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Tuesday, 24 September 2002
Page: 4778

Senator BARTLETT (7:03 PM) —I move:

That the Senate take note of the documents.

I also signal, in passing, my concurrence with the comments made by Senator Ray on the previous document. These documents are a range of communications under the convention against torture. I should probably specify—it is probably a little misleading on the Senate Order of Business—that there are three under the convention against torture and three that relate to the International Covenant on Civil and Political Rights. I rise to speak on them because I think it is important to note the nature of these documents and the nature of the conventions under which they apply.

I have pointed out a number of times in this chamber that, whilst Australia is a signatory to the convention against torture, which amongst other things at its fundamental level obliges Australia not to return somebody to a situation where they face torture or have a genuine likelihood of facing torture, that obligation is not incorporated in Australian law. So when people seek a protection visa under the Migration Act for protection from persecution the criteria that are applied by the migration department and, if necessary, by the Refugee Review Tribunal relate solely to the criteria outlined in the Migration Act, which refers only to the refugee convention.

The convention against torture or, to use its full name, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is not specified under the Migration Act. The migration department and the Refugee Review Tribunal are not obliged and indeed not empowered to take that broader protection into account. The only mechanism people can use to engage the protection that Australia is obliged to provide under the convention is to seek ministerial discretion. Minister Ruddock has sometimes provided that discretion and has certainly done so much more frequently than previous ministers. Nonetheless the person's fate is quite literally in the hands of the minister of the day. That, I think, and the Democrats think, is inadequate. It is an inadequate protection. It is not a protection that can be enforced by law at all. The minister's discretion is non-compellable and non-reviewable. The minister does not even have to consider a request for protection, let alone act upon it. In the Democrats' view that is an inadequate protection for somebody given that Australia is a signatory to this convention, as it should be. It is an important convention.

A basic principle that most if not all Australians would agree on is that a person should not be removed or put at risk of being sent to a location where they are at genuine risk of suffering torture or other cruel, inhuman or degrading treatment. Having said that, I should note that these three communications from the committee that oversees the convention against torture determine that the government has not breached its obligations under the convention. In the interest of balance it is appropriate for me to point out that on these three occasions the government's actions have not breached the person's obligations and they were entitled to remove the person from Australia.

The Democrats' position has always been that people who are entitled to stay here because of their need for protection against persecution should be able to do so without excessive legal rigmarole and without being purely at the mercy of the minister. Those changes to the law need to be made but, at the same time, if people are not entitled to protection under these conventions and have no other reason or entitlement to stay in Australia, they should be removed. That is how it should be if you have any orderly system of migration, and we support that, but we do believe we need a stronger system for ensuring people's rights are protected under the international conventions that we sign.

Question agreed to.