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Wednesday, 25 May 2011
Page: 4504

Mrs MARKUS (Macquarie) (10:19): It is good to see that government members have actually turned up in the House.

Honourable members interjecting

The DEPUTY SPEAKER: Order! Would those who are leaving the chamber do so quietly and not conduct a second conversation out of their place. The member for Macquarie has the call.

Mrs MARKUS: I rise to speak on the Migration Amendment (Complementary Protection) Bill 2011. This bill will change decision making on complementary protection claims from the current ministerial intervention arrangements to a statutory process through the department of immigration. It seeks to introduce a statutory framework which includes additional criteria and new definitions into the assessment process for determination by the department, and it seeks to establish the same administrative review rights as for people seeking protection under the 1951 refugee convention. The changes pose challenges for this nation and the need for an orderly, compassionate and fair system to operate.

The proposal outlined in this bill is not new to this House; it was first introduced on 9 September 2009, where it lapsed and the parliament was prorogued for the 2010 election. A similar bill was actually removed in 1989, just eight years after being introduced. While it was claimed initially that only 100 successful applicants per year would be processed, by the time the legislation was repealed there were 8,000 outstanding applications.

Complementary protection broadly describes protection obligations arising under international law. These obligations are in addition and complementary to Australia's existing protection framework, the foundation of which is the 1951 refugee convention, which provides protection to refugees. For over 60 years Australia's asylum and humanitarian program has brought many people to our shores who have made valuable contributions to the nation and their local communities. Australia is a signatory to a number of international conventions, agreements and covenants, including the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the United Nations Optional Protocol to the Convention against Torture. These instruments obligate Australia under refoulement non-return provisions to provide protection to people who, while not meeting the 1951 refugee convention definition, still need protection on the basis that they face serious violations of their rights if sent back to their country of origin.

Currently, the minister can make decisions in respect of claims for complementary protection through the ministerial intervention process, which is non-transparent and non-appealable. The minister does not have to explain or justify the decision to exercise or not exercise the discretionary powers. This raises one very important question: if people seeking complementary protection are already being dealt with through the current process, why does the government need to amend the legislation? This is legislation for legislation's sake. Australians have every right to ask why this government continues to waste time and taxpayers' dollars on adding layer upon layer of bureaucracy instead of tackling real issues that face everyday Australians.

One wonders why the minister seeks to transfer his discretionary powers to a statutory process determined by unelected officials, when we look at the statistics on complementary protection. For example, as the shadow minister has already highlighted, the minister's office has advised that in the 10 months from January 2010 to October 2010 the minister finalised 1,690 requests for intervention. Of those, the minister granted visas to a total of 438 people. Of those, only six people met the complementary protection provisions.

The minister's office has confirmed that they do not expect the number of applicants being granted protection visas under the proposed complementary protection provisions to increase at all. Given the history of previous similar bills, I find their assurance questionable. It begs the question: what minister would relinquish discretionary powers for six people? There are only three plausible explanations: the minister has decided that complementary protection is too small an issue to be bothered about; the minister has found a way for unauthorised arrivals to apply for protection in a visa class, complementary protection, that is now proposed to include a larger range of definitions and will now be open to broader interpretation—a visa class that will be appealable if the first decision is not favourable; or, the minister has decided that the department should take the heat on an issue that is front of mind for the nation at the moment.

Immigration policy is this government's Achilles heel. The government does not have the courage to admit it is wrong or that its failed policies have put Australia's immigration program, its resources, its people and its budget under enormous strain. The government does not have the courage to acknowledge that a significant section of the Australian community is concerned that the government has lost control of its borders. I speak to many people in my electorate of Macquarie, people who support the relaxation of immigration processes and people who believe the process should be tougher. All are concerned about the riots, the reports of overfull detention centres and the waste and mismanagement of budget blow-outs in the immigration portfolio. We cannot afford to spend dollar after dollar on the current government's immigration policy, because of the government's economic mismanagement, while our own citizens are struggling to make ends meet. This government has clearly failed, yet it is still pursuing additional legislation such as this bill.

What concerns me about this bill, which can only be described as another example of policy on the run, is that the government has refused to consult even its own agencies on the viability of this amendment. The legislation was considered by a Senate committee that received 36 submissions but, in a break from customary practice, did not hold any public hearings. Only 19 days were available for submissions. Within a month, a report was tabled. Even the committee referred to the 'constrained circumstances' of the recommendations. Why the rush?

My understanding is that, although the minister received strong representations from the refugee advocacy sector, the minister neither sought nor received advice from the Australian Federal Police, Customs and Border Protection Service, ASIO or any other relevant agency. I call on the minister to confirm that he has or has not consulted with the relevant agencies established to protect Australia's border security and to what extent, if any, these changes will not act as an incentive for people smugglers? It appears from the lack of consultation that this government does not believe that research and consultation are worthy of consideration when it comes to changing legislation.

We are a compassionate nation, recognising the need to offer a new and better life to those in need. Indeed we have always been such a nation, one that dared to share the Australian dream with those escaping war-torn Europe after the Second World War and with other individuals and families escaping persecution in other parts of the globe over the past 60 years. Many migrants who have come to this nation have committed themselves to working hard and to raising their families. Their contribution helps to build a stronger Australia for the generations to come. I am concerned that the opportunity that Australia offers will be denied possibly to the Australian-born as well as to new arrivals if Australia is placed in such a precarious financial position that it cannot support the standard of living that we enjoy today.

This bill is but one example of how this government operates. The changes proposed, in particular the definitional changes, the impact on resources for the department and the legal costs arising from access to administrative review have polarised this debate. Comments from refugee advocacy groups such the Refugee Council of Australia, who want the definitions more specific, are that 'The threshold requirements for complementary protection are too complex and restrictive, potentially leading to inconsistencies in decision making and the denial of protection to people who require it'.

Arguments against the bill cite the criteria as 'poorly drafted' and that they could lead to greater uncertainty and invite needless litigation. Indeed, there is a view that the decision to provide a new pathway for asylum claims for those who arrive illegally and are not refugees will place another product on the people smugglers' shelf.

The current ministerial intervention process is a safeguard that has been in place for decades and it has been effective. Codification removes discretion which has applied on a case-by-case basis and has helped genuine refugees languishing in camps around the world.

In addition, the risk that the bill will encourage the lodgement of non-refugee protection applications and the making of false asylum claims has to be considered, because the claims under the proposed bill will run the full length of the process, then be subject to appeal. Primary decisions would be appealable, adding to the already lengthy waiting time for unresolved cases. If this minister had a clue about the best interest of the nation, he would put this legislation back on the shelf and come up with solutions for the present crisis, not introduce something that will only add to the challenges. The coalition is united on this issue. We stand ready to implement a much stronger and more encompassing policy when elected to government. The coalition maintains that the current system of ministerial discretion in cases where complementary protection is in play is more than appropriate.

On this occasion, it is clear that the Gillard Labor government has sought to position itself on one side of the debate. The Gillard Labor government has chosen to ignore its responsibilities to the nation as a whole, by refusing to consider other voices of concern. This kind of legislation, underpinning flawed policy, is symptomatic of, as our Prime Minister put it, 'a government that has lost its way'.