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Tuesday, 2 February 2016
Page: 86


Mrs GRIGGS (Solomon) (17:23): 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.