Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Consideration in Detail
by leave—I move:
(1) Clause 2, page 2 (table items 5 to 8), omit the table items.
(2) Schedule 2, page 10 (line 1) to page 15 (line 9), omit the Schedule.
(3) Schedule 4, item 17, page 27 (line 10) to page 29 (line14), omit the item.
(4) Schedule 4, item 33, page 37 (line 25), omit ", 368(2) or 368D(1)", substitute "or 368(2)".
As foreshadowed in my speech in relation to this bill, Labor now seeks to amend the bill to remove schedule 2 and item 17 of schedule 4. Schedule 2 of this bill makes significant changes to the way Australia will determine if it has protection obligations in relation to certain non-citizens. Specifically, the bill inserts a new section 6A, which provides that a non-citizen is not entitled to complementary protection unless that person can prove that 'it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia'.
Currently, the 'real chance' test means that a person must not be returned to a situation where there is a real chance they would face significant harm. This means a chance that is not remote or insubstantial but that may be below a 50 per cent threshold. Some international jurists have suggested as little as a 10 per cent threshold may invoke that test. The effect of the proposed changes is that the threshold would be increased, meaning that this could potentially put vulnerable people seeking Australia's protection at risk of persecution, death or serious harm if returned to their home country.
While Labor notes that those requiring complementary protection is only a small cohort of those who apply for refugee status but are refused, they are nonetheless an important cohort. When Labor introduced the Migration Amendment (Complementary Protection) Act 2011 it was intended to assess and provide protection to those who do not satisfy the definition of a refugee as based on the Refugee Convention but are nonetheless in need of protection on the basis that they face serious violations of their human rights if they return to their country of origin. The cases often cited as not fitting within the definition of the Refugee Convention include those which invoke other international instruments such as the Convention against Torture, honour killings or women returning who face the fear of female genital mutilation. In those circumstances, we believe that an increase in the threshold invoking this legislation is an inappropriate step for this country to take. The changes proposed by schedule 2 of the current bill are contrary, therefore, to the complementary protection framework that Labor introduced.
It is also important to note the government's form on the issue of complementary protection. It was only last year that the government sought to remove Labor's changes to complementary protection by introducing the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. This bill sought to unwind Labor's statutory regime for complementary protection. It did not pass the parliament, and what we have now is another attempt by the government to make it more difficult for those who are seeking and are in need of protection to obtain it. On that basis we seek to amend the bill to remove schedule 2.
We also seek to amend the bill to remove item 17 of schedule 4. Currently, where the Refugee Review Tribunal gives an oral statement of reasons, they must also provide a written statement to an applicant. However, the proposed changes in this bill will only require a written statement to be provided where there is a request made by the applicant. This is a clear watering down of the bill. It is of particular concern, given the government's recent decision to axe the Immigration Advice and Application Assistance Scheme. This could result in applicants not knowing or understanding what their rights are during a merits review, not having the comprehension to understand the reasons for a tribunal decision given orally, not being able to brief representation appropriately in the context of appeal and not being aware of the requirement to make a request. This change will severely disadvantage those who are unrepresented, who are unfamiliar with the system and who are not proficient in English. Labor is therefore concerned that this change will result in a denial of procedural fairness to those engaged with the system that is meant to protect them. For this reason Labor is also seeking to have this item removed in its entirety from the bill.
Once again the Labor Party is opposing the government on border protection. There is no great surprise about that. The opposition has always opposed this government when it comes to border protection. They have always opposed the Liberal Party and National Party when it comes to having successful border protection policies. So it is no shock that the deputy shadow minister for immigration—with the real shadow minister for immigration being Senator Hanson-Young—is going to come in here and yet again oppose another set of legislation from the government that will ensure that we have a more effective border protection regime and system for processing claims in this country. They opposed turnback. They opposed temporary protection visas. They had to be dragged kicking and screaming when it came to offshore processing. If they were ever given the opportunity to occupy the government benches again, they would roll it all back again as they always would. That is what you can expect.
But here we have a very interesting situation. They are opposing the bill that would seek to ensure people do not use the system for unfair gain when it comes to their claims. They are opposing a bill—and they have already voted against a bill—that is seeking to have people be up-front and say who they are and what their claim is. They think that is not something we should be doing. With these amendments, they are trying to add more cost and more delay into the system where we have a common-sense solution which says oral statements can be provided, particularly in MRT cases, of which there are thousands. The member for McMahon will know how many MRT cases there are. There are thousands. The bill retains the right to have a written statement if one is requested within seven days. You are not getting rid of a written statement. You are just making the system work more efficiently, and you are reducing costs and reducing delay.
On the last point, with these amendments the opposition are actually opposing a practice and policy that they followed in government. When they were in government, it was their policy and practice to use the 'more likely than not' provision to assess complementary protection claims. That is simply what this bill seeks to do, and they are seeking to remove it. We are seeing an opposition that learnt nothing while in government about border protection. They have continued that in opposition. The government will be opposing these amendments.
Here we again have the immigration minister mischaracterising this debate. This is about Australia's proud history of promoting protection for those fleeing significant harm and persecution. It is a principle that has been upheld in our law since World War II. This bill, particularly schedule 2, seeks to overturn that significant principle that has been part of Australian values and culture for many, many years.
Complementary protection is a reform that was introduced by Labor. As the shadow minister has pointed out, it applied to those for whom protection was not obliged to be offered under the convention when at times there were circumstances where it was found people should be offered some form of protection. They may not have been refugees under the definition in the convention, but they were afforded protection. That was in circumstances such as genital mutilation or forced marriages for young women in particular societies. These amendments that are before the parliament at the moment seek to change the test in schedule 2 from 'a real chance' of that persecution occurring should someone be returned to 'more likely than not'. It is unfair and it is contrary to international agreements and commitments that Australia has signed up to.
Further, in the Senate inquiry into this particular bill, particularly into schedule 2, it was conceded by the Department of Immigration and Border Protection that the meaning and application of 'more likely than not' was expressed inconsistently between the explanatory memorandum and the minister in the second reading speech. The department's submission was such to the inquiry. The confusion surrounding the threshold for complementary protection centred on whether it would be interpreted by decision makers as 'on a balance of probabilities' or a quantifiable 'greater than 50 per cent real chance' test. These inconsistencies between the minister and his department's interpretation of the effect of the proposed changes added to Labor's concerns. They could potentially put vulnerable people seeking Australian protection at risk of persecution, death or serious harm if they were returned to their home countries.
Item 17 in schedule 4 on offering oral statements without a requirement for written reasons to be given to an applicant regarding a decision in the Migration Review Tribunal or Refugee Review Tribunal is something that Labor is opposed to. We see no reason for this reform. It is not a big cost. There is no particular reason if an oral statement is given the decision maker should not therefore go on to provide written reasons. For those reasons, the shadow minister has moved the amendments and we seek the support of the House.