia, a country that we are trying to enter into an agreement with, there are some 92,000 refugees seeking resettlement.

What this whole matter highlights is both the hypocrisy and unsubstantiated rhetoric of members opposite. There is hypocrisy because, on one hand, they claim that we should do everything we can to try to make our borders safer—they frequently use the words 'border protection' but I am not quite sure what it is we are trying to protect the borders from—yet, on the other, when we are seeking to negotiate an arrangement with Malaysia whereby we will in a humane way take from refugee camps 4,000 people who are seeking asylum, they criticise that process. We saw their reaction to the announcements of the discussion with Malaysia. We did not see any support for those announcements at all. We saw criticism of them. Yet it is a discussion that will ultimately result in a much more humane outcome for genuine refugees whilst at the same time resulting in an outcome that I believe will be very effective in destroying the people-smuggling business of that region.

This bill is all about doing the right thing by both the administration of this country and people who are genuinely seeking to stay in this country because if they return to their homeland they will be persecuted and even tortured. If anyone in the coalition genuinely believes that is the wrong thing to do, then I believe they are not reflecting the broad views of the Australian people. As I said from the outset, there is a lot of support for this bill. Yes, there have been a number of submissions with respect to it. But it is long overdue, and I commend the bill to the House.

Sharman Stone (Murray, Liberal Party) Share this | Link to this | Hansard source

I rise to also speak on the Migration Amendment (Complementary Protection) Bill 2011. This is all about making sure that we do in fact have orderly entry to Australia and that refugees are given priority according to their needs, not according to whether they can raise the funds to pay a smuggler to take them through various countries such as Malaysia and Indonesia to get onto a boat and then find themselves fast-tracked into Australia by the back door. We know that this government has caused an extraordinary upsurge in the profits to be had by people smugglers, who have and probably always will have willing buyers. We had an orderly system up to the time when the Rudd and Gillard governments were elected.

We certainly acknowledge that there are situations where people need protection that will be beyond the criteria of the UNHCR, but our system allows for that through ministerial discretion. I was rather amused to hear the previous speaker refer to that ministerial discretion—that is, the use of the minister's responsibilities to make decisions on a case-by-case basis—as 'ministerial interference'. How extraordinary. Does this government have so little faith in its ministers that it refers to their actions as per their legislation as 'interference'? That is quite extraordinary, and I hope that the minister takes the speaker to task and says, 'I'm acting responsibly and according to my purview.'

We do not need to have an alternative, non-specified route into Australia for those claiming asylum, which will, I have no doubt, bring about more vexatious claims, particularly from those who are already residing in Australia who may have come in, for example, on a tourist visa or a student visa and then, at the end of their legitimate time in Australia, claim sanctuary. There is no doubt that this change, the complementary protection visa introduction, would give them a whole new avenue to explore and exploit to remain in Australia. We are also very concerned that this creates a whole new commercial product, a very profitable product, for the criminals we call people smugglers. We do not need that. We are already seeing problems in Australia of overcrowding in our detention centres. This government is trying to negotiate in the region to offload our responsibilities to other countries which are not signatories to the United Nations Convention relating to the Status of Refugees and whose human rights records in relation to those in confinement or detention are sometimes questionable. So this is a very important debate to have, but it certainly should not lead to new legislation which puts in place another fast track into Australia without proper scrutiny and which gives comfort, as I say, and a whole new product to sell, to the smugglers.

The coalition has always supported the use of ministerial discretion for special cases on an as needs basis. We reject absolutely the government's proposal to add a whole new class of humanitarian visa for people who do not meet the United Nations criteria for assessment as a refugee. Of course, there are persons in circumstances that do not fit the refugee convention criteria who need our protection. In the past, ministers—certainly our coalition ministers, like former minister Mr Ruddock—have been more than willing to consider these special circumstances case by case, and people have been given protection and access to permanent residence in Australia via a special admittance. For example, there are women who are fearful, if they return to their home country, of so-called honour killings or who might be subjected to female genital mutilation. Those types of cruelties and assaults on individuals are not covered under the refugee convention, but we certainly see that women who might be subjected to those cruelties should be protected in Australia, and under the coalition our minister of the day made sure that women in particular with those sorts of problems were given security in Australia.

On the question of how many ministerial interventions were made and how many protection visas were granted, between 2000 and 2003 there were 165 protection visas granted. From our taking office in 1996 to the end of 2002, the coalition minister used his discretionary powers on 1,916 occasions. On 1,045 occasions he used his power under section 417 to substitute a more favourable decision for that of the Refugee Review Tribunal, and in 516 cases he used it under section 351 to substitute a more favourable decision than the Migration Review Tribunal had delivered. This number is significantly greater than the number of times the discretionary power was used by former ministers—for example, by the Labor minister the Hon. Gerry Hand. From 1990 to 1993 he used his discretion on 81 occasions.

The Hon. Senator Nick Bolkus from 1993 to 1996 used his ministerial discretion 311 times. So certainly there was less action and activity from Labor ministers during their terms as immigration portfolio ministers, and under the coalition there was absolutely no difficulty in our minister—in particular our minister Philip Ruddock, our longest-serving minister—taking each case, looking at the criteria of other conventions that we are signatory to, looking at the criteria of the United Nations convention on refugees and making determinations, using his own assessment of the need with departmental advice and advocacy. There was no problem at all in him making sure that these individuals were given special attention and the security of a future life in Australia. I have to say that Senator Chris Evans, the previous minister for immigration, had become very reluctant to use the interventionary powers. In fact, he often stated that he felt uncomfortable doing it. However, the six-monthly tabling statements and accompanying information—of February 2008—from the former Minister for Immigration and Citizenship, Senator Chris Evans, on the use of the intervention powers under section 417 of the Migration Act shows that there were some 1,201 discretionary interventionary actions taken. So the Labor government is not unused to using ministerial discretion and I am sure it uses it appropriately. I have not heard too many people complaining about the use of discretion.

Australia is renowned for the care we take of our refugees once they are settled in Australia. At the moment we have some concerns about the number who are coming in our back door via the smugglers. The coalition has offered to help the Labor government to sort out their policies so that they could in fact return to the shutting down in Australia of the business of people-smuggling. I hope they do take up that offer of our bipartisan collegiate support because Australians do not want to see the queue jumping that occurs and the abuse of our good nature as Australians that occurs every time someone has the means to pay smugglers to take them via second, third and sometimes fourth countries to arrive at Christmas Island, or nearby.

I said that there are queues. On a recent debate on Q&A on the ABC it was loudly and strongly declared that there were no such things as queues for entry to Australia via humanitarian or refugee visas. In fact, we do set a cap on how many people we can appropriately and comfortably invite into Australia from the refugee hell holes and camps in places like the Thai-Burma border or in different parts of Africa. We need to have an idea about how many people will be selected, via the UNHCR's support, to come into Australia to be settled through what I call the 'legitimate' process. When we were in government those numbers were hovering around 13,500 people a year.

Every time someone arrives who has been able to pay their way into the country via the people smugglers, refugee families in my electorate, for example, sigh and despair knowing it will take so much longer for their family reunions to take place. They despair that the energies and attentions of the departmental officials, which should be directed towards finding their sons and daughters left in the camps in Kenya, are instead totally engaged in how they can best deal with those arriving boatload after boatload via the people smugglers. Yes, we do have queues in Australia and those queues become longer every time someone comes into the country who has not come via our selection process and at our invitation after having been identified in the camps and other places in the world where it is too difficult and dangerous for them to survive.

I am most concerned that this legislation does a number of things that will set us even further backwards in having a well managed, humane protection system and refugee settlement system in this country. I have already said that we have available ministerial discretion in the legislation, which means that every time there is a man, a woman or a child whose circumstances do not meet the refugee convention criteria the minister has the capacity to quickly and simply grant them visa protection on the basis of their need, and that has happened thousands of times over the recent years of both the Labor and coalition governments. So we do have an alternative that will not cause greater strife in our country in terms of longer queues and in terms of greater numbers of vexatious claims cluttering up our system. Sure, this is good for lawyers, but it is not good for the Australian community.

Also, we do not need to give a new product to the people smugglers to hawk to those who are waiting, whether it is in Pakistan, Indonesia or Malaysia, for an opportunity to get on a boat. Imagine the people smuggler saying to them, 'Look, we know you do not meet UNHCR criteria given your family background or in your personal circumstances, but, hey, there is a brand new type of product called a complementary protection visa that is now on offer in Australia. All you need to do is arrive, get on my boat and you will be right. You just have to make sure you have the US$15,000 or US$20,000 handy, and make sure you destroy your papers before you set off.'

This is not a sensible or humane way to go. We have a good system right now. It is a system that has been complimented as recently as yesterday by our visitor from the Human Rights Commission. Those who arrive in our country after having been selected by the UNHCR as the most in need deserve family reunions and I hate to see them having to wait years and years, perhaps to the point where their families have been lost altogether, because the queue-jumpers have an alternative way to enter this country. The energy taken to deal with those queue-jumpers and the vexatious claims is energy that should be spent in a more legitimate and humane way.

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I thank the honourable members who have contributed to this debate. Although in the course of the debate many extraneous matters were raised that I am very tempted to respond to, I will not. I will confine my remarks to the bill before the House, the Migration Amendment (Complementary Protection) Bill 2011.

This bill amends the Migration Act to eliminate a significant administrative deficiency in the visa application process. The bill will build on Australia's framework for assessing claims for protection under the Refugee Convention and provide a protection visa decision-making process that is more efficient, transparent and accountable. The amendments in this bill are important and necessary to address inefficiencies in the current protection framework. The bill permits claims made by protection visa applicants that may engage Australia's non-refoulement obligations to be considered under a single, integrated and timely protection visa application process.

As has been mentioned in the House, Australia of course is a signatory to the Refugee Convention. It does not refoule people where there is a convention related fear of persecution. However, applicants who fall outside these categories of race, religion, nationality, social group or political opinion are not eligible to receive a protection visa through the usual process. Some of these people are fleeing significant harm, such as women fleeing so-called honour killings. These people can fall outside the categories recognised by our current process.

It has been mentioned by some honourable members that there is a ministerial intervention power to deal with these cases. That is correct, and it is used. It has been used by ministers of both sides of the House. The previous speaker, the member for Murray, said it was used by coalition ministers, and it was. It has been used by Labor ministers, including myself. It is appropriate that it be used. It is necessary that it be used. But the honourable member for Murray said that it was an 'efficient and easy system' to get ministerial intervention—'quick and simple' was the contribution by the honourable member. That is completely and utterly incorrect. It is not a simple and easy system to get ministerial intervention.

Under our laws, to get a minister to intervene in your case you must first apply to the Department of Immigration and Citizenship, have that application rejected by the department, apply to a relevant tribunal, have that application rejected by the relevant tribunal and then seek ministerial intervention. The department will then prepare the case for the minister to consider. That process can take a long time, as all honourable members who have been involved in it would know. It takes a considerable length of time to go through the system and be rejected by the department and rejected by the tribunal before the case can even be put to a minister for consideration, yet the member for Murray calls it a quick and simple system. It is not.

It is not just about time. If you are in a situation in which you are fleeing persecution, whether that be honour killings, genital mutilation or the other areas of persecution that were outlined by me in my second reading speech and by other members, it is not just about time. It is about the implications of being rejected at each level—by the department, by the tribunal—and the anguish that causes, in the hope that your case will eventually get to a minister and that the minister will eventually intervene. All immigration ministers that I know would intervene in such cases and would grant that visa. I have said that previously. But why put people through the situation whereby they must go through that continual rejection under the law before they can even get to a ministerial intervention?

I want to deal with two other points that were raised during the debate. The member for Cook put forward a proposition that these provisions will lead to a situation similar to that which occurred in the 1980s. In 1981 the then Fraser government introduced a 'strong and compassionate humanitarian grounds' test into the Migration Act, which was intended to deal with a small number of meritorious cases that could not otherwise be approved. As the shadow minister noted, claims made against this provision grew substantially in number until the provision was repealed by the Hawke government in 1989.

The member for Cook compares that to the test introduced under this bill. He seems unaware of the fact that this is a very different test. This test involves substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk they will suffer significant harm. This is a much higher and more precise test and will not lead to anything like the situation in the 1980s, as the member for Cook well knows.

There is one other matter I want to respond to. The member for Pearce raised some concerns that applicants may be excluded by the test that requires that harm must not be faced by the population generally and suggested in particular that women or girls fearing female genital mutilation may not be able to have their claims considered. With respect, that is not correct. Under international law a 'real risk' requires that a person face a personal, direct and foreseeable risk of harm in certain circumstances. Under this legislation, if there are substantial grounds for believing that a woman or girl will face a real risk of genital mutilation that the authorities cannot protect her from, she may be entitled to Australia's protection on the grounds that she will suffer torture or cruel, inhuman or degrading treatment upon return.

Finally, the member for Pearce suggested that the policy guidelines or ministerial directions could be revised to specifically state that women or girls fleeing such persecution are considered a particular social group for the purposes of the Refugee Convention. In fact, this cannot be done, as policy guidelines must be consistent with Australian case law. It is simply not possible for policy guides to make a group of persons a particular social group when the courts have found otherwise.

I do thank honourable members for their contribution in this debate. It is an important one, and I commend the bill to the House.

Question agreed to.

Bill read a second time.