Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Could I just seek some clarification from the Clerk as to whether we dealt with the amendments on sheet 7683 last time. I think we were halfway through that vote, from memory.

The CHAIRMAN: Where we are up to is Australian Greens amendments (3) and (4), but they were actually consequential on the previous one, on which the question has been resolved. So I do not think you would want to move those. We would then be ready to go on to—

Opposition amendments?

The CHAIRMAN: Opposition amendments, yes—if we are following the running sheet.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition opposes schedule 2 in the following terms:

(5) Schedule 2, page 10 (line 1) to page 15 (line 9), to be opposed.

Schedule 2 of the bill seeks to make significant changes to the way in which Australia will determine if it has protection obligations in relation to certain non-citizens. Specifically, the bill inserts a new section 6A that provides that a non-citizen is not entitled to complementary protection unless the person can prove that it is more likely than not that he or she will suffer significant harm if removed from Australia. Currently, the 'real chance' test means that a person must not be returned to a situation where there is a real chance that they would face significant harm. This means a chance which is not remote or insubstantial but which may be below 50 per cent and may be as low as 10 per cent. These changes have the potential to put vulnerable people seeking Australia's protection at risk of persecution, death or serious harm if returned to their country.

While Labor notes that complementary protection applies to only a small cohort of those who apply for refugee status but are refused, they are nonetheless an important cohort. When Labor introduced the Migration Amendment (Complementary Protection) Act 2011, it was intended to assess and provide protection to those who do not satisfy the definition of a refugee. However, they are nonetheless provided protection on the basis that they face serious violations of their human rights if returned to their country of origin.

The changes proposed in schedule 2 of the current bill are contrary to the complementary protection framework that Labor introduced, and therefore Labor is seeking to have the bill amended to actually remove schedule 2. I welcome the government's agreement to also support this amendment, as well as, I trust, the support of the crossbench.

The CHAIRMAN: Just for the information of the chamber, we probably jumped a little bit ahead, but we will come back to the previous amendments. Just so everyone is aware, we are not in the order of the running sheet at the moment. Senator Carr has requested that the question be put in respect of schedule 2—that is opposition amendment (5) on sheet 7578—and that is presently the question before the chair.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I would like to thank the opposition for their constructive approach in relation to the negotiations for this piece of legislation. In terms of this particular amendment, for the record of the Hansard, the government believes that the changes it has proposed to complementary protection provisions in the Migration Act through this bill are fair, measured and appropriate, and I refer back to my summing-up speech, in which I outlined the reasons why we have taken this position. The government maintains that schedule 2 is an important part of this piece of legislation. However, the government has noted the voting intention of the majority of senators in the chamber and will not be calling for a division on the opposition amendment.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens support this amendment. We have been concerned since day one about the impact of changing, effectively, the risk threshold of the assessment.

Senator Ian Macdonald interjecting—

Senator Wright interjecting—

Excuse me, Chair. I am just going to ask for this conversation to happen a little more quietly so I can continue speaking, if that is all right. Can you just be a little quieter.

The Australian Greens support this amendment. We are very concerned, of course, about changing the risk threshold. While I understand that the government believe that their assessment has been that it was needed, I am thankful that it proves that in this place, when you have senators that are concerned and listen to what the experts say, particularly through the inquiry process, we are able to make positive changes to government legislation. I commend the opposition and my fellow crossbenchers for standing strong on this particular point.

The CHAIRMAN: The question is that schedule 2 stand as printed.

Question negatived.

The CHAIRMAN: Senator Carr, given that this is a related matter, maybe you could move amendment (1) on sheet 7578 now. It is on the same matter.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 7578:

(1) Clause 2, page 2 (table items 5 to 8), omit the table items.

Question agreed to.

The CHAIRMAN: Senator Carr, would you be happy to move your amendments (2) and (3) on sheet 7578 by leave together?

Mr Chairman, it is not our intention to proceed with those amendments.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

Mr Chairman, could you just confirm which ones we are not proceeding with.

The CHAIRMAN: The opposition have indicated they are not proceeding with amendments (2) and (3) on sheet 7578.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

And (4); we are not proceeding with (4).

The CHAIRMAN: And the opposition have indicated, for the chamber's information, that they will not be proceeding with amendment (4) on sheet 7578. On that page of the running sheet, what is left is amendment (5) of the Australian Greens.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose item 14 of schedule 1 in the following terms:

(5) Schedule 1, item 14, page 8 (lines 1 to 15), to be opposed.

This amendment goes to dealing with concerns that many experts and others had in relation to this bill with the difficulties for asylum seekers who have new information that would strengthen their claim—or, indeed, things perhaps may have changed over the long period of time that we know people have been waiting for their claims to be processed.

We have to remember here that this legislation is going to impact directly on people who are part of what has been referred to by the government as the legacy caseload. There are around 30,000 people whose claims either have not started to be assessed yet or are part of the way through. Many of those people have already been in Australia for three or four years. The circumstances in their home countries have perhaps changed. The issues that they have dealt with while they have been held in immigration detention may have impacted on their ability to give clarity to their case and information. Also, of course, one of the things that I am extremely concerned about is the impact on people's claims, through no fault of their own but through the lax management of people's data, such as when the immigration department accidentally uploaded the personal information of over 10,000 asylum seekers. You would remember, Mr Chairman, this happened a number of years ago. All of those people have now been put at further risk because of that data breach.

We need to ensure that, if new information becomes available and was not included the first time round, there is an ability for that to be included, without punishment, without fear of raising those issues and without a negative impact on people. It strikes me that this legislation before us, as it is, punishes people for circumstances that are often out of their control and out of their hands. If new information becomes available, it should be able to be included, particularly when we talk about people's identity documents and clarifying exactly who they are and where they are. People should not be punished because of things that perhaps have changed over the last three or four years as they have been waiting desperately to have their claims assessed.

That is why I propose Australian Greens amendment (5): because we need to make sure we are not unduly dismissing somebody's legitimate claim because we are not recognising the realities that people face fleeing persecution and then the hardships that they have had to endure while they have been here in Australia effectively on a freeze in terms of their assessment, which has forced new, subsequent information to now have a very direct impact on their ability to be safe or, indeed, to be put in further danger if they are sent home.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government will not be supporting the Greens amendment. The amendment opposes and seeks to remove the requirement under proposed section 423A that a tribunal is to draw an inference unfavourable to the credibility of a claim or evidence unless the applicant has a reasonable explanation for not providing it before the primary decision. Together with proposed section 5AAA, the intent of proposed section 423A is to encourage the comprehensive and timely presentation of all claims and evidence in support of a protection visa application and to discourage the late presentation of claims or evidence unless the applicant has a reasonable explanation for doing so. When considering what is a reasonable explanation, tribunal members will take into account factors such as the applicant being a minor, a sufferer of torture or trauma, or a person with a mental or physical impairment. The provision is intended to facilitate a tribunal member in dealing with an application for a protection visa where new claims and evidence have been raised simply to prolong an applicant's stay in Australia rather than due to a genuine need for protection. The tribunal has procedural fairness requirements which require it to give the applicant an opportunity to explain late or new claims in evidence. I again confirm, for the benefit of the Senate, that the government has tabled additional information in the addendum to the explanatory memorandum which explains the existing requirements.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I just have a question for the minister, in clarification of why the minister and the government believe this particular part of the legislation is important. You referred to taking into consideration those who had suffered torture and trauma. I would just like to know whether that includes the torture and trauma of being indefinitely detained in an offshore detention centre.

The CHAIRMAN: The question is that item 14 of schedule 1 stand as printed.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Hanson-Young, your amendment (7) would have been consequential on that amendment being successful, so I take it you will not proceed with amendment (7).

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

That is right.

The CHAIRMAN: Thank you, Senator. Then maybe we should now move to your amendment (5) on sheet 7683.

My understanding is that was consequential as well.

The CHAIRMAN: The question would be that part 3 of schedule 1 stand as printed.

I think we will move on from that amendment if that is okay.

The CHAIRMAN: Thank you.

I would like to go to amendments (1) to (5) on sheet 7675. These are fairly basic amendments. They deal with removing the retrospectivity elements of this bill across all of the schedules—1, 2, 3 and 4. They speak for themselves. We should not, in this place, be creating legislation that is retrospective in its impact and its nature to pull the rug out from under people. It is a basic concept that we apply across the board when we are debating issues in this place that you do not make things retrospective.

These amendments are fairly simple. They just say that, from the moment that this bill passes and has royal assent, that is when these new rules will apply. We should not be trying to change the rules backwards, which is effectively what the government is doing by having these retrospective elements in the legislation. Of course, I am concerned about the very real impact that will have on asylum seekers who do have their claims already on foot. I do not think it is fair at all, but it is a broader point than that. This is actually about ensuring that we stick by the basic notion that you do not make laws in this place retrospective.

Because these amendments are all of the same nature, I seek leave to move them all together.

Leave granted.

I move Greens amendments (1) to (5) on sheet 7675 revised:

(1) Schedule 1, item 15, page 9 (lines 3 to 12), omit subitems (1) and (2), substitute:

(1) Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule applies to an application made on or after the commencement of that Part.

(2) Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule also applies in relation to an administrative process starting on or after the commencement of that Part.

[Amendment (2) will only be moved if the amendments on sheets 7681 and 7682 are not agreed to.]

(2) Schedule 1, item 15, page 9 (lines 13 to 17), omit subitem (3), substitute:

(3) Sections 91W, 91WA and 91WB of the Migration Act 1958 as amended by Part 2 of this Schedule apply to an application for a protection visa made on or after the commencement of that Part.

(3) Schedule 2, item 6, page 12 (lines 21 to 30), omit subitem (2), substitute:

(2) Subitem (1) covers an assessment made on or after the day this item commences.

(4) Schedule 3, Part 2, page 19 (line 1) to page 20 (line 19), omit the Part, substitute:

Part 2—Application

14 Application of amendments

  The amendments made by this Schedule apply in relation to a person who arrives in Australia after the day this item commences (whether or not that person had been in Australia previously).

(5) Schedule 4, item 34, page 38 (lines 2 to 32), omit the item, substitute:

34 Application of amendments

  The amendments made by this Schedule apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if the application is made on or after the commencement of this Schedule.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

Again, the government will not be supporting the Australian Greens amendments. These amendments in the bill, contrary to what Senator Hanson-Young has said, are not retrospective—that is, they do not take effect prior to their commencement date. They operate prospectively, albeit in respect of already existing protection visa applications or administrative assessments.

In relation to proposed section 5AAA, the onus on the applicant, there is already an obligation on an asylum seeker to present all of their claims and evidence up-front. In relation to the amendments to sections 91W and 91WA, identity documents, these amendments do not change an existing obligation on the part of a person seeking protection in Australia to provide documentary evidence of identity, nationality or citizenship. In relation to new section 91WB, applications for protection visas by members of the family unit, this does not change the way the current provisions in the Migration Act operate in relation to how members of the same family unit of protection visa holders are dealt with. This amendment simply puts beyond doubt what the current interpretation of the act is.

In relation to schedule 3, making the amendments apply to new arrivals means that it will not capture UMAs or transitory persons already in Australia and living in the community who are currently section 91K barred to be instead made 46A or 46B barred. This will therefore not achieve the intended effect of schedule 3: to streamline the application bars for UMAs and transitory persons.

In relation to schedule 4, the tribunal efficiency measures, the purpose of making the amendments apply to existing applications before the tribunal is to maximise the number of applications affected by these changes, which provide increased efficiency and consistency of decision making.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I accept the government's argument. It seemed a bit muddled—both prospective in its nature and impacting on things that have already happened. It seems to be retrospective in my understanding of the term. I am disappointed that the government continue to pretend that this is not retrospective. It clearly is. The reason it is is that they want it to impact on as many people as possible. It is simply not fair. I accept, though, that the government have not listened to that argument.

The CHAIRMAN: The question is that the amendments moved by Senator Hanson-Young be agreed to.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I rise to move amendments to the Migration Amendment (Protection and Other Measures) Bill 2014 on behalf of the government. First, I advise the Senate that the government will not be seeking to move amendments (1) to (10) on sheet ZA361 as a result of the concerns raised in relation to the amendments in schedule 2 to the bill, which provides for the more likely than not risk threshold for assessing complementary protection. As I have already stated, the government will not be actively opposing its removal, which has now occurred. In terms of the remainder of the government's amendments, I seek leave to move amendments (11) to (20) on sheet ZA361 together.

Leave granted.

I move:

(11) Schedule 3, item 1, page 16 (lines 7 to 10), omit paragraph (b), substitute:

  (b) either:

     (i) is an unlawful non-citizen; or

     (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note: Temporary protection visas are provided for by subsection 35A(3).

(12) Schedule 3, item 6, page 17 (lines 11 to 14), omit paragraph (b), substitute:

  (b) either:

     (i) is an unlawful non-citizen; or

     (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note: Temporary protection visas are provided for by subsection 35A(3).

(13) Schedule 3, item 15, page 19 (line 23), omit "class", substitute "kind".

(14) Schedule 3, item 15, page 19 (line 29), at the end of paragraph (3)(c), add "granted before 2 December 2013".

(15) Schedule 3, item 16, page 20 (line 13), omit "class", substitute "kind".

(16) Schedule 3, item 16, page 20 (line 19), at the end of paragraph (3)(c), add "granted before 2 December 2013".

(17) Schedule 4, item 11, page 23 (line 30), omit "7 days", substitute "14 days".

(18) Schedule 4, item 11, page 24 (lines 20 and 21), omit "7-day period", substitute "14-day period".

(19) Schedule 4, item 26, page 32 (line 3), omit "7 days", substitute "14 days".

(20) Schedule 4, item 26, page 32 (lines 24 and 25), omit "7-day period", substitute "14-day period".

In response to the recommendations made by the Senate Legal and Constitutional Affairs Legislation Committee, schedule 4 to the bill will be amended to increase the time frame, from seven to 14 days, in which an application for reinstatement may be made by an applicant who failed to appear before the Migration Review Tribunal or the Refugee Review Tribunal and whose review application was subsequently dismissed as a result of that nonattendance.

The government also moves technical amendments to the bill, including to schedule 3 to take into account the reintroduction of temporary protection visas by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. This amendment extends the statutory visa application bar by providing that unauthorised maritime arrivals or transitory persons who are the holders of a temporary protection visa are prevented from making a valid visa application unless the Minister for Immigration and Border Protection determines it is in the public interest to do so. I commend the amendments to the Senate.

Question agreed to.

The CHAIRMAN: I believe we should now move to opposition amendment (8) on sheet 7578.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Chairman, we are not proceeding with that amendment.

The CHAIRMAN: Thank you. I think the remaining amendments are government amendments (1) and (2) on sheet EE113.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

by leave—I move government amendments (1) and (2) on sheet EE113 together:

(1) Clause 2, page 3 (at the end of the table), add:

(2) Page 38 (after line 32), at the end of the Bill, add:

Schedule 5—Technical corrections

Counter -Terrorism Legislation Amendment (Foreign Fighters) Act 2014

1 Subsection 2(1) (table items 6, 7, 9, 11 and 12)

  Omit "Migration Amendment (Protection and Other Measures) Act 2014", substitute "Migration Amendment (Protection and Other Measures) Act 2015".

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

2 Subsection 2(1) (table items 4A, 13 and 15)

  Omit "Migration Amendment (Protection and Other Measures) Act 2014", substitute "Migration Amendment (Protection and Other Measures) Act 2015".

3 Division 2 of Part 1 of Schedule 5 (heading)

  Repeal the heading, substitute:

Division 2—Amendments if this Act commences after the Migration Amendment (Protection and Other Measures) Act 2015

4 Division 1 of Part 3 of Schedule 5 (heading)

  Repeal the heading, substitute:

Division 1—Amendments if this Act commences before the Migration Amendment (Protection and Other Measures) Act 2015

These amendments are purely technical in nature and fix references to this bill in other acts so that they refer to the Migration Amendment (Protection and Other Measures) Act 2015 rather than 2014. This is a technical clean-up and does not have any effect on the interpretation or action of the other acts. These amendments do not modify the interpretation of this bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act or the Counter Terrorism Legislation Amendment (Foreign Fighters) Act in any way.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.