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Thursday, 20 September 2001
Page: 31169


Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) (5:20 PM) —by leave—I table a supplementary explanatory memorandum and move government amendments (1) and (2):

(1) Schedule 1, item 5, page 4 (lines 20 and 21), omit “The reference in paragraph (1)(b) to serious harm to the person includes a reference to any of the following”, substitute “Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph”.

(2) Schedule 1, item 10, page 13 (lines 33 and 34), omit the item, substitute:

10 Application of amendment— section 501K of the Migration Act 1958

Section 501K of the Migration Act 1958 applies in relation to a review, where the application for review was made after the commencement of this item.

The first amendment clarifies the proposed subsection 91R(2) and provides a non-exhaustive list of what is serious harm. It also makes it clear that proposed subsection 91R(2) does not prevent other things from amounting to serious harm in a particular case. For example, serious harm may be established where the cumulative effect of persecutory acts is sufficiently serious, such as occurred to the Jews in Nazi Germany. The second amendment is technical and corrects a printing error in the bill as tabled in the parliament at the time of its introduction.

I commend the amendments to the chamber. I appreciate the work undertaken by my colleague, the member for Kooyong. I know and understand the matters that he wanted to see addressed and, in addressing them, that in no way derogates from the principal issue that the government wanted to see addressed, and that is where persecution has been found to be the fact that a person has not been able to get a job of their choosing, which is clearly discriminatory, but they are still able to gain a livelihood, that level of persecution, notwithstanding decisions of a court, ought not to be accepted as a basis for a finding of persecution. That is the issue we wanted to deal with.

The explanatory memorandum sets out more than adequately the government's view—and I think the member for Kooyong's view—that when harm which might involve discrimination in one form is able to be linked with other serious harm then it can cumulatively be seen as sufficiently serious to constitute persecution. What we have here is a balance, but one which is designed to ensure that the findings that will be made—if they are going to continue to be made by courts, given some of the mother legislation that we are dealing with—are sufficiently serious and that it is persecution. From the way in which some matters have been dealt with, it is quite clear that matters that are clearly discriminatory but not of such a character as to be persecution have been accommodated by some in the way in which the convention has been interpreted.