Back to All News

Migration Amendment (Complementary Protection and Other Measures) Bill 2015

Speeches in Parliament
Adam Bandt 3 Feb 2016

Mr BANDT

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

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

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

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

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

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

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

so you could send someone back—

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

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

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

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

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

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

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

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

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

Mrs GRIGGS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr GILES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He is right; the minister is wrong.

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

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

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

Mr CIOBO

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

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

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

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

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

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

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

 

The DEPUTY SPEAKER

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

 

Mr CIOBO

by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Back to All News