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Monday, 19 September 2011
Page: 6333


Senator CASH (Western Australia) (11:58): I rise today to speak on the Migration Amendment (Complementary Protection) Bill 2011. The bill before the Senate seeks to amend the Migration Act 1958. The current bill is based on a previous bill titled the Migration Amendment (Complementary Protection) Bill 2009, which was introduced into the Senate in 2009 but was not subsequently debated and lapsed on 19 July 2010 when parliament was prorogued for the 2010 federal election. Prior to the prorogation of the parliament in 2010, the Senate Legal and Constitutional Affairs Legislation Committee considered the earlier bill and made a number of recommendations.

I note that in the second reading speech of the Minister for Immigration and Citizenship he makes the observation that the bill comprises a number of key points. These include, firstly, protection visa applicants will continue to have their claims first considered against the refugee convention related criteria set out in Australia's migration legislation. Secondly, applicants who are found not to be refugees under the refugee convention will have their claims considered under the new complementary protection regime. Thirdly, this approach recognises the primacy of the refugee convention as an international protection instrument and is supported by the UNHCR. Fourthly, the bill establishes new criteria for the grant of a protection visa in circum­stances that engage Australia's non-refoulement obligations under human rights treaties other than the refugee convention. Fifthly, Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely: the arbitrary deprivation of life—having the death penalty carried out—being subjected to torture, being subjected to cruel or inhumane treatment or punishment, or being subjected to degrading treatment or punishment.

The opposition further notes that the bill also provides for a range of consequential amendments to the Migration Act that are to be inserted by the bill. The opposition also notes that if the bill is agreed to in its present form amendments to the Migration Regulations 1994 will be required to complete implementation of complementary protection in the protection visa subclass. The government claims that it has identified a number of significant lacunas in the existing law and is seeking to address these lacunas. The government further claims that the Migration Act as it currently stands provides that only those people fleeing persecution for one of the five reasons outlined in the Convention relating to the Status of Refugees—namely, race, religion, nationality, social group or political opinion—are eligible to receive a protection visa through the usual process. As a consequence of the construct of the current law, persons who are fleeing from other acts of barbarism or threats to their life can find that, because of the provisions of the current Migration Act, they are not eligible to receive a protection visa, and any application from them must be rejected by the department and also by the Refugee Review Tribunal notwithstanding instances where Australia's nonrefoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin. Having been rejected by the department and/or the Refugee Review Tribunal as a consequence of the current law, the applicant must then appeal to the minister, who has the legal capacity to exercise a discretion as to whether the applicant should be granted a protection visa. The government seeks to remove the discretion of the minister in certain circumstances and substitute this ministerial discretion with a codified regime which will be the subject of judicial review.

The coalition says at the outset that for the minister to give away the capacity to exercise his discretion is a blatant abrogation of the responsibility that this parliament had vested in the minister for very cogent reasons. It is a cop-out at the highest level of authority that is vested in the minister. Senators will be aware that, when dealing with claims for refugee status, comple­mentary protection refers to a state's obligations to nonrefugees—that is, people who do not satisfy the 1951 refugee convention definition—who are nonetheless in need of protection on the basis that they face serious violations of their human rights if sent back to their country of origin. As we know, a refugee is defined in the 1951 refugee convention, along with the 1967 protocol, as being:

... any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …

Australia is a signatory to that convention.

The government claims that an objective of this bill is to amend the Migration Act 1958 to better meet Australia's human rights obligations with respect to nonrefoulement under international law, and that a key aspect of the bill is the reduction in reliance on ministerial intervention powers with respect to noncitizens seeking protection in Australia from the risk of harm overseas. The government also claims that this bill will eliminate a significant administrative defi­ciency in the visa application process, making the process more efficient, transparent and accountable.

The coalition recognises that there are always going to be some persons whose personal situations mean that they do not qualify under the refugee convention and who therefore cannot be considered in the protection visa process, even though a nonrefoulement obligation should arguably arise. Recent cases reported in the media about women who may be subject to genital mutilation or honour killings if they return to their home countries are prominent examples, and there are many other complex or one-off situations that may arise. Where an individual does not meet the refugee convention criteria, but is clearly at serious risk, the minister has the power to exercise his or her discretion. This safeguard has been in place for decades and there is no evidence to suggest that it has been anything other than effective. It is a tried and proven system which meets Australia's international obligations and which protects those who are in genuine need of such protection.

The minister has stated this bill will help Australia better meet its international obligations. He is not saying that Australia is not currently meeting our international obligations. In fact, the minister's office has confirmed that no-one who would be considered under the new provisions has previously failed to obtain a protection outcome under the current ministerial intervention arrangements—not one person. 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.

In evidence given to the Senate Legal and Constitutional Affairs Legislation Committee inquiry, the Department of Immigration and Citizenship advised that of the 606 visas granted by the minister using section 417 powers in 2008-09 program, only 55 were granted out of the humanitarian program, and less than half of these cases involved nonrefoulement issues. 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 the complementary protection provisions to increase at all. The question is therefore this: why does the government need to introduce a statutory framework to deal with such a small number of cases?

It is pertinent at this point to note the seven main 'issues' that the Senate Legal and Constitutional Affairs Committee identified from the written submissions it received in 2009. The issues were also referred to in the Parliamentary Library briefing note on the current bill. They include: the complexity of the test and/or the difficulty in meeting it, particularly the requirement that a person be at risk of irreparable harm; the distinction in the bill between personal and generalised violence, and the intention of the bill to disqualify applications on the basis of the risk to a person not being personal; the apparent unworkability of the death penalty provision, which required that the death penalty be carried out; the imposition of an additional intention criterion in the definitions of 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment' and the splitting up of the definitions; the inconsistency of proposed subsection 36(2C) with the non-derogable provisions of the CAT and the ICCPR; the undesirability of quantified terms of imprisonment in the existing statutory definition of 'serious offence'; and the exclusion of statelessness from the protection framework. It is interesting to note that the majority of these issues have not been addressed in the current bill.

We on this side of the Senate believe that the issue that is at the heart of the bill is the question of ministerial discretion and we further say that this bill is designed, in part, to transfer the exercise of ministerial discretion to a codified regime that will introduce appeal provisions which would not have been brought into play under the current provisions relating to ministerial discretion as such decisions are not appealable. We believe that empowering a minister to exercise his or her discretion to determine an outcome of a given issue is one of the most important facets of ministerial responsibility in a minister's duty to act in the public interest.

We also note that, in March 2004, there was a report tabled by the then Senate Select Committee on Ministerial Discretion in Migration Matters. In chapter 4 the report noted that the Commonwealth Ombudsman expressed the following view about access to parliamentarians and the use of ministerial discretionary powers:

One great strength of our political system is that members of parliament—Minister included—are members of the community and move broadly through the community. They listen to what people have to say and their knowledge of the world—their sagacity and their wisdom—and of deserving cases is triggered by what people have to say … It is a strength of the system that a Minister, for example, can go to a particular ethnic community function or to some other function and people can speak to him or her and attract his or her attention. But that inevitably leads to the allegation that the Minister has favoured the community that he or she has just visited as against a community that did not issue an invitation to the Minister. One can see that there is an element of partiality or favouritism but, as I said, on balance I think we regard that as one of the strengths of our system. It is one of the points of access to official and political power that, overall, we would prefer to preserve.

The report continues:

Most of the submissions to the Inquiry recognised the importance of maintaining the capacity for the Minister to exercise discretion as an instrument of last resort.

Chapter 4 then concludes:

Australia's rigorous approach to the selection of migrants harnesses the positive effects of human mobility while undercutting the illegal trade in people. The continuing success of our immigration programs depends on the support of the Australian public. This support in turn depends on the fairness, integrity and rigour of our migration programs. If the distinction between a well-managed and generous Migration Program and informal and unregulated movements breaks down, public confidence in the Migration Program, as well as our very successful policy of multiculturalism, would be undermined.

The Minister's discretionary powers must be seen in this context. They allow the Minister to exercise his or her judgement as to whether to overturn an outcome flowing from the Migration Act which may have lead to an unintended harsh result.

Without ministerial discretionary powers, considerable pressure would be placed on the rigorous migration selection criteria we have in place and we could be forced to take a less rigorous approach by lowering Australia's standards in the selection of migrants.

All this bill does is open up another avenue for onshore applications that goes well beyond the requirements of the refugee convention. The government, with this bill, run the risk of creating a further policy incentive for people smuggling while, by their own admission, the bill will not assist one extra genuine claimant. In stark contrast the current process, which includes ministerial discretion, maintains a flexibility that avoids these outcomes whilst affording protection to those who need it consistent with treaty and other obligations.

This bill is unnecessary, counter­productive and risks being represented as yet another softening of Australia's immigration laws, which sends a clear message that Australia is an easy target to people smugglers and unlawful noncitizens seeking entry. If the bill is passed a departmental decision not to grant complementary protection will be appealable. It seems that the lessons of the past have not been learned as this will inevitably mean that decisions may take many months if not years to be resolved if the initial decision is unfavour­able and is appealed. This exacerbates an already fraught situation. For these reasons, the coalition will not be supporting the bill.