Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

In the absence of the opportunity, I seek leave to incorporate my remarks.

Leave granted.

The incorporated speech read as follows—

I rise to speak on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

These Bill seeks to address the situation concerning a small cohort of 21 people in immigration detention who have been found to be owed refugee protection, but who also fail to meet the criteria for a visa because they do not pass the character test or have received adverse security assessments from ASIO.

Labor supports this Bill after securing a range of important amendments and protections.

The Bill concerns 21 individuals.

These 21 individuals who cannot be returned to their country of origin, but who also present risks to the community or national security if they are released from immigration detention.

Of course, Australia has non-refoulement obligations under international treaties not to return individuals to situations where they face persecution; a real risk of torture or cruel, inhuman or degrading treatment or punishment; arbitrary deprivation of life; or the application of the death penalty.

Under these international treaties, Australia is not required to provide a visa to persons who engage refugee protection obligations if "compelling national security or public order" matters are also engaged.

These 21 individuals present a significant challenge in terms of identifying a durable solution.

This is because they cannot be returned to their country of origin, but they also present risks to the community or national security if they are released from immigration detention.

It's important to note that Federal court rulings present further challenges in relation to this cohort.

The court found that the removal powers in the Migration Act compel or authorise the removal of persons who fail to meet the criteria for a visa.

The impact of this ruling on this cohort is likely to mean they must either be:

This means that the only option presently available to the Government to avoid refoulement would be to grant these persons a visa and allow them to stay in Australia, even though they fail the character test or have adverse security assessments.

The Government argues that the intent of the Migration Act was never to permit the refoulement of persons who are found to be owed protection.

And as a consequence, the Bill amends the Migration Act to clarify that the Act does not require or authorise removal of a person on character or national security grounds where that person has also been assessed as engaging refugee protection obligations.

The Bill also provides additional options to resolve the ongoing detention of people in this cohort, including community detention with "bail-like" conditions, third country options, and ministerial discretion to determine that protection is no longer owed in circumstances where conditions that gave rise to the protection claim no longer exist.

It should be noted that the Bill would also impact other individuals in future who are being held in immigration detention in Australia and who engage refugee protection obligations, but, only if they fail to satisfy the character or adverse security assessments criteria for a visa.

We need to be clear here: if this Bill doesn't pass then people who are owed protection may be returned to counti es where they face persecution.

And clearly, there are legitimate grounds why we don't want this cohort of potentially dangerous individuals released into the Australian community.

Cohort

The Shadow Attorney-General and I received high-level and secure briefings from national security agencies in relation to the cohort affected by this legislation.

And I want to thank the Government and the various agencies for these important briefings.

This cohort is made up of persons who had their visas cancelled under Labor and Coalition Governments.

The cohort of 21 individuals includes:

These are the people that this legislation is seeking to address. Put simply, they cannot be released safely into the community.

UN Refugee Convention

Australia is a party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which defines a refugee as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

While the Convention articulates refugees be provided protection by signatories to the Convention, article two of the Convention states that refugees abide by the law in the country that grants them protection.

And article 28 states that "…Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require…"

Amendments

Labor recognises concerns that the Bill, including the new ministerial discretion, must be limited and exercised narrowly and appropriately.

These powers to reassess protection obligations are significant and as such safeguards on the use of the power are required.

Labor proposed the following amendments and commitments, which the Government has agreed to.

We welcome the Minister's determination that protection obligations are no longer engaged for a person in this cohort be subject to a merits review.

That the Parliamentary Joint Standing Committee on Intelligence and Security hold a statutory review of the Bill's operation within 24 months of royal assent.

The Government agreed to tabling measures which are implemented through the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

That the Minister provide assurances that the legislation only has implications for the small cohort of serious character/national security concern detainees who enliven Australia 's non-refoulement obligations.

Labor has been assured - that this is the Government's intent.

Labor has also sought and received assurances from the Government that this cohort receives Ombudsman assessment under S486O of the Migration Act.

The Ombudsman requires an assessment of the appropriateness of the arrangements for the detention of every person who has been in immigration detention for more than two years, and every six months thereafter, with a copy to be tabled in Parliament.

The Ombudsman's reports are an important oversight measure for immigration detention, along with other powers of the Ombudsman that include investigating complaints, own motion investigations and inspections of immigration detention facilities.

I would like to acknowledge the Minister and his office for the way they have worked constructively through the issues Labor has raised.

Labor supports the Bills and the amendments.