House debates

Monday, 22 September 2014


Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading

6:08 pm

Photo of Andrew GilesAndrew Giles (Scullin, Australian Labor Party) Share this | Hansard source

That was a very strange pitch for Labor Party support from the previous speaker. I rise to make my contribution to the debate on the Migration Amendment (Protection and Other Measures) Bill 2014. I note that this bill amends aspects of the protection framework within the Migration Act 1958 in order to assist in improving the rate of processing protection claims. The bill also purports to improve the integrity of the framework within which assessments are made.

As the member for Corio foreshadowed, Labor will move amendments to this bill to deal with certain aspects of the bill. In particular, the amendments remove schedule 2, which relates to the important matter of complementary protection claims, from this bill. I support this critical amendment.

I also note that this bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report today. I was unable to look at this report before coming into the House a few minutes ago, but I do look forward to reviewing its findings. I hope that they will advance a proper consideration of this bill in the other place—a consideration that perhaps could properly have occurred in this place. Although I should say that I welcome the fact that the member for Corio, the shadow minister, was afforded a briefing on this bill by the department.

This bill obviously cannot be isolated from the wider debate that we are having about immigration and, in particular, Australia’s obligations towards those seeking asylum. It raises difficult questions that are not best-advanced through assertions and inflammatory language such as the reference made by the member for Canning to 'so-called refugees' which we heard moments ago. Assertion and inflammatory language can be no substitute for evidence and principles, which should be the cornerstones of our approach to these very difficult issues.

I have said before in this place that I struggle with many of the questions that this debate raises; I am sure that many members on all sides of this House do. We obviously live in a very changing world, as debates in this place have demonstrated in recent months. What this tells me, though, is that the debate around how Australia behaves in an increasingly fractious and difficult world full of vulnerable, displaced people is a debate in which there can be no room for triumphalism. Rather, there needs to be a commitment on all of our parts to grapple with the full range of this challenge, a challenge which is of course not confined to Australia—far from it.

I am deeply troubled by aspects of this bill and I am not standing here today to take at face value all of the minister's assertions that it is in accord with our humanitarian obligations. In fact, I found the minister’s repeated claims that this bill will restore integrity to our asylum seeker processing system curious, to say the least. In particular, he concluded his second reading speech by saying:

This bill deserves the support of all parties. We need the tools to ensure public confidence in Australia’s capacity to assess claims for asylum in the interests of this country, and against the interests of those who show bad faith. These changes uphold the importance of integrity, the establishment of identity, and increased efficiency in our protection processing system.

Let me say that there are many elements of this bill that are unobjectionable and achieve worthwhile purposes, but these statements deserve, in my view, much closer examination. Leaving aside the rather striking omission—to my eyes at least—in the objectives of the need to do justice in each case to those seeking asylum, as a whole the minister’s claims cannot be supported. The case for the matters set out in the legislation before us has simply not been made out. It is important to note that this bill includes provisions that, firstly, erode significant procedural and substantive safeguards, and that, secondly, downgrade our compliance with international obligations which are maintained by this present government. The provisions potentially include the refusal of protection applications for technical reasons. This sits uncomfortably—at the very least—with our international protection obligations. Perhaps we could all pause for a moment to think about the consequences of getting one of these decisions wrong on technical grounds.

While there are non-controversial matters before us in this bill, the concerns that I am setting out are not minor concerns. Of course, this is not just about us. I note the very recent comments setting out the broader context of this debate by the incoming UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. In his first speech, he went out of his way to criticise some Australian policies as leading to a chain of human rights violations including arbitrary detention and possible torture following return to home countries. This gives context as to how we are seen, which is of course critical if we are to achieve any regional solution to this terrible problem and warrants very careful attention.

Fundamentally, detention and punishment do not equal protection, just as efficiency and integrity are not always coterminous. As we strive for efficiency—as we must, as the minister has rightly said, in Australia's national interest and in the interest of individual asylum seekers—we cannot ignore integrity in matters which so often go to questions of life and death.

I turn to schedule 2 of the bill, which seeks to raise the risk of harm threshold from what it presently is—a real chance—which requires a real and not a far-fetched or fanciful possibility, but can be as low as 10 per cent, to a 'more likely than not' test, which would require a balance of probabilities test involving more than a 50 per cent chance of suffering harm. This is, in the view of expert practitioners in the field, the imposition of an unacceptably high threshold of risk assessment and it is at odds with well-established standards in international law and the test in comparable jurisdictions such as the United Kingdom and New Zealand, contrary to what has been asserted by the minister. These are considerations which are especially important again when regard is had to the consequences. Of course, the principle of non-refoulement is at the cornerstone of international refugee protection and expressed unequivocally in article 33(1) of the 1951 convention, which prohibits a state from expelling or returning a refugee in any manner whatsoever to territories where his or her life or freedom would be threatened for a convention reason.

I note that a substantial body of case law has essentially harmonised the test in the 1951 convention of there being a well-founded fear and the Migration Act's present 'real risk' of significant harm under complementary protection grounds. Despite this legal consensus, in his second reading speech the minister stated:

It is the government's position that the risk threshold applicable to the non-refoulement obligations under the Convention Against Torture and the ICCPR is 'more likely than not'.

According to Jane McAdam from the University of New South Wales, this bill invites decision makers to reinvent the wheel rather than encourage them to draw on the wealth of jurisprudence that has developed around these human rights principles internationally.

Once again, the minister has declined to explain why these changes are necessary. He simply asserts that 'this is an acceptable position which is open to Australia under international law and reflects the government's interpretation of Australia's obligations'. These are weasel words. On the other hand, there is, finally, established case law that resolves any uncertainty by harmonising the definitions between international and domestic law, yet the minister is seeking to rip this up for no apparent reason.

The test for refugee protection under Australian law has, since 1989, been a 'real chance' test. There is no sound reason why different tests should be applied to what is ultimately the central question under both refugee and complementary protection—that is, whether a person is at risk of serious human rights abuse. This must be the test going forward. It is as simple as that. That is why Labor's amendment to schedule 2 is so fundamentally important. It is a matter of life and death.

I turn now to schedule 1, which of course goes to a non-citizen's responsibility in relation to protection claims and where very significant changes have been made. Firstly, proposed section 5AAA seeks to clarify that, going forward, the burden is to rest solely with the noncitizen to specify all particulars of their claim that they are a person to whom Australia has protection obligations and to provide sufficient evidence to establish such claims. This burden is imposed on a noncitizen who claims to be a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, the 1966 International Covenant on Civil and Political Rights and the 1984 Convention against Torture.

Whilst I of course share this government's concerns about people who are not genuine in their claims of asylum, I do not think it can be fair to collectively punish any person seeking asylum because of the wrongdoing of some, particularly given the paucity of evidence before us. I note that the minister's second reading speech fails to provide much in the way of hard evidence of wilful wrongdoing by those seeking asylum. I accept that, as with anything, there are always people who do the wrong thing, but this is about the fairest way to deal with all of those seeking asylum, including those—the vast majority—who have done nothing wrong.

In this regard, I note the statement by the Refugee Council of Australia, which has expressed alarm that under this bill people fleeing torture or other forms of serious harm will have to prove that there is a greater than 50 per cent chance of them being harmed to avoid being returned to their home country. I note again that the member for Canning seemed pretty relaxed about these sorts of odds and compared them to horse racing. I think that is not a fair comparison, to say the very least, when we think about the matters that we are concerned with here. The Refugee Council is also opposed to the changes, which it says would also allow the government to deny a protection visa to people who refuse or fail to establish their identity without a reasonable explanation. It asserts:

Making these kinds of presumptions is unfair and out of touch with realities of forced displacement.

When people are fleeing persecution, many are not able to obtain or travel safely with their own identity documents, as doing so could allow them to be identified by the very people from whom they are fleeing.

The Refugee Advice & Casework Service and legal academics and commentators have similarly expressed concern over the majority of the proposed changes in the bill. For instance, Professor McAdam and Kerry Murphy have stated:

Overall, the bill degrades refugee protection under Australian law. It is designed to reduce adherence to Australia’s international legal obligations and make it easier to refuse refugees on technical grounds … This bill underscores that the driving force in Australian refugee law will be punishment, not protection.

However, the Handbook and guidelines on procedures and criteria for determining refugee status issued by the UNHCR 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.

It is a shared duty, and common sense tells us that that must continue to be the case.

I note that this section enables the minister to request further information that he or she considers relevant to the assessment of a visa application. But of course it is very difficult to see how this would work in places that are remote with people who have no resources available to them. Often, again in a practical sense, people come seeking asylum with only the clothes on their backs. How are they supposed to adduce items requested by the minister, assuming he does so in any event? These provisions could result in refusal of protection based solely on identity or other documents, without addressing the significant legal question of whether a person is at risk of persecution. A person could be expelled to face persecution purely because of adverse findings about identity documents. How can this be said to be consistent with Australia's non-refoulement obligations?

The fact that so much power resides with this minister is something I and others have previously taken issue with. I know the former minister was deeply troubled by this as well. The notion that a minister should play God instead of there being an administrative law based assessment goes to the core of this problem. This is a fundamental issue that must be addressed.

I also turn very briefly to schedule 4, and in particular to item 17, to raise a particular concern about those matters that are going to change in tribunal processes. Item 17 was touched on very effectively by the member for Kingsford Smith, and let me say this: I share his concerns that go to the difficulties of having oral reasons only in tribunal determinations, for three reasons. Firstly, applicants—many of whom do not speak English or do not speak English terribly well—may struggle to understand the reasons and then to obtain advice. Secondly, this would diminish transparency and accountability on the part of this important body. Thirdly, it would clearly have the effect of restricting rights to judicial review.

I echo the words of the member for Kingsford Smith, who in his contribution to this debate said that compassion, fairness and generosity should be the hallmark of our approach. It is clear that the bill before us does not meet those tests, and nor do they make a clearly stated case for change. This bill, as a whole, makes major changes which carry very significant—indeed, grave—consequences for asylum seekers. The impact on integrity and on efficiency is unclear to say the least, and I ask this: what are the markers for efficiency when the stakes are so high? I support the amendments moved by the member for Corio.


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