Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
I sincerely hope that Australia remains a stable, peaceful democracy where no one here ever has to feel that their safety is so threatened that they have to flee. I hope that no one in Australia ever feels that their life or their family's lives are at risk, such that they might have to put whatever they can into a bag in the middle of the night and flee—using whatever means they can—to get out of the country. I sincerely hope that no one in Australia ever has to live through a war in this country that might see orderly systems of migration stopping and them having to turn to whoever they possibly can to smuggle them out the country to save their own life and their family's lives.
If any one of us in this country ever found ourselves in danger, if any one of us in this country ever found ourselves worried that our family members or people close to us might be in danger themselves and if we were forced to flee and go to knock on the door of another country, we could not in all good conscience ask them to take us in given that this is what we are doing in this bill to people who are coming here seeking our protection. Under this bill, we now have the very real likelihood that Australia will take some of the most vulnerable people in the world—who are coming here seeking our help, who have experienced war, who have experienced persecution and who have experienced torture—and we will send them back into danger. This is not only morally repugnant in its own right but it breaches international obligations that we have signed up to. It seriously compromises the integrity of our rigorous protection determination system and it erodes procedural safeguards and it puts Australia at risk of breaching our non-reformat obligation, which is the obligation not to put someone back in harm's way.
What we know is that people who arrive on our shores seeking protection are extremely vulnerable. They have often experienced persecution, trauma and torture. But the amendments in this bill presume that the person who arrives on our doorstep is lawyered up, has all the resources available to a Liberal party donor and backer and are able to hire this country's best legal minds to go and represent them in a now very narrowly prescribed tribunal system. There is absolutely no evidence that the integrity of our current system is at risk or is in any way compromised in its current functioning, but what this government is doing is what it usually does whenever it finds itself in political trouble: it turns on refugees, it turns on the vulnerable and it turns on those who are least able to defend themselves and it attacks them.
This bill will have incredible adverse impacts on those in the world who most need our help. How does it do that? One of the things it does is that it alters the burden of proof. The amendments proposed by the bill state that the burden of proof will rest solely on the applicant to prove:
…that they are a person to whom Australia has protection obligations…
And that sufficient evidence must be provided in the first instance to establish that claim. On one reading and on the face of it, it sounds reasonable—of course someone has to prove their case. But what anyone who has paid the slightest attention to what happens in reality would know or even if you just think about it for a moment, someone who arrives here who is a genuine refugee may have nothing with them and they are almost certainly not going to have a fine, detailed knowledge of Australia's migration law.
That is why the Office of the United Nations High Commissioner for Refugees states:
…while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. …it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized.
That makes perfect sense. Someone who turns up here may not speak English, almost certainly will have no idea about the finer points of Australian migration law and may not have a dollar to their name, yet this government is saying, 'It is now your job to front up and prove every single aspect of your case, otherwise we will consider sending you back.' To add insult to injury, this comes on top of this government cutting funding for legal advice to these very same people.