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Wednesday, 25 May 2011
Page: 4500

Mr SIMPKINS (Cowan) (09:48): I welcome the opportunity to speak on the Migration Amendment (Complementary Protection) Bill 2011. But can I say that these bills keep coming in the same way that the boats keep coming into Australian waters. Until the policy of this country is changed with regard to border security, then the boats will still keep coming and these ineffectual bills will still keep coming before the House.

The bill will not provide additional protection outcomes—certainly not more than what is already provided for. It will not give greater protection. Nor will it allow for improvements in compliance with our treaty obligations. It is also important to note that there have been no breaches of any treaty obligations by our country.

The DEPUTY SPEAKER ( Hon. BC Scott ): Order! Would those members who are still in the chamber and out of their place conducting little conversations please either resume their seats or leave the chamber.

Mr SIMPKINS: Thanks, Mr Deputy Speaker, but I would have carried on regardless. What this bill presents is another opportunity for those who wish to come to this country by any means possible, and in fact it will increase the menu from which those who seek to bypass legitimate processes can choose.

We know that the Migration Act prescribes the reasons in the refugee convention for fleeing persecution—those being race, religion, nationality, social group or political opinion. These constitute the usual reasons why a person would be eligible for a protection visa. I note from the minister's second reading speech that the reason for this bill is to acknowledge that there are others that can also be fearful for their safety, but who, because they do not fit into one of those categories, cannot be considered refugees and whose applications must be rejected by the department and then by the Refugee Review Tribunal.

Clearly under treaties such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, Australia has an obligation to not send such people back—the non-refoulement obligation. This is what is known as complementary protection.

The government proposes to establish a statutory regime whereby the visa applicant can apply for protection immediately under complementary protection arrangements and not apply as a refugee as defined under the convention. This would mean that the minister would not normally be involved unless the applicant was rejected under these new arrangements and then made an application to the minister for intervention. What leaps out at me is that such a change would result in endless appeals once again afflicting the protection visa and humanitarian entry program.

As previously said, the changes would increase the options for court processes when in fact the reality is that the current system involves a very small number of people. I understand that around 25 people were in this sort of category in the 2008-09 financial year, and six in the period from January to October 2010. In fact, all information from DIAC and the minister’s office suggests that these numbers are expected to be pretty much consistent in the future. Clearly the presence of such a bill in this parliament is a significant step for such a small number of cases. What we do know is that, in 2008-09, 55 visas were granted by the minister under the humanitarian program and less than half involved non-refoulement matters.

Furthermore, between 1 January 2010 and 22 October 2010, of the 438 visas granted by the minister, only six would have been covered under the provisions of this bill. It really does make it difficult to appreciate the need for this bill given the numbers involved. So I would say the demand is low, and the need is even lower, considering the state of our treaty obligations and compliance, which is exemplary.

I wonder why the government let this bill lapse at the end of the last parliament when the Senate Legal and Constitutional Affairs Committee finished dealing with it in late October 2009. This bill is essentially the same as the one left to languish by the Labor government in the previous parliament. This version does insert a new subclause 36(2)(b) that sets out a number of exclusion clauses, such as those guilty of committing serious crimes. It states that a real risk only exists if it is faced by the non-citizen in question, and not if it is a general risk faced by the population of a country.

My concern revolves around adding to the appeal and review process rather than the minister dealing with any such cases and considering the specific issues that are involved. There is no doubt that the system has been clogged with a series of bad policy decisions by this government, and they should be very careful about making another bad call which would further congest a system struggling under the weight of people and appeals. Still, the lawyers will no doubt appreciate what this bill will provide for them.

As the minister said in his second reading speech in February 2011, under the changes envisaged in this bill the non-refoulement obligations will not be engaged in every case. He said that there must still be substantial grounds for believing that, as a necessary and foreseeable consequence of being returned, there is a real risk that a person will suffer significant harm. What this opens up is a level of subjectivity that will be grist for the lawyers' mill, and that subjectivity does not currently exist because the minister’s decisions are not exposed to court appeals.

The danger here is that an instrument intended to only be used in exceptional circumstances will quickly become commonplace, and the number of claims being made on these grounds will blow out. We know this because we have seen it before.

I know this Labor government is not particularly good at learning the lessons of history, but the fact is that in the late 1980s, it was a Labor immigration minister, Senator Robert Ray, who abolished arrangements that are strikingly similar to what is contained in this bill. Back then, a series of court decisions, well-intentioned though they may have been, led to a completely unsustainable situation whereby an applicant only had to demonstrate that if they were forced to leave Australia their situation would ‘evoke strong feelings of pity or compassion in an ordinary member of the Australian public'. As a result, applications flooded in, to a point where an instrument that was intended to produce about 100 successful applicants per year was subjected to around 8,000 claims covering 10,000 individuals. That is no way to run an orderly migration system.

It is certainly the case that the people on the streets of Cowan have given me a clear message on matters to do with those that come by boat. From my recent doorknocking in the north of my electorate the message is clear. The people are outraged by all the special deals that are being done. The detainees play sport and take art classes, then earn points for free nose-hair trimmers, cigarettes, phone cards, snacks et cetera. What a special deal that is. These are the sort of deals that irritate people on the streets of our country.

And it is these same taxpayers that are paying the price for this government’s failures. The budget handed down by the Treasurer contained over $100 million to deal with court appeals that flow from the High Court’s decision to strike down the former non-statutory process for considering refugee assessments. In the last year, the costs of maintaining Australia’s detention network have blown out significantly. There was $1.75 billion in the budget this week for offshore asylum seeker management alone.

The current system is equipped to identify and deal with legitimate claims without opening up the entire process to vexatious applicants and turning the entire system into a lawyers' picnic in the sorts of cases that we are discussing today. Section 195A of the Migration Act permits the minister to grant a visa to a person in detention if the minister considers it in the public interest to do so. That is an entirely appropriate flexibility in the current system. In my view, the changes the government is proposing in this bill pose an unacceptable risk to the stability of our migration system—a system that is already staggering under the weight of this government’s ineptitude. Most Australians will rightly be wary of any changes this government tries to make to our migration system—its record does not exactly inspire confidence.

Since Labor changed Australia’s border protection policies, 224 boats—or probably more—have arrived carrying over 11,000 people. This includes the boat that was set alight and the one that crashed at Christmas Island last year resulting in significant fatalities—a great tragedy. These are the boats we know about. The tragic reality is that there are likely others which have set out on this dangerous course and not made it.

This government’s own figures show that, if an Afghan applied for a visa offshore, they stood a one-in-10 chance of success. Of those Afghans who arrived here illegally by boat, nine out of 10 got a positive visa assessment. What sort of message does this send? How does this serve to discourage people smuggling and people risking their lives on the seas?

Clearly, I am of the view that the effort that was put into creating this bill and focusing on this bill should have been put into creating a policy that actually returned control of our borders to this nation, rather than promoting the people-smuggling trade. Indeed, we understand that, in drafting this bill, the government did not seek input from ASIO, from Customs and Border Security or from the Australian Federal Police. If this government were serious about border security, it would surely have made at least some rudimentary inquiries to those charged with protecting Australia’s borders.

This bill does nothing to discourage illegal boat arrivals. It will not deter people smugglers. It will not ensure that legitimate refugees are processed more efficiently. It will not reduce the burden on taxpayers. What it will likely do is clog our courts with thousands of vexatious applicants, all of which will have to be considered, and see a system that already moves at a slow place grind to a halt. So far as I can tell, the only winners from this bill will be the lawyers and the people smugglers. Why not instead return to a policy that worked and that is infinitely cheaper than the costs of running this currently failing set of policies? Why not reopen Nauru? Why not reintroduce temporary protection visas and the 45 day rule?

These are some of the policies that would make the difference and take things back to those days where the Australian government actually had control of the borders—which has not been the case since this government changed the policy in 2008. The bill does nothing to restore that control, and instead provides further incentives for illegal immigration. It runs contrary to this government’s claims to be cracking down on people smugglers—and it is certainly against the wishes of my constituents in Cowan, who are tired of seeing their taxes wasted on this Labor government’s failed policies.