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Tuesday, 2 February 2016
Page: 25

Mr MARLES (Corio) (13:19): I rise to speak against the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. Let me state at the outset that Labor fundamentally believes in the international humanitarian protection framework, the heart of which is the refugee convention. It is for this reason that we were concerned about the government's move at the end of 2014 to remove the reference to the refugee convention from the Migration Act. We also support complementary protection as an important part of the international protection framework. Complementary protection became Australian law in March 2012 as a result of the then Gillard government and the minister at the time, Chris Bowen. We supported the introduction of complementary protection in government. In opposition we have continued that support by opposing this government's attempt to repeal complementary protection, and we again oppose moves to water down complementary protection by opposing this bill today.

In May 2014 the government, as part of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, implemented the statutory refugee framework by codifying within the Migration Act the refugee convention and the existing state of case law in Australia. The effect of this change was to remove all references to the refugee convention from the act and to seek to limit the role of international court decisions in the development of Australian law. Labor opposed these moves at that time. We continue to hold the view that the refugee convention should play a critical role in Australian law and that references to it in the act were appropriate and represented good legislative practice.

The government said that its amendments in late 2014 codified in the act the obligations which exist under the refugee convention and codified the state of Australia's law in respect of refugee assessment processes. There was, however, no justification for taking this step. The government's stated reason for this was that, as jurisprudence develops in this area, they would want to have Australian courts' decisions determine the progress and path that our law takes rather than the decisions of international courts and other countries.

Labor's concern—which we made clear at the time—was that, in seeking to codify the law in this way, gaps would appear. By codifying the refugee convention and the case law there was a significant risk of creating new problems in our law, particularly in relation to considerations of behaviour modification and how that would apply to those seeking protection, or to the reasonableness of finding alternative locations within the country of origin. I note that considerations of this kind are exactly those that the government is now seeking to align across the statutory refugee protection framework and the complementary protection framework through this bill, which, of course, is of great concern to us.

There was no good reason for removing the refugee convention from the act, other than a sense of false nationalism which says that we do not want international courts to have a say on the development of our law. That is plainly silly. The government's justification was always an inherently flawed argument. International courts will always have a role, because our courts, in turn, will always refer to them, even with the legislative arrangements the government has now put in place.

At Labor's national conference last year, we stated that a future Labor government would restore all references to the refugee convention in the Migration Act. This bill before us today is effectively a consequential amendment to the removal of the refugee convention from the Migration Act, flowing that into the complementary protection framework. Accordingly, and consistent with these previously articulated positions, Labor opposes this bill.