Rowan Ramsey (Grey, Liberal Party) Share this | Link to this | Hansard source

As I was saying, who would have believed that Denmark, of all places, would be removing valuables from asylum seekers to force them to contribute to the cost of supporting themselves, and that Germany would be promoting a people swap deal—a people swap deal not so different to the Gillard government's proposed, and eventually illegal, deal with Malaysia?

I do not pretend to have the answers for Europe. I do not know what I would do if I was in their position, but clearly what they are doing now is causing great concern within their society. We should not kid ourselves about the consequences. The consequences, if Europe ignores those factors, will be that their politics will lurch to the extremes. The extremes are an extremely dangerous place to be for any good democracy. We must have faith in our ability to manage our individual nations. Our people must have faith in the governments that manage our nations. If populations are concerned about their safety then our institutions are under threat and our democratic stability is under threat.

The bills today are but a small part. They reinforce our secure borders policies and our ability to be one of the three most generous nations in the world when it comes to the resettlement of refugees. This allows us, for instance, to accept 12,000 extra Syrian refugees over the next period of time. It allows us to run what is probably one of the most successful multicultural societies in the world. As I said, these bills are but a small part of that, but they do mesh into that much bigger concern that is enveloping the world at the moment. Here in Australia we should be aware of those overseas experiences that I have listed throughout my speech, and of their possible ramifications for a country like Australia.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It said:

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

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

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

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

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

It is a great pleasure this afternoon to rise and speak on the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. This is another piece of legislation that this coalition government is introducing to ensure that we maintain strong protection of our borders, and any debate about migration in this country must start with the tremendous effort and the enormous contribution that migration has made. It has made this nation a better place, a stronger country and a more prosperous country than it otherwise would be.

If we go back to 1945, there were about 7.4 million people living in Australia. Over that past 70 years, seven million people have migrated here from almost every corner of the world. Over that past 70 years we have almost had more people migrate to this country than were actually citizens of Australia back in 1945. And we know from the last census, in 2011, that one in four people in Australia were born overseas. If you look around the world, it is hard to think of a nation that has had such successful migration over so many years and that has added so much to the prosperity of the nation. Why have we achieved this? We have achieved it for a few reasons. Yes, we say we are a multicultural nation, but above that—more important—the aim of our migration has been assimilation and integration. For every generation, for every group of migrants that came to Australia, we held out those Australian values that they adapted to, including respect and equal rights for women, freedom of religion, freedom to change your religion—or freedom not to practise any religion at all—freedom of speech, and equality under the law. These are the values that have built a tolerant, diverse and harmonious society that has made Australia the best country in the world to live in.

In my electorate, only last weekend we had celebrations for Chinese New Year. But we did not just have the Chinese community celebrating the new year by themselves; we had the celebration at Moorebank Sports Club, with all of the local community there celebrating. It was the same with our Diwali celebrations in my electorate at the end of last year: it was not just the Indian community celebrating Diwali; Australians from all backgrounds and all walks of life joined in and celebrated Diwali with our Indian community. That is what has made Australia this great country. It is because we are trying to integrate together, to try to live together as one nation and share each other's customs and cultures, But, foremost, our Australian culture, our Australian customs, are front and centre of that.

Back in 2006, a decade ago—in fact, Australia Day 2006, a little more than 10 years and one week ago—the then Prime Minister, John Howard, said, when he was talking about national security:

It’s also about having a far sighted, strong, well thought out defence policy. It is also about having an uncompromising view about the fundamental right of this country to protect its borders. It’s about this nation saying to the world we are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada, we have a proud record of welcoming people from 140 different nations. But we will decide who comes to this country and the circumstances in which they come.

That must be the way that this nation determines its immigration policy. We have seen the results when people think that is not correct—perhaps a soft, leftist, green view of the world, where the words of Mr Howard were somehow considered politically incorrect. We saw the results of that during the past six years of the Labor government. We had chaos and confusion on our borders when 50,000 people came here, mainly sailing from the island of Java down to Christmas Island. That undid the confidence we had in our migration program. Thankfully, the coalition government came in and, against all predictions, was able to implement policies that stopped the boats and restored order to our borders and our migration program.

We have seen what is currently happening in Europe, where they have not followed the policies of John Howard. They thought they could have open borders. We have seen chaos in Europe. Germany is a nation that has almost impaled itself on political correctness. What do you expect to happen if you open your borders and allow 800,000 fit young men to migrate into your country who do not speak the language and have different attitudes about how you treat women? And now we see social chaos in Europe because those countries have not decided who comes to their country and the circumstances in which they come.

Although we have had great success with our migration policy for many decades, there are some cracks appearing. There are people who have migrated to this country and taken all the benefits and opportunities this country has to offer, yet they have been prepared to engage in terrorist acts against this nation. We have seen female genital mutilation on the rise in this country. We must clamp down on these things. We must accept that we have some problems in our migration system. If we are going to continue to be the great nation of migrants in the future, we cannot do it if we allow these cracks to grow wider. And that is one of the things this legislation addresses.

Specifically, this bill amends the statutory framework in the Migration Act 1958 relating to the determination process for people seeking protection on complementary protection grounds, as distinct from the refugee framework in the Migration Act. Complementary protection is a category of protection for people who do not qualify as refugees but who also cannot be returned to their country of origin as there is a real risk that they would suffer significant harm that would engage one of Australia's significant non-refoulement obligations under the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment.

Why is this bill necessary? This bill is necessary because there have recently been several instances where persons have been found to meet the criteria for non-refoulement on a wide range of grounds, including selling adult movies in their home country and drinking or supplying alcohol in countries which punish those activities, despite the fact that the government, consistent with our international obligations, did not intend for such cases to be covered by the legislation.

There have also been several cases of persons found to meet the current complementary protection criteria—that means they are allowed to stay in Australia—who have been involved in serious crimes in their home country or are fleeing their home country due to their association with criminal gangs. So when the member for Kingsford Smith says at the dispatch box that Labor opposes this legislation, what they are opposing is the right of this nation to say to someone who was part of a criminal gang overseas or involved in serious crimes in their home country, 'Sorry, you don't qualify for Australian citizenship. You'll return to your home country.' And the member for Kingsford Smith's idea that this would somehow allow women in fear of female genital mutilation to be sent back to their home country is complete and utter nonsense. We have already had too many instances of female genital mutilation this country, and we need to crack down on it. This country will not send young women back home where they are at risk of having that barbaric and medieval practice forced upon them.

Specifically, this bill will provide that a real risk of significant harm to a person must relate to all areas in the receiving country. It must clarify that a person must face a significant risk of significant harm in the receiving country rather than risk that is purely indiscriminate. It will clarify that a person will not face a real risk of significant harm if protection measures are available to the person through state or non-state actors in the receiving country. And it will clarify that a person who can take reasonable steps to modify their behaviour so as to avoid significant harm does not face real risk of that harm as a necessary and foreseeable consequence of their removal to a receiving country. The practice of female genital mutilation does not fall into that category, but those who come to this country who try and use complementary protection measures as the reason and who are involved in criminal activity or in criminal gangs is what this legislation is addressing.

Finally, this legislation closely aligns the current statutory complementary protection and refugee frameworks in the Migration Act. The bill restores the government's intended interpretation of Australia's complementary protection obligations. This is necessary to ensure they are consistent with Australia's international obligations. Only those who are in need of Australia's protection will be eligible for a protection visa on complementary protection grounds. This bill strikes the balance between giving those who need protection on those complementary grounds and ensuring we keep our borders safe and this nation secure. I commend this bill to the House.

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

Our reputation as an open, generous country is at risk. It has been at risk and under pressure for a number of years now, as the old parties have fallen into lockstep on matters to do with how Australia responds when people come here from overseas seeking our help. We see that in practice now, with people and children locked up in island prisons—or prison islands. We see it where kids, including kids born here, are spending their formative years in detention. We are seeing it to the point where children are now—according to one report and one analysis of what is happening in some of the centres—self-harming every couple of weeks.

One refugee advocate told me recently that in a detention centre in Australia there is now a six-month-old baby that the doctors have started referring to as 'the baby that does not smile'; not because the family does not love it, but because the parents themselves are so full of anguish and desperation as result of being locked up—not having committed any crime, but with no way out—that they themselves are suffering from depression and anxiety, as you would expect. Now, as a result, there is a young baby, who is six months old—probably closer to about seven or eight months, now—who is known as 'the baby that does not smile' because it is not getting its parents smiling at it and so the kid is not smiling back. That is what we are doing to children now. As someone who is the extraordinarily proud father of a seven-month-old, I live for those moments when my child smiles at me, and to think that our system is breaking children—and that that is a deliberate intent of it, because it is put there as a deterrent measure—is something that shames us.

I know that there will be debates and that there will continue to be debates about how best to deal with people coming in from overseas seeking our help, but I refuse to believe that the only choice is between child abuse and what the government says, which is letting people die at sea. There has to be a better way than what we are doing at the moment. When people are coming here seeking our help—including kids who have done nothing wrong other than, perhaps, be part of a family that is fleeing violence or fleeing war, including in many instances those wars where we, as Australians, send our troops overseas to fight—instead of the government turning its mind towards asking, 'What would be a better way?', it does not ask that question. The government does not ask: 'How could we look after children and families who just want to come and seek a better life and flee from persecution?' The government says the opposite. This government says: 'How can we make the situation in Australia so bad that it is almost as bad as the conditions that people have been fleeing?' The government says: 'How we can get to the point where people say, "I do not want to go to Australia, because they will lock you up," or, "because they will send you back into harm's way," so that they never make the journey in the first place?'

We have seen it with refugees. We have seen the approach that this government and the previous government have taken, which is breaking people's lives. We are now seeing it with another category of protection that is offered to people who come here called complementary protection—and that is what the Migration Amendment (Complementary Protection and Other Measures) Bill 2015 is about. It has been known for many, many years and it is recognised in international law that there are people who will come here who might not fit the strict definition of a refugee but who meet other tests and other obligations that Australia has signed up to, such as: they may be arbitrarily killed, have the death penalty carried out on them, be subject to torture, be subject to cruel or inhumane treatment or punishment, or degrading treatment or punishment. Some examples of that include things like honour killings against women or female genital mutilation, or perhaps exposure to some kind of genocide that is happening in other parts of the world—the kinds of acts that we would all condemn. What our laws have said is that someone who might not be a refugee but who could well be killed or could well be tortured or harmed physically if we send them back is someone that we can accept here, because that is what we have signed up to, voluntarily.

What is the government's approach? The government's approach is to time and time again say, 'We want to take that category of protection away or at least render it meaningless.' Firstly, they came in here and tried to repeal these complementary protection provisions and then they came in here and said: 'We recognise that is not going to get through parliament, so we have another idea. How about we make it so that everyone who is coming here has to prove that it is more likely than not that they are going to suffer a risk of torture?' So, if it is 51-49—if there is a 49 per cent chance that they might suffer risk—well, that is acceptable for us and we will send them back. They were sent packing on that. So now they have come back with this bill, which is going to make it nigh on impossible for someone who genuinely wants to claim complementary protection to do so in many of the instances in which they would have been let in here before.

The government is going to make it so that, under this bill, there is a new provision where they have to show that there is a particular risk that they will personally face and that they are at greater risk of that kind of persecution than others in the rest of the population. What does that mean? As one eminent professor, Jane McAdam, said:

At its most extreme, it could be argued that this provision would permit return—

so you could send someone back—

even where a whole country were at risk of genocide, starvation or indiscriminate violence, which would run contrary to the fundamental aims and principles of human rights law.

In other words: if you are coming here seeking help and you cannot prove it is just you that the government is after in your home country—if there is a whole swathe of people who are facing the risk of genocide or torture and not just you—and you cannot prove that you are at greater risk than others around you, you cannot come into Australia. That is what the government wants to say.

The government go further. They say: 'Not only that, but you have to prove to us that everywhere else in your country has exactly the same level of risk facing you and the others.' Just think for a moment about what that means in practicality. The test until now has been: is there a place nearby or somewhere else in your area that you could go to get away from the persecution? If so, you have to do that first. Many people would say that is fair enough. But now, the person who is seeking help has to prove that everywhere else in the country that they come from has the same risk and it is affecting them in a way that it does not affect others.

Think about anyone in Australia at the moment. What knowledge do each of us have about the specifics of what is happening on the other side of the country at any given moment in time? How could we talk specifically about what the weather is like in another part of the country, let alone what the political conditions are like there and what life is like on an everyday basis? That is what we are asking of someone who is coming here seeking our help. They may be fleeing, they may not be educated and they may just want to live a safer life. We are now saying: 'Firstly, you have to prove it is you in particular that they are after and not, perhaps, all the people in your race in that country; it has to be something about you. Secondly, you have to prove to us that everywhere else in the country is exactly the same for you.' That has been roundly condemned as an attempt by Australia to get out of the obligations that we voluntarily signed up to. That is exactly what it is. That is exactly why this bill should not pass.

The government is going out of its way to make Australia's detention centres, its detention system and its migration system as bad as the places that people are fleeing from so that they will choose not to flee in the first place. That is what this is about. It is about creating Fortress Australia and creating a mean Australia so that people will not choose to come here in the first place. That makes us weaker, because we should be celebrating the fact that Australia is a land of hope for people, that Australia is a beacon of democracy, freedom and stability, and that that is why people who do not enjoy those things want to come here. Instead, we are saying, 'No, we'll do the opposite. We'll create these little places around the country that are just as bad as the place that you're fleeing so that you won't want to come here in the first place.' That diminishes all of us. There must be a better way. It stands in stark contrast to what the government is happy to do for business and people who have money. If you are a big international investor, you can come to Australia and buy up parts of the country. If you have a big project that you want to have here, you can bring in heaps of people from overseas to work here at lower than Australian wages and we will not even assess you or test you anymore as a result of legislation that passed the parliament a little while ago under our free trade agreement. Move across borders as much as you like if it is about making money and if it is about exploiting people, but, when it is about people coming here seeking help, we are going to shut the door on you.

This is one of the first tests that the Prime Minister, Malcolm Turnbull, is going to face: whether there is any real difference in substance between the hairy-chested approach taken by his predecessor, Tony Abbott, on the question of compassion for refugees or whether it is exactly the same policy dressed up a bit differently. It is disappointing in that respect that one of the first cabs off the rank is to introduce a bill that is going to make it harder for people who are at risk of torture or women who might be facing honour killings to come here and seek our help. There will be some other tests coming in the next couple of days. There will be some other tests coming when the Prime Minister has to decide what he is going to do with the 37 or 38 babies that were born here and what he is going to do with the kids who are going to school here in Australia and are just part of families who want to seek a better life—whether he is going to send them back to Nauru. The tests are coming as to whether the Prime Minister has the courage to say Australia is an open and generous place.

There is a better way. There is a much better way than saying, 'Let's make Australia or parts of Australia as bad as the places people were fleeing.' No-one who is paying attention to this issue would think there are simple solutions. Of course there are not. Of course it is complicated. There are many reasons why people move around the world. We have to think about many things when we think about how to best deal with it. But to suggest that we are just going to close the door is the wrong way of going about it.

When we look around our region, we see that we are one of the rich countries in our region, we see that there are countries on our doorstep that are bearing a much bigger proportion of the refugee movement around the world than we are, and we see people languishing in camps in places like Indonesia and Malaysia. There are all the crocodile tears that are being cried by some members of the government over deaths at sea and wanting to stop them. The reason so many people jump on a boat from those centres and come here is that they have lost hope and they think Australia is not taking people anymore. Along comes a people smuggler who says, 'Give us a bit of money and I will stick you on a boat,' and they do it. I would probably do it if I were stuck in a camp as a genuine refugee for five or 10 years and felt there was no other way out. This is increasing the desperation that those people are going to feel. This is going to increase the desperation that people around the world feel when they are trying to find a better place to live. This kind of approach is not going to stop deaths at sea; it is just going to make those deaths happen somewhere else. This kind of approach is not about giving people a better life—it is about making Australia a meaner place.

I hope that the government will have a rethink in this an election year and decide to take a break from the usual election-year politics of beating up on refugees, beating up on people whose skin colour is not white and who just want to come here to seek a better life. I hope we will take a break from that, and I hope that the politics of refugees does not become an election issue in the same way that it has in the past. I hope we will break from this approach, stop proposing bills like this one that make Australia a meaner place, and instead consider what we can practically do to put in place solutions where we can take a fairer share of the burden, stop closing our door, admit we cannot have everyone coming here but work out what the happy medium is, and put in place a system that gives people hope, stops people risking their lives at sea and makes sure that we have an Australia we can all be proud of.

Natasha Griggs (Solomon, Country Liberal Party) Share this | Link to this | Hansard source

I rise to give my support to the Migration Amendment (Complementary Protection and Other Measures) Bill, which my colleague and friend the Minister for Immigration tabled in the House late last year and which in some ways rounds off the legislative journey to stop people smuggling that began almost three years ago when the coalition government was elected. The issue of illegal boat arrivals bewildered the previous Labor government and shone a spotlight on its incompetence and incapacity to deal with the big issues that affected Australians. After Labor's reprehensible decision to kill off the Pacific Solution, the floodgates opened up to unauthorised vessels, with literally tens of thousands of illegal arrivals making their way to Australia.

First and foremost, the journey these people took was extraordinarily dangerous and put at risk not only the lives of those on board but also the safety of the Navy personnel charged with trying to save them when their boats hit troubled waters off our north-west coast. Estimates of how many died at sea are by their very nature imprecise, but it is estimated that anywhere between 1,300 and 2,000 died over a five-year period. It has never been properly explained why Labor killed off the Pacific Solution. I guess it is impossible to explain a move that was so short sighted, so lacking in judgement and so bereft of good sense as to be almost beyond comprehension. But that is what the previous Labor government did: it killed off a policy that was extremely successful and replaced it with nothing. I suppose it is sheer genius from those opposite.

Labor's policy sent a message to people smugglers that they were able to resume their human trafficking trade into Australia that had effectively ended in 2001. Let me provide some figures that show the extent of the previous Labor government's stupidity in this space. In 1998, according to figures from the Parliamentary Library, 200 people arrived in Australia by unauthorised boat. The following year there were 3,721 unauthorised boat arrivals. In 2000 2,839 people arrived and in 2001, the year the Pacific Solution was introduced, 5,516 people arrived by unauthorised boat. Then something remarkable happened. Directly as a result of offshore processing and the Pacific Solution, the flow of unauthorised boat arrivals slowed to a very slight trickle. In 2002 there was one; the following year, 53; the next year, 15; then 11; then 60.

We then saw the election of Kevin Rudd and Labor. The numbers increased to 148, 161, 2,726 in 2009, 6,555 in 2010, 4,565 in 2011, 17,204 in 2012 and 20,587 in 2013. By any measure it was an unconscionable policy fail that, through clear-sighted policy implementation, took the coalition government less than 12 months to turn around. Since July 2014 there has not been a single successful unauthorised boat arrival in Australia. Operation Sovereign Borders has been an unmitigated legislative success. This is in stark contrast to the opposition's policy blunders. Our clear-sighted vision to stop the boats, to stop the terrible tragedies in Australia's northern waters, has put an end to the ambiguities and mixed messages the people smugglers took from the Labor Party's incoherence. The coalition's policies are not just about boat turn-backs and short-circuiting the people smugglers' business model. They are multifaceted and continually evolving. This will ensure they continue to meet the challenges that arise now and into the future of maintaining a strong border protection regime.

That brings us to the bill we are debating today. The Migration Amendment (Complementary Protection and Other Measures) Bill follows on from the passage of the 2014 legacy act and the 2015 Migration Amendment (Protection and Other Measures) Act. In his second reading speech, the immigration minister described the Migration Amendment (Complementary Protection and Other Measures) Bill 2015 as:

… the final instalment in a package of legislative reforms that implements the government's election commitments to ensure a more effective and efficient onshore protection status determination process.

The measures in this bill are a continuation of the government's protection reform agenda which are delivering a more effective and efficient onshore protection status determination process. The bill will amend the statutory framework within the 1958 Migration Act in so much as it relates to the determination process for people seeking protection on complementary protection grounds, as distinct from the refugee framework in the Migration Act.

To explain the context in which this is framed, I found an extremely informative study online from the University of New South Wales which backgrounds migration protection measures and the reasons why they are a part of Australia's migration regime. It explains that:

Since … March 2012, asylum seekers processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia's obligations under international human rights law.

These obligations are the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. Since 2012, Australian law has been aligned with comparable provisions in the European Union, Canada, the United States, New Zealand, Hong Kong and Mexico as well as refugee systems in Latin America and Africa. The University of New South Wales says that the measures:

… introduced greater efficiency, transparency and accountability into Australia's protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

A refugee is defined as someone with a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group. However, a person may face the prospect of serious human rights violations in their country of origin but not satisfy the definition of a refugee. This may occur, for example, if the harm they face is not for one of the five refugee convention grounds. Complementary protection describes a category of protection for people who are not refugees but who also cannot be returned to their country of origin as there is a real risk that they would suffer significant harm that would engage one of the obligations I referred to earlier.

The amendments in this legislation will align the statutory complementary protection framework with the statutory refugee framework, as inserted by the legacy act in 2014. Without these amendments there is an inconsistency between the two frameworks in the Migration Act. Under the current protection visa process, a person may not meet one of the elements of the refugee test relating to internal relocation alternatives, effective protection or behaviour modification. However, they may satisfy the complementary protection test because those same elements are currently not aligned. By closely aligning the statutory complementary protection and refugee frameworks in the Migration Act, the bill will restore the government's intended interpretation of Australia's complementary protection obligations. This is necessary to ensure that, consistent with Australia's international obligations, only those who are in need of Australia's protection will be eligible for a protection visa on complementary protection grounds.

The technical amendments in the bill will ensure that the existing provisions in the Migration Act work as originally intended. They will not change the substance of the amended provisions. The bill clarifies the interpretation of various concepts in the Migration Act used to determine whether a person will face a 'real risk of significant harm', so as to give rise to our non-return obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the International Covenant on Civil and Political Rights. This is necessary as there have been instances of several people having been found to meet the complementary protection criterion on a wide variety of grounds. Some of the examples given included selling adult movies and drinking or supplying alcohol in countries which punish those activities, despite the fact that the government, consistent with our international obligations, did not intend for such cases to be covered by the legislation. There have also been several people who have met the complementary protection criteria where they have been involved in serious crimes in their home countries, or are fleeing their home countries due to their association with criminal gangs.

Specifically, the bill will provide that a real risk of significant harm to a person must relate to all areas of the receiving country. It clarifies that a person must face a personal risk of significant harm in the receiving country, rather than a risk that is purely indiscriminate. The bill clarifies that a person will not face a real risk of significant harm if effective protection measures are available to the person through state or non-state actors in a receiving country, and it clarifies that a person who can take reasonable steps to modify their behaviour so as to avoid significant harm does not face a real risk of that harm as a necessary and foreseeable consequence of their removal to a receiving country, provided that the behaviour modification would not conflict with their identity or core belief system.

The technical amendments in the bill will clarify the reference to 'protection obligations' in the act by specifying the source of the obligations and will clarify that the 'country' referred to in subsection 5H(1), which outlines the meaning of 'refugee', is intended to be the same country as the 'receiving country' in subsection 5(1).

It will align the statutory provisions relating to protection in another country with the definition of 'well-founded fear of persecution' in section 5J of the act, and will amend subsection 36(2C) to remove duplication between paragraph 36(2C)(b) and subsection 36(1C) in the act, which both operate to exclude an applicant from the grant of a protection visa on character-related grounds.

In addition, it will amend subsection 336F(5), which authorises disclosure of identifying information to foreign countries, to include information pertaining to unauthorised maritime arrivals who make claims for protection as a refugee and fall within the circumstances of subsection 36(1C) of the act. Beyond that, it will also amend subsection 502(1), which allows the Minister for Immigration and Border Protection to personally make a decision that is not reviewable by the Administrative Appeals Tribunal, to apply to persons who have been refused a protection visa on complementary protection grounds for reasons relating to the character of that person.

Finally, it will amend subsection 503(1), which relates to the exclusion of certain persons from Australia, to apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person, all of which are quite reasonable, in my view. I commend the bill to the House.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He is right; the minister is wrong.

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

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

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

Steven Ciobo (Moncrieff, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

I am very pleased to thank members for their contributions to this important debate on the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. This bill is a continuation of the government's protection reform agenda to deliver a more effective and efficient onshore protection status determination process.

Following the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014—the legacy act—in December 2014 and the Migration Amendment (Protection and Other Measures) Act 2015 in March last year, this bill amends the statutory framework in the Migration Act relating to the determination process for a person seeking protection on complementary protection grounds. 'Complementary protection' is the term used to describe a category of protection for people who are not refugees but who also cannot be returned to their country of origin because there is a real risk that they would suffer a certain type of harm that would engage Australia's international nonrefoulement obligations under the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Specifically, the bill will amend the Migration Act to clarify the interpretation of various concepts used to determine whether a person will face a real risk of significant harm so as to give rise to a nonrefoulement obligation under the ICCPR or under the CAT. These amendments will provide that a real risk of significant harm to the person must relate to all areas of the receiving country. It will: clarify that a person must face a personal risk of significant harm in the receiving country rather than a risk that is purely indiscriminate; clarify that a person will not face a real risk of significant harm if effective protection measures are available to the person through state or non-state actors in the receiving country; and, finally, clarify that a person who can take reasonable steps to modify their behaviour so as to avoid significant harm does not face a real risk of that harm as a necessary and foreseeable consequence of their removal to the receiving country, provided that the behaviour modification would not conflict with their identity or core belief system.

These amendments will more closely align the complementary protection framework in the Migration Act with the current statutory refugee framework, as inserted by the legacy act. Without these amendments, there is an inconsistency between the two frameworks in the Migration Act. In particular, under the current statutory protection visa process, a person may not meet one of the elements of the refugee test used to determine whether a person has a well-founded fear of persecution relating to internal relocation alternatives, effective protection and behaviour modification. However, they may then be found to satisfy the complementary protection test because those same elements used to determine whether a person faces a real risk of significant harm are currently not aligned. The bill addresses this inconsistency. In doing so, it will ensure consistency in decision making and continued public confidence in Australia's capacity to assess protection claims, consistent with our international obligations.

The bill is consistent with Australia's international obligations and will not result in people of genuine need of protection being returned to danger. The government will continue to comply with these obligations. Australia remains bound by them as a matter of international law. The bill will not alter the criterion for a protection visa on complementary protection grounds under paragraph 36 2(aa) of the Migration Act. Furthermore, the bill does not amend the risk threshold for assessing Australia's nonrefoulement obligations under the ICCPR and the CAT. The 'real chance' risk threshold for assessing complementary protection in the Migration Act will remain intact. It currently applies to both the refugee and complementary protection contexts, and is not amended in either context by the bill.

The amendments are necessary as, since the introduction of complementary protection into Australia's protection visa processes in March 2012, various judicial interpretation issues have arisen and resulted in the broadening of Australia's complementary protection obligations. As a result, there have been instances of several persons having been found to meet the complementary protection criterion on a wide variety of grounds, such as selling adult movies and drinking or supplying alcohol in countries which punish those activities, despite the fact that the government, consistent with our international obligations, did not intend for such cases to be covered by the legislation. There have also been several persons who have been found to meet the complementary protection criteria where they have been involved in serious crimes in their home countries, or who have been fleeing their home countries due to their association with criminal gangs. The bill will, therefore, restore the government's intended interpretation of the complementary protection provisions in the Migration Act.

The bill also makes several technical amendments to the statutory framework in the Migration Act relating to protection visas and related matters. These amendments will ensure that the existing provisions in the Migration Act work as originally intended and will not change the substance of the amended provision. I commend the bill to the chamber.

Ms Anna Burke (Chisholm, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill be now read a second time.