Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I rise to speak against the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. This is a bill which seeks to remove the complementary protection regime put in place by the previous Labor government which came into force in March 2012. This was an important regime put in place for our immigration system, but, in stating that, it was a niche area. It applied to a very small number of people—it was important, obviously, for them—in the context of the number of immigration matters that are handled by our department and this country.

That said, it also was, and has been, an administratively efficient regime for dealing with that small number of people who have a claim that could be sustained by complementary protection criteria and the removal of this, which is what this bill seeks to do, will create inefficiencies in the way the Department of Immigration and Border Protection and the review systems which oversee it work. It will make it more difficult for those people to do the work they are called upon to do. It will create added work, and it is for that reason we are opposing the bill that is put before the parliament today. It is for that reason we are supporting efficient public administration as was enacted by the regime put in place by the then Labor government in March 2012.

The Migration Amendment (Complementary Protection) Act 2012 put in place a regime which enabled Australia's non-refoulement obligations under a number of international conventions to be honoured. The principal convention under which Australia's non-refoulement obligation exists is the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees, which is otherwise known as the refugee convention. Most people who come to Australia seeking a protection visa will find themselves, if they are successful in gaining a protection visa, covered by the terms of the refugee convention. But there are a number of people for whom we have non-refoulement obligations which do not derive from the refugee convention. Australia is a party to a number of other international conventions which give rise to non-refoulement obligations on the part of Australia. These are the International Covenant on Civil and Political Rights; the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty; the Convention on the Rights of the Child; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These international conventions, to which Australia is a party, give rise to non-refoulement obligations on the part of Australia.

Examples of the circumstances that we are talking about—that is, those people who would qualify under those other conventions I have just described but would not qualify under the refugee convention, which is a small number—are people who may face honour killings in the country from which they have come, women who may be subject to genital mutilation if they are returned, and people in a number of other circumstances which do not squarely come under the refugee convention but which do come under those other conventions to which Australia is a signatory and therefore enliven Australia's non-refoulement obligations.

So what we sought to do when in government, in March last year, through the Migration Amendment (Complementary Protection) Act, was to amend the Migration Act to allow the department, when considering protection visa applications, to consider criteria which are derived from the set of conventions I just described to the House—those other conventions that are not the refugee convention. We did this by adding criteria to section 36 of the Migration Act to reflect the coverage of the conventions to which I have just referred. What that then meant was that a person who sought a protection visa not on the basis of the refugee convention but on the basis of these other conventions, could have those criteria applied to them. They would have that decision made by an immigration official and that decision in turn would be reviewable by our legal system. In that sense, the process was efficient, it was transparent, it was reviewable and natural justice applied in relation to those people—sensible public administration.

It is important to understand, in the debate that we are having in relation to the current bill, that there is no question at all that the non-refoulement obligations that arise under the conventions to which I have referred still exist. Indeed, the explanatory memorandum to the current bill makes that clear. It says:

This amendment does not propose to resile from Australia's international obligations, nor is it intended to withdraw from any conventions to which Australia is a party. Anyone who is found to engage Australia's non-refoulement obligations will not be removed in breach of those obligations.

So we need to be very clear that this is not a circumstance in which we are talking about an amendment to Australia's legal regime such that we will have some people who are no longer eligible to receive a protection visa. We are only talking about the administrative process by which that protection visa comes to be.

The process that existed before Labor put in place the Migration Amendment (Complementary Protection) Act—which is the process that the government now seeks to return to—was an inefficient public administrative process. It was inefficient for this reason: people who knew that they had non-refoulement obligations applying to them on behalf of Australia, but also knew that they were not covered by the refugee convention, were forced into a situation where they would need to apply for a protection visa that they knew they would not qualify for. They needed to go through that process and indeed exhaust all the merits review processes associated with that. And it was only when they had gone through all of those steps, knowing full well as they went through them that they would not be successful because their particular circumstances did not meet the criteria of the act as it then existed, that they were able to seek an exercise of ministerial discretion to allow them to stay in Australia and be given a protection visa on the basis of enlivening Australia's non-refoulement obligations that existed under the other conventions to which I have referred.

That exercise of ministerial discretion is non-compellable: the minister is not compelled to exercise his or her discretion—the nature of discretion is that its exercise is discretionary; it is not transparent—the criteria by which the minister may or many not exercise that discretion are not there for all to see; and it is non-reviewable—and in that sense there is no natural justice that applies beyond that decision if the decision is found to have been inappropriately made, because, at the end of the day, it is simply an exercise of discretion. So that ultimately left a person in this circumstance—and let's be clear: we are talking about a small number of people—existing in a state of enormous anxiety, knowing that if they are returned to the country from which they have come they will be subject to potential death, to torture or to injury.

Those people were needing to wade their way through an administrative process, knowing full well as they went through each step that they would fail, only so that they could reach that final moment of being able to enliven the minister's discretion in the hope that the minister would ultimately meet Australia's obligations under the conventions to which I have referred. That means such people were often in a position of limbo for a number of years before ultimately their claim came to an end.

It is for this reason that we sought to put in place the regime that we had, which made it a much clearer regime, a much more transparent regime, a reviewable regime—but a regime that would occur more quickly and more efficiently and would give certainty to that small number of people who fit the circumstances I have described.

The minister, when he was the shadow minister, described the legislation that the then Labor government put through this parliament as giving rise to further pressure on an already overstressed court system. In saying that, he raises the idea that this would give rise to an enormous number of cases that would overrun our system. In reality that has not been the case—far from it: 83 cases have gone to our review tribunals since March 2012. The minister, in his own second reading speech for this bill, made it clear that there have been only 57 complementary protection visas granted since March last year in relation to this set of circumstances. This is a niche area. It is important in public administration that you get the housekeeping right. There are niche areas throughout our public administration that are much better handled in an efficient way than in an inefficient way. But let us be clear: the attempt to raise grand political objectives in relation to this is misplaced. This is a niche area, and what the Labor government put in place was an efficient administrative process to deal with this niche area. And it is exactly that efficient administrative process that on the basis of politics the government now seeks to remove.

One of the arguments that has been used by the minister and which was referred to in his second reading speech was in relation to people with criminal backgrounds accessing complementary protection visas. A particular case, which is often referred to as the New Zealand bikie case, has been a bit of a cause celebre for those who have sought to criticise the regime that the then Labor government put in place. It is important to understand that that was a single case. It was appealed by the then Labor government. It has been referred back to the department, and the person in question is yet to be granted a complementary protection visa as a result—or at least was yet to be granted a visa as of two weeks ago. That one case has been the basis for the minister, in the second reading speech for this bill, to refer to a whole lot of people who may have been involved in criminal activity and are seeking to use this complementary protection regime as a basis for getting a protection visa in Australia. This question was put to Kay Ransome, the principal member of the Migration Review Tribunal and the Refugee Review Tribunal. When she was being questioned about the issue of criminal activity during Senate estimates, she said, 'I doubt that there are many that involve criminal activity'. That was her sense of the extent to which people who have been engaged in criminal activity have been accessing the complementary protection regime.

A number of reports over the years have recommended that, in relation to this niche area of public administration, the old regime—which this government seeks to return us to—be amended to put in place the regime that the Labor government put in place in March last year. The Senate Legal and Constitutional Affairs References Committee report titled A sanctuary under review: an examination of Australia's refugee and humanitarian determination processes in June 2000 made a recommendation to move down the complementary protection visa path. The Senate Select Committee on Ministerial Discretion in Migration Matters in March 2004 did the same. The Legal and Constitutional Affairs References Committee report titled Administration and operation of the Migration Act 1958, which was done in March 2006, did the same. And the Australian Human Rights Commission has made similar reports. Complementary protection visas were also the subject of the Proust report on the exercise of ministerial discretion in migration matters. That report also recommended the implementation of a complementary protection visa regime.

From an international point of view, the United Nations Committee Against Torture, the United Nations Human Rights Committee, and the Executive Committee of the United Nations High Commissioner for Refugees all recommend that administrative processes such as what we put in place when in government ought to exist in a country's protection visa regime. So, by international standards, what the Labor government put in place was in the mainstream of the way in which countries around the world deal with this small cohort of people who do not qualify under the refugee convention but do qualify under the other conventions I mentioned earlier to enliven a country's—in this case, our own—non-refoulement obligations. What we have before us now is a bill that seeks to sweep all of that away and return us to an inefficient past. It is a bill moved by a government that is in a time warp, which sees that everything around immigration policy ought to be as it was in 2007—that that is the means by which we deal with all the problems, as if nothing has changed since 2007 in the way in which people seek to come to this country and the way in which our borders need to be protected, and indeed in the way in which we have made sensible advances around public administration, of which this is an obvious example.

Australia's non-refoulement obligations under the conventions I have described continue to exist. Even when the government passes this bill through the parliament, the sorts of people I have described will still be granted the visas they seek, will still be given the protection for which they ask. The difference is that it will be done in an inefficient way. The difference is that people will be asked to wait longer. The difference is that more public expense will be incurred in order to determine the eligibility of these people to ultimately gain a protection visa. That is what we are talking about in this bill. It will be less fair, and it will concentrate decision making in one already overstretched minister in a way that will be non-compellable, in a way that will involve non-transparent criteria and in a way that will be non-reviewable.

What we have in place in Australia on this day is a system that is working well, a system that applies to a very small number of people but that, for those people, works efficiently and properly. There is no good reason to change it but for the stubbornness and the politics of this government. And for that reason we oppose this bill.

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

I rise in support of the Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013. I want to take the member for Corio up on some of the points that he made, because I think he does typify the ignorance of the Labor Party in relation to the cause of the problem that we have had of losing control of Australia's borders over the last six years. The member for Corio makes the point exactly that this only affects a small number of people. There is no question that Australia will continue to meet its international obligations in relation to refoulement. It is simply a matter of the administrative mechanism, in effect, that we use to deal with handling our international obligations.

Of course, the member for Corio says, 'Well, really there's no issue here.' The member for Corio needs to understand that there is an issue here, created by Labor's change to this bill in the previous parliament. It is that, by changing the system from an arrangement of ministerial discretion into an administrative function— (Quorum formed) It is no surprise that the Labor Party are seeking to run and hide from this issue, because this is part of the changes that Labor made that put the people smugglers back in business. They lack understanding that ministerial discretion was perfectly appropriate to meet our international obligations and that by changing this they offered another product for the people smugglers to sell to their poor victims overseas. That is why Labor want to hide from this debate. That is why Labor do not want to hear from the government, which, at the time, warned the opposition, the then government, that these changes would enhance people smugglers' operations.

The member for Corio quoted the principal member of the Refugee Review Tribunal, Kaye Ransome. He should have read on, because her evidence to the Senate estimates committee in November was particularly notable about this matter. She said that a person's criminal history is not taken into account when considering such cases 'under the complementary protection criterion itself'. This is exactly the point of the debate we are having about this bill. The minister needs flexibility to deliver these decisions in relation to complex cases of refugees, complex cases of protection, complex cases to meet our international obligations. This administrative process, with a criterion that does not include the criminal background of people that we are offering protection to or may have obligations to, is exactly the point. That inflexibility and that lack of forethought have really given the people smugglers the opportunity to say to their victims: 'We can set you up with another administrative process. We can give you something where you can stay in Australia longer than you would have otherwise if the minister had the chance to exercise his discretion.' As the member for Corio points out, there are only 83 matters—a small number of matters—in relation to this. There is no question that the Minister for Immigration and Border Protection is overstretched. That is purely a subjective argument from the member for Corio. I want to uphold, in this place, the ability and the power of the last minister to make these decisions. I want to go through these criteria shortly.

This is about our international obligations under refoulement: arbitrary deprivation of life; having the death penalty carried out; been subjected to torture; or being subjected to cruel, inhumane or degrading treatment or punishment. There is no question that any government of any persuasion in Australia would take these international obligations seriously. It was foolish of the last Labor government to go down this path, because there was no benefit to the system. But there was the creation of yet another product for the people smugglers to sell. That was the point that we made in opposition. That was the point I made when I spoke on these changes in the previous bill.

These changes will bring back a regime that is internationally consistent. The member for Corio acted as if we were going to do something outside of the mainstream. Most jurisdictions around the world have ministerial discretion as a key component of the international obligations under refoulement. It is the most mainstream thing to do. It is the most sensible thing to do. To suggest that any Australian minister for immigration would not take seriously these most serious conventions under international obligations is offensive. It is offensive to the previous ministers for immigration in the Labor government as much as it is offensive to suggest that this Australian government would not take seriously these very serious conventions and our very serious obligations.

It begs the question as to why it was necessary in the first place to introduce complementary protection into this statutory framework. I have already highlighted the comments of the principal member of the Refugee Review Tribunal that it does not allow for flexibility and does not allow consideration of all of the necessary elements, such as people's criminal background.

It is not about a particular case. The member for Corio was keen to talk about a particular case that is still the subject of consideration. It is not about any individual case; it is about the process and the criteria that the government is able to consider. By outlining particular criteria, you lose the key element of flexibility and discretion. That is why the Westminster system invented, and developed over a long time, the convention and tradition of ministerial discretion—exactly for these sorts of complex cases. It is almost unbelievable that it is suggested that you could outline a criterion that would take into account all of the complexity of the situation of people seeking refuge in Australia. What we can be sure of is that, if we allow for ministerial discretion, if this bill passes the House, the department, the minister and his advisers will have the ability to provide advice about the complex backgrounds of particular people applying for refugee status, to make sure that, if they have a genuine fear, a genuine prospect, of being tortured or being subject to the death penalty, that can be considered.

But let's be very frank here: the Labor Party needs to understand there are people that game the system. There are people smugglers out there—the Labor Party has never understood this—that are deliberately trying to game our system and our laws. People in the legal fraternity, the political fraternity and the human rights fraternity in Australia sometimes seem to forget that people smuggling is a criminal enterprise. It is the most insidious of criminal enterprises. It is what Kevin Rudd, the former Prime Minister, referred to as the most evil trade on the planet. They deliberately look at our laws, our procedures and our administrative arrangements and attempt to game our system. They are doing it right now. We saw just in the last few days that people smugglers are willing to put a two-year-old baby on a boat and send the boat offshore knowing that it will sink and that the poor child will meet its death. Those are the kinds of people we are dealing with. They will take cash off those poor people, including those with young children, and send them off to their deaths.

Like everyone in this government, I have compassion for people seeking refuge. I have compassion for the people getting on those boats. But I have no compassion for the people smugglers. And I have no compassion for people who come here and attempt to game our system and our laws, thereby denying genuine refugees, people with genuine claims under our protection regime, the chance to come here.

Labor's changes in the past parliament were so ill-considered. All genuine applications against Australia's international non-refoulement obligations should be subject to ministerial discretion, not an administrative procedure. In the debate that we had back then, Labor never made their case. The Labor members here in the House at that time included the member at the table, the member for Fraser. In the last debate that we had about this, the member for Fraser came in here and read out two stanzas of the national anthem, as if reading out the national anthem was somehow pertinent to the debate.

The member for Fowler, who called this motion here in the House—

Andrew Leigh (Fraser, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Deputy Speaker, I rise on a point of order. The member is misleading the House. I think he must have me confused with someone else.

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

Well, we'll see. We'll go get the Hansard.

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

That is not a point of order.

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

I have got no problem—we will go get the Hansard and I will remind you. I have your greatest speeches on CD, mate, in my office, playing around the clock! The member for Fowler—I was here and I remember this debate very clearly—said that there was the potential that we may send someone who was gay back from Australia to their death. All these examples were provided—and in preparing this speech I have checked a few things, member for Fraser, including your contribution—and the Labor Party tried to suggest there was a problem that needed to be solved.

But, of course, they never made the case—just as they have not made a case here today—that this administrative regime would be superior to the long practice of ministerial discretion, used in many jurisdictions around the world, and we have not heard one today. We know that it is contributing to the problem. It is adding to the products that people smugglers can sell around the world. This is a serious concern. This legislation is not something we are doing lightly. We warned the last government so many times about so many things, and this was one of them—that, by removing ministerial discretion and putting inflexibility into the system, more legal avenues and more chances would open up not for genuine refugees to apply but for people smugglers to offer product to people who were not genuine refugees.

That is why we have only seen 87 cases, a particularly low number. The member for Corio says, 'Well, this is only a small matter; it's only 87 people.' He is exactly right about that. That is why we need to go back to ministerial discretion. We need to do that because, just for the sake of 87 people—people who would get protection from Australia anyway under decent ministers on both sides of this House, who would never violate international conventions and requirements—we have given the people smugglers a big leg-up.

Labor need to understand that they cannot stand in the way of solutions to the problem that we are facing. The Australian people elected this government with a mandate to stop the boats. They have given us a mandate to stop the people smugglers. Labor need to understand that this is organised crime. It is the most serious organised crime racket in our region. We need to shut it down. We need to change our systems and processes to take into account the fact that it is sophisticated organised crime, constantly adapting to our changes in law. The people smugglers had the Labor Party's measure when Labor were in government. The people smugglers knew every change and every nuance, and they knew nothing would be done to stop their trade.

A new government is here. It has been elected with a mandate to do this. We warned about this in opposition. The government's warnings and fears, even while they were in government, about us somehow bringing in a brutal regime were unfounded and unreasonable. I can tell you that Australia will always meet its international obligations in relation to these very serious conventions. This government will not resile from the task of stopping people smugglers at the same time.

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

I rise to speak in opposition to the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. As I do so I am conscious that, once again, questions of asylum feature on the front pages of major newspapers. Of the many matters raised by the previous speaker, the member for Mitchell, I will confine myself to responding to just one. I want to assure him, and members opposite, that I and members on this side of the chamber are aware of the insidious and evil nature of the people-smuggling trade and of the ways in which people smugglers attempt to game the system. I am, however, entirely unsure of what that adds to this debate.

I am also reminded of the complexities of these questions, of the vast range of factors that shape this global problem, and of the limitations that this places on legislative amendments such as those presently before the House to answer these questions in the manner so often expressed so confidently by members opposite.

What a misleadingly titled piece of legislation this is. Whatever this bill does, it is not accurately or helpfully described by its title. Is this about regaining control over Australia's protection obligations?

A government member: Yes.

Really? In fact, this bill essentially removes criteria for the grant of protection visas by reason of complementary protection grounds. An important matter, though, is that this is, in the words of the shadow minister, a 'niche element', applying to 57 grants.

Not for the first time in this parliament, and not for the first time from this minister, there is something chilling and Orwellian about the use of language here. As with, under the Howard government, legislation described by titles such as 'more jobs, better pay'—

A government member: It worked.

It did not work. It most certainly did not work. Rhetorical statements purporting to describe bills do not do the work of the legislation for it.

This continues the disappointing tenor of what has been passing for a debate about immigration in this place. This is, of course, a difficult debate, which raises difficult questions for all of us in this place. Yesterday was Human Rights Day, and I remind members opposite that we are in its shadow considering the rights of some of the world's most vulnerable people—those facing real risk of very serious harm or death.

Indeed, the United Nations General Assembly proclaimed 10 December as Human Rights Day in 1950, to bring to the attention 'of the peoples of the world' the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations. Australia made a very significant contribution to this.

In keeping with this, article 33(1) of the Convention Relating to the Status of Refugees states:

No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

There is a need to prevent people from being caught in limbo whereby they may not meet one of the five criteria set out in article 1(2) of the convention, but, per section 36(2) of the Migration Act, still be at real risk of one or more of the following—arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment. Indeed—members opposite should be aware of this—this is acknowledged by the minister.

A government member: We just said that. Weren't you listening?

I was listening. I'm not sure that you were.

Prior to March 2012, such a determination was made entirely at the minister's discretion, in accordance with then section 417 of the Migration Act. In June 2000, the Senate Standing Committee on Legal and Constitutional Affairs outlined these powers in chapter 8 of its report, 'Refugee and Humanitarian Determination Processes' as follows:

In short, the power was arbitrary. It was also noncompellable and nonreviewable.

In government, Labor changed the law so that applicants could lodge protection claims under the Refugees Convention, and under other conventions, such as the Convention on the Rights of the Child; the International Covenant on Civil and Political Rights; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These are instruments which, as we have already heard in this debate, this government says it remains committed to.

Regrettably, there has been much tabloid coverage of issues related to this legislation, which has sought to emphasise that the people afforded complementary protection are not necessarily refugees as defined under article 1 of the convention. But, contrary to what has sometimes been reported, character and security checks, including criminal checks, are conducted before any visa is granted. The Minister for Immigration and Border Protection attempted to suggest otherwise with his claims:

We were having criminals and bikies who were claiming protection ... Now, our signatory status to important international conventions to protect people's human rights are not about protecting bikies and criminals.

Of course, that is true. The minister, as has already been mentioned, was alluding to reports of a bikie from New Zealand. The minister, of course, declined to mention that this man had not actually been issued with a visa. As far as we are aware he has not yet been issued with one. The minister's omission was very strange in the context of the apparent need for this legislation.

There are already exclusion clauses that can be applied to applicants who have committed crimes. Furthermore, the grounds for exclusion from complementary protection are even broader than for individuals being assessed as refugees. The minister has an additional capacity to exclude on security grounds. Nevertheless, if the government wishes to allay any community concern—albeit concern that it has largely generated itself—then surely it can work within the existing system, rather than abolishing the category of complementary protection altogether.

While I am pleased that the minister has stated that Australia continues to be committed to meeting our non-refoulement obligations, his suggested manner of achieving this stated commitment is, to say the least, curious. It seems to me that the contrary is in fact the case. I am indebted to the many—21, I believe—legal academics who prepared a comprehensive briefing note on this bill for members. I concur with their advice that repealing the present complementary protection regime would be inconsistent with our international obligations. This is because removing a codified basis to have claims considered against the complementary protection criteria means that Australia cannot guarantee that people will be protected from removal to significant harm.

The minister, in his second reading speech, refers to the complementary protection provisions as a 'costly and inefficient way to approach the issue'. But that is not the case. Let me briefly turn to the first limb of this criticism. It simply does not stand up. The explanatory memorandum makes clear why this is not the case:

The financial impact of these amendments is low. The estimated costs associated with the implementation of the proposed amendments will be met from within the department's existing funding.

We are, of course, talking about 83 applications over 18 months. It is inefficient. Complementary protection, under the present regime, introduced greater efficiency, transparency and accountability into Australia's protection regime. The regime that preceded it was lengthy, inefficient and uncertain. Indeed, the former minister for immigration, Chris Evans, who introduced the complementary protection regime—proposed for repeal under this legislation—did so to increase efficiency, as he had received a very large number of requests each year under previous laws.

How does the minister reconcile the claims in his second reading speech to what he has provided in the explanatory memorandum? What is the real reason for abolishing the complementary protection provisions if the minister's own explanatory memorandum undermines this case? The rhetoric from the current minister indicates that his obsession is to reduce the number of visas issued under his watch. It is nothing but a numbers game. However, even by this measure, the manner in which he seeks to achieve this through the legislation, by simply erasing a category of protection visa, seems a bizarre way of doing it, quite apart from its broader failings of principle and administrative practice.

The minister's assurances that this bill accords with Australia's international legal obligations deserves further scrutiny. The briefing note I referred to previously, prepared by a number of prominent legal academics, advises that this bill is contrary to Australia's international legal obligations and that the bill before us is:

… insufficient to meet the absolute and non-derogable requirement in international human rights law that Australia will not expose people to the real risk of torture, cruel, inhuman or degrading treatment or punishment, the death penalty, or arbitrary deprivation of life.

The Senate Legal and Constitutional References Committee recommended in March 2006 that the Migration Act be amended to:

… introduce a system of "complementary protection" for future asylum seekers who do not meet the definition of refugee under the Refugee Convention but otherwise need protection for humanitarian reasons cannot be returned.

There were a large number of national and international bodies that issued recommendations consistent with this committee's findings, including the Senate Select Committee on Ministerial Discretion in Migration Matters, the Australian Human Rights Commission and the UN Committee Against Torture. Despite this, the bill before us goes back to the future, as so often has been the case with other legislation proposed by this government—back to the future absent of any meaningful justification.

It is clear that the present minister has a curious notion of his role as a minister under the Westminster system, as we have seen so often in question time in this place. He denies, it would appear, all the traditions of Westminster accountability, yet wishes to, in the words of other ministers, 'play God' in dealing with complementary protection matters. Does Australia really want Minister Morrison, or indeed any minister, assuming this role, knowing what we know about how it has operated in the past and how the present certain and efficient regime has been operating?

When former Minister Evans rejected this role for himself, he said:

In a general sense I have formed the view that I have too much power. The act is unlike any act I have seen in terms of the power given to the minister to make decisions about individual cases. I am uncomfortable with that not just because of a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.

Parliament has a role to play in applying proper scrutiny to this bill, as it should have in relation to decisions that are the subject of this bill, so I am glad the bill will be referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report in March next year. If it is anything like previous Senate reports on this matter it will make for compelling reading, for all members.

It is very unusual that a government so rhetorically committed to small government and reducing the power of the state is so keen to enhance the power of a minister without sufficient or real scrutiny, much less real grounds of cost or efficiency in support of these changes. More broadly, as we stand here in the shadow of yesterday's Human Rights Day, let us mean what we say with respect to our international obligations. Let us deal thoughtfully and properly about our complementary protection regime and let us—all of us here—think for a moment about the circumstances of those people seeking asylum in this country.

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

Mr Deputy Speaker, on a point of order: during the last contribution to this debate, the member for Fraser accused me of misleading the House. That is unparliamentary and I would ask him to withdraw that, except by way of a substantive motion.

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

I request, to assist the House, that the member for Fraser withdraw.

Andrew Leigh (Fraser, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

I withdraw.

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

Mr Deputy Speaker, on a point of order: I seek leave to table page 3657 of Hansard, from 11 May, of the member for Fraser's contribution to the debate, where he says:

For those who've come across the seas 'We've boundless plains to share'. Australia is a big country with a big heart.

Leave not granted.

David Coleman (Banks, Liberal Party) Share this | Link to this | Hansard source

I am very pleased to rise to speak today in support of the Migration Act, regaining control over Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013. This bill is another part of the government's effort to undo Labor's myriad mistakes in the area of border protection. It is a sorry history of error after error, and this legislation in one important respect contributes to the correction of those errors.

The bill deals with the process by which applications for complementary protection are considered by the government. Complementary protection visas are typically granted in circumstances where an applicant has been found not to meet the criteria of the UN refugee convention but is nonetheless unable to be returned to their home country due to the harm they would suffer should they be returned. The obligation not to return applicants who would suffer certain types of harm if returned to their home country is known as nonrefoulement. The debate that this bill encapsulates is about the process by which Australia should consider applications for complementary protection. The measures in this bill are in very clear contrast to the process which has been in place since March 2012.

It is instructive to think back to the system which existed prior to March 2012. Under it, the minister of the day considered all genuine applications under Australia's international non-refoulement obligations. In a situation where somebody applied under the convention but was not successful because they did not comply with its conditions, the minister would, as appropriate, consider whether or not to provide a visa to the applicant under complementary protection provisions. This system allowed the minister to take into account a wide range of circumstances, including—as the member for Mitchell mentioned earlier—the broad background of the person who was applying for the visa. The minister's decisions were not subject to legal review.

So, prior to March 2012, we had a very orderly and sensible process by which the minister of the day would take into account relevant matters and determine whether or not an application should be successful under the non-refoulement provisions. If an application was successful, the minister would issue the appropriate visa and the applicant would not be required to return to their homeland. As was discussed earlier in the debate, the typical situation in which such visas are granted is that in which the applicant, whilst not complying with the provisions of the UN refugee convention, would nonetheless be subjected to substantial harm if they were returned home. Australia certainly has a clear obligation to provide relief in such circumstances.

The ministerial intervention model was successful because it gave the minister the capacity to deal in a flexible and constructive manner with myriad different cases. I am sure you can imagine that an infinite number of different scenarios might present themselves to the minister. The minister of the day—whether from a coalition or a Labor government, as was the case in March 2012—would take into account the relevant matters and make an appropriate decision. (Quorum formed)

The previous system—that of ministerial intervention in the complementary protection visa system—worked very well. But it is important to contrast this system with the system that was introduced by the Labor Party in March 2012. For the information of members who have just joined us I repeat that the previous system allowed ministerial intervention and a sensible approach to granting complementary protection visas, taking into account all relevant matters, and that this system had bipartisan support until March 2012.

In March 2012, Labor passed legislation in government to introduce a very rigid system. This system effectively required the department to consider each application against rigidly constructed criteria. You can imagine the administrative burden that created within the department. In addition to that, it subjected the applications for complementary protection to judicial review. So there was the previous system of ministerial intervention, intervening sensibly on a case-by-case basis when complementary protection visas were appropriate to the issue, in contrast to a very rigid bureaucratic system that creates, as the member for Mitchell so eloquently said, another product for people smugglers to sell. The people smugglers could represent: 'Whilst you might miss out on a visa under the formal provisions of the convention, we can also sell you a capacity to have a separate process under the complementary protection system.' So it is a very rigid system and certainly one that the government does not support.

It is also important to bear in mind that, despite the great formality of this system, it was only used successfully on 83 occasions since March 2012. So there is a huge administrative cost, another product for the people smugglers and a situation which in fact only related to 83 people over a substantial period of time. This bill seeks to broadly reinstitute the system that existed prior to March 2012 where the minister, under advice from the department and taking into account all the circumstances of the matter, can decide whether to issue complementary protection visas. The complementary protection visa system stays in place. There is no substantive change to the complementary protection concept or to Australia's international obligations; it is simply matter of reverting to the system that existed prior to March 2012 so as to make the system run much more efficiently.

In terms of the operation of the border protection and immigration system more generally, it is important to note we are a generous nation and we do have a substantial humanitarian program with 13,750 places available each year. That is one of the most generous systems on a per capita basis in the world. A strong border protection policy and an orderly immigration system are essential to safeguard the program. Unfortunately, the previous Labor government lost control of the immigration system. That led to a huge financial cost.

The budget blow-out under Labor in this broad area was some $11.6 billion. We throw these numbers around—we say 'billions', we say 'millions'—and sometimes the point can lose its resonance because those numbers are mentioned so frequently. I thought it would be interesting to work out what that actually means on a per household basis in Australia. According to the ABS, there are about 9.1 million households in Australia. That figure of $11.6 billion is a lot of money. If you apply the cost of the budget blow-out to the average household in Australia, $1,272 was the cost of Labor's budget blow-out in this area to every household in the nation. That is a very important point to reflect on. That is money, were it not used in this endeavour of incompetence by the previous government, that could have been used for other purposes. It could have been returned in tax relief and certainly could have been used for a much more constructive purpose than dismantling a system which was working very effectively.

In retrospect, the correct proposition for Labor to have put at the 2007 election would have been along these lines: 'What we can do on the one hand is persevere with the policies of the Howard government, which have been very successful in securing the borders and in supporting a very substantial humanitarian refugee program, or, on the other hand, we can dismantle a system which is working very effectively and create a whole new system, with lots of changes to programs that are working, at a cost of $11.6 billion.' Obviously the proposition was not put in those terms, but, had it been, it is very clear what the answer to that would have been.

It is also important to note that the cost is not only financial; there is also a human cost. Under the Howard government, about 5,000 people a year were allowed into Australia under special humanitarian visas for people who did not comply with the broad terms of the refugee convention, but nonetheless the government took the view that we wanted to provide protection to these people because of their circumstances. That number—about 5,000 people under the Howard government—dropped to just 500 in the most recent financial year. The basic reason is that there were fewer spaces available because of the influx of boats. So there was a very significant humanitarian cost for people who were seeking asylum in Australia and a very significant financial cost, as I have just discussed.

This bill, in reinstituting a sensible system for complementary protection, will contribute to the overall approach of the government in getting our borders back under control and having a sensible system of humanitarian immigration.

Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Link to this | Hansard source

I rise to argue strongly against the bill under consideration in this debate, the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. To put it simply, this law seeks to take us back to where we were prior to 2012. While I know that some people in this place believe that everything that has occurred post 2007 should now be undone as a matter of course, in this case we are considering a reversion that is neither sensible nor necessary, even with respect to achieving the government's desire to be tough at every turn. The focus of this bill is the complementary protection visa—a class of visa introduced in 2012 to deal more fairly and effectively with a small set of people who do not meet the narrow definition of 'a refugee' under the refugee convention but who nevertheless merit protection in Australia pursuant to other international human rights obligations on the basis that their return would place them at significant risk of harm.

The kinds of circumstances we are talking about include the prospect of torture or the death penalty, being subjected to cruel or degrading punishment, or being at risk of other inhumane practices like honour killings, slavery, forced marriage and female genital mutilation. I think the average person in the street would find it shocking if a woman at risk of stoning in another country for the so-called crime of pursuing a friendship or relationship of her own choosing would not be eligible for humanitarian protection in Australia of some form or other.

Helping people in such situations of danger is precisely the kind of common sense outcome that the complementary protection visa category exists to provide. In doing so, it draws not only on fairly straightforward humanitarian instincts and values, but also on the obligations that exist under human rights conventions that Australia is party to. These include the International Covenant on Civil and Political Rights and its second optional protocol aiming at the abolition of the death penalty, as well as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Indeed, the obligation to not return people to situations where they could face torture or slavery is such a fundamental principle of the international rule of law that it is known as 'jus cogens', a peremptory norm from which no derogation is permitted by any country.

Unfortunately, this bill makes it much harder and more complicated for Australia to comply with its international obligation to provide a safe haven for people at a real and serious risk of a fate we regard as utterly unacceptable, yet who are not, technically speaking, eligible for asylum under the Refugee Convention. Broadly speaking, it reverts to the situation that existed prior to 2012, where any consideration for grant of protection under the non-refoulement principles could only occur through ministerial discretion. In that way, the bill will return us to an administrative process that is more bottlenecked, less transparent and much slower. In other words, it will reintroduce all of the administrative and decision-making flaws that the Senate Select Committee on Ministerial Discretion in Migration Matters recommended be cured by the changes that were implemented in 2012. The bill has the substantial effect of removing complementary protection visas, a formal class of protection that has applied to fewer than 100 people since its introduction.

It has the administrative effect of making the consideration of complementary protection visas noncompellable, and any decision made nonreviewable. Again, I think most Australians would believe that, in a scenario where forcing someone to return to their country of origin would mean consigning them to a serious risk of torture, slavery or death, there should be an obligation to consider whether that person ought to be offered protection. And I also believe most Australians would expect that our decision-making process would allow any such decision to be the subject of appropriate review.

That is why, in its briefing note on the legislation, the Centre for International Refugee Law at the University of New South Wales said that, 'Repealing complementary protection would be inconsistent with Australia's international legal obligations and would create considerable bureaucratic inefficiencies.' The note also points out that the existing exception and exclusion clauses mean that complementary protection will not be provided in Australia to any individual judged to present a danger to Australia's security, with specific reference to applicants who have committed crimes in another country before reaching Australia. The advice states that, 'Character and security checks, including criminal checks, are also conducted before any visa is granted. It is therefore misleading to imply, as the immigration minister has done, that criminals will benefit from complementary protection.'

The figures available in September this year from the Department of Immigration and Border Protection indicate that only 55 out of 1,200 protection visas granted onshore were for complementary protection. As the Centre for International Refugee Law points out:

For those 55 individuals, the protection visa was often the difference between life and death.

It should go without saying that it is important to make and change laws carefully.

The changes that were made in 2012 in respect of complementary protection occurred after careful thought was given to the existing state of affairs and its manifest shortcomings. The opportunity to provide complementary protection has always been necessary to ensure the safe and humane treatment of a comparatively tiny category of people. It is a kind of protection that has been available and that has been provided from time to time under Australia's migration laws. All this bill will achieve is to make that protection harder to receive and harder to administer. It creates terrible uncertainty for vulnerable people. It puts too much power at the minister's discretion, with too little oversight.

They say you cannot judge a book by its cover, but you can sometimes judge a bill by its title, especially by the part within the parentheses. This is where some bright spark has no doubt put their political marketing skills to work in coming up with something that sends the right kind of bite-sized, chopped down, simplified and simplistic message. In this case, we have the delightfully bracketed 'Regaining Control Over Australia's Protection Obligations.' This is presumably designed to suggest that those obligations are not under control, or that they were previously under better control, either of which proposition is of course patently ridiculous. Australia has complementary protection obligations under international law, and we have provided safe haven in keeping with those obligations for many years. In keeping with our history as a migrant nation and our ethos as a compassionate, optimistic, outward-looking nation, we have provided safe haven to both refugees and to those seeking complementary protection. All this bill achieves is a return to a poor decision-making process. No amount of sloganeering about 'regaining control', 'sovereign borders' or 'three-star military operations' can change that fact. This is a poor law and it should be opposed by sensible persons in this place.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I am very concerned about the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. In particular, I am very concerned about the way in which it would alter the process for complementary protection. I am also very concerned about the way that complementary protection will be decided, as the bill fundamentally alters the process that occurs before someone might be granted complementary protection. This is all about abolishing proper process. That is something we should all be very, very concerned about in this place. Currently there are some people who make application to come to Australia, or who come to Australia who, through no fault of their own, do not fit neatly within the provisions of the refugee convention for any number of reasons. Often these cases are very tragic, and there is a self-evident and pressing need to give those people protection.

Up until now, there has been a proper and a good process. People who might fit within the category of this complementary protection could make their case to the Refugee Review Tribunal and, if there is an unsatisfactory outcome at the tribunal, they might try to progress their matter through the Federal or even the High Court. That would seem to be an eminently sensible, appropriate and reasonable way to respond to those people, particularly for a civilised, wealthy, lucky country like our own. They have the opportunity for their circumstances to be reviewed, and the opportunity to appeal if there is an unsatisfactory outcome. It delivers them natural justice and procedural fairness—just the sort of thing that a country like Australia should have in place, and should be proud of and work hard to defend. But this government would do away with that.

In fact, this government would basically abolish the whole process and say that it is up to the minister to make a case on a case-by-case basis. That may well work when you have a very fine minister—and I am not making any criticism of our current minister or previous ministers—but what would happen if, in the future, you were to have a ruthless minister: someone lacking in compassion; someone wanting to, for their political benefit, clamp down on or even do away entirely with people getting complementary protection? He or she would have that power.

We should not have laws of the land that rely upon good people being in these positions at all times. Our regulatory framework must provide protections against a bad minister or someone making bad decisions. So this abolition of the process is a fundamentally bad thing.

Let us put a human face to this. I am advised that between March 2012 and November 2013 only about 55 protection visas were granted on complementary protection grounds. So we are not talking a lot of people. Why on earth then would the new government want to so brutally attack proper process and so brutally put at risk the welfare of people genuinely in need for the sake of this many people coming to this country and getting protection?

I will give a few examples of these people, because I think we need to personalise this. Far too often the debate in this country about asylum seekers and irregular immigration is about grand policy and grand announcements, and we sometimes lose sight of the fact that we are talking about human beings: men, women, girls, boys, babies—every one of them a precious human being with their own story to tell. If they were members of our extended family I am sure that some people in this place would take quite a different approach to them.

One story comes straight to mind, a story I have been involved in quite recently. Living just outside Hobart is an Iranian—and I am sure he will not mind me mentioning his name—known as Affi. Affi is a young man. He came to Australia from Iran. He is gay, and his is a particularly tragic story. Affi was reported to the authorities by his father for being gay. Affi was arrested, taken into custody in Iran and brutally beaten. He still carries to this day the scars from that episode. He fled to Australia with his partner. He eventually made it to Australia, but the previous Australian government and the current Australian government do not see fit to quickly give him protection. He may not actually fit neatly within the criteria of the refugee convention. He certainly would fit neatly within the provisions of complementary protection, but, regrettably, he is on a bridging visa, or was when last I heard.

Affi, if returned to Iran, would genuinely go back in fear of his life. It is a serious crime to be gay in Iran. People are put to death for being gay in Iran. Why on earth would this government or any government want to deny Affi, for a start, protection, immediately, and not give him certainty that he can stay in Australia?

And why on earth would any government want to do away with an effective and proper process that hears the claims from people like Affi and gives people like him protection when those claims are found to be warranted? That is what a civilised country does—a rich country; a lucky country. But instead this government wants to do away with the sort of process that would effectively hear Affi's claims and give Affi rights of appeal to the Federal Court and High Court if his claims are not handled in a way that gives a satisfactory outcome.

I know Affi personally and I can say that he would make a very fine Australian. He desperately wants to be an Australian and contribute to this country, and he would be a real asset to this country. He would bring skills and a little bit of a very rich Persian culture which would make this country all the richer and better if only we were to let him stay permanently.

There are some other examples that I have read about of people who have in fact been given complementary protection in recent times. For example—and I will not mention names in these cases—there is one person, a native of Ghana, who developed a mental illness after the death of his parents and fled to Australia. If this person was to be not given complementary protection and forcibly returned to Ghana, there would be a very real risk that this person would be placed in an institution in that country, and those institutions are awful places. It is a country where people with mental illness are often not treated at all, but, to the degree that they are handled by the authorities, it is in a terrible way. This person made it to Australia. He went through the existing arrangements for complementary protection; he went through the proper process. He has been given complementary protection. That is a good thing.

Another example is of a person, a native of Nepal, who gave information to the police in Nepal and fled to Australia. Again, this is someone who would not fit neatly within the refugee convention but who is well suited to the provisions of complementary protection. He cannot be sent back. He has given information to the police and is at risk from a very broad network of criminals in that country. Again, he is just the sort of person who does not fit neatly within the provisions of the refugee convention. He really does deserve to have his case heard through proper process and with resort to appeal to the Federal Court and High Court, and so on.

Another example concerns a person from Syria. He was persecuted for his Christian background and practices, and he made it to Australia. There was not actually enough evidence in his case for him to be granted protection under the refugee convention. Again, he was granted protection under the complementary protection provisions. An interesting thing about this case is that he has low advocacy skills and could not make the case very effectively, yet it was self-evident to the people who were dealing with him that this was someone who was being persecuted and genuinely warranted protection in this country, but he could not quite get over the line with the refugee convention and its requirements. Again, these sorts of people need to have certainty that they can go through proper processes in Australia and can appeal to courts if their claim is not handled satisfactorily in the first instance. He is just the sort of person whose outcome, if it were left to the minister, would depend on the whim of the minister at the time—he may just say yes but then say, 'No, I've had a bad morning and our numbers are up so I will say no to this character.'

Another example involves three people—a daughter and her parents—who came from India. She had entered into a marriage that was violent and cruel, so she wanted to leave it. But her husband threatened to bring a false dowry claim and have her daughter abducted and raped to force her compliance. Again, it does not fit neatly within the refugee convention, but does meet the criteria for complementary protection. Again, she is just the sort of person who needs to have the certainty to front up to the Refugee Review Tribunal and have her case heard. If there is an unsatisfactory outcome, she needs to know that she is accorded natural justice and procedural fairness and can make an appeal to the Federal Court or the High Court and get a satisfactory outcome, hopefully, at the end of the day. Again, we do not want cases like that decided at the whim of the minister of the day. Maybe we would have a good minister who would say: 'Yes, no problem there. That person can have protection.' But what if it is a ruthless minister, or a politically motivated minister or someone who just wants to put a cap on the numbers one year, and that person misses out. This is not the behaviour of a rich and civilised country like Australia.

This is all about minimising the number of people coming to this country, and having in place a ruthless regime of deterrence. It is another theatrical episode by the new government to appear tough on those people who do not look like us but want to come to our country. It is another example of a cruel and ruthless policy by this government, which, I would add, is not much worse, but a bit worse, than the regime of the previous government. We have had a succession of bad policies by bad governments, in my opinion, when it comes to irregular immigration.

But just when you thought the previous government could not make things any worse, the new government are doing so. They are committed to offshore processing—a cruel arrangement. They are committed to mandatory detention and to temporary protection visas. These actions are not in accord with the word or the spirit of the refugee convention. It is about time Australia started to act like the civilised and rich country we are and started to honour both the wording and the spirit of the refugee convention. Until this country adopts a more humane and legal response to irregular immigrants we are going to be judged very badly by the international community, as we should be.

This should not be about putting in place a brutal deterrence regime. This should be about Australia acting like the civilised, wealthy, lucky country we are. When someone comes to our shores or makes an application from offshore, but particularly when they come to our shores, we should give them protection, hear their claim and give them permanent refuge if those claims are found to be true and honest. As a signatory to the refugee convention, that is what we should be doing.

Also, when people coming to Australia do not fit neatly within the refugee convention, but it is self-evident that they are in strife and that we should do the right thing by them and give them protection, we should make sure we have in place the very best process for the granting of complementary protection. We should have a proper and full process, one that accords people natural justice and procedural fairness.

We should hang on to the Refugee Review Tribunal. We should still allow it to make the decisions about complementary protection. We should allow people to continue to make appeals to the Federal Court and High Court if the outcome has been unsatisfactory at that early stage. That is what a civilised and rich country should be doing. I will not be supporting the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013. I suspect I will be one of very few people not to—prove me wrong, Labor. Hopefully Labor will also oppose this. I pray they will. It is about time Australia started acting like the civilised and lucky country we are.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lisa Chesters (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak in opposition to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013. This bill lacks fairness, as previous speakers have highlighted. It smacks of political opportunism and meanness. I seek today to explain in a little bit more detail why I believe this to be the case.

The history of this bill has been outlined. It was identified by the previous government that there was a need for complementary protection visas, and that is why they were introduced. There is still a need today. We have not woken up and discovered that around the world there are no individuals in significant harm. And the concept of significant harm is critical to this bill and critical to the legislation around complementary protection visas.

Complementary protection is the term used to describe a category of protection for people who are not seen to be refugees as defined by the refugee convention but who, if returned to their home country, are at real risk of significant harm. It may shock people in this country—not necessarily in this chamber but in the community—that there are people who do face significant harm, including the death penalty, torture, deprivation of life, cruel and inhuman treatment or punishment, and degrading treatment and punishment, such as mercy or honour killings and forced marriages. As a young woman in this parliament—I am 33—it is hard to believe that there are women much younger than me, or young girls in fact, who every year are faced with forced marriages. According to Human Rights Watch, 14 million girls are married worldwide each year, some as young as eight or nine—forced into these arrangements.

And it does not appear just in the countries we are currently taking refugees and asylum seekers from. Entire continents have been listed as countries where this practice occurs: Africa, Asia, the Middle East. We are talking about a significant proportion of the world's population. Those families, those girls, may seek complementary protection. And as a first-world country, as a country that prides itself on fairness and humanitarianism and compassion, we should continue to give these individuals the opportunity to ask for, to seek, to apply for complementary protection. Mercy killings and honour killings, again, would seem quite foreign to families here in Australia. It would be quite foreign to them to even think of placing their loved ones, their daughters, their sisters, in this situation. Yet all over the world thousands of women are murdered by family members each year in the name of honour. Most of these, again, occur in countries where women are seen as a vessel of family reputation. An act that we might see as quite normal—a young woman falling in love, but not with a boyfriend of her family's choice—and that in the Western World is written about in novels and talked about as the great love story is in other countries not seen that way; it is seen as women betraying their families and therefore maybe being subject to honour killings. Reports submitted to the UN Commission on Human Rights show that honour killings have occurred in Bangladesh, Great Britain, Brazil, Ecuador, Egypt, India, Israel, Italy, Jordan, Pakistan, Morocco, Sweden, Turkey and Uganda. This list of reports does not include countries that refuse to submit to the UN. So, again, in a significant proportion of the world's population, young women could be subject to honour killings. They may not necessarily be categorised as refugees under the refugee convention, but they are people who would otherwise fall through the net. That is why we must show compassion. That is why we must have this form of complementary protection.

The history of why it was introduced has also been highlighted in this debate. It was not just done on a whim. There were decades of ministerial review. We probably reviewed this issue for too long. I think that is the thing that has also been overlooked. It took a long time for this country to introduce the complementary protection legislation. And it was introduced in response to a report that recommended increased accountability and integrity in the system that was independent and transparent—that the politics and politicians be taken out of it. And because it was done in a way to catch those one or two falling through the net, fewer than 100 of these complementary protection visas have actually been granted since their introduction. We heard earlier that in fact it is only 57. It is catching those one or two who would otherwise be returned to their home country and face significant harm.

Complementary protection visas, as I have stated, were designed to catch those one or two—people perhaps like ourselves. I am a young woman when it comes to the parliament. I am 33, and I have put my hand up to run for parliament. In other countries that may be seen to be a challenge to the state, a challenge to authority. Yet we seek to deny these people who might just be doing what we are doing. They might just be standing up in their country and speaking up for their values. They might just be saying, 'I want to live the life that others in other parts of the world live', 'I want to be openly gay', I want to be able to have a boyfriend before marriage' or 'I want to be able to refuse a marriage'. Values that we hold very dear in this country are being denied, and that is why there was the need to introduce complementary protection visas.

This bill is an example of how the major political parties differ on this complex issue of asylum seekers. This bill demonstrates the government's lack of compassion and respect for human life. Just the name of the bill—'Regaining Control Over Australia's Protection Obligations'—demonstrates for me the delusional reality that the minister lives within—or political spin at its most extreme. Regain control from whom—our public servants? The independent impartial review board? The whole concept of this term—regain control over our obligations—is about a sound bite, it is about demonstrating to the Australian people and to the media this pretence that this country is under invasion, when clearly we are not. This bill demonstrates the government's obsession with looking tough to the public and the pretence that we are at war. Again, I ask: who are we at war with? Why this combative language that has come into the debate around asylum seekers? It is as though we have, in our government and in the minister, a group of little boys with their toy soldiers, playing war games and in charge of immigration. It is not the compassion that we seek from our government. It is not the fairness that we seek from our government. In the absence of having a real enemy of the state, it appears that the government has just made up an enemy.

Combative language like 'regaining control' and 'Operation Sovereign Borders' suggests our nation is under attack, but from whom? Is it asylum seekers or refugees—people fleeing from persecution and seeking asylum? Is it people like the refugees who have made parts of my electorate of Bendigo their home, such as the young Karen woman from my electorate who is a cleaner in the Baptist Church? Today she is 26, and she spent the first 20 years of her life in a camp on the Thai-Burma border. Recently she celebrated her sixth freedom birthday. Are these the people that we are at war with? Are these the people we need to protect our borders from? The Karen community, an ethnic minority within Burma, and the country—as many know—have been at war since 1949. The destruction of villages, the killing and the rape, the forced labour and the landmines have forced them into these camps. Today we hear that the situation in this country is improving. But there is a long way to go before we have reconciliation and we have people no longer seeking asylum from this country.

Another group of refugees have made Castlemaine part of their home. Deng is a Sudanese refugee and today lives in Castlemaine and works at KR meatworks. He, like a hundred other Sudanese men and women, has found work and employment. Again, are these the people we need to secure our borders from: people seeking asylum who are running from persecution in their own country, whether they be activists, political leaders or people just wanting their families to live freely? This is, again, why the combative language in this debate needs to be removed. We need to return to a debate around compassion and around respect for human life.

The Labor Party does hold a very different view. Labor further recognises that those who decide to leave their country in perilous circumstances have the right, under the Convention relating to the Status of Refugees, to have compassion if they do not fit into a significant category like the complementary protection visa system. Labor will work with the United Nations High Commissioner for Refugees and countries of the region to expedite claims for refugee status by asylum seekers in the region to eliminate any pull factors that may exist. Labor believes in treating people seeking asylum or protection with dignity and compassion in accordance with our international obligations and core Australian principles of fairness and humanity. Australia should comply with all other protections and obligations that we have voluntarily assumed in signing the Convention relating to the Status of Refugees and other relevant international instruments and actively engage with the work of the United Nations High Commissioner for Refugees and other relevant international and regional agencies. Labor believes Australia should have a generous humanitarian program that includes providing appropriate support, travel and resettlement for refugees and others requiring protection, and contribute to the international aid efforts alleviating pressing humanitarian needs of displaced persons. Labor recognises that, under the refugee convention, asylum seekers have a right to seek protection and asylum. These lines are from the ALP national platform, where members get together every term to debate and discuss this issue. Within our side we do acknowledge that there needs to be compassion, that there needs to be debate. We need to restore this debate to one around human life, around seeking asylum and around recognising that we are a global citizen.

In conclusion, as I stated at the beginning, it is time that we saw principled leadership from this government and not point-scoring and jockeying for political advantage. It is time that we removed the sound bites from legislation and started to focus on what really is needed. As I stated earlier, fewer than 100 people have successfully been provided with a complementary protection visa. These visas were designed to catch those people who were falling through the net, those people who would otherwise face significant harm if returned to their country of origin. The proposal under this bill contradicts, as we have said, the years that have been spent debating finding a way to support those who would otherwise be in significant harm if they were returned home. I believe that it is dangerous for this parliament to allow decisions that require mature, passionate consideration to be made by a single person—a minister. He is a minister who quite frequently stands up in public and demonises asylum seekers. He is a minister who, by his very nature in designing these bills, uses combative language. There is a reason why the previous government introduced an independent, impartial review panel to deal with these matters. It is to take the politicians out of it and to ensure that every decision that is made in relation to complementary protection visas is a fair decision. I urge the House to oppose this bill.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

This is a mean bill from a minister who is prepared to hurt some of the world's most vulnerable people for the sake of a headline. Australia has obligations. They are obligations that most decent citizens would share, but that also stem from the international conventions that we have signed up to. Core to that is the obligation that, if someone comes here seeking our help where there is a real risk that if we send them back to the place that they have come from they will suffer significant harm—which includes arbitrary deprivation of their life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment—we are not allowed to send them back, and we have to find some other way of dealing with someone who has come here seeking our help. That is the essence of the refugee convention. I would suggest that most Australians would think that that is a good thing. That is how we should treat other people, and it is how most people would like to be treated if they ever found their lives, their safety or the safety of their families at risk.

The vast bulk of the applications that we receive from people saying, 'I want help because I fall into that category,' go through the refugee system, to refer to it colloquially. There is a definition of who counts as a refugee and who does not, and people are assessed according to that. There are also various processes of independent review that people can go through, and people are able—although this option is less available now—to take matters to the court if they feel that they were not given a fair hearing.

But what has become apparent over the years is that some people fall through the cracks. Some people do not meet the strict definition set down by the refugee convention even though it is clear that they would face the same kind of threat if they were sent back to the place that they came from, as would someone who met the definition. One example is a woman who says that she, or her daughter, might be subject to female genital mutilation if sent back. Another example is someone who says, 'I'm gay, and it's a crime to be gay in my country,' or, for other reasons, 'There are people who will hurt me physically, and I may die, if I go back to where I have come from.' There are women who come here and say, 'I may not fit the strict definition of a refugee, but, because of standards in the country that I came from, I might be killed in an honour killing,' as they are called.

Australia has a system—and when this parliament rejects this bill, hopefully, it will continue—for proper assessment of those kinds of claims. They are not assessed on the basis of politics but are assessed dispassionately, by an independent panel. The panel looks at those claims and works out whether or not those people are really at risk of suffering harm or, potentially, death. There has been absolutely no suggestion to date that that system has been abused—absolutely no suggestion. In fact, the system has allowed Australia to become a home to people who, simply because of their gender, their sexuality et cetera, might have been killed, been subject to genital mutilation or been subject to other kinds of treatment that we here in Australia would consider cruel, inhuman and abhorrent. So rigorous has the independent process been that only a few dozen people have actually had their claims granted. We are talking about numbers in the 50s, with maybe another 80 or so claims in the system awaiting judgement. We are talking about a few dozen people.

On the issue of genital mutilation, in my electorate of Melbourne we have many people who have come here as refugees from countries in the Horn of Africa. Amongst the members of that community are some who do not have formal education, who came here seeking a better life for themselves and their families. There are many girls and women in that community who, until recently, saw genital mutilation as something that would be visited upon them. The members of the community in my electorate have taken advantage of the fact that they are now in Australia, where Australian values apply, where women are treated with respect, to begin educating other members of their community in the electorate. Over a period of years, the community elders have all but stamped out the practice of female genital mutilation in communities here, and the lessons are spreading back home. It is a very real issue and it is a demonstrable example of how the values that apply here in this country—equality, respect for women and democracy—attract people from countries all over the world that do not grant their citizens the basic human rights that most of us in Australia take for granted. We have a system that has given protection to a few dozen people who would not have met the definition under the refugee convention.

This minister has said, for the sake of a headline—which did not even eventuate; no-one reported on his press conference last week—and for the sake of a few votes: 'I will demolish that system and I will give myself the sole power of deciding whether or not someone deserves this country's protection. I will remove the independence that has applied and the definitions that have been set out. There's been no suggestion they've been abused, but I'll give all that power to myself.' Why? Not because there is a problem with the system but because it is perceived that there is some narrow, opportunistic political gain to be had.

The worst thing about this is that it is attacking the people who have come here seeking our help. These are people who have said: 'Australia seems to be a place where, when someone is in trouble, when someone is at risk of being killed because they're gay, of being subject to forced genital mutilation or of being subject to an honour killing, they will be looked after. Australia is quite prepared to send troops to the other side of the world to fight these regimes; we hope that when we flee them you will offer us some protection.' Instead, this minister has decided that he wants to be the fox in charge of the henhouse and that he is going to use this parliament to try and give himself that authority.

I will say one thing about this minister and this government: this minister is consistent in his cruelty in exactly the same way as, in the lead-up to the election, we saw the most base of politics on display, where the most vulnerable people in the world were used in a base attempt to gain votes. That applies to both sides of the House, both Labor and the coalition. We are seeing it again now—without there even being any demonstrable problem—for the sake of trying to gain a few votes or perhaps to distract attention from the fact that this minister will not tell us what is happening in refugee policy in this country. He has again decided, instead of speaking to the best in us, to try to fan the flames of the worst in us.

If this parliament votes for this bill it will diminish this country. This is not, I believe, what the Australian people want politics to be about. Politics should be about reaching for new heights, not a race to the bottom. It should be about speaking to the best in us, not fanning the flames of the worst in us. Not only is this bill unnecessary; it is mean. I hope that, even if it passes this place, it is defeated in the Senate and this latest spray of cruelty from this minister is given no further life—that he is put back in his box and Australia hopefully retains some semblance of decency and some ability to look at those few dozen people who are coming here seeking help. I hope that we can maintain an open hand towards them and not a closed fist.

Scott Morrison (Cook, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I thank members of the House for their contribution on this important debate on the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. (Quorum formed) This bill corrects the actions taken by the former government in opening up complementary protection to abuse, adding another product to the people smugglers' trade and allowing advantage to be taken of our nation's generosity. The bill amends the Migration Act to remove the hard-wired criterion for the granting of a protection visa on the grounds of complementary protection and returns to the former process of this protection being considered, where appropriate, under ministerial intervention. The purpose of this bill is to allow the government to restore the most appropriate mechanism for considering these claims and thereby to significantly reduce the risk of the process being abused.

When the Howard government left office, the Rudd-Gillard government inherited from the coalition a robust immigration program that Australians trusted. Labor broke that trust and outsourced the management of Australia's refugee and humanitarian program to criminals and crooks. This government is restoring the sovereignty of Australia's borders and regaining control of Australia's protection obligations. This government will restore the faith of the Australian people in our migration program.

This bill in no way resiles from our international obligations, as has been suggested in this debate. We are not backing away from our commitment to provide protection to those in genuine need, but we are protecting those places for legitimate applicants and delivering on our promise that this government will not reward those who game the system. This government believes in restoring integrity to our processes so we can be sure that visas are going to genuine applicants. Importantly, this bill will bring the interpretation of complementary protection back in line with international expectation and experience. The term 'complementary protection' is used to describe a category of protection for people who are not refugees, as defined by the 1951 refugee convention, but are nonetheless in need of protection on the basis that they cannot be returned to their home country due to a real risk they would suffer a certain type of harm.

The very real principle of nonrefoulement not only exists in all of the conventions to which we are signatories but has become a well-established and accepted principal and cornerstone of international law. The principal of nonrefoulement should be and is upheld in this bill. It should be defended, against those who would seek to abuse it or subvert it, but the framework put in place by the former government is not the most effective or robust way to achieve that end. The ministerial intervention model has the advantage of allowing the minister to deal flexibly and constructively with specific cases of individuals and families whose circumstances are invariably one-off and complex and who may be disadvantaged by rigidly codified criteria administered by department officials and subject to other, broader processes. This may include people fleeing significant harm, such as women fleeing honour killings or genital mutilation, who will continue to have and should have the protection of this country in those circumstances under our complementary protection obligations, which exist under the various conventions to which we are a signatory.

The former system enabled legitimate claims to complementary protection to be identified and addressed, while not opening up the system to vexatious onshore claims to try to game the system in the courts or allow a broader interpretation of claims and other intended measures by the courts. Indeed, former Minister Bowen acknowledged in the House in 2011 that, if presented with a case of those circumstances:

All immigration ministers that I know would intervene in such cases and would grant that visa.

That has been the practice under ministers for immigration of all political persuasions and certainly will be in my case. The bill will not result in protection being denied to anyone in genuine need, as some in this debate have sought to suggest.

The interpretation of the courts as to who should be provided complementary protection has made provisions that were intended to be exceptional the norm. The courts have extended complementary protection well beyond what was intended by the treaties to which Australia has been and remains a signatory. I note that, since complementary protection was introduced in March 2012 by the former government, the tribunal has remitted 83 matters to the department with the direction that the person met the complementary protection criteria and that 41 of these cases related to people who had arrived illegally by boat. That is 50 per cent. We said when we introduced this bill that the previous government had put another product on the shelf for people smugglers, and that is what we are seeking to do away with through the introduction of this measure. I commend this bill to the House.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

The question is that this bill be read a second time.

The House divided. [12:13]

(The Deputy Speaker—Mr Broadbent)

Question agreed to.

Bill read a second time.