Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

This report by the now defunct Legal and Constitutional References Committee is entitled Administration and operation of the Migration Act 1958. The inquiry was initiated on a motion of mine, so I have maintained an interest in its progress and followed through on the report. It is an opportune time to emphasise this report, and the first thing to emphasise is that the government is yet to respond to it. The three-month deadline for it to do so has well and truly expired. This is another example of the government’s lack of interest in the operations and activities of the Senate, including its committees.

In some respects the report follows on from previous inquiries. The report is particularly apt, given the comments reported today by the Minister for Immigration and Multicultural Affairs that she is considering changes in regard to sponsors for humanitarian overseas entrants and also to the ministerial discretion process. The report touched to some degree on the ministerial discretion process, but the inquiry did not go into the area of the offshore humanitarian program in much detail. This was a disappointment to me because it is an area that has not had much scrutiny. We put a lot of focus on refugee issues in this chamber but it is usually about people who apply for refugee status onshore. There is not very much examination of how the offshore program works. General statements are made about how good it is and how we take in 13,000 people a year, but there is not much examination of how well or otherwise that program is being administered.

The minister announced in a speech to the Public Service Commission that she was proposing to make changes in two areas. I am not quite sure why the Public Service Commission is the body that gets to hear about proposed changes to the Migration Act rather than them being announced to the general community or—it would be nice once in a while—to the parliament. However, they have been announced and the two changes that the minister mentioned were about tougher requirements for people in Australia who wish to sponsor humanitarian entrants. Currently people in Australia who sponsor a person who wants to come here are required to sponsor them through the humanitarian component of the offshore program. I think it is reasonable to ensure that people who do sponsor someone are capable of sponsoring them and of taking responsibility for them in an economic sense in the early stages of their settlement here.

The other change that the minister foreshadowed was the tightening up of the system of ministerial discretion or ministerial intervention. She suggested that there be only one opportunity to so-called ‘apply’. The fact is that you do not actually apply for ministerial discretion in the sense of filling in a form or any other formal process. It is a process that is totally informal and outside any procedural aspects of the law. It is also suggested that people will have to do so straight after they receive a negative decision from the Migration Review Tribunal or the Refugee Review Tribunal rather than after they have been through the process fully.

This is quite a significant change. What it might look like in a legislative sense if and when it actually appears is a different matter, but we can only go on what the minister has said. It is a shame in a way that the changes, if they are to occur, have been developed completely outside any transparent public consultation and it is also a shame that they are being put forward in this way. The irony is that the Senate itself has repeatedly pointed to the flaws and inefficiencies in the ministerial determination or discretion process. This was highlighted particularly back in the year 2000 with a report by this same Senate committee, the Legal and Constitutional References Committee, entitled Sanctuary under review, another inquiry that was initiated on a motion of mine. It was also highlighted in a report of a select committee into ministerial discretion. Both reports are worth revisiting, because the fact is that the Senate itself and many others in the wider community have been highlighting to the government and the immigration minister for years how inefficient the process of ministerial discretion is.

In announcing these changes, the minister said that ministerial intervention was intended for exceptional cases but now there are hundreds of applications clogging her office. When the Migration Act was reformed in 1992, ministerial intervention was originally intended for exceptional cases. However, for years it has been the subject of many hundreds of people who have sought to have ministerial discretion exercised under the previous minister, Minister Ruddock, and now under Minister Vanstone. That is the case because of the way the ministers themselves have administered the portfolio and because of their refusal to listen to the concerns raised in Senate committee reports. The Senate committee report back in 2000 was unanimous. It featured Senator Coonan and Senator Payne as the Liberal members of the committee. They were part of the unanimous finding of the report, which included suggestions for reform to the ministerial discretion process. If the government had taken those suggestions on board back then, we would not have had the problems that occur now.

Another simple fact about the area of ministerial discretion is that there is a gap in our law, and that particularly applies to humanitarian cases that do not meet the criteria of the refugee convention. It is often not recognised that the refugee convention is quite narrow in its application. Not only do you have to demonstrate that you have a genuine and credible fear of significant persecution but it also has to be persecution that fits into a set number of reasons. It is not enough to demonstrate that there is genuine persecution; it must be for specific reasons as outlined in the convention. Clearly, there can be any number of circumstances where you are at genuine risk of persecution but not for the reasons set out in the convention.

There are other obligations that we have signed up to internationally under the convention against torture, the Convention on the Rights of the Child and the International Convention on Civil and Political Rights, which are much wider than what is in the refugee convention. It was recommended in 2000 that those obligations also be incorporated in our Migration Act so that people’s claims for protection could be assessed in a proper, open, transparent and legally accountable way, in the same way as refugee claims are. But that has not been done. I would point the minister to a private senator’s bill that I introduced into this place just a few weeks back that proposes the establishment of such a process—what is often called ‘complementary protection’, which is protection for reasons outside the refugee convention. I suggested some action be done about that because it would significantly reduce the number of requests for intervention that go to the minister and it would ensure that those claims were assessed in an open and transparent way.

Can I also mention with the proposed changes regarding the offshore humanitarian entrants that it is often stated, including by government people when they are wanting to talk about how generous the government is, as the minister does from time to time in dorothy dixers in question time, that we have a refugee intake of 13,000 and that we are amongst the most generous in the world. The simple fact is that statistically we are not amongst the most generous in the world when it comes to having refugees on our soil. We are in amongst the very small number of nations that have an offshore refugee program. But it is often said that we take in 13,000 refugees. However, we actually take in only 6,000 per year. We take, through a humanitarian program, another 7,000 who do not necessarily meet the refugee criteria—although some of them may—and who have to be sponsored.

What the minister’s comments highlight is the inaccuracy of the common statement that people who seek asylum here are somehow taking the places of the most needy, because people who come through the humanitarian program are not selected on the basis of the most need. For starters, they do not even get their foot in the door unless they have a sponsor here in Australia. The minister’s comments simply reinforce that fact. So we need to at least get some accuracy in this debate as part of making what are still necessary reforms to the Migration Act. This report highlighted some areas where those reforms need to occur. I just wish the minister had taken more account of them much earlier in the piece. If she had acted six years ago on a previous report, we would not have to be worrying about these things now.

Question agreed to.