Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

This legislation was introduced in the Senate by me on behalf of the Australian Democrats nearly two years ago and reinstated to the Notice Paper after the recent federal election. It proposes the establishment of a new category of visa, known as a complementary protection visa. It seeks to significantly improve the efficiency and effectiveness of a significant category of visa applications under the Migration Act. There are around 150 different visa classes and subclasses, and I am on record calling for a significant rationalisation and reduction of them—so it might seem a bit strange that I am proposing legislation to add a new category of visa to the existing ones, but this mechanism would deal with what is a serious ongoing inefficiency and, I might say, a very non-transparent process that affects thousands of people each year.

The purpose of a complementary protection visa is to deal with those claims made in Australia by people whose circumstances do not meet the refugee convention definition of a refugee but nonetheless have compelling humanitarian or safety reasons why they cannot return to their country of origin and do not have any other place or any other country that they can go to. This gap is due to the fact that the protection of the refugee convention does not cover every possible humanitarian situation. So, whilst in general parlance we might use the term ‘refugee’ to mean somebody who has fled a dangerous circumstance, in a legal sense the definition of ‘refugee’ under our Migration Act, as reflected in the refugee convention, is actually fairly narrow. It does not necessarily deal, for example, with cases where people are stateless, cases of people who have come from a country enveloped in civil war, cases of people who have been subject to gross violations of their human rights for reasons other than those in the refugee convention, cases where people would face torture upon returning to their country, or other sorts of circumstances where people have come from a country where general law and order no longer exist. All of those circumstances can apply without somebody falling into the category of ‘refugee’ under the convention.

I believe, and the Democrats believe, that a clearly defined statutory model of complementary protection would provide a fairer, far more consistent, far more transparent, far cheaper, far more efficient and much quicker system for determining and resolving the situations of people in Australia who have clear and strong humanitarian reasons why they cannot be returned to their country of origin. It should also be emphasised that, particularly at a time when we still have mandatory detention existing under the Migration Act, it is people in this category that have often been amongst those who have been in long-term detention. I note the new Minister for Immigration and Citizenship, Senator Evans, has, to his great credit, indicated his desire to finalise and resolve the circumstances and claims of people who have been in detention for prolonged periods of time. He identified 61 people who have currently been in detention for a period longer than two years—not all of them are in this situation, I might say; but some of them are.

In addition to those, there are many others out there in the community—on return pending bridging visas, removal pending bridging visas and other forms of bridging visas—whose refugee claims have not been successful but who are, nonetheless, not realistically able to be returned. This includes people who are stateless. I know of some circumstances of people who have been in detention for four, five or six years, and who have been refused—correctly, in a legal sense—a protection visa because they have not met the refugee convention criteria but nonetheless clearly cannot be returned to their country of origin. These people are stateless and have nowhere else they can go. We know that. They know that. They have actually said, ‘We will go anywhere—any country that will take us, please.’ But there is nowhere that will take them. So, as a consequence, they have stayed in detention for very long periods of time. Some of those people are now out in the community, but they are still in the community on temporary visas—temporary humanitarian visas, bridging visas, removal pending visas. All of these sorts of visas have differing entitlements attached to them but have one thing in common, and that is a lack of security, a lack of certainty, and they leave the circumstance unresolved. This is particularly stressful for the person but it is also unsatisfactory for the department and our migration system, because it leaves a case that is still pending. It is inefficient, it is expensive, and it is frankly inadequate.

The other big problem with the existing system is that all of these people have no direct, clear process to make an application to deal with their circumstances. Even people who know they do not fit the refugee criteria, and who are quite honest about that but believe they have a compelling humanitarian case—people who, for example, may face torture for other reasons if they are sent back—have no alternative but to apply for a visa they know they are not entitled to. They do this—even where they know they are not entitled to the visa —so that their application can be rejected and they have to appeal to the tribunal. At that stage, they can put in a specific request for the minister to make a personal intervention. This is because, under the current legislation, the minister cannot intervene to make a decision about a visa until somebody has had their application for a specific reason rejected, and had it rejected again on appeal to the Refugee Review Tribunal or the Migration Review Tribunal.

So we are forcing people to apply for visas they are not eligible for, forcing them to appeal to a tribunal when they know they are not eligible for it, wasting the resources of the department, wasting the resources of the tribunal, and then going into a ministerial discretion process that is completely arbitrary, totally nontransparent and unpredictable. This process is also grossly overloaded for precisely this reason—or at least in part for this reason. People have no other avenue.

It is an absurdly inefficient system and one that is not codified, which leaves a real risk of it being inconsistently applied, and not transparent with regard to the reasons behind why some applications are accepted and others are rejected. I can certainly attest to that fact, as can a number of parliamentarians who make requests to ministers. There are many people in the community who make requests to ministers to intervene in humanitarian cases. They have been doing this sort of thing for years—as I have—and have no idea why one person is successful and another person is not. At least, with a normal visa statutorily defined, if you are rejected you will get reasons why you were rejected and you can see if the reasons make sense. If they have any errors of fact, you can appeal if necessary on the basis of a mistake, an error in law—any of those sorts of things. You cannot do that with ministerial discretion; it is completely at the discretion of the minister. It is not appealable, not compellable and not transparent. It is a very inefficient system.

I should emphasise that this is not a new problem; this is not some recent frolic or little quirk that the Democrats are trying to identify. This has been identified a number of times in Senate committee inquiries. As long ago as June 2000, a report entitled A sanctuary under review: an examination of Australia’s refugee and humanitarian determination process was tabled in this chamber by the Senate Legal and Constitutional References Committee. The committee, which was then chaired by Senator Jim McKiernan from Western Australia, a Labor senator, brought down an almost unanimous report; it was certainly unanimous in this regard. It recommended that the government examine the most appropriate means by which Australia’s laws could be amended so as to explicitly incorporate the non-refoulement obligations of the convention against torture and the International Convention on Civil and Political Rights into domestic law. I was a member of that committee and the rationale behind that recommendation was, in part, because of the inefficiencies of having to go the circuitous and opaque route of ministerial discretion. That was, as I said, a unanimous report, including from the Liberal Party members of the committee, which at that time were Senator Payne and Senator Coonan. It also included me and three Labor senators, one of whom was Senator Ludwig, who has now gone on to greater things.

I urge the new Minister for Immigration and Citizenship, Senator Evans, to examine that report and, even more so, to examine the report of the Senate Select Committee into Ministerial Discretion in Migration Matters, which reported in 2004. By that stage, sadly, migration issues had become much more partisan and politicised, so the Liberal members of that committee did not sign on to the recommendations, but nonetheless the Labor and Democrat members did sign on. That committee was chaired by the aforementioned Senator Ludwig, as well as having Senator Wong and Senator Sherry—and those three Labor members are all now senior members of the ministry. The report included a recommendation that the government consider 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 various international conventions, such as the convention against torture, the Convention on the Rights of the Child and the International Convention on Civil and Political Rights. For those who are not aware, ‘non-refoulement’ basically means ‘non-return’—not returning people to face torture, persecution or other serious circumstances.

The report—and, again, I urge the minister to examine the material and the rationale put forward in that report, supported by all of the Labor members of the committee, all of whom are now ministers in the new government—examined and agreed that we needed a system of complementary protection. From pages 138 onwards of that report is evidence from the human rights commission proposing these sorts of things. Other material was put forward that pointed to the proposals by the Executive Committee of the United Nations High Commissioner for Refugees program, EXCOM, talking about the need to operate and have an effective system of complementary protection. The Refugee Council of Australia put forward proposals in that regard and had a paper presented to the inquiry, entitled ‘Complementary protection: the way ahead’. I know that some of those bodies working in this area—the Refugee Council of Australia, A Just Australia and others—are continuing to explore and propose ways to implement a system of complementary protection.

This legislation is based on a recognition of a longstanding need to improve the efficiency and fairness, quickness and transparency of our migration system. I do believe that it is a simple and effective way of doing it. I know the new minister is examining, as is understandable, the way the Migration Act as a whole works now and areas where he can make improvements. I understand that he wants to take time to do that and to look at the best ways to do it, so I urge him to look at the model that it is put forward in this legislation and some other similar models.

I note from today’s Age newspaper that the minister is looking at trying to streamline and fast-track the operation of the temporary skilled worker visa program. I very much support him in doing that and making it work more efficiently and effectively—not putting in place lots of pointless red tape that costs enormous amounts of money and makes the whole system work less effectively and makes it harder. This is one of the key reasons for these things; I think it is often forgotten. It is against our own interests as a nation to make it harder for people to get a clear, quick, understandable, consistent decision on a visa application. The same principle applies whether you are talking about a visa application for a skilled worker, an engineer coming here from India or somebody who is already here and seeking a decision on whether or not they can stay on humanitarian grounds.

It is in the public interest to have quick decisions made and to have them made fairly, consistently and openly. That saves enormous amounts of money. It means that people who do get a successful decision are able to contribute economically and socially to the Australian community much more effectively. We all know that the longer people live in a state of uncertainty, the longer they have to struggle on without proper opportunities to get support, the harder it is for them to settle. They develop difficulties in regard to mental health issues and the like from the stress and that diminishes their potential for contributing effectively to the Australian community.

It is not just some bleeding heart measure to say, ‘We need to help these poor people; let’s be nice to them.’ It is not just to make us feel good. It is actually in our own interests economically, as much as anything else, to have people receive quick, open, fair decisions so that those that are accepted on valid grounds are able to contribute effectively as quickly as possible in the Australian economy, community and culture and those that are rejected are given clear reasons why. They do not have to go round and round in circles and then get a letter back from the minister saying, ‘I just choose not to exercise my discretion,’ but giving no reasons. Then nobody is clear why this person is rejected and the other person is not. It is precisely the sort of uncertainty that leaves people in a situation where they keep fighting, dragging it out year after year at great stress to themselves and great cost to the taxpayer.

Overall, it does not really help the effectiveness and coherence of our migration system and laws. If people get a decision with clear reasons as to why they are rejected, they are much more likely to say: ‘Okay, I’m not happy but I understand; I’ll look for other options. I’ll return, if that’s possible, or I’ll do other things’. I am not saying that will happen automatically all of the time, but the evidence shows that that is what happens. If people are actually given open, clear reasons that they can test, they feel like they have had at least a fair go and a fair hearing and they are much more likely to accept the decision than if they feel they are getting the run-around.

I support the new Minister for Immigration and Citizenship in his attempts to streamline the skilled visa program and expand it. I support the minister for, as it says here, considering allowing climate refugees to resettle in Australia and allowing unskilled workers from Pacific islands as well. It might seem like it is a separate issue but it all links to having a clear and coherent system based on rational reasons which operates as quickly and as clearly as possible.

I might say in regard to climate refugees that that is another example where we use the word ‘refugees’ in a general sense. We all know what it means, but it is actually not and it is never going to be part of the refugee convention. There is no way the refugee convention is going to be reopened and redefined to include climate change refugees. It does not come under the current criteria of the refugee convention, not surprisingly. But it does come under precisely the sort of criteria that would apply in regard to complementary protection. This would actually be a very clear-cut, simple way for climate change refugees, as we use the term in the general sense of the word, to be accepted in Australia. There are clear humanitarian circumstances where people cannot return as a direct consequence of severe environmental degradation, for example, and they could fit under this category. That would be much better than having to just use ministerial discretion or have set up some specific things just for climate change refugees. It allows flexibility within the context of a clear set of statutorily defined guidelines.

I support the minister in what he is doing in the Migration Act more broadly whether it is in the area of skills or other areas. But I would also urge him to look at it in regard to this area. Even under the previous government a number of ministers clearly acknowledged that the ministerial discretion system is broken. It is not the job of the migration minister to be micromanaging thousands of individual migration visa requests. You employ a department to assess claims. There is a whole section set up that deals with these now but the power can only be exercised by the minister, and dealing with individual claims is not what our migration minister should be doing.

This legislation would significantly reduce the dysfunctionality of the ministerial discretion system that currently operates, and that is needed. I think all sides of politics would agree on that. It puts in place a scheme that is clearly defined and therefore contained. It does not just open up open slather for anyone we feel sorry for, but it removes the inconsistency and the lack of transparency that currently applies. Any change to the Migration Act that means it will operate at less taxpayer cost, at greater efficiency and quickness and with fairness is something that we should seriously consider and I hope the government and the new minister does.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise on a point of order. It is a point of order that I do not expect a ruling on now, but I would seek to draw to your attention that the official tape of the Hansard does disclose Senator Carr saying the words alleged by Senator Kemp during question time through his point of order. I therefore ask the President to consider whether that language was in fact unparliamentary and should be withdrawn.

The second matter that I would raise for consideration by the President is this. On that point of order being raised by Senator Kemp, Senator Evans asserted that Senator Kemp’s statement was untrue, was verballing the minister and vexatious in circumstances where the tape now clearly bears out every single point made by Senator Kemp. In those circumstances, I believe Senator Evans should be asked to withdraw making that allegation against Senator Kemp. I do not need a ruling now, Mr Acting Deputy President, I realise it may put you in a difficult position, but I think that the matter should be dealt with after review of the tape.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Abetz, I will bring to the President’s attention the remarks that you have just made.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to speak to Senator Bartlett’s Migration Legislation Amendment (Complementary Protection Visas) Bill 2006 [2008]. Before addressing specifically different provisions of the bill and the comments made by Senator Bartlett, I want to say at the outset that I am very proud of the good record of the previous coalition government when it comes to having a sound immigration policy and a sound immigration system that is relevant to Australia—not just to the economic development of our great country, but to the expression of compassion and care, specifically to those who are refugees. Over the 11 years of the coalition government, we welcomed more than 100,000 refugees and humanitarian entrants. I notice that in the past 12 months or so we increased the size of our offshore humanitarian program from 12,000 to 13,000 places, and that included an increase in the refugee component from 4,000 to 6,000. You can compare the record in different ways, but Australia’s record of welcoming refugees to this country is certainly very good. It has been said that Australia has the second-best record in the world, second only to Canada, for refugee intake.

In any event, the commitment by the previous coalition government of around $500 million a year was made. It was made to support resettlement services, including the Adult Migrant English Program, which included 510 hours of English language training plus a special preparatory program providing an additional 400 hours of English training for eligible people with high needs. I want to commend those involved in the various ethnic groups and other groups around Australia, particularly in Tasmania. Barbara Blomberg, for example, who is based in Hobart, has showed leadership and advocacy for those who need it and has supported those in need—those coming in with refugee status or on some sort of humanitarian program.

The previous government provided 13,000 places for 2007-08 in that humanitarian program and an additional $209 million spent over four years on a series of programs designed to assist humanitarian migrants to thoroughly integrate into Australia’s broader society. That included $128 million additional support for newly arrived humanitarian entrants to learn English. The point I wanted to make at the outset is that the record is strong, it is good, and that it is not just for the purposes of economic growth to this country, but in terms of showing compassion and care and some humanitarian objectives—not just for our country but across the globe.

In turning specifically to Senator Bartlett’s bill, it is not something the coalition can support, for a number of reasons. It is because, at the moment, we do have a system in place. The system says that the refugees are assessed in accordance with the refugee convention, as specified under the Migration Act. It is a convention which our government and our country is a signatory to. That visa can be obtained, as Senator Bartlett has noted in his comments, through ministerial discretion. The concern is that if you set up a separate system—a complementary protection visa system is referred to in the bill by Senator Bartlett—then you are affecting the lives of those people who would otherwise have obtained refugee status and entered our country through the current arrangements. By handing out the visas to people who do not meet the criteria assessed against the refugee convention as specified under the Migration Act, then you are creating what I would term a queue-jumping arrangement. That is not something we would want to support on this side of the Senate chamber. And if that arrangement did come into place, somebody out there is going to miss out. The queue will be jumped under the system that would be established under the Democrats’ regime. That is something we would not wish to support.

Senator Bartlett and the Democrats have said that the current system does not cater sufficiently for those in an arrangement where there is torture or civil war, but I am not sure that is entirely true or accurate. Under the current arrangements, certainly those situations can be addressed and those applications can be successfully made through the discretion of the minister. Under the system, it sets up a fast track approach, a fast track legislative regime which provides complementary protection mechanism for refugees. But as I said, it is unnecessary and the concern is: would it open up the floodgates? What sort of arrangements are in place in terms of the numbers and the quantity of potential refugees coming into this country? As I said, we have a very good record and I hope that we can maintain that. And I call on the government to maintain the very good and strong record that we do have. In short, it would certainly allow for some refugees to be fast-tracked and get that fast-tracked visa at the expense of others. That is what we do not want and that is why we cannot support this particular bill.

I want to empathise with Senator Bartlett and his objectives. He has had a longstanding interest and concern in this area and has expressed care in different ways through different committees. He has referred to the legal and constitutional affairs committee and a report dating back to 2001 or thereabouts, which did make reference to the need for streamlining the processes of bringing the various refugees that we have into this country. I know that Senator Payne has chaired that committee and it is a committee that I am currently deputy chair of. I thank all of the members of that committee for their very valuable contributions over many years. But my understanding of that report is that it was recommending an examination of the processes. As I said, the recommendation that has been put forward and the objectives put forward by the Democrats in this bill are not something that we could support.

I noticed that the shadow minister for immigration and citizenship, Senator Chris Ellison, has demonstrated and expressed the views of the coalition, particularly over the last week, with respect to section 457 visas, and he certainly has demonstrated great leadership and advocacy for continuing the very strong record of a sound immigration system in Australia. What we need is an orderly entry system into this country. It is true that, since 1996 when the Howard government first came to power, something like 30 per cent of the migration intake was from skilled migration and that percentage has now shifted to 70-odd per cent. Last year, something like 102,500 of the total came from skilled migration. Of course, that is important because that is a key ingredient to building a strong economy. On the other hand, we have had a very good record with respect to our humanitarian regime and our efforts to care for and look after refugees—as I said, second only to Canada. I just hope that under the Rudd Labor government that strong record can continue.

In conclusion, I want to address the comments that Senator Bartlett made with respect to the Refugee Review Tribunal and some of the litigation that occurs with respect to the immigration system. It is true that some of these matters were addressed at Senate budget estimates, not only in the February hearings but also last year and, I am sure, in previous years. It is true that there is much litigation with respect to some of the processes, and perhaps there could be some reviewing and streamlining of the processes with respect to the applications that are made and considered. Certainly the Refugee Review Tribunal has a role and, of course, other courts, whether they are other federal courts or indeed the High Court. I think the senator does have a point in terms of the importance of streamlining the processes and making it clear to not only the refugees, potential refugees or potential applicants to those particular tribunals but to the community in general that we do not want months and years of litigation in front of us, with, of course, the community footing the bill in each case. We want a streamlined, clearer and more orderly approach wherever possible. In conclusion, I commend Senator Bartlett on his objectives and efforts. I empathise with his approach, but say that on this occasion it is not possible to support the proposed legislation.

Linda Kirk (SA, Australian Labor Party) Share this | Link to 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.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I understand I will be closing the debate. Before I do that I seek leave to incorporate a speech by Senator Nettle.

Leave granted.

Kerry Nettle (NSW, Australian Greens) Share this | Link to 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.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I thank the Senate, particularly because Senator Nettle expresses support for the bill. I am pleased to hear that. I understand the rationale of the Labor Party in not supporting the bill, as was outlined by Senator Kirk. I appreciate the indications she gave that the minister, Senator Evans, is examining some of the issues that are raised around complementary protection and the current inadequacies and quite enormous inefficiencies in the ministerial discretion system. I recognise that the minister would want to consult widely and do everything properly, because it is not simple to get this right, but it does need to be done. The purpose of this legislation—and, I might say, a number of other private senators bills relating to migration that I have on the Notice Paperis to advance the agenda and put forward the case as to why change is needed.

Frankly, if the government can come up with another way of doing it that they think achieves the goal more effectively, I would be pleased. I do not have any great sense of my way being the only way. I do think that action needs to be taken to address these issues and if the government can find a better way then I am quite happy about that and supportive of it. So I welcome the indications that have been given that the minister is examining this area along with a number of others. I think the basic point needs to be made that it is about getting a migration system that is fairer; more efficient and therefore cheaper for the taxpayer; less bureaucratic and less full of red tape; and less opaque than what currently operates for people in these sorts of circumstances.

I think it has been valuable to have this debate, despite my not being successful in getting support for the legislation from either of the major parties, and to get some of these things on the record. I think it has been valuable to hear some of the arguments, including the arguments put forward by Senator Barnett. I appreciate some of the comments he made, but I think the suggestion he made—and I am sure this is what he has been told—that this equates to a mechanism that enables people to jump the queue, is wrong. It does not do that. I think some of those misunderstandings need to be corrected. When the government does make a move in this area—as hopefully they will, in six or 12 months time—these are the sorts of potential misunderstandings that could be put forward, either in good faith or perhaps with less honourable intent. I am certainly not suggesting that in terms of Senator Barnett. Obviously this is an area that has been politically contentious in the past. I think we need to try and take the political point-scoring out of it and look at the substance and facts of the issues.

One of the things that have become very apparent to me while working on this issue for the last 10 years or more is that we are dealing with human beings here; we are not dealing with faceless people who can be used as a political football. The decisions that this parliament makes, and even the words that we use in coming to those decisions, can have—and have had—direct and, in some cases, extremely harmful impacts on innocent people, some of whom have been through horrendous circumstances, and some of whom go through further horrendous circumstances as a direct result of the decisions made, and the words spoken, in this parliament and in the political arena. So we need to try and get the debate as fact based as possible. Adopting complementary protection does not automatically mean that a bunch of people can jump the queue. A quicker decision does not equate to someone jumping the queue; it means that everybody has a clearer circumstance. Those who are successful obviously get a positive result quickly but those who are not successful also have a quicker and clearer result. That is important and desirable in any area of public administration, but certainly with regard to visa applications and the migration system.

It was the decision of the previous government, quite early on in its time, during Minister Ruddock’s period as migration minister, to link the offshore humanitarian program and onshore asylum claims, which were previously dealt with separately with regard to the numbers of people. Frankly, I think that should be looked at so as to reverse that decision because the offshore humanitarian program is something that Australia has had a good record on, even during the Howard years. Despite my very severe criticisms of many aspects of the government’s actions in the migration and refugee area, with regard to the offshore program, broadly speaking it continued to be a positive. It is a program that we quite rightly hold up as something that more countries should seek to emulate. But it is a determined program under which the government decides who they will select. I might say, in the first place, that people are not selected in the order of a queue. One of the reasons that you cannot jump the queue is that there is no queue. People who come here through the humanitarian program do not line up in a nice orderly process, even in terms of a bureaucratic list in the migration department. People do not get refugee visas or offshore humanitarian visas in order of application. It is not a matter of, ‘Well, you’re the next on the queue.’ It does not work that way.

The government makes a decision about where they will take people from, and amongst people in a particular area they then make a smaller decision about who within that group they will take. There is a whole range of criteria that are used in coming to those decisions. Quite a number of those criteria are not related to humanitarian circumstances at all. Some of them are, but some of them are not. It is simply false to say that there is a queue, in the sense that those who have been waiting longest now get their turns; it does not work that way at all. But, even if it did, implementing a complementary protection visa for people who apply in Australia is a different matter, and it would not mean taking anyone else’s place unless the program was structured deliberately to make it that way. That would be a deliberate decision of government, not a consequence of people making a visa application here. It would be no more jumping the queue than somebody coming here on a skilled visa is jumping the queue in relation to a person offshore in a refugee camp.

It is just as absurd to say that someone applying for a complementary protection visa would be taking the place of somebody waiting in a refugee camp as it is to say the same thing about somebody applying for a parent visa, a skilled visa or any other type of visa, unless the government decide to link the two—and then, frankly, that is their decision. It certainly should not be a cause for taking it out on people who are applying for a humanitarian visa here. That misunderstanding needs to be clarified for the purposes of future debate on this issue.

Whilst the majority of the Senate obviously does not support this legislation as it stands—although I recognise some degree of in-principle support with the goals, from the government at least—this debate is not going to go away. As has been made clear by the comments of Senator Kirk, there will be a need to continue to examine this. It is a simple fact. You can talk about the proud record of the previous government as much as you like. I do not particularly want to get into the areas where I disagree and the areas where I agree—that is not the purpose of this debate—but one area where clearly things were not working efficiently is in the area of ministerial discretion. You cannot have a system where an immigration minister has to examine thousands of individual visa applications. It is ludicrous and it is horrendously inefficient. It is just bad public policy. You get inconsistencies, lack of transparency, enormous delays and great cost to the taxpayer and to the applicants and the people supporting them. It does need fixing. This would not fix it in totality but it would go to a clear part of it, particularly the part that makes people apply for visas they know they are not eligible for and go all the way through an appeal process that they know they are going to fail just so they can then seek ministerial discretion.

Once again, I point to the Senate committee reports that I referred to earlier on which highlighted that serious problem and that absurd inefficiency. It is not just chewing up the resources of the minister in having to examine all of those requests for intervention but also chewing up the resources of the tribunals. Every time somebody has to go through this process, because we do not have a clearly defined visa such as a complementary protection visa, means a delay for everybody else. If all of those people were taken out of the system and did not have to go through what is by definition a futile process before they could access ministerial discretion then that would obviously mean that things would flow through more quickly for all the other people who are waiting for decisions from the Migration Review Tribunal or the Refugee Review Tribunal. There would be significant savings and efficiencies to the taxpayer, and increased speed of decisions for everybody in the migration and appeals system. That is something we should be aiming for.

I welcome the indications from the government through Senator Kirk that the new minister is looking at these things. I believe from my own understanding that it is something he is doing, and he does recognise the need to make our system work more fairly and more efficiently. There are a lot of reasons why it does not work as well as it should and could, and they are not all the fault of the previous government. It has built up over a long period of time for a lot of reasons. But it does need fixing and I urge the government to do that as promptly as possible. The sooner it does do that the better the outcome will be for a lot of people who have compelling humanitarian grounds. It is also better for the taxpayer, the economy, society, the community and the overall effectiveness, transparency, fairness and efficiency of the migration system.

Question negatived.