Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise this afternoon to also speak on Senator Bartlett’s private senator’s bill, the Migration Legislation Amendment (Complementary Protection Visas) Bill 2006 [2008]. Before I begin my remarks, I would also like to formally recognise Senator Bartlett’s longstanding interest in refugee and humanitarian issues, thank him for raising this issue of complementary protection and acknowledge his contribution to this debate and to the debate more generally on these matters. I would also like to say—and it has been acknowledged by some of the previous speakers—that the new Minister for Immigration and Citizenship, Senator Evans, has indicated that complementary protection is one of the issues that he is considering as a part of a broad-ranging review into the operation of the Migration Act.

The minister has in fact indicated that he is favourably disposed to looking at how we might advance the matter of complementary protection. However, before going ahead, jumping straight into it and trying to make the changes immediately, which would be the effect of this bill if it were supported, what Labor wants to do is consult very broadly. We want to have a conversation with the community; we want to speak to stakeholders, people who are interested in the issues and academics who have an interest in the topic; and we want to consult with groups such as the UNHCR, who of course have a very relevant interest in this matter. It is also important to realise that complementary protection itself raises very complex issues and these require careful consideration. It is not a matter that can be dealt with in a short space of time; nor can the complexities be glossed over for a broadbrush result. It is as a consequence of these concerns, which I will outline in more detail, that we are not able to support Senator Bartlett’s bill in the form it is currently in.

A number of speakers have already talked about what complementary protection is. It is of course used generally to provide protection to persons who do not fit within the terms of the refugee convention but who cannot be returned to their country of origin due to non-refoulement obligations under other international treaties or on more general humanitarian principles, such as providing assistance to people fleeing from generalised violence. Of course, these other international obligations to which Australia is a party include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. So, as I indicated, Australia has an obligation under the refugee convention to not return a person where their life or freedom would be threatened on account of their race, religion, nationality or membership of a particular social group. We also have an obligation under the convention against torture to not return a person where there are substantial grounds for believing that he or she would be subjected to torture if they were to return to their own country. A similar provision exists under the ICCPR.

These obligations that I have referred to recognise that people should not be returned to a situation where they are likely to face very serious violations of their human rights, but it is important to recognise that a broad range of rights are covered by these treaties, such as the ICCPR, and not all of them give rise to an obligation to allow people to remain in Australia, particularly where there is a risk that the right will be breached in the person’s home country. It is the complexities and implications of this that I mentioned before that give rise to our concerns with the bill and our reasons for not being able to support it.

Senator Bartlett’s bill before us today, as I read it, would entitle anyone at risk of having any of their rights under the ICCPR violated to be able to remain in Australia. It is not clear, when you look at the bill itself, whether or not their entitlement would be to a permanent visa or to a temporary visa, but they certainly would have some entitlement to remain in Australia. If this were to occur then it would have the result of going well beyond Australia’s international human rights obligations. Labor does not believe that this is a step that should be undertaken lightly and without some thought and investigation. Our international obligations do set the benchmark for what we as a country should and must do, but when we are going beyond those obligations in a way that gives people an entitlement to live in Australia—potentially permanently—it is not something that we could endorse lightly in the terms that are presented in the current bill.

There are also a number of practical issues that need to be considered. There are, of course, strong parallels between complementary protection and refugee status. If we are to have a different system of complementary protection then there may be advantages to these types of claims being considered in a single process, with some administrative and resource savings. But under the bill as it is currently drafted this is not possible. It seems that under the bill there is a possibility for chain applications: first an application for a complementary protection visa and then one for a protection visa under the refugee convention. It would make better sense, in our view—with all due respect to Senator Bartlett—to assess a person seeking non-refoulement first against the refugee convention, which in many respects provides a broader or lower set of tests to be identified for those in need of protection, rather than against some other instruments like the convention against torture or the ICCPR. We also think that it would be better if this were to be done as part of a single process.

The other thing that is unclear is what type of visa we give people approved under this process. As I said before, it is not clear whether or not it is a temporary protection visa or a permanent visa that is intended to be granted to these people. So, as I said before, the bill does raise a number of complex issues, not all of which have been adequately covered by the bill, and these issues certainly deserve further attention before rushing ahead and accepting it in its current form.

There is another really important issue as well which the government needs to be able to manage. This goes to the issue of the character of some individuals. We have to think about how we deal with situations where our international obligations are engaged but the people involved may pose some kind of danger to the community, whether it be for national security reasons or other reasons, and therefore we consider them to be undeserving of protection. Under the ICCPR there are no exclusion grounds in our non-refoulement obligations, so according to this private member’s bill—if it were to be enacted—the persons I have referred to would be entitled to be granted a visa to stay in Australia and, presumably, would be released into the community. Obviously, this would cause problems. This is another complexity that the bill simply does not address.

Another area that is not addressed is the review of decisions. As we know, the RRT only has jurisdiction to review protection visa decisions. We are left wondering whether or not those people not granted a complementary protection visa would be entitled to review of the decision and, if so, what form this review would take. So this is another matter that is simply not addressed in this legislation. The other problem is what form of complementary protection should be afforded. Throughout the world, in different states and different jurisdictions, countries deal with the matter of complementary protection in different ways. These can include either permanent or temporary residence based on humanitarian concerns and other matters. So the situation we have is that there really is no clear, fixed model or standard which can be pulled out and applied in the Australian context. If we were going to look at a system of complementary protection then we would really need to examine and compare what other states are doing and work out what is going to be best for us in Australia.

Senator Bartlett referred to the fact that currently these matters more generally are dealt with by the ministerial intervention powers that exist under the Migration Act. Of course, there has been a great deal of criticism of this ministerial intervention power. It has been the subject of numerous inquiries, including Senate inquiries in 2000, 2004 and, most recently, 2006. In fact the minister himself, Senator Evans, has acknowledged that he is uncomfortable with the powers that exist under the act, and he is taking advice on how things might work differently. The difficulties that exist with the ministerial intervention power have been outlined: it is a non-compellable power, it is non-reviewable, there are no strict guidelines as to how it ought to be exercised, there is no avenue of appeal from a bad decision and there is a lack of consistency in decision making. So it is quite clear that there are a number of problems, and it is something that has to be addressed. The minister himself has acknowledged this and said that he is concerned about the lack of transparency and accountability surrounding these decisions. He has said himself that he is inclined to support an independent, transparent and appealable decision-making process in order to resolve these types of matters.

Labor does acknowledge that the current ministerial intervention power is in need of review, and we are in the process of moving this forward. We acknowledge that complementary protection is one of the matters that ought to be considered, and the minister has said that he is in the process of considering it. He has said that he is favourably disposed towards advancing the complementary protection agenda. But Labor and the minister want to be able to consult much more broadly before taking any decision, and we want to be able to see how things are done internationally and what is the best way to do things here in Australia. As I have said, complementary protection raises very complex issues, and the bill as currently drafted gives rise to a number of problems: there are quite a few gaps and there are a number of matters that still need to be addressed in more detail. So, while Labor and the minister are interested in looking at the issue of complementary protection, we are not prepared to rush into doing this. If we are going to do it, we want to do it correctly. As a consequence, unfortunately, Labor is unable to support the bill in its current form.