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Wednesday, 11 May 2011
Page: 3649


Mr MORRISON (Cook) (18:20): The stated aim of the Migration Amendment (Complementary Protection) Bill 2011, reintroduced in this session of parliament, is to allow onshore claims to be made and considered under a new statutory process for a single visa application against all our non-refoulement obligations contained in instruments to which Australia is a signatory, other than the Refugee Convention and protocol. These include the International Covenant on Civil and Political Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights on the abolition of the death penalty, the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Complementary protection is a term that describes a state's obligations to those people who whilst not meeting the 1951 Refugee Convention definition and associated protocols are nonetheless in need of protection on the basis that they face serious violations of their rights if sent back to their country of origin. This principle of non-refoulement is one that not only exists in all of these conventions and other treaties but also has become an established principle of international law more broadly, and that is a good thing. These amendments create a new statutory process to deal with applications. They create a new pathway for people who otherwise do not qualify as refugees to come to Australia to make and engage an onshore claim under another process. Currently, the minister considers all genuine applications against our international non-refoulement obligations when asked to exercise his intervention powers under the act. These decisions are non-reviewable. The ministerial intervention model has the advantage of allowing the minister to deal flexibly and constructively with specific cases of individuals and families whose circumstances are invariably one-off and complex, and who maybe disadvantaged by a rigidly codified criteria, administered by departmental officials and subject to other broader processes. These are complex situations, they are difficult situations and they are amongst the very few cases that are found to be valid and where visas are granted. They involve devastating situations and they are genuine cases.

The minister's office has confirmed that no-one who would be considered under the new provisions provided for in this bill have previously failed to obtain a protection outcome under the current arrangements. The debate is not about whether genuine people with claims under these treaties should or should not receive protection. This House, I think, is at one in honouring those treaties. The issue is how we go about that process and what others issues that gives rise to.

It has also been confirmed that the number of genuine applicants in this category is actually very small. Between 1 January 2010 and 22 October 2010, the minister finalised 1,690 requests for intervention. Of those, the minister granted visas to a total of 438 people. According to the minister's office, of those 438 visas, only six satisfied the requirements of the proposed new complementary protection provisions. So, at the end of the day, we are dealing with six applications that were considered genuine at that time.

In evidence to the Senate committee which previously considered the bill in the last parliament, DIAC advised that of the 606 visas granted by the minister using section 417 powers in the 2008-09 program, only 55 were granted under the humanitarian program and less than half of these cases involved non-refoulement issues, the subject of this bill.

Consistent with evidence previously provided to the Senate committee, DIAC and the minister's office have reconfirmed that they do not expect the numbers of applicants being granted protection visas under these provisions to increase at all. This begs the question as to why the government now believe it is necessary to introduce a statutory framework, a new process, to deal with such a small number of cases, having decided during the last parliament to allow the bill to lapse.

The bill, in substance, is largely the same as the one abandoned by the government during the last term. The bill was first introduced into the House of Representatives on 9 September 2009 by the then Parliamentary Secretary for Multicultural Affairs and Settlement Services, who I have to say did a very good job in that role. It was not debated and it lapsed on 19 July 2010, when parliament was prorogued for the 2010 election.

This bill is different in that it has simplified some definitions, removed the need for a risk of irreparable harm, replaced references to complementary protection criteria as matters with a definition of 'significant harm' and amended the requirement that the non-citizen have the death penalty imposed and it will be carried out—'and' is the key word there. There are some minor amendments that pick up on some of the issues raised in the Senate committee. In substance, the bill is essentially that which was presented in the last parliamentary term and one that could have picked up these matters at that time, but the government chose not to do so. The bill also introduces these definitions in a range of areas, but I think it is fairly clear what they are for those who have had the opportunity to read the bill.

A new subclause 36(2B) provides a number of exclusion clauses, including that a real risk does not exist if the risk is faced by the population of the country generally and is not faced by the non-citizen personally. Other exclusions include those who have committed serious crimes. These are important exclusions.

In deciding to reintroduce the bill, the government advised that the minister had strong representations from the refugee advocacy sector. We understand that they neither sought nor received advice from the Australian Federal Police, the Customs and Border Protection Service, ASIO or any other relevant agency about the potential impact of this measure to act as an incentive for people smuggling. That concerns me. This is a matter that clearly could have implications in this area and the opinion and advice of those agencies is critical to a decision to reintroduce this measure at this time into this parliament. It is not even clear whether a request was made for their advice. I understand none was, but I would happily be corrected on that point.

The government's revised proposal will only widen the grounds for asylum seekers to make an onshore protection claim and, frankly, will put another product on the people smugglers' shelf, at a time when we can least afford to do so, while failing to extend legitimate protection to one additional person who genuinely needs it.

The department and the minister's predictions about the small number of cases that would be approved under this new regime have an ominous echo of previous assurances given when a similar regime was introduced in the early 1980s and abandoned in 1989. In 1981, the Fraser government introduced the infamous section 6A(1)(e). This provision allowed an entry permit to be granted where there were 'strong, compassionate and humanitarian grounds'. These permits were to be provided to those who did not meet other more specific migrant entry criteria. The decisions on these permits were judicially reviewable.

It was claimed at the time these measures were introduced that they would deal with around 100 successful applicants per year. In 1981-82, 226 applications were approved. By 1987 this figure had risen to 3,260. In 1989, then Labor immigration minister, Senator Robert Ray, realised that the system had run off the rails and repealed the measure. At the time this measure was repealed—and remember, this was a measure that was going to produce around 100 successful applicants per year—there were 8,000 outstanding applications covering some 10,000 persons. The Federal Court's interpretation of who should be provided protection under these measures transformed a provision intended to be exceptional, I am sure with all good intentions, into one that became routine. Where the department intended that strong, compassionate or humanitarian grounds applied only to applicants who had a fear of a 'substantial violation of human rights', a series of very creative court decisions led to a requirement that applicants only had to show that if they were forced to leave Australia, they would face a situation which would 'evoke strong feelings of pity or compassion in an ordinary member of the Australian public'. During Senate estimates questioning in 2009, shortly after the bill was introduced for the first time, Senator Fierravanti-Wells put the experience of section 6A(1)(e) to the department and the minister. The secretary of the department declared that 'this is completely different', because the criteria under the three conventions covered are quite clear in relation to non-refoulement obligations. The secretary said:

We assess the potential for there to be a blow-out or even a statutory or judicial interpretation to vastly widen the criteria as 'nil'.

That is a fairly bold and dramatic claim. Frankly, I do not share that confidence.

Indeed, the budget last night set out more than $100 million in new expenditure to deal with court appeals following the High Court's decision to strike down the government's former non-statutory process for considering refugee assessments, introduced by the government in July 2008, which was believed to be quarantined from judicial review. In February the department was asked in estimates how much extra they would have to pay as a result of that High Court decision, and they boldly stated in a written answer that it would be met from existing appropriations in terms of the cost of any further actions. Those appropriations last night had to be increased by more than $100 million. We are already paying the price for misplaced confidence in the measures that have been introduced by the government in these areas. We have gone over those in some detail during the last 48 hours in this place as the government has sought to put forward new measures that are apparently the new great answer. But, sadly, we know how these measures often end with this government.

I do not share the confidence that what was intended to be a fairly small matter—enabling people with a genuine claim to be given genuine protection—could not follow suit of previous experience of our country in this area. We have system blow-outs being gained in the system and, frankly, we end up just putting another product on the people smugglers' shelf. For what purpose and at what gain? Our system, as the minister himself will acknowledge, is not denying a person who would be given protection under this measure protection that they are not already receiving. As I said, the Federal Court's interpretation in this matter now provides the opportunity to get involved in reviewing these decisions and to go well beyond what may be considered by this parliament, and that could lead us down a very similar path to what we saw on the earlier occasion.

It seems that eight days after having been sworn in as the new minister, the minister was reported in the Age as having said—and I make this comment in terms of reasserting his own commitment to this bill as something that he believes is important:

Labor would seek to widen the criteria by which people can apply for protection before Parliament breaks for summer.

He did not quite make that goal but, nevertheless, it has been introduced. He further said:

We'll be proceeding with that bill. ... I see it as an important measure. Out of the immigration legislation that is outstanding, I see that as the most important.

By contrast our current system enables legitimate claims to be identified and addressed while not opening up the system to the vexatious onshore claims to game the system in our courts, or allow a broader interpretation of the intended measures by the courts. The government are concerned that no-one who would be considered would be denied. They have also confirmed that the number of genuine applicants is very small.

A senate inquiry into the proposal when it was floated by the government during the last parliamentary time focused almost entirely on the issue of variance in judicial and administrative interpretation of fixed criteria. There is a very strong argument that codification of this criteria may serve to both constrain our opportunity to provide protection as much as extend such protection beyond what was intended through these treaties and conventions.

The inquiry also canvassed criticism of the current process as being 'administratively inefficient' on the basis that applicants 'must apply for a visa for which they are not eligible and exhaust merits review before their claim can be considered' by the minister. This criticism ignores the capacity of the minister to intervene under section 195A of the Migration Act to grant a visa to a person in detention whether or not they applied for one if he or she considers it is in the public interest to do so.

A pre-removal clearance process is also undertaken by DIAC in which they assess whether the removal or deportation of an asylum seeker could otherwise engage Australia's non-refoulement obligations under international human rights instruments to which Australia is a party. These measures seem to be more than adequate additional safeguards.

I appreciate there are some in the community who believe more is necessary. The great risk though is that by going down that path we open up the opportunity for vexatious claims and for systems to be abused. Particularly in the current environment the opportunity for that is at what I would call a 'high alert level'. In the process they undermine yet another avenue and opportunity for the government to move to provide protection to those who are in genuine need of it. The system currently is addressing those issues, maybe not to the satisfaction or the speed to which people would like or appreciate. But the way it works effectively provides a vetting system where the genuine applications rise to the top. When they do, this minister, the previous minister and the ministers that came from this side of the House have all acted to provide that protection when it has been deemed necessary.

Liberal senators at the inquiry, when the bill was considered in the last parliament, submitted a dissenting report opposing the passage of the 2009 bill. The coalition will not be supporting this current bill. They said at that time that: the existing ministerial intervention process is a safeguard that has been in place for decades; it is a tried and proven system; there was no evidence that the ministerial intervention process has been anything other than effective; primary decisions would be appealable which, in turn, would lengthen the time in which cases remain unresolved and exacerbate an already fraught situation; codification risks curtailing discretion otherwise available to help genuine refugees languishing in camps around the world; and the bill would encourage the lodgement of non-refugee protection applications and the making of false asylum claims. They were the points made at the time and they are the same points the coalition makes today. They were the points made at the time and they are the same points the coalition makes today. Indeed, in a submission to the inquiry, Dr Ben Saul of the University of Sydney was of the view that the criteria contained in the 2009 bill were 'poorly drafted as a result of the inclusion of unnecessary qualifying phrases' and, far from creating certainty, would invite needless litigation. I believe those concerns remain valid. Vexatious claims, where every negative decision can be appealed, will also create further pressure on an already overstressed court system. It would also add further pressure to a detention network already in crisis and stretched beyond capacity.

In the time between this bill's introduction into the House and today, these figures have become worse. At the time the bill was introduced around 53 per cent of the people who were in detention had been there for six months or more. That has now risen to 60 per cent of the record 6,872 population of our detention network who have been held for more than six months. The costs in this area have also blown out by more than $1.75 billion on one line item alone—output 4.3, offshore asylum seeker management—between the budget announcement last night and a year ago. That is a staggering figure. When you include the additional costs of capital that have been introduced over that 12-month period that figure rises to more than $2 billion in just one year.

This is not a time for adding further stress and strain to a system that has already collapsed under the pressures of his government's failures. This is not a time to be engaging in adding further opportunities and products for people smugglers to put on the table. It will allow and encourage people to try their chances—to game the system—for those we know will not meet the obligations of the refugee convention. We simply open up another pathway without one additional genuine applicant believed to be benefiting from these new processes. The outcome, based on the government's own representations, would be the same as that we have now. The process would be different but the outcome would be the same. We have had violent riots, destruction of Commonwealth property and harm to persons, including self harm. This will all continue in the rolling crisis we have. In all likelihood this will increase not only in number, but in severity as the pressure continues to mount as more people arrive and our detention centres become even more stressed.

There is a very great risk that the decision to provide a new channel for asylum claims for those who arrive illegally and are not refugees will just place another product on the shelf. The government's weakened border protection and immigration policies have already created a strong perception that those who seek to enter Australia illegally will advantage their opportunity to secure an immigration outcome by getting on a boat. Since the government weakened the regime, 224 boats have arrived carrying more than 11,000 people. That includes—and we should always remember this—the ill fated SIEV 36, that was set alight, the even more ill fated SIEV 221 that crashed against the rocks of Christmas Island, and, what would seem to be another tragedy, a vessel that is believed to have left Indonesia last November with 91 people on board who we have not heard from since. I know that matter has been raised with the government and I know we are not in a position to know what happened to that vessel. It is, as we understand, most likely outside our waters. I commend to the member for Gorton, the minister at the table, the opportunity to raise matters with the Indonesian government and others with whom we work closely, and I know with whom he works closely, to see if they can shed any light on this issue in order to bring some comfort to the families in Australia who believe they had people on that vessel. It is no admission of responsibility on the government's part, I believe, to have in some way intercepted that vessel outside Australian waters, or in any way had some obligation to go beyond our responsibilities to find it. When people get on these boats this is the risk they take, but it is another terrible reminder—another 91 souls who are likely to have perished at sea.

The reason more people are coming to Australia, the government has now I think accepted and agreed by their more recent decisions, is that the push factor argument that has been perpetrated for some years as the boats continued to arrive is exactly that: a political argument that has now fallen foul of the government's own actions and decisions, which have betrayed what has really been going on. You do not start to change your domestic policies if you do not think those domestic policies are providing a pull factor. Now we see the Prime Minister seeking to change some domestic policies, so clearly she believes that domestic policy has been a factor in attracting such a large number of vessels. It is not hard to work that out when the government's own figures show that if an Afghan applies offshore they have a one in 10 chance of being granted a visa, based on the figures for 2009-10, but if they got on a boat and sought to arrive in Australia nine out of 10, in the first nine months of 2010, got a positive refugee assessment. That is an incredibly strong incentive to get on a boat.

The opening of another avenue for onshore applications that goes beyond the requirements of the Refugee Convention runs the risk of creating a further policy incentive for people smuggling, while, by their own admission, not assisting one extra genuine claimant. By contrast, the current process maintains a flexibility that avoids these outcomes, while affording protection to those who need it, consistent with our treaty and other obligations. I want to underscore that last point. I would hope there is no suggestion that anyone in this House or, indeed, the other chamber would have any sympathy with a view that would not have Australia meet its treaty obligations in these areas. We all share those commitments. Our difference of view about this bill relates to process. We believe the same outcome can be achieved by maintaining the system that is currently in place, without exacerbating the clear catastrophe of problems we have on our borders, in our detention centres and in the budget of dealing with asylum seeker policy in this country.

The coalition simply do not want to be in the position, yet again, of having to say that we warned the government of the risks of changing these systems. This is yet another change. This is yet another alteration to the set of arrangements that were put in place and followed by the coalition government in dealing with the matters of border protection and of ensuring that we did not provide incentives for people to come and chance their arm on claims when those claims were vexatious or, frankly, for people to seek to advance their claims by coming to Australia by boat in particular and illegally more broadly. We do not want to encourage that practice. We want to discourage that practice. By setting up other pathways, other opportunities for application, we think that is what this bill actually does with no ultimate greater gain in terms of those who are genuine claimants being given protection.

We do not want to be in the position to say that we warned the government of the risk of changing these systems, and we provide that warning here again. Mr Deputy Speaker, I would hope and you would hope that they would have learned from the scale of their failure to date in these areas not to take these risks. It would seem by the government's insistence on pushing this bill back into this House that they have not learned those lessons. The coalition will not be supporting this bill, and we encourage the government to reconsider bringing this bill to the parliament at this time and urge them to maintain the system that has served governments well on both sides of this House for many years.