Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

I would like to make a short contribution in this debate on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021. Apart from agreeing with the direction of the bill, I would like to say—as I am sure that I have said on many occasions in this place—that my electorate, apart from being very colourful and vibrant, is also one of the largest recipients of refugees in the country. I can't speak for other members here, but I know that, with respect to matters contained in this bill, I have received many, many representations over a number of years both when Labor has been in government as well as when the current Treasury bench has been filled by the other side. It is something that has been a vexed question for everybody.

There is a genuine humanitarian issue at stake here, and I think there has been goodwill on both sides in trying to reach an outcome where we can not only honour our international obligations in terms of refoulement but also importantly meet the expectations of our communities. Our primary responsibility in this place is to keep our communities safe. So, from the outset, I would certainly indicate, as the shadow minister has, that Labor will be supporting this bill. We believe that, with the necessary amendments and the protections that have been secured, the bill strikes the right balance between Australia's refugee obligations and our obligations with regard to the protection of our communities here in Australia.

I note the bill addresses a circumstance in respect of a small cohort of 21 people who are currently in immigration detention, who have been found that we owe refugee protection to but have failed to meet the character test for a visa. Whether they have received adverse security assessments from our respective agencies or, alternatively, a serious crime has been committed, they have, nevertheless, failed that character test.

As was discussed earlier, Australia has a non-refoulement obligation under international treaties, and that is not to return people to a situation where they may face persecution, the real threat of torture, cruel, inhuman or degrading punishment, arbitrary deprivation of life and, indeed, the death penalty itself. Under the same treaties, Australia is not required to provide a visa to a person who engages refugee protection obligations if there are compelling national security or public order reasons that also come into effect. This is where the courts do get involved.

These 21 individuals, as I understand, pose a significant challenge in terms of identifying the practical situation for their issue. They have been determined and recognised as being refugees, but there are issues as to why they present a risk if released from immigration detention and into the community. That being the case, if they cannot be returned to their country of origin, as there are still threats of persecution that exist against them et cetera and, as I understand it, they also present a risk to the Australian community because of either criminal or national security issues if they are released, it has presented a question that has taken both sides of this House to work on for a long period of time to get an appropriate but nevertheless humanitarian response to. Interposed with that, the Federal Court rulings have certainly had an impact on this. The court has held that the removal powers of the Migration Act authorises the removal of person that fails to meet that criteria for a visa—that character test.

It would mean, if that were put into effect, that the government could basically wash its hands of it and say: 'They failed the test. We have no alternative but to send them back to where they came from or where they allege the persecution exists. And where we have been satisfied that a genuine threat exists to them, therefore we have assessed them as being refugees.' That would really be such a hypocritical position for any government to be forced into.

The only other alternative that would present itself to the minister would be that they be released into the community. This is a situation of either one or the other; it's not a situation of being able to look at a suitable alternative. The only option would be for the government to grant a person a visa and allow them to stay in Australia, which would fail our test of ensuring the safety of our community. I think that would fail the test of community obligations that we have to keep our people safe.

This bill amends the Migration Act. To clarify, the act does not require or authorise removal of a person on character or national security grounds where the person has been assessed and found to be owed refugee protection. It also provides an additional option to resolve the ongoing detention of people in this cohort, including community detention—bail-like conditions—a third-country option and, this is the important one, discretion to determine that protection is no longer owed in the circumstances where conditions that gave rise to the protection claim no longer exist. In other words, it allows the government to look at the situation and determine whether the claim for protection is no longer valid against that particular person, and that person then could be returned to their country of origin or the country where they allege the persecution exists. However, if this bill does not pass then people who are owed that protection may certainly be returned to a country where they face persecution.

The bill also keeps Australians safe and certainly goes a fair distance to prevent harm to the general community by preventing someone of a threat or of a great risk being released into the community proper. Many stakeholders have voiced considerable concern about the retrospective nature of ministerial discretion in this regard and I have received a lot of correspondence in my office about this. In terms of the reassessment of protection obligations under the bill, this is something new and something that did not exist before. On balance, I think it is quite legitimate and sensible for any government to be able to assess, retrospective or otherwise, to determine the actual nature of a refugee's status. Nevertheless, Labor also recognises that this bill, including the ministerial discretion, must be limited and it must be exercised narrowly. This is the first time we hope it will be exercised other than in rare situations. That is why we have proposed a number of amendments to safeguard the use of this power.

These amendments include the making of a ministerial determination subject to a merits review and ensuring that the Parliamentary Joint Standing Committee on Intelligence and Security hold a review into the bill's implementation after two years of operation. Labor has also sought assurances from the government that this cohort, the 21 people, receive an ombudsman's assessment in relation to individuals in detention and the appropriateness of their arrangements for detention.

Accordingly, the measures proposed in the bill are, I believe, necessary for ensuring Australia's non-refoulement obligations are met while ensuring that the persons who are a risk are not released back into the community. With that said, we on this side believe that, with the necessary amendments and protections that we have been able to secure, this bill strikes an appropriate balance. Therefore, I support the passage of this bill.

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