Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

The incorporated speech read as follows—

The Australian Greens support the Migration Legislation Amendment (Complementary Protection Visas) Bill, and commend Senator Bartlett for introducing this Bill.

The need to institute a complementary protection scheme for Australia’s migration system is obvious and urgent. The absence of complementary protection has led to unnecessary burdens on our refugee processing system, unmeritorious cases clogging up the Refugee Review Tribunal and a huge burden being placed on the Immigration Minister to intervene.

Bureaucratic inefficiencies have been caused by the lack of a complementary protection system and this has led to suffering by real people caught up in the protection visa system. Delays in processing claims have led to people being stuck in detention for many months or years at a time. For those lucky enough not to suffer immigration detention, the processing inefficiencies mean they suffer years of uncertainty and destitution on a bridging visa where they are often denied work rights and access to basic services such health care.

The definition of a refugee in the United Nations Refugee Convention and Protocol Relating to the Status of Refugees was framed in the aftermath of the Second World War. Although the Refugee Convention has served the world well, as the Refugee Council of Australia notes: “the Refugee Convention is not and was never intended to be a mechanism to cover all people in need of protection”.

There are many displaced people in the world who do not meet the strict definition of the Refugee Convention, but are in need of protection. This protection is ‘complementary to the Convention’.

Australia has dealt with these protection needs in an ad hoc way, relying on the power of Ministerial Intervention under section 419 of the Migration Act. This power is ‘non-reviewable and non-compellable’.

Over the years the reliance on Ministerial Intervention to prop up a failing system has become greater.

The Senate will be well aware of the short comings of the Ministerial Intervention system. At the recent Senate Estimates hearings it was revealed that the previous Minister for Immigration, Kevin Andrews, had 1,846 requests for Ministerial Intervention, which resulted in 479 intervention acts.

Figures supplied by the Department of Immigration to the Senate Inquiry into the Administration of the Migration Act further reveal the number of cases the Minister for Immigration must deal with.

In 2001-2002 there were 4472 humanitarian requests for Ministerial Intervention. In 2002-2003, 4489 requests. In 2003-2004, 4138 requests and in 2004-2005, 2802 requests.

This is a heavy workload for any person, let alone a Minister with many other responsibilities. When you take into account that the Minister should give due consideration to each case and the complex nature of many of these cases with their many supporting documents, then it is a virtually impossible burden.

Of course, much of the work is done by departmental officials. This is however, problematic in itself given the lack of transparency and review.

I am glad that the new Minister has recognised this issue. I would like to quote his statement at the recent Estimates.

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.

There is an industry in appealing to the Minister for Immigration and Citizenship, I have noticed.... there is a real sense of the appeal to the minister becoming very much part of the process. Rather than being a check on the system it has become institutionalised.

The lack of transparency and accountability of the Ministerial Intervention power left many applicants and advocates with a feeling that justice and fairness had not necessarily been afforded their applications.

Indeed the results of Ministerial applications in the past seems to change with the amount of media interest in certain cases and the political landscape of the day.

The problems of Ministerial Intervention have been investigated by three Senate Committees now. A Sanctuary under Review in 2000, the Select Committee on Ministerial Discretion in Migration Matters (2004) and the Inquiry into the Administration of the Migration Act (2006).

The 2000 committee report recorded concern about the Ministerial Intervention process and recommended “the government examine incorporation of the non-refoulement obligations of the Convention Against Torture and the International Covenant on Civil and Political Rights.” This was rejected by the Howard government.

The 2004 Select Committee report made the following recommendation:

The Committee recommends 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 CAT, CROC and ICCPR.

There was not a government response to this Select Committee’s recommendations.

Finally, the 2006 report of the Inquiry into the Administration of the Migration Act made the following recommendation.

The committee recommends 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 and cannot be returned. Consideration of claims under the Refugee Convention and Australia’s other international human rights obligations should take place at the same time. A separate humanitarian stream should be established to process applicants whose claims are in this category, including a review process.

The Howard government made a practice of ignoring Senate Inquiry reports and recommendations. This is unfortunate, given that the thorough study and sounding of expert opinion on these issues by the three inquiries concluded that complementary protection was a solution that should be pursued by the government.

The current situation means that applicants who wish to apply for protection on humanitarian grounds, but do not fit the Convention definition of a refugee, must apply for a protection visa under the Refugee Convention definition anyway and fail. They must then appeal to the Refugee Review Tribunal and fail. Only then can they apply for protection under proper humanitarian grounds in an application for Ministerial Intervention.

Not only does this leave the applicant in limbo, and possibly in detention for months or years, but it clogs up the system with unmeritorious applications.

This Bill would introduce a complementary protection visa class to the Migration Act. This would allow officers processing protection applications to not only consider whether they are owned protection under the Refugee Convention definition, but also whether they should be given protection for humanitarian reasons.

Specifically this Bill lists the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations International Covenant on Civil and Political Rights as two international Conventions to which Australia is a signatory and which should be taken into account when an officer is assessing whether an applicant should be given protection under the complementary protection visa class.

I’m sure all Senators would subscribe to the articles of these two Conventions and would want Australia to give protection to those facing persecution or abuse in their countries of origin.

Implementing a complementary protection visa as a separate and parallel stream would also mean decisions could be subject to review by the Refugee Review Tribunal or similar body. Appeal rights are an important check on departmental decision making and essential in providing applicants with natural justice.

Complementary protection systems have been implemented overseas. Canada has broadened its official definition of a refugee. The European Union has created a Qualification Directive as a supranational instrument to seek to harmonise complementary protection systems in its member states.

The Australian Greens support the creation of a complementary protection system and therefore support this bill.

The Greens urge the Rudd Labor government to follow through some encouraging statements from the Minister and establish a complementary protection system. Such fundamental reform will not only ease the Ministerial Intervention workload and result in efficiencies for the protection visa processing system, but more importantly, it will provide a clear, transparent and fair framework for people needing Australia’s protection on humanitarian grounds.

I commend this bill to the Senate.