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Thursday, 12 May 2011
Page: 3829


Ms SMYTH (La Trobe) (12:32): In any other circumstance it really has to be said that a discussion in this place about improving the consistency and the efficiency of the administration of justice and our system of law would be met rationally—in any other circumstance. But, when it comes to this particular issue and the particular people who are being made the subject of this issue, this is simply another opportunity for the opposition to chant, 'Stop the boats'—just another opportunity to chant the same thing. I have to say: I for one would be very happy at this point to send the hat around and ask members to contribute some loose change to maybe get a focus group together to consider a new three-word slogan, because it is getting tired. I think most rational Australians would regard it as extremely tired, fading and pathetic.

In making my remarks about the improving the consistency and efficiency of the administration of justice through the Migration Amendment (Complementary Protection) Bill 2011, we are not the only ones who have that view. Indeed, there are a number of organisations, a number of groups, that have recommended the introduction of legislated complementary protection. It has been recommended by several parliamentary committees, the Australian Human Rights Commission, the United Nations Committee Against Torture, the United Nations Human Rights Committee, the United Nations High Commissioner for Refugees and key refugee advocate groups such as the Refugee Council of Australia. So we are not exactly talking about people who are fringe dwellers; we are talking about people who pay due regard to the development of law in accordance with our international obligations, who pay due regard to development of law on these issues right around the globe.

I thought it was important to bring a little bit of balance back to the debate after the contribution of the last member, who seemed to be off in a world of unreality. I think it is appropriate to discuss the background of the refugee convention and where our international obligations, which are reflected in the legislation before us, are derived from. When we ratified the refugee convention and the protocol, we as a nation, along with the 141 other states party to those, committed ourselves to ensure that people could flee persecution on the basis of their race, religion, nationality, political opinion or membership of a social group, and seek asylum. We did ratify the convention over 50 years ago and we know that it has been relied upon by many around the globe—from those fleeing the horror of World War II to the present day. We know that the convention has been robust and that it has surely saved the lives of countless thousands worldwide. But, like any law which has been in place for some time, there are circumstances and there are types of treatment which were not contemplated at the time of establishment of the convention but which are nonetheless regarded by the bulk of the international community as forms of persecution. There are some circumstances which any right-thinking person would recognise as a serious violation of human rights but which are not specifically captured under the letter of the convention.

International human rights instruments and international human rights law in general has evolved and developed since the drafting of the refugee convention in 1951. Nations and their courts have recognised that refugee law needs to be interpreted in light of this. The principle of nonrefoulement is a principle of international law which forbids the expulsion of a person into an area where that person might again be subjected to persecution. We know that it is reflected in the refugee convention, but it is also reflected in other instruments to which we have become party over the years. Those include the ICCPR, the convention against torture and the convention on the rights of the child. This concept of nonrefoulement, as reflected in these instruments, prevents a state from sending people to places where they risk being tortured; exposed to cruel, inhumane or degrading treatment or punishment; subjected to the death penalty; or arbitrarily deprived of life. Those who are likely to be exposed to or who experience those kinds of circumstances but who do not fall within the categories of persecution contemplated in the refugee convention are not protected under the convention, but returning them to their home country obligations we know would breach Australia's non-return obligations. Under Australian law those people currently rely on the discretion of the minister of the day to enable them to remain in Australia and free from persecution. We know that is a form of complementary protection that does certainly exist. But the new complementary protection framework contemplated in the bill would clearly capture Australia's obligations under the ICCPR, the Convention Against Torture and the Convention on the Rights of the Child in relation to nonreturn.

Absent the provisions of the bill before us, there will continue to be no legislative basis in Australia pursuant to which a person who feared torture but did not satisfy the refugee convention criteria, for example, could claim protection. Unless the harm feared also satisfied those refugee convention criteria, Australian decision-makers would have no power to be able to make a determination based on a torture claim. A person in those circumstances, we know, could go on to appeal to the minister under section 417 of the Migration Act to permit them to remain here. But the minister is not required to consider any such claim.

There are a number of reasons why the current mechanism under section 417 of the Migration Act is simply not an adequate basis for complementary protection. Firstly, we know that the discretion is nonreviewable, which means that the decision cannot be the subject of appeal. Secondly, we know that the discretion is noncompellable, which means that the minister is not even required to consider the claim. Thirdly, even though the minister of the day has available certain guidelines under which they might consider any claim based on international law requirements, they are not required to be considered under the section 417 mechanism. And, finally, the reasons for the decision of the minister of the day are not necessarily required to be revealed or made clear. So, on any basis, we would have to say that this is a very wide discretion that is available to any minister under section 417.

This legislation has been considered for some time and considered in circumstances which apply to a minister of any hue. I note that the last speaker was keen to make the connection between the current Minister for Immigration and Citizenship and certain backbenchers' apparent concerns about his role in making determinations under section 417. I can certainly say that I have tremendous faith in the current minister for immigration and I know that this was one of the first pieces of legislation that he hoped to pursue in this place upon taking up his role. And what a responsible move that has been.

In addition to the matters which go to consistency, predictability, fairness and accessibility of justice, there is also a range of practical and administrative matters which mean that the complementary protection arrangements currently in place are really inefficient and inconsistent. A person seeking the exercise of ministerial discretion will frequently only pursue the exercise of that discretion after going through quite a futile process of applying for protection as a refugee aware that their claim will almost certainly be rejected. They proceed through the appeal process and then proceed to seek ministerial intervention. So it is very hard to see why the opposition regards this as a tremendously efficient process and something that is to be lauded.

This bill seeks to remove that artificial process and enable applicants to pursue a predictable, consistent process which is able to respond directly to the claim which they present. This has obvious consequences for improving the efficiency with which claims are dealt, limiting the hardship suffered by applicants during the claim process and freeing up decision-makers otherwise forced to consider claims which are almost certain to fail. These are all what would seem to be tremendously logical considerations. They are procedural considerations; they are things which reflect regimes that apply to other applicants for asylum. It is extraordinary that they are being opposed by the opposition today. Once again, it is merely an opportunity to grandstand on the 'stop the boats' slogan which we have heard so many times so tediously.

The introduction of a consistent process for handling these types of claims means that Australia will be less at risk of inadvertently breaching its non-refoulement obligations under international law. As a nation, we have a history of involvement with the development of international human rights law, particularly in the area of human rights. As a legislator in this place, I consider it to be of particular importance that we continue to be regarded as a country which complies with the international human rights obligations that we have signed up to. In that regard I note that most Western democracies have a formal system of complementary protection in place. This is hardly controversial territory. The European Union, Canada and the United States have already established complementary protection arrangements and we know that New Zealand has recently introduced complementary protection legislation. Once again, in a matter which is entirely rational and which is being reflected in legislatures right round the world in developed countries, we see that the opposition lags behind and that it simply sees these matters, which are of significant national and international importance and which go to our level of compassion as a community, as an opportunity to grandstand and secure political points.

We know that there are many truly horrific examples of cases which would be covered by complementary protection arrangements. These include circumstances of people who are at risk of being stoned on the basis of their homosexuality. The refugee convention does not contemplate sexual preference as a category of persecution nor does it deal directly with circumstances of women who are fleeing ritual genital mutilation or women who are at risk of so-called 'honour killings'. I am absolutely confident that all of these forms of persecution would very readily be regarded by most sensible Australians as utterly abhorrent and I am confident that the overwhelming majority of Australians would expect that our system of migration law would directly enable claims for protection on the basis of such abhorrent persecution to be heard in a consistent and predictable way. Unlike the observations made by members of the opposition, I know and members of this side know, and all of the organisations that I mentioned earlier which had recommended legislated complementary protection regimes know, that the introduction of such a regime does not represent a softening of Australia's approach to asylum seekers. The change is simply designed to bring the consideration of certain claims—

Opposition members interjecting

Ms SMYTH: I note that the members opposite who are interjecting are not on the speakers list at the moment and I would certainly invite them to make a contribution.

Opposition members interjecting

Ms SMYTH: Marvellous. We will certainly hear from one of the members opposite, but I presume that the member for Mackellar can put herself on the list if she wishes to make some remarks. The introduction of complementary protection does not represent a softening of Australia's approach. The change is simply designed to bring the consideration of certain claims within the existing protection visa process. There is no floodgates risk. We know that six protection visas were granted on the basis of complementary protection grounds in 2009-10. There is no floodgates risk.

This bill will enable us to properly fulfil our obligations under international law by determining consistently and in accordance with due process that individuals who are at risk of serious harm are not returned to danger. Importantly, the change envisages that beneficiaries of complementary protection will be granted the same rights as those who make their claims currently under the refugee convention. This bill will enable them to live in safety and dignity within the Australian community, and it does no more than ensure consistency with our international obligations and our current domestic arrangements. It reflects what I expect most Australians would regard as an appropriate response to circumstances where certain categories of people would be exposed to abhorrent harm were they returned to their countries of origin.