This Private Senator’s Bill is one of a number of Migration Act Amendment Bills which I will table in the course of this parliamentary year. This bill seeks to introduce a formalised system of complementary protection into the Migration Act to provide an alternative system of protection for those who do not meet the Refugee Convention definition of a refugee, but who have compelling humanitarian or safety reasons why they cannot return to their country of origin.

This gap is due to the fact that the protection of the Refugee Convention does not always cover a range of situations. For example, cases where people:

• are stateless;
• have come from a country enveloped in civil war;
• have been subject to gross violations of their human rights for reasons other than those in the Refugee Convention;
• would face torture on return to their country;
• have come from a country where the rule of law and order no longer applies.

The Democrats believe that a statutory model of complementary protection will provide a clearer, fairer and more efficient mechanism to deal with many of the difficult cases which currently have nowhere else to go but to the desk of the Immigration Minister as a request for the exercise of ministerial discretion.

The purpose of this bill is to specifically address a significant inadequacy in our immigration law which has seen hundreds of people suffer needlessly, often for very long periods of time, while their cases are being determined through a system which lacks any transparency or certainty.

To appeal to the Minister to use the discretion under section 417 of the Migration Act, an applicant must first go through the refugee status determination system and have failed at the primary and review stages. This system is grossly inefficient and a waste of resources. It is a system that is neither accountable nor transparent and is open to abuse. It is also not a system which provides as reasonable guarantee that the protection needs of its applicants will be properly and independently assessed. Many of the problems with the system of ministerial discretion have been detailed at length in the report of the Senate Select Committee on Ministerial Discretion on Migration Matters, which was tabled in March 2004.

The grounds for the granting of Complementary Protection would be derived from our international treaty obligations, in particular the Convention Against Torture and the two Stateless Conventions which set out specific obligations for States.

This is not a system that is new and untested. In fact Complementary Protection has a long history in most other western countries, including the United Kingdom, Canada and the United States of America. The European Union is moving to adopt a consistent form of Complementary Protection as part of its process to harmonise asylum law.

Numerous reports and inquiries have seen submitters argue for an alternative system of protection for asylum seekers and refugees. Australia also noticeably lacks a Bill of Rights or Human Rights Act under which protection might otherwise be availed.

The Democrats believe that this legislation would ultimately produce better results in a faster and more efficient process which will not see people languishing in indefinite detention nor suspended in limbo for years while waiting for a just outcome. It will also seek to ensure that the rights of asylum seekers and refugees are able to be protected under law, rather than relying on an opaque system of ministerial discretion with no form of legal redress.

I commend this bill to the Senate.