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Migration Amendment (Complementary Protection) Bill 2010 19/10/11

Senator HANSON-YOUNG (South Australia) (12:12):

I rise to add the Greens' contribution to the Migration Amendment (Complementary Protection) Bill 2011 and commend the Minister for Immigration and Citizenship on his commitment to introduce a system of complementary protection and finally bring Australia into line with other Western countries in meeting our core human rights protection obligations under international law beyond that of the Convention relating to the Status of Refugees. I say this very seriously in relation to this piece of legislation because it is important for us to recognise our obligations under international law. Of course, it is somewhat ironic that we are debating this particular bill today, which would give necessary protections to people who do not necessarily fit the refugee convention, when at the same time-a quarter past 12-we have our Prime Minister meeting with Tony Abbott, the Leader of the Opposition, to discuss exactly how we should trash and undermine our obligations to the refugee convention. It is somewhat paradoxical that we can discuss the need for protection, the need to expand protection for vulnerable people, while at the same time, in another vacuum, discuss how we strip those rights away from people.

This legislation has taken two years to get to this place. I am thankful that it has come forward today. The Greens will be supporting it and I am disappointed that the opposition will not be. I also think members of the government need to strongly think about what laws we introduce into this country, what treaties and conventions we sign, and what we do to uphold our obligations under them. If it is right to introduce domestic legislation that upholds our obligations under the refugee convention, it is right that we stand by those conventions, that we stand by our domestic laws that uphold them, even when the going gets rough and even when people want to be drawn into the ugly politics, the race to the bottom of who can be the toughest, meanest and most cruel to asylum seekers. This current political debate is an absolute farce. What we should be doing is putting Australia in line with other countries in the world, in line with where we were 60 years ago when we led the way in standing up for human rights, in standing up for some of the world's most vulnerable people.

The term 'complementary protection' essentially refers to a state's protection obligations under international law to people who cannot be returned to their home country safely but who do not strictly fit under the definition of 'refugee' as defined by the refugee convention. Many other states in the world have ensured the introduction of this type of complementary protection, and it has taken Australia until today to seriously consider it. Given Australia is a signatory to the major United Nations human rights treaties, we have a commitment to upholding non-refoulement obligations under article 33 of the 1951 Geneva convention, which prohibits signatory states from returning people to a country where they would be prosecuted, killed, tortured or subjected to cruel and degrading treatment. Yet, as it currently stands, these complementary protection obligations that Australia is a signatory to are met only through section 417 of the Migration Act, whereby the Minister for Immigration and Citizenship has the non-reviewable, non-compellable power to use his personal discretion to grant protection visas. Obviously, going through that process has meant that the length of time to determine whether somebody is indeed in need of protection and should be given it has dragged on and on, and we see very vulnerable people caught up in the system. Amending the act to make it easier and clearer to uphold our obligations and set down the groundwork for ensuring that this type of complementary protection can be given will not just help the individuals in need but also help streamline the rest of the review and application processes for other people applying for protection visas.

While the minister is required to table any decision to intervene in parliament, he is under no obligation to explain or justify any decision not to exercise discretion, nor is there the presence of any merits review of the decisions made by the minister. That is obviously very worrying, and it is incredibly dangerous when we are talking about desperate people fleeing dangerous and life-threatening circumstances to continue to rely solely on a system of ministerial discretion that is poorly suited to protecting against nonrefoulement under the International Covenant on Civil and Political Rights, the conventions against torture and the conventions on the rights of the child.

Of course, we know that the Convention on the Rights of the Child, which is one of the international laws, will be breached if the government gets its way in amending the Migration Act in the broader sense to dump vulnerable people in a far-off land. Let us make sure that those types of protections are upheld regardless of whether children arrive here without their families on a boat or whether they arrive here without their families on a plane. We need to ensure that we protect the rights of children regardless of their mode of arrival. If they need protection, Australia should be big enough, wise enough and sensible enough to offer it to them.

Under the current legislation, there is of course an obvious lack of transparency, and this bill would go some way to dealing with those issues. Asylum seekers who do not fit the definition of 'refugee' as defined under the Geneva convention but who are in need of protection are currently forced to go through a lengthy and expensive process in order to have their actual claim to protection assessed at the ministerial level. As I said, this system will help to streamline that process. It will help to ease the pressures currently before the Refugee Review Tribunal, because you will not have to go through all of that process simply to get the ministerial intervention which should have been obvious from the start-that a young nine-year-old Vietnamese boy in detention in Darwin, who has not been given the opportunity to apply for a refugee protection visa but who is obviously a young boy without his family, should not be dumped back in Vietnam simply because Australia does not have a way of protecting him. This bill would help to ensure that we actually offer protection where protection is needed.

In 2006 former Senator Andrew Bartlett introduced a bill that sought to establish a new category of visa, known as 'complementary protection', to deal with claims made in Australia by people whose circumstances did not meet the refugee convention definition of a 'refugee' but nonetheless had compelling humanitarian or safety reasons as to why they could not be returned to their country of origin and did not have a place to go other than this country. This legislation basically mirrors that. It does not offer a different category but it does offer the opportunity for a protection visa under these new criteria. It should be noted that when former Senator Andrew Bartlett introduced that legislation only the Greens supported it. Both the Labor Party and the coalition dismissed it.

Although Australia has ratified the International Covenant on Civil and Political Rights, the optional protocol and the abolition of the death penalty, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, we have failed to pass adequate legislative measures to comply with our non-refoulement obligations. So this is all about trying to get our house in order. As I said, it seems bizarre that we are talking about this at the same time as the government of the day is trying to rip away our domestic footing for upholding the rest of the protection elements under the refugee convention and the Convention on the Rights of the Child when it comes to refugee and asylum seeker children. For many years refugee advocates have argued that the refugee convention alone is inadequate in defining actual protection needs in the modern-day environment. The Refugee Council of Australia argued in their Position Paper on Complementary Protection:

As the Convention specifies that a person must face or fear persecution, that is they must be individually targeted for who they are, what they are or what they believe in, victims of such events are unlikely to qualify for protection.

So, of course, that is why we get reviews and reviews and reviews. I hear the opposition talk a lot about how clogged up the system is because people are having their cases reviewed. It is very difficult, unless we bring ourselves up to the standards of the rest of the world in how we understand the needs of protection, the complexities of people fleeing persecution, torture and degrading treatment, to avoid those types of lengthy processes.

 Despite the Greens' obvious support for the objectives within this bill, we remain concerned that some wording contained within the bill could result in some applicants still falling through the gap when seeking protection. The Greens are concerned that proposed section 36(2A) of the bill does not explicitly enshrine all of Australia's non-refoulement obligations-in particular, we agree with the Australian Human Rights Law Resource Centre's submission that this section of the proposed bill does not reflect the full scope of children's rights which engage Australia's protection obligations. I would be interested to hear what the Australian Human Rights Law Resource Centre think about the government's proposed amendments to the Migration Act flagged on Friday. I assume they would be horrified at the idea that we are stripping absolute protections away.

It is well known that international law supports the extension of non-refoulement obligations based on the ICCPR, the Convention Against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child beyond the grounds contained within the bill. It is absolutely important that we continue to work to strengthen our role in the global community to protect our fellow human beings, not doing everything we can to run away from our legal and moral obligations.

While the explanatory memorandum refers to all three instruments, only the ICCPR seems to be explicitly referred to in the actual legislation before us-and that is a concern. Why aren't we prepared to stand strong when we talk about the rights of the child? Why aren't we prepared to stand strong when we talk about the rights of people not to have to be scraping for support after they have been tortured? Why aren't we, if we sign these international conventions, prepared to accept that that means not just a nice signature, not just a nice press conference with other world leaders, but the opportunity to ensure that Australia lifts standards in our region, lifts understanding in our own communities, that these are basic standards of how human beings should treat each other? Or that the government, the parliament of Australia, will stand by those standards-promote them, protect them and uphold them? The last couple of months have seen absolute disarray in the debate when it comes to what our obligations are under international law.

Concern around the standard of proof that an applicant is required to meet under proposed section 36(2)(aa) is also an issue that the Greens are worried about. I urge the government to reassess this. We have spoken to the government about this; it was in our report into the inquiry into this bill and the government needs to look at that. Amnesty International argued in its submission that the wording contained within this section of the bill:

... could lead to divergence and inconsistency in the interpretation of the requirements for complementary protection, in particular the dual conditions of the risk being 'real' as well as 'necessary and foreseeable'.

These are obviously issues that people have. This bill is not perfect, but it is absolutely important that we get this passed.

We also have concerns about the term 'irreparable harm' being used in way which seems to suggest that the minister must not only believe that there is a real risk that a person may be subjected to torture or another specified violation of human rights but that, if they were to be returned to a country, also that the violation will result in irreparable harm. I think some of the language in this bill should be reflected upon: 'necessary and foreseeable' and 'irreparable harm' set a threshold for protection that is much higher than that imposed by international human rights law, which usually only requires a 'real risk' of harm to be assessed.

Subsection 36(2A) outlines an exhaustive list of matters that are to be considered necessary requirements for complementary protection, and the Greens welcome, in particular, the inclusion of the risk of the death penalty being imposed as an eligibility criterion. I know this was not in the first version of the legislation, before the last election, but the government has taken that on board and looked at it in the new version, so that is a good thing. It would have been helpful for those other issues to be addressed as well. The definition is not precisely right but, as I said, I would prefer the Greens pass this legislation in the first instance than to have it held up any longer.

Another point I would like to touch on is the issue of statelessness. While I acknowledge that the government is aware of current and past failures to resolve the status of stateless people in a timely manner, the fact is that we are a signatory to both the Convention Relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness. This means we have an obligation to develop mechanisms for recognising stateless people that come to Australia for protection. We know how many asylum seekers are detained in immigration detention centres across the country who, despite a very real risk of persecution and torture were they to be sent back to the places they have fled, the very nature of them being stateless means that the risk to them is even higher. And our current process by which we deal with their applications is long, confusing and complicated. So, for these people, our dealing with this issue and having a way of resolving that issue and upholding our obligations under the various conventions that deal with statelessness would make it much easier. It would mean these people would not have to spend years and years of their lives becoming even further damaged, which impacts on their already fragile nature.

The last point in debating such a historic piece of legislation is that it would have been wonderful to have done it two years ago. We must not forget the ongoing commitment and advocacy of all the refugee, church and legal organisations, as well as the many individuals, who have lobbied both the previous and the current governments over the years to introduce a form of complementary protection to finally bring Australia in line with most other Western countries in adhering to our protection obligations, as defined in international law. While we remain concerned about it, the complementary protection model before us will not adequately address all of the holes in our overall protection framework. We recognise the need to pass the legislation that is long overdue.

Finally, there is the matter of all of the long, hard fighting and lobbying that the sector has put into the issue of women who face persecution simply because they are women and are sent back to precarious places in the rest of the world, and children who are unable to apply for refugee protection but are nonetheless here without their parents and need to be offered safety. Considering all of the groups that have fought so hard for this, the question to the government is: is all of this work going to be undone; is it all going to unravel? If you had it your way none of these people would be able to apply for protection in the first place, because you want to send them to a far off land without any guarantees for their protection, without any guarantees that the place they are being sent to will look after them and that they will not necessarily be sent back into harm's way, when the simplest thing for us to do is to stand by the conventions and the international treaties we have signed. If we have signed the refugee convention, the convention against torture and the convention on the rights of the child, we must abide by those because they are important instruments we signed. We signed them because we believed that it was the right thing to do. Don't undo all of this good work just because Tony Abbott has goaded you in a race to the bottom.


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