Monday, 16 March 2015
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
Australia has a long and proud tradition of offering protection to people fleeing persecution in their home countries. To ensure that this tradition can continue, there must be a robust and efficient processing of applications. But devising such a process must not disadvantage those with genuine claims for protection.
This Migration Amendment (Protection and Other Measures) Bill 2014 seeks to alter various aspects of the protection framework as set out in the Migration Act of 1958 and, while Labor supports some of these changes, we are concerned about others. For example, the bill places applicants for protection at a disadvantage in tribunal hearings by weakening the requirement of the tribunal to give its decisions in writing. And while Labor supports the broad aim of making the assessment of protection claims more efficient, we do not support provisions in this bill that restrict procedural justice for applicants. I will come back to this in a moment.
First, I wish to detail Labor's most substantial concern, and that is that schedule 2 lowers the threshold for complementary protection. The measure in this schedule potentially allows people to be returned to places where they have a risk of suffering death or serious harm. If those changes were not part of this bill we would find it easier to support the legislation in an amended form. Whilst schedule 2 remains, however, Labor cannot support this bill. Labor has grave concerns about the bill's significant changes to the way Australia determines whether it has an obligation to protect noncitizens.
When we were in government we introduced complementary protection visas for people who are not covered by the United Nations conventions relating to the status of refugees but who were, nonetheless, at risk of a serious violation of their human rights if returned to their home country. The changes proposed in this bill undermine the complementary protection framework that Labor put in place. The UN convention provides that protection should be offered to people fleeing persecution on the basis of race, religion, nationality, social group or political opinion. Every year, a small but significant number of people flee in circumstances which are not covered by these categories. Many of those who are not covered by the convention but who do require protection are women, including women who may be at risk of genital mutilation or so-called 'honour killings' in their homeland. Lowering the threshold for complementary protection is likely to particularly affect such women. Because the bill shifts the threshold from applicants having to prove that there is a real chance of suffering significant harm on being returned to their homelands, to requiring them to prove it is more likely than not that they would suffer harm. At present, 'a real chance' is understood to mean a risk of harm that is not remote or unsubstantial but which may be below 50 per cent. It may well be as low as 10 per cent.
In the evidence given to the Senate Legal and Constitutional Affairs Committee, the Department of Immigration and Border Protection conceded that the meaning of the application of the phrase 'more likely than not' may have been inconsistent in the explanatory memorandum to the bill, the then minister's second reading speech and the department's submission to the Senate inquiry. This confusion concerns whether the new threshold would be interpreted by decision makers on the balance of probabilities or on a quantifiable, greater-than-50 per cent criterion. These inconsistencies have increased Labor's concern that the changes to complementary protection in this bill would result in people being returned to their home countries to face persecution. Complementary protection applications are only a small proportion of those who apply for protection, but that is not a reason for weakening the protections that are available to them. Nevertheless, this legislation fits a pattern when it comes to the Abbott government's previous handling of the issue of complementary protection.
Last year, the government sought to remove Labor's changes to complementary protection by introducing the Migration Amendment (Retaining Control Over Australia's Protection Obligations) bill 2013. That bill was not passed by the parliament and this new bill is a further attempt by the government to make it more difficult for those seeking protection to obtain it. Labor puts the government on notice, as we did before: we will not support your attempts to walk away from Australia's international protection obligations and place the lives of the vulnerable at risk.
The bill also changes the determination of refugee status, which Labor supports in part. One such change affects family members of protection visa holders. At present, a member of the family of a protection visa holder is automatically considered to be owed protection. The bill provides that if a person seeking protection does not apply at the same time as the primary applicant, or at least before the primary applicant's claim is granted, that person will have to lodge an application in his or her own right. For example, a person who marries a protection visa holder after the visa is granted will not be considered to be eligible for protection by virtue of the fact that their partner has a visa. It is important to note that this change only applies to applicants already in Australia. The bill also states explicitly that the onus of proof for a claim of refugee status lies with the applicant. This is the way the process has always operated in practice and it is in an applicant's best interest to provide as much information as possible. As the legislation currently stands, the lack of documentary evidence of an applicant's identity is not automatically grounds for refusal, but a decision maker is entitled to draw an adverse inference.
This bill imposes a duty on the minister to refuse to grant a protection visa if the applicant refuses or fails to comply with a request for documentary evidence and does not have a reasonable explanation for this refusal or failure. Similarly, the minister is obliged to refuse a visa if the applicant provides a bogus document as evidence of identity or nationality or if the minister is satisfied that the applicant has destroyed or disposed of the documentary evidence, unless the applicant has a reasonable explanation for these actions. The obligation to refuse does not apply if the applicant has a reasonable explanation, such as statelessness, and/or provides other documentary evidence of identity or has taken reasonable steps to obtain such evidence.
Labor regards this requirement as an onerous burden to place on applicants. They are therefore asked to double up. Even if they have a reasonable explanation, they must also provide documentary evidence or show that they have taken reasonable steps to obtain it. In these circumstances, a reasonable explanation should be sufficient, and Labor will seek to amend the bill accordingly.
Finally, the bill encourages all information to be provided at the earliest possible opportunity. When an applicant seeks to raise new evidence, the bill requires the Refugee Review Tribunal to infer that the evidence lacks credibility when the applicant cannot provide a reasonable explanation for not presenting the evidence to the primary decision maker. Labor will seek to amend the bill to require the tribunal to give an applicant a written warning before making an unfavourable inference when a new claim has been raised.
The bill also changes the processes and administration of the Migration Review Tribunal and the Refugee Review Tribunal. Labor is especially concerned by one of these, which sets out circumstances in which the tribunal's ruling may be given orally, without a requirement for a written copy of the ruling unless it has been requested by the applicant. We cannot support this weakening of the existing requirement, which potentially denies procedural fairness to applicants. Labor will seek to amend the bill by removing this item.
Other changes enable the principal member of each tribunal to issue practice directions to applicants and their representatives and to issue guidance directions to other tribunal members. This is consistent with the practice of other Commonwealth merit review tribunals such as the Administrative Appeals Tribunal. The tribunal will also be able to dismiss an application if the applicant fails to appear after being requested to do so. The tribunals will be able to reinstate the case if requested by the applicant within a specified period and if it is appropriate to do so.
While Labor generally support these measures, we are concerned that the specified period is too short. We will therefore move an amendment to extend the time from seven days to 14 days, and this is consistent with the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the bill.
The bill seeks to streamline statutory bars to making a visa application. These changes ensure that an unauthorised maritime arrival in Australia who is an unlawful noncitizen, a bridging visa holder or a holder of a temporary visa will not be able to apply for a visa unless the minister determines that it is in the public interest. The explanatory memorandum states:
Most unauthorised maritime arrivals and some transitory persons who arrived in Australia before 19 July 2013 have been granted a temporary safe haven visa and a Bridging … visa …
At present anyone with these visas would be subject to three provisions in the act that prevent them from making a valid visa application. The bill's changes ensure that unauthorised arrivals are caught by only one provision relating to unauthorised maritime arrivals generally. Importantly, the changes do not expand or alter the minister's existing powers to lift the application bar in relation to an unauthorised maritime arrival or a transitory person. The changes only affect applications made by unauthorised maritime arrivals and transitory persons after the amendments commence. They do not affect applications already lodged with the department.
Labor support these changes and note the High Court's judgement in Plaintiff S4/2014 v. Minister for Immigration and Border Protection & Anor. We also acknowledge the department's statement in response to a question on notice from the Senate Legal and Constitutional Affairs Legislation Committee that it is still considering the implications of this judgement for the proposed change.
So, although Labor accept that in some respects the bill improves existing protection processes, we cannot support it in its present form because of the changes to the complementary protection and procedural justice rights of applicants, and I urge the government and the Senate to accept Labor's amendments.
The Migration Amendment (Protection and Other Measures) Bill 2014, as we know, has been on the books for some time. As a result, every time it is looked at, every time somebody outside of this place views the detail of this bill, it becomes clearer and clearer just how reckless this bill is and how dangerous this bill is. It will undoubtedly put people's lives at risk.
Whilst the bill at face value seems very technical in nature, it is everything but. It is a fundamental change to how we assess and how we value Australia's role in protecting people from persecution and danger. This bill carries with it the very real likelihood of Australia deporting people, particularly young women and girls, back to danger. The bill seriously compromises the integrity of Australia's rigorous protection determination system, it erodes procedural safeguards, it hands unprecedented power to the minister of the day and it puts Australia at risk of breaching its non-refoulement obligations. This bill disregards the realities of those fleeing persecution and dismisses the very real and complex nature of the needs of people seeking asylum and the support that they require from any fair-minded and decent country.
This bill is nothing more than an attempt by this government to limit Australia's responsibilities to those seeking protection. This is about allowing this government to give fewer people refugee protection, not because they do not deserve it but because it is all about the numbers. Fewer people is why the government is attempting to change the rules. We know that those who arrive on our shores seeking protection are extremely vulnerable and have often experienced persecution, trauma and torture. Rather than enhancing the integrity and fairness of Australia's onshore protection status determination process, this bill does the complete opposite.
I foreshadow here a number of amendments that the Greens will move if this bill goes to the committee stage, one of which will reinstate legal assistance for asylum seekers. The ludicrous situation we have here is that, through this piece of legislation, the government is trying to change the rules for how people apply and the thresholds on which they will be assessed, yet no-one will be given legal assistance to help them work through the current or indeed the new process. That of course leaves open the opportunity for mistakes. When we are talking about decisions being made that impact directly on the life or death of somebody who has fled a horrific regime, it is simply madness, it is reckless, not to ensure that those decisions are being made with all of the appropriate information given up-front so that people are given the utmost opportunity to present their case in the best possible way. The government's scrapping of legal assistance to asylum seekers some months ago is going to have a disastrous effect and, in fact, a deadly impact on people if this bill passes without reinstating proper legal assistance to them.
The amendments proposed by this bill state that the burden of proof will rest solely on the applicant to prove that they are a person to whom Australia has protection obligations and that all evidence must be provided in the first instance. This is a retrospective measure. We currently have almost 30,000 people living in the Australian community who this will retrospectively impact upon—people who have been traumatised and re-traumatised through the detention process and are now living with very little care in the Australian community, with no legal assistance. The government is insisting through this legislation that changing the rules will not just happen for new cases but be retrospective. That is appalling, and the Greens will move to ensure that any changes are not retrospective in their nature. It is always a bad position to make retrospective laws, and we will be doing our best to fix those.
At face value, it does seem to be in some ways reasonable to have people prove their case for protection. They need to be given the best mechanisms to be able to do that. This bill ignores the realities of people seeking protection and assumes that people are fully aware of the complex nature of Australia's migration system. The UNHCR acknowledge this in their guidelines for decision making. They say:
… 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. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.
… … …
… it is hardly possible for a refugee to "prove" every part of his case …
We know that the reality of people seeking protection is that they have fled some pretty awful and traumatic experiences. They often have to leave in secret in order not to be detected by the regime or the militia group that they are fleeing. Just in recent days, there was the news of a young man who was working alongside coalition forces in Afghanistan being killed because he was not given protection soon enough. Of course, the Taliban found him. They knew that he had helped the Australian and US forces in Afghanistan, and he is now dead. That is the reality of the people that we are talking about.
Rather than following these guidelines, the government thinks that a person fleeing persecution, who may have fled in the middle of the night, has all the correct information. It is just not like that. It is just inconceivable to assume that somebody who is actually fleeing for their life will always have all of this information to hand, is fully aware of Australia's migration law and has access to a lawyer before they flee in the dead of night. It is completely unreasonable and ignores the realities of seeking protection. As stated by experts in this field, it is often difficult for people in those circumstances to understand what is going to be required of them much further down the track when they are facing the application process . People flee as refugees as a decision between life and death, saving themselves or saving their family. As to making sure you have collected everything—that is, even if you had access to all of those documents—it just beggars belief that this government wants to trash what is universally understood as the challenges of people fleeing for their lives and seeking refugee protection.
There is a part of this bill that relates to increasing risk thresholds to 'more likely than not'. This is in relation particularly to those people seeking complementary protection. When the then Minister for Immigration and Border Protection stood in the other place, he announced that refugees would have to prove that they had a greater than 50 per cent chance of being tortured or killed. The flip side of that is that they can have a 49 per cent chance of being returned to serious harm and being deported back to danger.
I want to be very clear here: those who are most at risk of being deported back to danger under this legislation are young women and girls—young women who are fleeing female genital mutilation or death by stoning because of trumped-up charges of adultery. We see our Prime Minister and our foreign minister out on the radio and the television every day talking about standing up for the rights of women across the world and particularly in our region. This bill fundamentally puts many of those girls and young women at risk. It will lead to the deaths of young women if we do not put in some proper safeguards to ensure they are not deported back to danger.
The amendments in the government's bill show that women fleeing honour killings or female genital mutilation, if there is a 40 per cent or 30 per cent chance that they will face that upon return, will be sent home. We are talking about people whose life or death decisions are being made at the flick of the coin. It is unconscionable that we would do this to somebody who has made their way to Australia and fears for their life: rather than doing what we can to help them, we flick a coin as to whether they get sent back to have a bullet in their head or to be tortured. It is unthinkable that a fair-minded and decent country like Australia would put young women at risk like this.
These changes are in direct contravention of international and human rights law—in particular the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the fundamental principle of refugee law, which is about non-refoulement, not knowingly sending people back to danger to be tortured, killed or abducted. That is the fundamental principle of international refugee law, and this bill single-handedly undermines that, particularly for those most at risk, such as young women and girls.
Despite the attempts by this government to cover its tracks and amend the bill to clear up some confusion, we know what this government's intentions are. It is determined to give fewer people refugee protection by whatever means possible, and this is just one of the aspects of doing that. There are legitimate issues around trying to make applications more streamlined to ensure that people are able to have their cases dealt with more efficiently. This is not how you do it. This is going to send people directly back to danger. There is no doubt that with the 'more likely than not' test there will be a significant increase in Australia's chances of making the wrong decision on whether somebody is protected from serious harm or not. We will risk breaching our obligations and returning people to persecution and other forms of life-threatening abuse.
In these last few minutes, I just want to address the issues of bogus documentation, because of course this is quite a hot-button issue when we talk about it outside the context of the realities of people seeking protection. This bill will deny genuine refugee protection to those who are thought to have or who actually have provided false identity, citizenship or nationality documents. This amendment ignores the realities of seeking asylum and goes against the basic principles of the refugee convention. There are many, many reasons why people are unable to obtain identity documents or may not have had the correct documentation when they arrive in Australia, such as that their home government is refusing to issue documentation. If you have stood up to an oppressive regime to a point where you are now being tortured or your family are being targeted, you can hardly go to the passport office of that government and say: 'Look, you've treated me appallingly. You're threatening my family. I'm going to get out of here. Can you please stamp my passport or issue me a passport so I can flee.' It just does not work like that. As we know from the harrowing stories of Jews having to flee persecution in Nazi Germany or occupied France, many people had to use false documentation to get out safely. We know that that is the case, because those stories of courage and heroism have been written, retold and celebrated across the world. It is one of the reasons that in the international convention there is a very clear statement about not punishing people because they did not have the right documentation at the time.
We know that many people may be too afraid to request documentation from their government before they leave, because they may be caught and not be able to leave in the first place. There is also the issue of not having the time to obtain documentation. I return to the story of last week about a young man who helped the Australian forces in Afghanistan who is now dead because he could not get out safely, despite the fact that he had applied through the proper means for protection in this country. The Taliban got him. Now he will never be safe because he no longer exists in this world, because he was caught for being not just a help to the Australian and coalition forces, but because he then tried to leave in an orderly manner. It puts people's lives at risk.
To propose an amendment such as that the government is here is to dismiss the experiences of those fleeing persecution. Amendments of this nature will result in genuine refugees being denied protection, purely on the basis that they were unable to provide the right documentation. This will put Australia at risk of returning refugees back to their persecutors.
I have spoken already about the retrospective nature of this legislation. We in this place should never move to change the rules and pull the rug from under people and have laws that are retrospective in their nature. It is unfair and it is not in line with what we in a fair-minded, decent country like Australia consider to be natural justice.
There are many aspects in this bill that are fundamentally dangerous and reckless to the lives of those who genuinely need our help and protection. There are many aspects to the bill, including limiting an asylum seeker's ability for family reunion. There is the rejection of applications by the RRT on the basis of new information that has been provided. There are amendments that would undermine the independence of the RRT and the MRT and deny applicants procedural fairness. The list goes on and on. There are so many holes in this bill.
I question why the government wants this brought on today. I question how long they would like this debate to go for, because as I see it the bill, as it currently stands, does not have support in this place. It needs fundamental amendments to be brought in line with what we consider to be natural justice and basic fairness under law, and also to ensure that we are not knowingly or unwittingly putting people's lives at risk and in danger.
The Australian Greens, and others I am sure, will be moving a number of amendments. It needs a lot of maintenance and fixing up to get this bill to the particular point where it should be passable by this place. It strikes me that a bill designed to make it harder for genuine refugees to apply for asylum is never going to be something that a house of review, such as the Senate, should simply rubber-stamp and pass on. We must question the motives as to why this bill is being brought on today and why the government wants to pass it so quickly this week. It will put people's lives at risk. It will send people back to danger on the flip of a coin. And without reinstating fundamental access to legal assistance, every person who currently is waiting or has an application on foot will be at risk of being sent back to death, torture or further persecution. I am not prepared to stand by quietly and see that happen. It is not okay. We have changed a lot of laws in this place over the past few years to make things harder for those applying for asylum. I think we do need a rigorous system. I believe we have a rigorous system. You do not make it better by taking away procedural fairness and giving more unchallenged power to the minister of the day.
It is a bad idea to play with the lives of people with the flip of a coin, which is what this is proposed with this bill. I will not stand here in silence as this bill proceeds for its remaining few days. It is fundamentally flawed and it should be opposed or at the very least heavily amended.
I start by congratulating the former and current ministers for immigration and border protection, Mr Morrison and Mr Dutton, for the way they have brought some order and safety to Australia's migration process. Senators will recall that under the former Labor regime, supported by the Greens political party, thousands of people lost their lives while coming to Australia. Fortunately that has stopped. There are not lives being lost by people trying to get to Australia as illegal maritime arrivals. Australia has now and has had for many years a very generous refugee and migration process that has worked over many years and which many people seeking asylum around the world participate in.
Mr Morrison and Mr Dutton have presided over a refugee and asylum-seeking regime that has now led to almost 2,000 children who were in detention under the Labor-Greens government being released from detention. As we speak, there would be fewer than 100 children in immigration detention in Australia. That is such a change from the previous Labor-Greens regime of management of Australia's borders. All congratulations, particularly to Mr Morrison, for the work he has done to bring order and safety to Australia's immigration system.
Senator Hanson-Young asked why this bill, the Migration Amendment (Protection and Other Measures) Bill 2014, is being dealt with today. On 25 June 2014 the bill was introduced in the House of Representatives. The Senate Selection of Bills Committee, on 26 June, asked the Senate Legal and Constitutional Affairs Committee, which I chair, to investigate this bill and report by 22 September 2014. Senator Hanson-Young asks why this is being brought on with indecent haste today. That seems rather a strange inquiry when one looks at the history of the passage of this bill.
Senator Hanson-Young has a gift for emotive and expressive language. Regrettably, most of what she says in this debate and in matters relating to immigration, asylum seeking and refugees is simply lacking in fact and analysis. Her language is high in emotion and expression but low in factual content. Senator Hanson-Young cannot miss an opportunity to talk about female genital mutilation, something that is abhorrent to all Australians and one of the reasons this government, and the previous government, has been so keen to address terrorism around the world. The Greens never seem to be terribly supportive of that, but they will always find something to express an emotion that really is not relevant to the subject before it. Of course, they could not miss an opportunity to compare the actions of the government to those of the Nazi Party and what happened in Germany all those years ago. It lacked fact and any relevance, but that does not stop the Greens political party from the use of those expressive and emotive but completely unfactual language.
… seeks to amend the Migration Act 1958 … to enhance the integrity of the onshore protection determination process … the bill responds to current challenges in the domestic asylum seeker landscape and seeks to ensure public confidence in the government's capacity to assess asylum seeker claims in the interests of Australia, and against the interests of those who show bad faith.
1.3 The bill clarifies the responsibility of asylum seekers who claim to be a person in respect of whom Australia has protection obligations and encourages complete information to be provided upfront. The bill also streamlines the statutory bars that preclude certain persons from making visa applications and improves the merits review system.
It therefore deserves support.
Senator Hanson-Young raised the issue of asylum seekers with bogus documents or no documents. I think an investigation which show that many of the asylum seekers who came illegally to Australia ensures is an illegal maritime arrival had got from somewhere else to Malaysia or Indonesia. I am sure I could not walk. I am sure they would have come by an aeroplane. To do that, to enter Malaysia, Indonesia or any of those countries in Southeast Asia, they would have had some identity documents. Strangely, in certain instances—a minority of cases—they turn up in Australia without any documentation at all. That led the Australian public over a period of time to say, 'What is going on here? What is happening? We are being made suckers.' There is a process. Australia is a world recognised for the generosity of its refugee system. It is better per capita then but it must have countries in the world, yet some people were taking advantage of Australia's good intentions.
The Senate Standing Committee on Legal and Constitutional Affairs had a very close look at this bill. We received a large number of submissions and heard from a fairly substantial number of witnesses making various points. I would point out also that this bill has been to the Joint Standing Committee on Human Rights and to the Senate Scrutiny of Bills Committee. It has been very intense process that this bill has been through. It has been very intensely scrutinised to ensure that it is in the best possible form.
I thank all those witnesses who gave evidence to the legal and constitutional affairs committee and to all of those who made submissions, which considerably helped the committee in coming to the conclusions it did. The committee also thanks, as always, the secretariat of the committee, which does a fantastic job in sorting through the huge volumes of information come forward and then in assisting the committee in preparing reports and in some cases dissenting reports. Again, my thanks to the committee secretary and her staff for the wonderful job they have done in this instance as they do in all cases.
As a result of the Senate committee's investigations, some areas were identified which the committee thought should be addressed by the government. The committee made a number of recommendations to the government. They were that the government only apply amendments to applications made on or after the commencement of the bill, or the date on which the bill was first introduced in parliament. This addresses an element of the legislation which I and other committee members—and I am sure most senators—have often had concerns about, and that is legislation that seems to work retrospectively. I personally detest legislation that changes people's rights after the event. This bill in its original form did contain that effect and the committee recommended the government should address that. I am pleased to say that in amendments introduced by the government that has been addressed.
The committee further recommended that the government consider increasing the seven-day limit, on reinstatement of an application where the applicant fails to appear, to 14 days. I did not hear all of what Senator Carr said but I thought he said that he was going to move an amendment in that regard, and I am pleased that Senator Carr has done that. I know Senator Collins, the deputy chair of the committee, was very keen to see that and argued that case in the committee. Again, I am pleased to see that the government has accepted the committee's recommendation; and I understand the government itself will be introducing amendments to that effect.
The committee further recommended that the government amend the explanatory memorandum to clarify how the 'more likely than not' threshold will be applied by decision makers. This was addressed by both previous speakers. It took quite a deal of the committee's time to address this issue and get more information to try to understand the process. As a result of the committee's recommendation the government has amended the explanatory memorandum and I believe the amended explanatory memorandum now does clarify how that process would work and how it will be appropriately addressed. With the amendments suggested by the committee, the committee made a final recommendation that the bill should be adopted.
I do just want to make a couple of additional comments. Schedule 1 to the bill introduces a measure that would make it a noncitizen's responsibility to set out all the details of their protection visa claim, including providing sufficient evidence to substantiate such a claim. Further, the schedule expressly provides that the minister has no obligation or responsibility to assist a noncitizen with their protection visa claim, and the RRT is required to draw an inference unfavourable to the credibility of new claims or evidence, when claims were not raised or evidence was not presented to the primary decision maker from the department. There seemed to be, in the evidence of the department, a number of people who would come through, make a claim and put forward all of the facts in support of their claim; it would be rejected and then, lo and behold, when a review was sought suddenly all these new claims came up—these new reasons. That drew some suspicion from the decision makers and indeed from the RRT as to whether these claims were genuine.
As is explained in the explanatory memorandum to the bill, the proposed legislation seeks to address situations where asylum seekers have deliberately destroyed or discarded identity documents or have refused to cooperate in efforts to establish their identity, nationality or citizenship. I point out evidence to the committee by the department in this form:
By legislating that it is an asylum seeker's responsibility to specify all particulars of their claim and to provide sufficient evidence to establish that claim, the government is formalising the legitimate expectation that someone who seeks Australia's protection will put forward their case for that protection.
In his second reading speech, the minister explained that the proposed measure will not act to prevent an asylum seeker raising late claims where there exist good reasons why they could not do so earlier, but it will act to prevent:
… those non-genuine asylum seekers who attempt to exploit the independent merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to be refugees by the department.
I repeat where I started: Australia has a very generous, genuine and open system of protection, but the department has explained that there has been considerable evidence over the past several years of non-genuine applications being made.
I did want to go through a few other aspects of the bill, but time is going to beat me. I recommend that any senator, or indeed any person who has a real interest in this particular matter, have a serious look at the committee's report—and, I might say, the additional comments made by Labor senators as well. I do not say that I agree with all of those additional comments of Labor senators but, for those who are genuinely interested in this bill, they certainly are worth having a look at. The report of the committee goes through all of the issues in some detail. It explains the background. It explains the arguments for the proposals in the bill, and it also explains the arguments put by those opposed to those particular provisions. Then it gives the committee's view of those things as a result of the committee having been able to assess both sides of the argument, if I might put it that way.
This bill is one of many put forward by the Abbott government since its election to try to regularise and make fairer Australia's immigration, refugee and asylum seeker rules and laws so that genuine people are afforded every opportunity to become part of the Australian way of life. But it does something that, it had become regrettably obvious, needed to be done: there had to be some work done to make sure that non-genuine claims were not accepted and that people who came with bad faith—jumping the queue, almost—were dealt with appropriately in the Australian way.
I conclude by again saying that Australia does have very generous, open, genuine refugee and asylum seeker arrangements. There are many people who have been identified as refugees waiting in refugee camps all around the world. They are waiting for their turn to come to Australia. Every time someone jumps the queue, those who have been waiting for years and years have to wait another year. So it is important that we have a system that is fair to all, that accepts and welcomes those genuine asylum seekers and refugees to our country. This bill goes a long way to doing that. It is part of a suite of bills set to fix the rather unfortunate mess that our whole immigration, refugee, asylum seeker and border protection regime had got into over the last several years. I think this bill will certainly help that situation and be fair to all concerned.
I rise to oppose this appalling piece of legislation, the Migration Amendment (Protection and Other Measures) Bill 2014. I oppose it because it confirms what many other countries around the world are saying—that is, that Australia, as a state party in the United Nations, has gone rogue on human rights, on international law and torture. It is not something that the Australian community is proud of. It is not something that decent people around the world can understand. How is it that a country like Australia, a rich country, could imagine that it can behave so appallingly and absolutely thumb its nose at international law.
I do not know about other senators in this chamber, but I felt really ashamed and horrified when Juan Mendez, the special rapporteur to the Human Rights Council, in Geneva, found that Australia's indefinite detention of asylum seekers on Manus Island, the harsh conditions and the failure to protect certain vulnerable individuals, all amount to breaches of the Convention Against Torture. So our government is involved in torturing people. And that just turns up on the news in amongst everything else as if this is just normal behaviour in Australia—torturing people. As a community, surely we do not support torture. As a community, surely we do support international law.
When Australia signs up to a convention on human rights, on refugees, on climate change, or on biodiversity—whatever we sign up to in the international community—there are expectations that we will adhere to those rules. Yet under the Abbott government, and additionally under the former Rudd and Gillard governments, there has developed this view of Australian exceptionalism—that for some reason all other countries in the United Nations have to adhere to environmental law, to international law and to refugee law but Australia does not. Somehow, our circumstances are so exceptional that everybody else should be held to the law except us, and we can do as we like. Well, we cannot do as we like. We are shaming ourselves and demeaning Australia's reputation, and it is something the rest of the world will hold us to account for, not only now but into the future. We used to have a proud record and now we have a record of shame.
I want to go through some of the issues here. This bill carries with it the very likelihood that Australia will deport people back to danger, breaching our obligations under international law. It seriously compromises Australia's protection determination system, it erodes procedural safeguards, and it puts Australia at risk of breaching its non-refoulement obligations. You cannot send people back to a place where they are going to be tortured, raped, murdered, jailed and so on for the beliefs that they hold and the reasons they are seeking asylum.
It is not illegal to seek asylum. It is not; and yet day in, day out, we have Abbott government ministers talking about 'illegals'—as if people are illegal when they are exercising their rights under international law. It is not illegal to seek asylum and, for the benefit of Senator Macdonald and others, there is no queue. This idea that people seeking asylum are going outside some orderly queue is complete and utter nonsense. There are people seeking asylum all over the world as a result of appalling changes of regime and as a result of wars and civil wars. Look at what is happening in Syria at the moment, for example: hundreds of thousands of refugees have poured across the border into Jordan and other countries in the region. We are seeing massive trauma out of Afghanistan and Pakistan—Hazaras being tortured. We are seeing people who were tortured in Sri Lanka under the Rajapaksa regime. There is no orderly queue; it is not illegal to seek asylum. That is what the government need to understand, and they need to stop undermining international law.
The idea that you would require someone to prove that they are more than 50 per cent likely to be persecuted if they were returned is absolutely appalling and ridiculous. At the moment people are not even being given an opportunity to explain their situation with the accelerated processing that has gone on under the former Labor government and now under this government. It has been brought to an absolute point with the Sri Lankan asylum seekers who were being interviewed at sea. We know that was just a joke in the scheme of things, in terms of any serious assessment of their claims for asylum.
I want to talk about Sri Lanka for a moment because it really highlights just how appalling this government is. The Rajapaksa regime, in my view, was the closest thing to a totalitarian dictatorship masquerading as a democracy we have had in this region. Mahinda Rajapaksa and his brothers ran Sri Lanka as a police state. They got rid of the head of the judiciary. They disappeared anyone who stood up against the regime, in white vans. The white van would pull up outside their place; the person would be dragged into the van and then they would be tortured and disappear. And it was not just the Tamils. It was exactly as has happened in the past: they went after the intellectuals; they went after journalists; they went after anyone who was an opinion leader and disappeared them—tortured them and threatened them. They made a genocidal response to the Tamils—taking away their land, persecuting people and refusing to deal with the crimes that occurred at the end of the civil war.
When the Rajapaksas sent the head of their admiralty—who had overseen that shocking bombardment which killed hundreds and thousands of civilians at the end of the civil war in the north-east—to Australia as Sri Lanka's high commissioner, I wrote to Prime Minister Rudd and said, 'Do not accept his credentials. He is accused of international war crimes. He must not be accepted in Australia.' Other countries had sent back the credentials and refuse to recognise some of these criminals who were being sent out by the Rajapaksas. But no: the Labor government accepted his credentials. I am very pleased to say that, during the entire time he was here, I refused to meet with him or to go to any conferences or anything that he put on at the high commission. I am very pleased that the new Prime Minister of Sri Lanka has withdrawn and recalled all of these people, including three from the high commission here in Canberra who had been accepted by the Labor and Liberal governments as suitable people to represent the diplomatic corps. At least the new government in Sri Lanka has recalled them. They will suffer the consequences of the law in that country and go through the trials which will now occur around the war crimes that occurred at the end of the civil war.
Knowing full well what the Rajapaksas were doing, Australia went along with it. We have sent Sri Lankan asylum seekers back to Sri Lanka where we know people have been tortured, raped and jailed—and worse—since they have been returned. Yet, if you ask the Australian government through this whole time, 'What tracking did you do of the people you sent back?' they will say, 'Oh, it's not our job to do that unless they come to the embassy and complain. It's not our job—we just send them back.' Now we discover, as a result of the new prime minister who came out and said;
When human rights were being trampled, and democracy was at bay, these countries were silent. That is an issue for Sri Lanka.
Worse than that the new prime minister, Prime Minister Wickremesinghe, came out and said that Australia decided to pay the price of looking away from human rights abuses in Sri Lanka in order to get cooperation from the Rajapaksas on stopping asylum-seeker boats. It was a deliberate strategy: an agreement between Sri Lanka and the former Australian government—and this one—to look away. In particular, the Abbott government did a deal with the Rajapaksas to look away on human rights in order to get cooperation to 'stop the boats'. The domestic policy of stopping the boats—the popularity of the Abbott government—was more important than what happened to those people. More importantly there is the fact that we, as Australians, decided proactively to ignore human rights issues in Sri Lanka and turn a blind eye. Now, as inevitably occurs, a change in the regime has occurred. We will see what is finally revealed. We will not get it out of here; it will be refused under every FOI request anyone puts in. But we will get it from the Sri Lankan end—how former minister Morrison and Prime Minister Tony Abbott secured this deal with the Rajapaksas to the point where Prime Minister Abbott said, on 3 July 2014, that Sri Lanka is a society 'at peace.' That is a cynical lie. It was known at the time to be untrue. It was not a country at peace. It was a country going after the Tamils engaged in the most appalling behaviour. And here were we as a nation screening people in the most superficial way and refouling them to Sri Lanka. This is an appalling indictment on our country.
You now have to prove you are 50 per cent likely to be persecuted if you are returned. If you are only 49 per cent likely to be tortured or raped, well, you can be sent back to face that but if you are 51 per cent likely, you can stay—what a nonsense is that? The High Court made an interpretation of this back in 1989 with Justice Mason when he said this has to be interpreted as a substantial chance of suffering torture or jail or persecution if you are returned. What you had to prove in order to be regarded as a refugee was a significant chance, a real chance—not a remote chance but a real chance. It was not a choice of saying, well, you are more likely than not, which is how this government wants to change it.
How can someone prove they have a 50 per cent or more or less chance of being persecuted? You either have a real chance of being persecuted or a remote chance. But 50 per cent is going to be a totally subjective judgement and it is yet another example of this government doing everything it can to send everybody back and say they were unable to prove to a satisfaction of a 50 per cent likelihood test. Are you 51 per cent likely to be raped or 49 per cent? Well, let's make a decision on that—and off you go if you have got a 49 per cent chance. That is appalling behaviour contrary to the High Court ruling that was made in '89 and has been actually upheld in the High Court ever since.
Complementary protection is for people who have been subjected to gross violations of their human rights but for non-refugee convention reasons because the refugee convention does not look particularly at issues of gender or sexuality. So it is people who face a real risk of torture upon returning to their country of origin or women fleeing honour killings or genital mutilation, for example. I find this extraordinary because Minister Bishop has made a very big issue of trying to crack down on female genital mutilation. She said, quite rightly, it is illegal in all states and territories. She has said it is vital that family members or friends who know about any such plans to let the authorities know. She was horrified at the prospect of fathers sending their daughters overseas where they would be subjected to this practice. We have the minister who represents the Prime Minister on this, Senator Cash, coming out making great speeches and op-eds on her opposition to female genital mutilation. Yet we now have the very same government that is supposedly outraged by this practice now allowing people to be sent back to actually suffer this fate because it is abolishing complementary protection. That is appalling.
We have got to the point where this legislation has been opposed by all the key stakeholders groups—UNICEF, the Law Council of Australia, the Castan Centre for Human Rights Law, Amnesty International, the ANU College of Law, the Asylum Seeker Resource Centre, the Human Rights Resource Centre, the UNHCR—with all of them saying exactly what the Greens are saying here: this is contrary to international law, it is country to human rights, it is contrary to human decency and it is making Australia's reputation globally go to a point where we are seen as a rogue nation. The UNHCR had this to say:
…it is UNHCR’s long-held view, supported widely by state practice, that it is incumbent upon the decision-maker to use the means at his/her disposal to produce the necessary evidence in relation to the application. This may not, however, always be successful and there may also be elements that are not susceptible of proof. In such circumstances, if the applicant has made a genuine effort to substantiate his/her claim, all available evidence has been obtained and checked and the examiner is satisfied as to the applicant's general credibility, the applicant should, unless there are good reasons to the contrary, be given the benefit of the doubt.
There is no benefit of the doubt here in this legislation. What this legislation does is remove the benefit of the doubt because the government wants to send people back—plain and simple.
You would think that Australia, in this exceptionalism that is talked about by the government, is somehow having this rash of refugees that does not occur in other countries. If you look at a country like Austria, for example, it has something like 70,000 a year, which dwarfs Australia. Even if you look at 2013 when Australia had 20,587, there were 70,000 going into Austria.
Italy, in the first month of this year, had 6,000 arrivals by boat yet the Italians debate whether the lengths they go to rescue people are good enough and whether they need to do more. Jordan is suffering, as I said, the pressure of hundreds of thousands of refugees in that country yet the Jordanians continue to offer refuge to people because they understand that these people are genuine and they are running away from conflict situations where their lives are at risk. Firstly, countries like Jordan deserve our support and assistance in doing what they can but equally we have to do our bit doing what we can to uphold the law, uphold international law, recognise it is not illegal to seek asylum. Secondly, there is no queue. People leave for all kinds of reasons and regimes change. You cannot say today 'you have a 50 per cent chance'. You cannot predict what is going to happen in the future, what the changes are going to be; you can only take the evidence before you.
This government is determined to do everything it actually can to load the whole system against the poorest, most vulnerable people that you could find—that is, people who have been forced to leave their country because of fear for their lives, fear for their families and fear for their futures. This really is a disgraceful piece of legislation and it should be opposed on the basis that it is against humanity, and against international law and against common decency. As Australians representing our community in this parliament we should vote it down.
I too rise today to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. This is a bill that is vital to the continued success of legislation passed in this place last year to secure our borders and to speed up processing of genuine asylum seeker claims.
I would like to state up-front that I believe it is in our national interest that we are able to determine the identity of those seeking asylum in Australia. I believe it is simply the right thing to do. This bill clarifies and codifies the responsibilities on asylum seekers to assist authorities in proving who they are and where they come from—hardly an unreasonable expectation of somebody seeking asylum in this country.
I previously rose to speak on the migration and maritime powers amendment bill last year, which was passed by the Senate on the final sitting day of last year with the support of the Palmer United Party and senators Day, Leyonhjelm, Muir and Xenophon. Already in this short time and as a result of that legislation, we are making significant improvements for our border protection agencies. We are also providing greater support to those who have arrived illegally by boat. That bill last year reaffirmed the coalition's strong stance on border protection in a way that I believe is both timely and therefore humane—sadly, two characteristics that were not readily evident in the past government's border protection policies.
About Senator Milne's language in her speech just then, with Australia going 'rogue' and torturing people—really! How utterly offensive to all Australians, to the Australian government and to the men and women of our border protection and other relevant agencies—
I also note that I understand when that report was made, no information or verification was done of those particular claims. So it is hardly a very credible report, I would suggest.
Again, I would ask those opposite—and particularly those in the Greens—who are coming in and using such awful language and making such terrible suggestions about our border protection agencies: where were they when 1,200 people or more died the most heinous deaths, and 8,000 children went through detention? Where were they then?
If they would like me to answer the question, I will tell you where they were—they were actually supporting the Labor Party and their policies that implemented this. And they supported the Labor government, so I think that is where they were.
By Senator Hanson-Young equating this government and the people who serve in this government with Nazi Germany and by using some of the most heinous crimes against women—rape, genital mutilation and other such torture—to try to suggest that this government and the men and women who serve this government are torturing and would support the torture of these women is utterly offensive.
In their speeches, both Senator Hanson-Young and Senator Milne have also made a series of extremely vague and unsubstantiated allegations that this legislation breaches international legal obligations, including non-refoulment. But as always, there was not one specific shred of evidence of which convention it breached or what section or precedent it may breach. Again, there was nothing from those on the other side except overblown hyperbole and rhetoric.
Last year's legislation reintroduced temporary protection visas, and they are now a critical component of the government's key objective to process the current backlog of illegal maritime arrivals. To me, this is a humane outcome. Under the previous government—that they supported—and its legislation it could take up to seven years to process people. That is not a humane outcome.
The legislation also included the introduction of the fast-track system, amongst other measures to achieve this. As a result of that legislation—pleasingly and wonderfully—the number of children in detention has fallen from a high of nearly 2,000 under the previous government to less than 120 today, as I understand it. And action is now being taken to get the remaining number out of detention.
This bill before the Senate today is another crucial step in ensuring a safe and secure Australia, and it is one of a raft of measures to resolve the immigration status of the illegal maritime arrivals legacy caseload—a disgraceful 30,000 people—who arrived under the previous Labor government with the support of the Greens. Thirty thousand people were waiting up to seven years to have their claims processed. That is not humane!
Senator Hanson-Young would like some facts, Mr Acting Deputy President, and I would love to provide them: 1,200 people died under the policies of those opposite, 8,000 children were in detention and 30,000 people were waiting for up to seven years to have their claims processed by the government that the Greens supported. Those are the facts, as inconvenient as they are for the Greens and for those opposite.
The amendments under this bill—
The amendments in this bill seek to clarify the responsibilities on asylum seekers so that this identification can occur as soon as possible after arrival. The amendments codify the existing responsibilities of asylum seekers in relation to protection claims in the Migration Act 1958. The bill clarifies that any person's claim for a protection visa must be comprehensive and supported to the best of the asylum seeker's ability—hardly unreasonable in the circumstances.
I would like to reiterate that these responsibilities exist currently and that the proposed amendments make no changes to the requirements placed on asylum seekers. The amendments seek to clarify these responsibilities in the legislation. Further, these responsibilities are consistent with an acknowledged, longstanding principle of international refugee law—that is, 'the burden of proof lies on the person submitting a claim'. That is the current burden of proof in international refugee law—although you would not know it from listening to those opposite.
This principle is an important one. In making a claim, an asylum seeker must provide supporting evidence to the best of their ability, to allow our border protection officials to decide whether there is an obligation to provide protection. Again, on behalf of the Australian people, this is not an unreasonable requirement. Without the assistance of the asylum seeker making the claim, the jobs of our border protection and immigration officials become extremely difficult—if they cannot prove who these people are. Whilst officials can continue to ask questions and seek clarification on information given by the applicant, early and full presentation of claims allows refugees to be recognised much earlier, which again is the more humane outcome rather than making them wait years and years.
Further, the amendments will allow our border protection officers to process asylum seekers in an efficient manner, which will see those who need asylum granted protection at the earliest possible opportunity instead of having to wait up to seven years as is currently the case. The importance of presenting a full claim for protection at the earliest opportunity is, as I have said, essential both for the claimants and the Australian government.
Currently, non-genuine asylum seekers can, and do, exploit the application process by presenting new claims or evidence at the review stage. This deliberately causes significant delays in processing their claims and the claims of other applicants. This bill enables the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence that is not raised at the earliest possible opportunity. Again, this is a very fair and reasonable requirement. This will discourage the late presentation of evidence and ensure that applications are able to be processed in a timely manner. If people can provide the evidence, they should provide it at the earliest possible opportunity.
The bill includes safeguards to ensure that applicants with a genuine need for protection are dealt with appropriately. If new claims and evidence are accompanied by a reasonable explanation as to why this information has been provided later, the tribunal will address all the claims and evidence on their merits. These amendments strike a totally appropriate balance between deterring abuse of the system—which is clearly occurring at the moment—and ensuring procedural fairness for those who are in genuine need of assistance.
We are all too aware that many asylum seekers, on the advice of people smugglers, destroy their identity documents before they arrive in Australia, assuming that they will just be given the benefit of the doubt. I know from my personal experience in this policy area that people smugglers do recommend to asylum seekers that they give up their identity documents before they are permitted to board boats in Australia. We know this. We know it is true and we know it has been a longstanding practice.
These identity documents have previously been used by the same asylum seekers to travel to Indonesia, sometimes on one, two or even three different flights, through customs and borders in a number of countries before they get to Indonesia. We know that for many of them their identity documents did exist but they are destroyed to give them a better chance and to exploit our goodwill and our current systems.
If you are a genuine refugee, an identity document should be the most important document that you hold and you should retain it throughout your journey to Australia because it will also assist to prove your case. The destruction of these documents, quite rightly, raises concerns about the validity of asylum seekers' claims, as does the use of forged documents, which is also something that occurs.
Establishing a person's identity, nationality or citizenship is central to determining protection visa eligibility. People smugglers do not screen their customers on the basis of whether they are a genuine refugee or not; this point is irrelevant to them. As long as they have the cash, they will take them. They will take anyone who has the US$10,000 dollars or more—although, I understand it is a bit cheaper lately due to our border protection policies. They do not screen them for the genuineness of their claims.
We cannot rely on the simple fact that a person has paid a people smuggler—and flown through a number of countries, ending up in Indonesia, with or without documentation—to prove that they are in fact a genuine refugee. The simple fact that they have put themselves on this boat is not sufficient for us to say, 'Yes, they are a genuine refugee'. We must be able to establish their identity. It is, therefore, vital that the use of bogus identity documents, and the destruction or discarding of documentary evidence, is discouraged and not rewarded. The measures proposed in this bill are critical in this respect.
Despite what Senator Milne has just told us, this amendment is not a case of Australia going rogue, Australia going it alone or evidence of international exceptionalism, because, in fact, it is in line with legislation already in the United States, in the United Kingdom and in New Zealand. So this is hardly going rogue. It is hardly going against our international obligations or an example of exceptionalism.
I would also like to address some of the claims of those opposite that there are no safeguards. The safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. I will say that again: the safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. The codes of procedure within the Migration Act will ensure these new measures are used appropriately and that all protection visa applications will continue to be assessed in good faith.
The primary purpose of these amendments is not visa refusal but to ensure that asylum seekers are aware of the importance of providing genuine documentation as soon as they can. To rebut what has also been suggested by the Greens speakers: where an applicant has a reasonable explanation for failing to produce original documents and has taken all reasonable steps to do so, these amendments will not be invoked. Additionally, these amendments represent a fair and balanced approach to handling claims in the absence of documentation provided by the applicant. I believe it is absolutely imperative that our Border Protection officials are able to determine the identity of those seeking asylum in Australia, and these amendments are critical to ensuring that they can.
I am also aware that the opposition have indicated that they support all parts of this bill other than schedule 2, which concerns the 'more likely than not' threshold for complementary protection. 'Complementary protection' is a term that describes a possible visa pathway for a category of people who, whilst not meeting the refugee convention definition, are nonetheless in need of protection on the basis that they would face serious violations of their human rights if sent back to their receiving country. For this class of people, the bill seeks to restore the originally intended 'more likely than not' threshold, which I think is a very good thing and a fair thing.
This threshold is an acceptable position open to Australia under international law and is consistent with the thresholds adopted in both the United States and Canada, despite the assertions by the Greens that this somehow represents Australia going rogue; it does not. Despite what they would have us believe, this test does not require decision makers to precisely determine whether there is a 48, 49 or 47 per cent chance of an asylum seeker being subject to torture. It is not a quantifiable, greater than 50 per cent chance style of test—and that is very clear. The Greens' assertion is simply not true. Civil courts in this country make judgements every day based on the balance of probability. The 'more likely than not' test is the same threshold. It is a fair and reasonable standard to use in the case of complementary protection.
It is interesting to note that this threshold is the same threshold that was initially adopted by the Labor government when the Migration Amendment (Complementary Protection) Act commenced in March 2012. I say that again: this is exactly the same threshold test that was introduced by Labor in 2012. It is par for the course that Labor are now rejecting the very threshold that they themselves adopted. This bill's intention is not to raise the threshold but merely to return it to the level which was set by Labor. Once again, those opposite are seeking to derail the government's pledge to take control of our borders and restore faith in Australia's immigration measures.
If Labor and the Greens vote with the government today, we could ensure that thousands of illegal maritime arrivals have their asylum applications dealt with in the most efficient and—
This bill sends a clear message to people smugglers and asylum seekers alike about the importance of identity documents and the benefits of presenting a full claim as early as possible. The government are not in the business of denying protection visas to those who genuinely meet the criteria, but we will not provide them to those who board a boat without a genuine claim. We must be able to determine who is genuine and who is not. It is simply in our national interest to do so.
We must also be able to determine who is a potential risk to our community. While these cases are rare, there are documented cases of asylum seekers who have gone on to commit heinous crimes in our community. We do have a duty of care to all Australians. This bill will provide clarity to asylum seekers and give our Border Protection officials the tools necessary to process claims efficiently and fairly.
It is for these reasons that I will be supporting the bill, and I commend it to the Senate.
I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014, which seeks to amend the Migration Act 1958. If those listening to the debate today take away nothing else, I would ask them to take away the understanding that this bill, if passed, has the very real likelihood of Australia deporting people—fellow human beings—who have come to us legally—
Legally. Legally seeking protection under international law. There will be a real risk of deporting those people back to danger, persecution, torture and death. In turning our backs, in sending such people back, we will be breaching obligations that we voluntarily signed up to under international law. As well as that, if this bill is passed it will seriously further compromise the integrity of what has been a rigorous protection determination system. It will erode procedural safeguards, the protections that ensure people in Australia can receive what we like to think of being a fair trial, and it will put Australia at risk of breaching its non-refoulement obligations.
Today I am speaking as the spokesperson for the Australian Greens on legal affairs and I particularly want to take a human rights perspective on this legislation. There is no doubt that if passed this bill will significantly engage and be incompatible with various human rights, again, human rights that Australia has voluntarily signed up to respect and abide by. The human rights that are engaged have been identified both by the Parliamentary Joint Committee on Human Rights and also other concerned individuals and organisations, who made submissions to the Senate Legal and Constitutional Affairs Legislation Committee when it inquired recently into the bill.
The Parliamentary Joint Committee on Human Rights has considered this bill at length and has sought responses from the Minister for Immigration and Border Protection to particular concerns and queries. That analysis is not yet complete, but as is all too often the case in this parliament, where we have significant legislation such as this that engages a wide range of human rights, the result of that committee's scrutiny—the report that will identify the rights that are engaged and the risk that those rights will not be dealt with in a compatible way—has not yet been tabled. This is becoming a common occurrence in this parliament. This parliamentary debate we are having on this significant piece of legislation will not have the benefit of the committee's considerations and has not been informed by it. Those speaking already, who are making assertions about the fact that this bill will not affect Australia's human rights, have not had the benefit of that parliamentary committee's consideration. They have not been informed by the expert advice that his so integral to the committee's understanding of our international obligations under seven human rights treaties. These are treaties that Australia has voluntarily and proudly entered into.
This is arguably exactly the type of legislation that the committee was established to scrutinise. It is clear that this bill engages at least the following human rights: the right to equality and non-discrimination; the obligations that Australia has to have non-refoulement so that individuals are not sent back to face torture, threat and persecution in the country from which they have fled; the right to freedom from arbitrary detention; the obligation to consider the best interests of the child; the obligation to treat the best interests of the child as the primary consideration; and the right to a fair trial. These are human rights that Australia was once very proud to sign up to, saying that we stand by them.
How does this legislation stack up? There have been many concerns raised by a range of eminent and expert organisations and individuals who understand just what is at stake in Australia when we trade away human rights for political expediency. I say to people listening to and reading this debate, don't think that this will only affect people who do not originally come from Australia, because every time we take steps to erode the human rights that we have voluntarily signed up to, those steps will ultimately come back and affect all of us.
Those organisations that made submission to the Senate Legal and Constitutional Affairs Legislation Committee are: Amnesty International, the Castan Centre for Human Rights Law, the Canberra Refugee Action Committee, the Association for the Prevention of Torture and the Victorian Foundation for Survivors of Torture Inc, the Migration Review Tribunal, the Refugee Review Tribunal, The Andrew and Renata Kaldor Centre for International Refugee Law, UNICEF Australia, ANU College of Law—Migration Law Program, the Law Council of Australia, the Refugee Advice and Casework Service, the Refugee Council of Australia, the Immigration Advice and Rights Centre, The Law Society of New South Wales, the Asylum Seeker Resource Centre, the Human Rights Law Centre, and the United Nations High Commissioner for Refugees
Let us pause to remember who we are talking about here. We are talking about people who have come to our country under the right they have to do so under international law. So there is nothing illegal about what they are choosing to do. They come to our country seeking asylum, because they have to flee their own homeland. No-one does that lightly. No-one leaves their homeland lightly. But it is what any one of us would or could do if we or our families are threatened by death or torture. I ask people to reflect for just a minute on what they would do if they were facing some of the circumstances that these people face. It is what people were doing in the Second World War. It is the aftermath of that war, with thousands of refugees around the world, that was the genesis of the refugee convention, in 1951, which Australia voluntarily and proudly signed up to. That refugee convention remains a cornerstone of protection. There have been changes along the way, including regional conventions created in its image. The principle of not forcibly returning people to territories where they could face persecution, the principle called non-refoulement, has become fundamental in international law. Yet it is this principle which is under threat in this legislation.
Let me turn to some of the aspects of the bill which are particularly concerning. The first one is changing the burden of proof for those who are seeking to make a protection application. The amendments proposed by the bill state that the burden of proof will rest solely on the applicant to prove that they are a person to whom Australia has protection obligations and that sufficient evidence must be provided in the first instance to establish that claim. Of course, ultimately a person has to be able to prove and establish their case. But that is not the whole story if we consider the circumstances that give rise to such an application in the first place. Someone who arrives here who is a genuine refugee may have nothing with them. When you consider the reason they have come, they have not necessarily packed their suitcase. They have not necessarily been able to leave their country of origin in an orderly fashion. The very fact that they are fleeing in fear of death, persecution or torture may well mean that they have nothing with them when they arrive. They are certainly almost never going to have a fine and detailed knowledge of Australia's migration law. That is, indeed, the very reason that the Office of the United Nations High Commissioner for Refugees has stated:
… 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.
If we cast our minds back to why Australia was prepared to sign up to the refugee convention in the first place, it was because there was an understanding that people will need and will seek protection in countries of asylum when they are fleeing such persecution and torture. In those days—and still for many of us—it was considered that someone who was seeking that protection was not doing the wrong thing, something that was nefarious or illegal, but indeed was seeking that assistance, that protection and that haven. Therefore it would have seemed, and it is logical to think, that the country that is having the legal processes would also understand that there is a shared job to do between the applicant and the examiner, to give every opportunity to see whether or not that person has indeed fled the persecution or the threat and whether or not they have a genuine case for protection.
The Office of the United Nations High Commissioner for Refugees goes on to say:
Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application … it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized.
That makes perfect sense. But, as a result of this bill, for someone who turns up in Australia—who may not speak English, will almost certainly have no idea about the finer points of Australian migration law and may not have a dollar to their name—the response will be: 'Front up. Prove every single aspect of your case. Otherwise we will consider sending you back.' To add insult to injury, this is coming on top of this government cutting funding for legal advice to help these people prepare their cases to these very same people.
The second aspect of the bill which causes great concern is the requirement of 'more likely than not'. These amendments also seek to significantly increase the risk threshold for people who are fleeing harm before they can receive Australian protection. This will lead to an increased risk that we will be deporting people who are in genuine need of protection back to face the very threats that they were fleeing. Currently, when consideration is being made about the risk to a person if they are to be forcibly returned to the country from which they have fled, Australia has an obligation of non-refoulement—of not sending them back to face that danger. The threshold is where there is a real risk or substantial grounds to find that that person would indeed be in danger if they were to be returned. But these amendments would seek to change the risk threshold to 'more likely than not'.
What does that mean? We had Senator Reynolds talking about the civil burden of proof in the Australian legal system—the balance of probabilities, which is often described as being 'more likely than not'. Indeed, when law students are learning about what the balance of probability means, they are often told that above 50 per cent is more likely than not. Why is it that in Australia we have a different burden of proof when it comes to criminal law and civil law? For civil law it is 'more likely than not', and for criminal law it is 'beyond reasonable doubt'. That is because it reflects an understanding that, when we are talking about criminal law, the consequences of finding a person guilty are so much more serious than consequences under civil law. So that is the reason that we do not have a balance of probabilities in criminal law: because the consequences are so serious.
We are talking here about the risk of sending people back to torture, persecution and death, and this government is talking about changing that balance to being 'more likely than not'—essentially the civil law balance of probabilities, more than 50 per cent. So, under the proposed amendments, asylum seekers will have to prove that they have a greater than 50 per cent chance of being tortured or killed if they are not given protection. These are the asylum seekers who would be subject to 'complementary' protection, and I will come back to who those people will be. So, if a decision is being made and a person may have, say, a 40 per cent chance of being returned to serious harm, there is then the significant and real risk that they will be deported, because that threshold has changed.
These changes are in contravention of international and human rights law—in particular the International Covenant on Civil and Political Rights, which Australia has signed up to; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which Australia has signed up to; and the principle of non-refoulement, to which Australia is a party.
These proposed amendments for now—for now—refer to people who are seeking protection on what are called complementary grounds. These are people who would not be captured by the refugee convention but still require protection because they are fleeing serious harm such as torture. These might be people like women who are fleeing the risk of honour killings, or young women who are seeking protection because they are at risk of female genital mutilation if they were to be returned home. These proposed amendments will mean Australia's protection obligations will only be engaged when the minister considers it more likely than not that the person will suffer significant harm if returned. So, if there is only a 40 per cent chance of being killed in an honour killing, if there is only a 40 per cent chance of being subject to female genital mutilation then the risk is that these people can be deported.
As stated by Mr David Manne, the CEO of the Refugee and Immigration Legal Centre:
The proposed 'more likely than not' test would ultimately significantly increase the risk of Australia making the wrong decision on whether or not somebody should be protected from serious harm. The test raises the real prospect of returning people to persecution or other forms of life-threatening harm, in violation of our non-refoulement obligations. That is the bottom line here.
There are other concerns that are raised by the amendments in this bill as well, and they are in relation to the tribunal processes—the ability of a person to be assured that they will have a fair trial in Australia and the processes of the Refugee Tribunal and the Migration Review Tribunal. So there are serious concerns about schedule 4 of the bill, which arguably will undermine the independence of the Refugee Review Tribunal and the Migration Review Tribunal and deny applicants procedural fairness.
As a lawyer, that particularly concerns me because this is the integrity of our legal system. And it is not just people who are non-citizens who need to be worried; if we allow this erosion of basic principles of a fair trial, ultimately we risk that affecting all Australians citizens anyway. And so we have amendments that would enable the principal member of the tribunals to issue guidance decisions, whereas the principle currently is that a tribunal member can hear and assess the evidence and make an independent decision. There have been concerns that this would unnecessarily fetter the discretion and independence of tribunal members to consider the merits of a particular case. One does not have to think too hard to get why some of that guidance might ultimately be made.
As well as that, there have been concerns raised about amendments that would see only oral decisions being handed down by the Refugee Review Tribunal and the Migration Review Tribunal and written decisions only being available if specifically requested. In their experience, the Refugee and Immigration Legal Centre have stated:
Applicants often struggle to understand key elements of their decision, even after a detailed explanation…and may also not understand the need to request written reasons within the limited time period. The consequence of failing to obtain a written statement of reasons could seriously compromise a person’s capacity to seek judicial review—
again undermining the right that we would expect persons in Australia to have to a fair trial.
Finally, there is the fact that the provisions in this bill are drafted to apply retrospectively, again transgressing a long-held principle in Australian law that you do not introduce retrospectivity when there are serious consequences like this. Should this bill be passed, people who have applications on foot will be disadvantaged despite at all times meeting the criteria for a visa grant prior to the change. Evidence that was provided to the Legal and Constitutional Affairs Legislation Committee by the Refugee Review Tribunal and the Migration Review Tribunal states that there are currently 4,400 cases that will be affected should this bill pass. With the passing of this bill, the rights that are currently with those people will be retrospectively affected and taken away.
As stated by Amnesty International, these amendments, if passed, will adversely impact a large cohort of individuals who have always complied with the criteria for their protection applications. These changes will mean that they are found to no longer meet these requirements simply because the goalposts have moved around them. This is plainly unfair and must not be allowed to come into effect.
If this parliament passes this legislation, I know that we will be judged. What I think is really important to remember is that this is not just about people who are coming to seek asylum in Australia; this is about who we are as a parliament. This is about what we consider to be fundamental and important principles in our Australian legal system and as part of our humanity.
Today I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. Before I get into the particulars of the bill I want to spend some time informing the Senate and revisiting the appalling track record that has led us to the circumstances we face today in dealing with further amendments to migration in this country. And it is an appalling indictment of the history of the Green movement and the Labor Party when in government in this area of legislation.
Let's remind ourselves that when Labor came to office in 2007 there were no children in detention. But, thanks to what could only generously be described as ad hoc, erratic decisions of the Rudd-Gillard-Rudd governments, the number of children under those governments peaked at 1,992. It went from zero when they were elected in 2007 to 1,992 children in detention under Australian law. The Labor-Greens alliance that governed this country undermined Australia's border protection. It weakened our borders, it weakened our immigration program, and I put to you that it weakened our national sovereignty. They were prepared to sacrifice the right of Australia to determine its own migration and asylum seeker policies on the altar of some global refugee convention whilst ignoring the reality of the circumstances we faced. Their policies created a backlog of illegal maritime arrivals.
Let me address this furphy that keeps going around. No-one has ever said it is illegal to seek asylum. No-one in the government has ever said that, but what they have said repeatedly is that it is illegal to enter Australia's maritime or sovereign territorial waters without an appropriate visa and without permission. That is about national sovereignty. So, when we are referring to 'illegals', we are referring to illegal maritime arrivals, of which there were tens of thousands under the previous government.
When we are considering those illegal maritime arrivals, we also have to consider those who sought to enter our country's territorial waters illegally but could not get here. They could not get here because the ships they were on were leaky and they sank. Thousands of people—no-one will ever know how many—died at sea thanks to the policies of those elsewhere. When we hear the sanctimonious and pious Greens stand up in this place and say that they have a mortgage on compassion, what they ignore is that when confronted with these deaths at sea, the so-called compassionate ones, Senator Hanson-Young and her crew, say: 'Tragedies happen. Accidents happen.' Let's do a Pontius Pilate and wash our hands of a thousand deaths caused by ridiculous and dangerous policies! And they continue to pursue them today and that is what we are trying to fix. I am tired, and the Australian people are tired, of having to listen to the same nonsense, the drivel that comes out of the Green's mouths.
I had the misfortune to listen to the last three speakers and the first two of them, Senator Hanson-Young and Senator Milne, were absolutely offensive. I ask myself: at what point do we get where senators in this place are prepared to back every side in the competition except Australia? They are prepared to back the United Nations—the same group who put the late Colonel Gaddafi in charge of the human rights committee at the United Nations. They are prepared to back a guy who put forward a report claiming Australia are effectively torturing people, because we are trying to control our borders. But they do not highlight the fact that there was no critical examination of the submissions put to him by those who continue to sit and deny reality.
The reality is that we comply with our international human rights obligations. The reality is that we have a very generous humanitarian refugee intake. The reality is that we have stopped people from illegally entering Australia's territorial waters and, appropriately so, we have stopped people from dying at sea. Yet, somehow, we are supposed to not be compassionate, according to those opposite. It is an appalling indictment on the rhetoric around this debate.
The policies of the previous government, aided by the Greens alliance, incentivised thousands of people to take advantage of what they saw as a loophole and try to scam the system. There is no question about that. Senator Macdonald highlighted this and Senator Reynolds did as well, that people would travel from their homelands through one, two, three or four different countries until they could get to Indonesia, where they would pay a people smuggler thousands of dollars—more than it would have cost them in an airfare—and they would then ditch their papers. When they got into Australia's territorial waters, they would get on the satellite phone and say, 'Come and pick us up.' According to the Greens, that is okay; that is how we should be running our immigration policy in this country.
I had the misfortune to listen to Senator Milne going off about Australia being terrible custodians, that somehow we were torturing people and not honouring our international commitments. I reject that and I find it absolutely offensive. The Greens are the same group of people who will not condemn terrorists as terrorists. That is what they did with a previous bill in this place—they refused to say that people who are terrorists under Australian law were terrorists; they wanted to give them the benefit of the doubt. Where are they on these terrible regimes that are happening elsewhere? They can only diss the government here. That is the great tragedy of it.
Senator Milne talks about how there are so many more asylum seekers in Europe and that Austria took 70,000 or so—so many more than Australia. Senator Milne needs to go to Europe and look at the consequences of the failure of border protection there, where we see European sovereignty and national cohesion falling to bits because governments have refused to deal with the issues around controlling their borders and having orderly migration programs. Senator Milne referred to Italy and what they are doing to assist asylum seekers. When I went to Europe to look at this problem firsthand rather than through the prism of the green glass of the United Nations, I saw that tens of thousands of people, waves of people, were coming to Italy and that that country gave all of them tickets to France. France shut down their border because they knew they were being scammed. It is disorderly; it is chaos. The European Union is going broke at a rate of knots and it is because a great deal of this is due to the mismanagement by governments of migration and how to deal with the influx of people claiming refugee status. They do not have an orderly process for it to happen.
You can go to entire communities and suburbs from Sweden and Finland right through to southern Italy and Greece and you will find that they are populated almost entirely by people without appropriate documentation. It is a circumstance which no responsible government should be allowed to encourage. Yet what we have here is virtually the same thing coming from the Greens: 'Open the borders. Let anyone come here who wants to. We don't have to know who they are. They can make up whatever name they like. Bring them on in.'
I remember former colleague Wilson Tuckey, the former member for O'Connor, one of the great characters in this place but a man who occasionally told some startling truths, saying: 'If you want to get a criminal or a terrorist into this country, of course you would hide them amongst a boat of undocumented people because you cannot challenge who they are. They can make up whatever they like and you cannot do the research on them.' Of course, Mr Tuckey was widely condemned for that view, but he was absolutely right.
If you look at some of the issues we are facing in this country today, whether it is terrorist activity, insurgent activity, extremist activity or general crime, you will find there are elements of this that can be traced back to a disorderly migration program. To say that is not being racist or anything like that; it is simply stating some facts and some truths.
This bill, the Migration Amendment (Protection and Other Measures) Bill 2014, seeks to build upon a change that went through this parliament last year—the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. That bill went through on the last sitting day of last year. It took that long to get the bill through because those on the other side did not want to resolve the asylum case load issue. They were happy for people to be in detention; they were happy for people to be coming here—illegally entering our territorial waters. That bill re-created temporary protection visas, it got children out of detention on Christmas Island and it introduced, among other measures, a fast-track system. I acknowledge that getting that bill through relied on the support of the Palmer United Party and Senators Day, Leyonhjelm, Muir and Xenophon. It got that support because it was a sensible amendment, a sensible change. This bill builds upon that one. It makes a number of amendments to enhance the efficiency and integrity of Australia's determination process for onshore refugee status and complementary protection. This bill is important because it is necessary to enable the earlier bill, the one I just referred to, to work optimally. It is going to increase efficiency and it is going to enhance the integrity of the determination process for onshore refugee status and complementary protection.
It is extraordinary to think that anyone could object to the requirement that a person seeking asylum in this country has to be able to prove their identity. I find it extraordinary that, after someone makes a claim for asylum and that claim is denied on valid grounds, they can then cook up another story and we have to take it seriously. Unfortunately, under the current regime, we do have to take it seriously. Effectively they get to say, 'I will try this and, if that does not work, I will try this—and I will keep trying and trying until I get the outcome I want.' That is not how the system should be operating, yet that is precisely what the Greens are advocating in their opposition to this bill.
There will be some amendments to this bill coming through. Senator Macdonald, who is chair of the Senate Legal and Constitutional Affairs Legislation Committee, has highlighted that some of the committee's recommendations will be accepted by the government. I understand that Senator Carr is also proposing to move an amendment that the government will accept as well. That gives a sense of how we can achieve sensible outcomes in this area. We do not need pious rhetoric built around fictions and half-truths, rhetoric built around melodious, emotive language designed to tug at the heartstrings. People nod their heads when they hear such rhetoric, but it does not stand up to an examination of the facts. The Senate is meant to be better than that. We are all going to have different opinions on issues, but we should be able to base our debates on facts rather than on emotion and falsehoods.
The amendment being proposed by Senator Carr on behalf of Labor is about schedule 2 of the bill. Schedule 2 of the bill deals with the more-likely-than-not threshold for complementary protection. Labor's concerns about this contain an element of: 'Do as I say not as I do'. The more-likely-than-not threshold was initially adopted by the former Labor government when the complementary protection provisions were first introduced into the Migration Act in March 2012. But this was more a statement of intent; it was not included in legislation. Labor's position is, however, undeniable—although others may attempt to so deny it in their contributions to this debate—because the Department of Immigration and Border Protection has confirmed that, between 24 March 2012 and the full Federal Court decision on 20 March 2013, the Labor government applied the more-likely-than-not test to complementary protection applicants. Labor even argued in the Federal Court that 'more likely than not' was the proper threshold, but they were unsuccessful. So the government is not, through this bill, raising the threshold; it is merely returning it to the level that was set by the then Labor government. I would therefore be surprised, and I am sure the Australian people would be surprised—I should say 'disappointed' rather than 'surprised'—if Labor in opposition were to decide to oppose something that they thought worth arguing for in the Federal Court and which was actually the test they applied over those nearly 12 months.
As I mentioned, the government has listened to the Senator Legal and Constitutional Affairs Legislation Committee and will be moving amendments sympathetic to the committee's recommendations. I think this is an example of how well the Senate can work. There is no monopoly on good ideas. Sometimes when a bill goes through the lower house it is not fully considered. Senator Macdonald made the point that it has been many months—I think it was June last year—since this bill has been considered. It has been with the parliament or a Senate committee now for nine months. That is why it is now time to fix this—to more fully and rigorously apply Australia's migration legislation to ensure that our migration program retains its proud place in the world. I think that it is a very proud thing for us. As a country we have a great history of migration, but it has worked because appropriate processes have been followed. People apply to come to our country, and they go through an appropriate process; where they are seeking refuge, that is an appropriate process as well. Where people are waiting in United Nations camps for placement in other countries, which Australia has signed up to, that is the appropriate place for people to be assessed and then allocated to a country.
People who say that there is no queue should go to some of these United Nations refugee camps—in Sudan, Indonesia and elsewhere—and have a look at the thousands and thousands of people who are trying to do the right thing, who say, 'I am seeking asylum,' and who go through the process and wait for an appropriate place to open up. It is not just about coming to Australia; it is about going to other countries around the world that have humanitarian refugee intakes. These people are not country-shopping and they are not looking for the best deal for themselves; they are looking for a deal. That, I think, says lots about their integrity and the strength of their character compared to those who simply can afford to pay their way via an illegal people smuggler.
I read the other day that these illegal people smugglers are now in the business of smuggling jihadis out of Australia and into Syria and Iraq. They are not fussed about where they get their business from. They do not care who is on their boats. It is all about the money for them. The Greens do not care who is on the people smugglers' boats. They do not care who comes into this country. They do not care about the integrity of our migration system. They do not care about Australia. It is the only conclusion one can draw. They do not care. They care about some sort of political advantage for themselves. (Time expired)
I rise in support of the Migration Amendment (Protection and Other Measures) Bill 2014. I start with a quote from then Prime Minister John Howard in a speech delivered on 28 October 2001:
National security is … about a proper response to terrorism. It's also about having a far sighted strong well thought out defence policy. It is also about having an uncompromising view about the fundamental right of this country to protect its borders, it's about this nation saying to the world we are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada, we have a proud record of welcoming people from 140 different nations.
He went on to make the statement:
We will decide who comes to this country and the circumstances in which they come. And can I say on this point what a fantastic job Philip Ruddock has done for Australia.
Today, of course, that is strongly endorsed. He went on to contrast some comments of the then Leader of the Opposition, who indicated to him that the last thing that the opposition leader or Australia wanted was a negative, carping opposition on this particular matter. Of course, soon afterwards that is exactly what the then Leader of the Opposition went on to do when he led voting against the Border Protection Bill. He subsequently reversed this position and voted in favour of the bill. What is interesting and what brings us to where we are today is that Mr Howard said of the Leader of the Opposition in that speech:
… while the debate was going on in the Senate many of his colleagues were darkly muttering if we win the election we'll change it.
It took another six years after October 2001, but of course that is exactly what happened. That is why we have ended up in the circumstance in which we find ourselves today.
What is it that the Australian community expect of us as law-makers? I think it is very interesting and necessary to reflect on this as senators in this debate. I think Mr Howard put it eloquently—and I have not heard too many disagree with him—that deciding who comes to our country and protecting our borders must be a very, very high priority for government. Deciding who comes and who stays is an important priority accepted by the wider community. Providing for genuine refugees and avoiding queue-jumping—a point to which I will return—and providing security for Australian citizens, Australian residents and visitors to this country have always been a high priority, but the events of the last few months have further emphasised that fact. The unfortunate necessity of having heightened levels of security in and around this building now points to that fact. For those who think that that is an overreaction, one need only go back to the shocking events in the parliament in Ottawa, Canada late last year.
The previous speaker, Senator Bernardi, spoke eloquently about stopping the people-smuggling trade. It is an evil, vindictive, rotten trade, which was stopped. There is a need to treat people fairly and to differentiate between those who are, I would say, economic opportunists and those who are genuinely at risk. We need to minimise the risk of loss of life at sea, especially of children, including those who are unaccompanied—and I will return to that also.
Assimilating genuine applicants into Australia's society is another need. We are a nation built on the efforts of migrants. We need efficient processing as quickly as is possible so that those who are found to actually be genuine refugees eligible to come into this country can be assimilated into our community, can get jobs and can make that contribution that they want to make and that many, many migrants over the generations have made before them. We need to weed out those who are here illegally for whatever reason and by whatever mechanism they have got here. We need to ensure fairness towards our own citizens, our own older citizens, our homeless citizens and residents. We need to make sure that there are adequate services, housing and employment for our own as well as those coming to the country, and, of course, encourage people to work in our rural and regional areas, to which I will refer later in this contribution.
It is necessary to have people understand the scale of the challenge. I will provide some statistics. From 18 September 2013 to 17 September 2014—the first year of the Abbott led coalition government—there were 23 ventures involving illegal maritime arrivals, totalling 1,265 people. In the 12-month period from September 2012 to September 2013, there were 401 ventures, involving 26,543 people. That is from 23 up to 401, and 1,255 as opposed to 26,543. Since December 2013 there has been one people-smuggling venture, carrying 157 people, who—under the coalition's policy as stated leading up to the election—were transferred to an offshore facility.
The longest period without a successful people-smuggling venture under the previous government—after such ventures were stopped under Mr Howard—was 61 days, when Senator Chris Evans was minister for immigration. That reduced from 61 to 23 when Mr Bowen became the minister for immigration. Then it became a revolving door, and the longest period of time between arrivals with Ministers O'Connor and Burke was six days, after a period under the Howard government in which this rotten trade of people smuggling had been weakened and stopped.
It is the inevitable conclusion, with those statistics, that the policy established by Howard, with Ruddock as his minister, had been successful. Mr Howard, in a speech of October 2001, said that many in the Labor Party in the Senate were darkly muttering, 'If we win the election, we'll change it,' and indeed they did. We then ended up with a circumstance where more than 50,000 people arrived illegally on more than 800 boats. So we went from two people a month under the Howard government to 3,000 a month under the Rudd, Gillard and Rudd governments. And the number of people in detention or on bridging visas increased from a total of four in 2007 to more than 30,000. We know that 1,200 perished at sea. Senator McEwen—who is in the chamber—and I were participants in an Operation Sovereign Borders exercise in Darwin, out of the Larrakeyah Barracks, last year. We were speaking to Naval personnel who were involved in that process, and they were certainly of the view that, regrettably, there were more than that 1,200 who perished.
What was the cost of that whole exercise? The budget advertised over that time increased by $11.6 billion, under the then Labor government. When it comes to children—because they are particularly relevant to this discussion—more than 8,000 children had their lives put at risk by making this journey. Of course, some people would be so desperate that they would want to send their children unaccompanied. We can all understand, as parents, how desperate a decision that must be, but we can also understand how much greater risk would apply to those children.
That is where we found ourselves in advance of this legislation. I recall in Senate estimates in 2010 asking the then immigration secretary how many people were arriving by air as opposed to by sea and how many people coming into Australia by air could arrive without either a passport or necessary documentation. The answer of course is—successfully—nil, because you cannot get through the airport if you do not have the necessary documentation processed to allow you to come, for whatever purpose you come. I then said to him, 'How many are arriving by sea without adequate documentation?' He said, 'The majority.' I said, 'How is that happening?' He said, 'They either lose their passports or they have them taken off them by bullies or indeed they never had them in the first place.' I remember saying to him, 'Secretary, those people have a problem, don't they?' He looked at me and he said, 'No, Senator Back; they haven't got a problem.' I said, 'Well, who's got the problem then?'—because many of us who travel overseas know that, if you try to get into another country without a passport or the necessary documentation, you certainly have got a problem and you stay there until such time as you either rectify it or you are deported. He said, 'They haven't got the problem. We have got the problem.' I asked him further, 'If we've got the problem, why is it our problem?' He said, 'That's how the whole thing is structured under the government processes at the moment.' So there lies the issue. I said, 'What happens to these passports?' He said, 'They either get destroyed or they get sent back to the country of origin for somebody else to use the passport to attempt to get into this country.'
So where do we find ourselves? We find ourselves in a circumstance where genuine refugees—those about whom Mr Howard spoke when he said that we are, behind Canada, on a per capita basis the second most generous country for accepting refugees—continue to rot in asylum camps. Second generations, even up to third generations, do not get here because the numbers that we set are such that, as others jump the queue, they continue to wait. As I have said in this place before, it was put to me in Perth by a young Sri Lankan gentleman that there is a raging trade going on in the refugee camps, where a family might never know that they get near the top of the queue to actually come to this country, because somebody might come and pay the management of that refugee camp so that they replace the family that were near the top, and that family subsequently do not get here. That is what we had to stop and that is what this coalition government did stop. We came into government saying we would stop the evil trade of people smuggling. It took a little while. It took some effort on the part of Scott Morrison, and the process he put into place, but it has been successful. We now do not see these young people being put at risk, coming here in leaky boats in cyclone seasons such as the one we are experiencing off the north-west coast and, indeed, the southern coast of WA at the moment. We are not seeing that. That, surely, is something the Australian community must be very well pleased with and proud of: that we have stopped the process of people-smuggling from overseas to Australia.
What are we looking at with this protection and other measures bill? As has been previously said, it was in the last sitting period of 2014 that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act was passed. In fact, it was on the last sitting day. It created temporary protection visas. It got children out of detention on Christmas Island—which the assistant minister, Minister Cash, had promised would happen in this place. And, of course, it introduced a fast-track system. The coalition is appreciative of the support of the then Palmer United Party—in fact, Senator Wang is still a member of the Palmer United Party—and of senators Day, Leyonhjelm, Muir and Xenophon. It was interesting to hear Senator Muir's comments, in his first speech the other day, reflecting on the time it took him into lend support to that. But he can be well satisfied that those children have been removed from Christmas Island; and I look forward to going to Christmas Island in early April to see for myself what the circumstances are in that place.
We know that this particular bill, the migration amendment bill, will seek to amend the Migration Act 1958 to further increase and enhance the efficiency and the effectiveness of onshore refugee and complementary protection. This is what the Australian community wants us to do. They want us to make sure that we have efficient, effective and cost-effective processes in place so that we can determine these matters quickly, having regard for the inevitable stress these people find themselves under. It is going to clarify the responsibilities of asylum seekers to provide and substantiate claims in relation to their visas.
The Australian community wants the government to act fairly. It wants the government to ensure that those people who are applying for protection and for visas have genuine documentation—that they do not go out there and corruptly obtain false documentation or create stories which are, in fact, not truthful. We want to be able to help those who are genuine—and we want to be able to send a strong message to those who are not that this country will not entertain or welcome that sort of activity. We want to make sure that claims that are made and evidence that is produced is valid and that it is produced at the first opportunity, not in some rotating and ongoing process.
It will create grounds to refuse a protection visa application when the applicant refuses or fails to establish their identity, their nationality or their citizenship, having regard for any contingencies in which they may have a case to present as to why they cannot produce that documentation. This is the way Australia and Australians act, and it is the way that the community wants our government to act. The fast-track application process established by the legislation passed on the last sitting day is dependent on removal of some of the statutory bars that find their way into this legislation. I will not dwell on the 'more likely than not' threshold because I know it is to become the subject of discussion, possibly with amendments to be moved.
I want to conclude my remarks, if I may, by referring to the establishment of the safe haven enterprise visas, which were introduced in the legislation that was passed in this place on the last sitting day of December 2014. In my view this is absolutely groundbreaking and fundamental. To remind my colleagues, and to inform those who are not aware of it, what it does is it rewards enterprise and enhances the strong regional needs, demands and desires of regional Australia with a new visa to be created called the safe haven enterprise visa. In essence, what this does is encourage somebody who is seeking protection in this country to work in regional or rural Australia with their family. It is a tremendous opportunity. We know very well that migrants in the past have found lives and opportunities in rural and regional Australia. Both my grandparents on the maternal side were Irish migrants—Irish farmers—and they started an Irish farming and agricultural dynasty. What is interesting about these SHEVs is that they will be an alternative temporary visa to the temporary protection visa. They will encourage people to live and work in rural and regional Australia and indeed, if they remain working in rural or regional Australia for a four-year period, they will then, as I understand it, be eligible to apply for a more permanent arrangement. One would think this is well and truly worth supporting, and I therefore urge my Senate colleagues to support the Migration Amendment (Protection and Other Measures) Bill 2014.
It is my pleasure to rise in support of the Migration Amendment (Protection and Other Measures) Bill 2014 today. I thank Senator Back and other senators for their contributions to this debate. Before I go into the detail of this bill and the necessity of this bill being passed, I want to go into the context in which this debate exists in this country, and that includes the shocking mess that we have inherited, the absolute disastrous humanitarian outcomes of previous policies implemented by the Labor government, supported by the Greens—and talk about some of the dangers that still exist in what some in the Labor Party before the last election were claiming was a consensus. Unfortunately, that was not the case.
Firstly, I will go to the context and the success of the policy that we have implemented. The border protection policy that the coalition government implemented has led to a dramatic change in the way that border protection occurs in this country. It was only a couple of years ago that we had a situation where it was out of control, where the Australian government no longer actually controlled the number of people who were coming to this country nor the circumstances in which they were coming. The former government had completely lost control, leading to 50,000 unlawful arrivals.
Just a couple of years ago we had 50,000 unlawful arrivals, over 1,000 deaths at sea and around 2,000 children in detention. Cast forward, and, in a relatively short space of time, we have seen virtually no arrivals and we have seen the boats over the last 12 months basically stop. There have been no deaths at sea that we are aware of. When it comes to children in detention, we have gone from the high of around 2,000 children in detention under Labor and many thousands going through detention to under 120 as it stands.
I think that should be a cause for success, for congratulations of a policy that has been well implemented and where the outcomes that we promised are for the good of all Australians, for the good of an orderly migration program, for the good of asylum seekers who are no longer being lured to their deaths, for the good of children who have been released from detention, for the good of our budget and of course for the good of those who are languishing overseas camps, who previously were being denied the opportunity to be given asylum by those who had greater means than those in the camps—those who had the money to pay people smugglers. That is a dramatic change and it has all been done with no assistance whatsoever from the Labor Party or from the Greens. That is a record that I am proud of and that is a record that all Australians should be proud of both from an orderly migration point of view but also, importantly, from a humanitarian point of view—we would never want to go back.
I have touched on the Labor-Greens record. In fact confusion that still exists when it comes to the Labor Party's policy and some aspects of this bill that the Labor Party is not supporting. It seemed that the Labor Party, when in government, right at the end, having completely lost control of this issue, in the lead-up to the election and as a last-gasp pitch to voters tried to claim that it had learnt and that it was now going to implement sensible policies that would actually stop the flow of asylum seeker boats, stop the deaths at sea. That was certainly the message that we heard from Bob Carr. That was the message we heard subsequent to the election from Richard Marles, but I will go to Richard Marles in a minute.
Indeed. We have had a significant shift. Former Senator Carr moved on from his party subsequent to the election. The then foreign minister claimed in an article in The Australian on 6 July 2013 that Australia needed to toughen the way it assesses refugee applications because too many asylum seekers, especially those from Iran, are economic migrants rather than genuine refugees. Of course this triggered howls of protest from some refugee advocates, lawyers and academics:
Carr's claims are part of a multi-pronged push by the new Rudd government to redefine the asylum-seeker debate and soften the potential political damage from what is arguably Labor's greatest policy failure.
There is no doubt that while there were many policy failures this has to be the most significant. The article said that Labor was seeking to move the goal posts by targeting the actual system that determines whether they are genuine refugees. Minister Carr went on:
The government believes this high 90 per cent acceptance rate reflects a lax and over-generous assessment process.
Senator Carr, at the time, said:
There is some evidence that the tribunals have not been hard-headed enough.
Senator Carr formed a judgement back then that in fact things needed to change. So in the lead up to the election, there was a recognition from aspects of the Labor Party that they had got it horribly wrong and now they needed to change the policy. Senator Carr was right on that point. He went on:
I absolutely standby it because I've seen the data from some of the boats, and on some of the boats it's clear that 100 per cent are motivated by economic factors and are not fleeing persecution.
He went on:
The fact is, these people are middle-class Iranians. They're leaving their country because of the economic pressure.
He goes on—and this is the point where I differ with Senator Carr. This might have been a nice line before the election but what we have seen subsequent to the election clearly belies this point:
Senator Carr said there was now a "consensus" in Australian politics on this issue "because you can't ignore the evidence.
Unfortunately, that is not the case. It is not the case. What we have seen subsequent to the election is, in fact, the Labor Party seeking to undermine our efforts to actually get this issue under control.
Even in recent days, of course—just yesterday—we heard from Tanya Plibersek, effectively criticising the policy of turning back boats, whereas Richard Marles, in the realistic part of the Labor Party, acknowledged that turn-backs were in fact working, that turn-backs were making a contribution and that turn-backs were a part of the successful efforts of the coalition government to stop boats from arriving illegally, to stop deaths at sea and to get this issue under control. Richard Marles, of course, was very quickly shot down by Bill Shorten on this issue. He was very quickly shot down by his own party.
This internal angst from the Labor Party has serious policy consequences, because we see this angst play out from time to time; in the lead up to an election, the Labor Party talks tough on border production. Kevin Rudd did it in 2007. He said he would even employ tow-backs to turn back the boats. He got in and of course caused a flood of 50,000 people, luring many to their deaths and seeing detention centres fill up—in many cases with thousands of children. That was the effect of that policy and this policy angst, which we are seeing again as we see the Labor Party's position on this bill.
I want to talk in some detail about the bill itself. The bill makes a number of amendments to the Migration Act 1958 that will increase efficiency and enhance integrity on the onshore refugee and complementary protection status determination process. These amendments include clarification of the responsibilities of asylum seekers to provide and substantiate claims in relation to protection visas. It establishes that if asylum seekers do not cooperate with the government to establish their identity, they will not be given the benefit of a protection visa. It enables the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence that are raised by a protection visa applicant for the first time at the review stage. It also creates grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship. Finally, these amendments also restore the more-likely-than-not threshold for complementary protection, whereby applicants who are found not to be a refugee may nevertheless be a person to whom Australia has protection obligations on complementary protection grounds.
These measures make it clear that Australia expects protection visa applications to be made in good faith, and that presenting false or forged documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation. These amendments send a clear message that applicants for asylum have certain responsibilities to ensure that those who are attempting to manipulate the system do not take the places of those genuinely in need of asylum. I note also that these measures apply to all asylum seekers, regardless of the way they arrive in Australia.
These are necessary measures to ensure the public can have continued confidence in the government's management of the borders and also to meet the community's expectation that asylum claims are made in good faith. They will also assist the government as we continue to deal with the legacy caseload left by the previous government's mismanagement of the borders.
I also note that this bill is consistent with Australia's international obligations under the refugees convention, the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture. The statement of compatibility with human rights which accompanies the bill addresses relevant human rights issues for each measure.
The sad reality is that there are people out there who take advantage of the system and attempt to get into Australia by making false claims. Former Senator Bob Carr is just one of the voices on this topic who has acknowledged that in fact that is exactly what happens. Establishing an applicant's identity is vital for making a decision to grant or refuse a visa. An individual's identity, nationality or citizenship can have a direct bearing on whether they engage Australia's protection obligations. The bill encourages applicants to provide documentary evidence of identity, nationality or citizenship wherever possible. This is a measure that is broadly in line with amendments made to similar legislation in the United States, in the UK and in New Zealand, and this is appropriate to the central role that establishing identity, nationality or citizenship plays in granting a protection visa.
Establishing identity allows accurate assessment of a person's protection claims, particularly in a time of increased dual and multiple nationalities. The measures also help safeguard the Australian community from people who have committed serious crimes. I think that the Australian people would expect nothing less—absolutely nothing less—that we as a parliament and we as a government would do all that we can to establish identity in these cases. Even if you make the argument that most who are coming have a genuine claim—and Bob Carr did not agree with that in many cases—we know there will be a significant number of exceptions, and that if we do not get our processes right there will be some unsavoury people who slip through the net. So I think the Australian people would absolutely expect that we would make sure we get this right.
Under existing legislation, the person making the decision on protection may request that an applicant provide documentary evidence of identity, nationality and citizenship. However, when a request for documentary evidence of identity, nationality or citizenship is made, the applicant will now be warned that the decision maker must refuse to grant the protection visa if the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request. However, the refusal power will not be engaged if the decision maker is satisfied that the applicant has a reasonable explanation for refusing, failing to comply or producing bogus documents, and either produces the documentary evidence requested or has taken all reasonable steps to do so.
This bill changes the process so that it is no longer request-based and relates to situations where an applicant has given false or forged documents of their own accord or destroyed evidence of identity, nationality or citizenship. It should be noted that there remains in place 'reasonable explanation' and 'reasonable steps' provisions that allow for the reality that, on occasion, there are exceptional circumstances which may prevent an applicant from providing documentary evidence of identity. Decisions makers must act in good faith and take applications on a case-by-case basis. If a reasonable explanation is given for an absence of identifying documentation and this explanation is consistent with the known facts of an applicant's claimed country of origin, then decision makers have some discretion in this area. Likewise, if decision makers are satisfied that reasonable steps have been taken to acquire identifying documents but the applicant is unsuccessful, discretion can also be applied. It is reasonable for the Australian community to expect that those seeking asylum are who they say they are. This measure will ensure this is the case.
I note that this measure is consistent with our international obligations—indeed, the UNHCR Handbook, on page 40, paragraph 205, states that the applicant is to supply all relevant information in as much detail as necessary for relevant facts to be established. It states that the applicant should:
Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.
At the moment, those who are not genuine asylum seekers can exploit the independent merits review process by presenting new claims or evidence to bolster their original unsuccessful claims after they learn why they were not successful. This causes significant processing delays for those genuine applicants who need our protection. The new amendment regarding new claims and evidence for asylum also makes clear that the government expects asylum seekers to present all evidence for their claim at the appropriate time.
In the time I have left I want to talk about the 'more likely than not' provisions. The 'more likely than not' threshold applies to Australia's complementary protection obligations. Complementary protection is a term that describes a possible visa pathway for a category of people who, whilst not meeting the refugee convention definition, are nonetheless in need of protection on the basis that they face serious violations of their human rights if sent back to their receiving country. The 'more likely than not' threshold is an acceptable position open to Australia under international law and is consistent with the thresholds adopted by other like-minded countries, such as United States and Canada.
This part of the bill has been opposed by Labor, even though this is a policy that was adopted by Labor in 2012. This is part of that consensus that former Senator Carr was talking about. In 2012, and in 2013 in the lead-up to the election, apparently there was consensus. But now we see that in opposition they will oppose any good policy that might actually help to fix this issue.
Senator Hanson-Young interjecting—
For Senator Hanson-Young's benefit, I will go through some of it. While the complementary protection provisions were first introduced in the Migration Act in March 2012, the 'more likely than not' threshold was stated in Labor's policy rather than Labor's legislation.
The Greens should absolutely be embarrassed about their position in this area of policy. They have assisted the Labor Party in taking this nation down a path where we completely lost control of our borders, where over 1,000 people drowned on the lure of getting here and where we had thousands of kids locked up. That was the legacy of a Labor-Greens policy. I would say to the Labor Party in their internal angst: do not listen to the Greens' advice; do not listen to the advice of the far left of the Labor Party; look at what works and look at what is humanitarian— (Time expired)
I also rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. This legislation is quite technical and procedural, but it is important because it provides the legislative foundations to support this government's response to the very difficult challenge of asylum seekers. And it is a difficult challenge. There are no easy choices in this debate. I spoke on the bill that was passed just before we rose for Christmas last year as well. It is a difficult issue. We do want to provide protection to those that need it for political reasons. But of course we cannot take everybody and as soon as you have a gate that is open some people will choose to come to this country for reasons other than political protection and we need to have protections in place to ensure that the limited number of refugee visas that we can allocate each year actually go to people seeking political asylum.
I note that Senator Hanson-Young is contributing to this debate—even when she is not on her feet. She also said this morning that this bill puts at risk Australia's ability to meet its international obligations. This is not the case and I will cover that later. I also note that during this debate there have been some claims about torture based on a UN report released last week, which I think has been discredited. The UN's special rapporteur on torture Juan Mendez issued a report last week that claimed Australia is violating the rights of asylum seekers under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The report failed to bother collecting evidence to support the claims of torture.
We heard those on the other side of the chamber compare Australia's system to Nazi Germany, which I think is disgraceful and completely out of order. Many fine words were also spoken about the need for humane treatment of asylum seekers. I support this sentiment 100 per cent, but sentiment is not enough. History has shown that we should take what the other side of the chamber says on these matters with a grain of salt. On Thursday last week, it was reported in the The Australian that refugee boat activists were quieter under the ALP but are very loud now that there is a different government in charge. That article said:
CELEBRATED human rights lawyer Julian Burnside believes some refugee advocates went easier on Labor than they should have despite crowded, self-harming and difficult conditions for more than 1000 children in the lead-up to the 2013 federal election.
Mr Burnside said:
"I suspect that a number of advocates were a bit quiet when Labor was in because at least Labor were making the right noises … They ended up doing the wrong thing."
I think what we have heard this morning is a classic case of this phenomenon: some in this debate like making the right noises without much regard for the actual impact and outcomes of their decisions.
The families of those who lost their lives at sea do not want us focusing on sentiment; they want us focusing on the issue. The many thousands of children and families who were locked up under previous policies want us to focus on the issue, not sentiment. Many people were defrauded and came here in the false belief that they could achieve freedom and perhaps Australian citizenship, but they were sold lies. They were sold lies by disreputable people who sought to profit from the trade in people. I am proud that this government, through the policies it has implemented, has been able to put a stop to that trade. I am prepared to support a government that is getting behind concrete actions that help keep in place the policies that have stopped drownings at sea and have slashed the number of children in detention by 90 per cent from the peak under the previous Labor government, and that number is continuing to fall.
This bill will continue to help implement those policies. As I said at the start, it is a technical bill that seeks to close some of the loopholes that exist in our regime. The bill seeks to amend the Migration Act 1958 to strengthen the efficiency and integrity of the process by which Australia determines the protection status of onshore refugees.
On the final sitting day last year, we here in the Senate passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I have only been here for about eight months, but I know it was a very important piece of legislation. I know that it took a fair amount of negotiation and caused a fair amount of heartache, particularly for members of the crossbench. The bill was passed with the support of the Palmer United Party and Senators Day, Leyonhjelm, Muir and Xenophon. That side of the chamber decided to do something instead of just seeming to do something. It was a difficult decision for them—I have no doubt about that—but it was the right one and it has contributed to policies which have helped to stop the trade in people across our borders. The bill the government passed last year with their help re-established temporary protection visas, and it had the effect of getting children out of detention on Christmas Island because it fast-tracked a system to do so.
The bill before us is needed to make the legislation we passed last year work as it should. It makes a number of amendments to enhance the efficiency and integrity of our onshore protection visa and refugee status program. It clarifies the responsibility of asylum seekers to provide identity documentation to substantiate claims in relation to protection visas. If asylum seekers do not cooperate with the government to establish their identity, they will not be given the benefit of a protection visa. This is in line with amendments to legislation in the United States, the United Kingdom and New Zealand. It will remove a loophole in the process that currently allows non-genuine asylum seekers to exploit the independent merit review process. Potential asylum seekers can, at times, game the process to present claims of new evidence or claims to bolster their original claims after they learn they were unsuccessful. This causes significant processing delays for other, genuine applicants.
The bill will also create the grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship. Establishing an applicant's identity is vital to making a decision to grant or refuse a visa. An individual's identity, nationality or citizenship can have a direct bearing on whether they engage Australia's protection obligations. These provisions are important for that reason.
It is in the interests of all Australians and all genuine asylum seekers to discourage the use of bogus identity documents and to discourage the destruction or discarding of documentary evidence of identity, nationality or citizenship by or on behalf of people seeking protection in Australia. Establishing identity is vital to the integrity of any immigration system, for obvious reasons. It allows accurate assessment of a person's protection claims, particularly in a time of increased dual and multiple citizenship. The measures also help safeguard the Australian community from people who have committed serious crimes. Just to be clear, this bill is not about forcing people to come up with documents that do not exist; what it does is make it clear that protection visa applications must be made in good faith. So, unless the applicant has a reasonable explanation for presenting bogus documents, their protection visa application will be rejected.
It is important to note, however, that the refusal power will not be engaged if the decision maker is satisfied that the applicant has a reasonable explanation for refusing or failing to comply or for producing documents which prove untrue, if they either produce the documentary evidence requested or have taken all reasonable steps to do so. I think it is reasonable that we ask people who are seeking to come to our country—to live under the protections, privileges and responsibilities that we all have as Australian citizens—to take reasonable steps to establish their claim. We of course understand that, in the difficult circumstances in which some people come to this country, they may not have all the documentation you would expect of most migrants. But it seems to me that it is a reasonable thing for our parliament to ask people to take reasonable steps to establish their identity to prove the claims that they are making. Therefore, the definition of 'reasonable explanation' is very important to the detail of this bill, and I want to spend a bit of time explaining what a 'reasonable explanation' is under this legislation.
A reasonable explanation for the purposes of this legislation can include having had no reasonable opportunity to present the claim—for example, an interpreting or translating error was made in the primary stage of an application. It can include a change in the country situation affecting human rights after the primary decision was made, or new information relevant to the application that was not available earlier—for example, documentary evidence of their identity. It can include a change in personal circumstances allowing the presentation of new claims—for example, a new relationship, a new spouse, or a new child with a person who has protection claims in their own right. It can include being a survivor of torture and trauma where the ill treatment has affected the applicant's ability to recall or articulate protection claims. It can include the applicant being considered most vulnerable—for example, a minor, a mentally or physically disadvantaged person or someone who has a restricted ability to participate in the protection process. Those criteria seemed to me to be eminently reasonable, and they feed into a process which will require reasonable explanations for claims under our asylum seeker process.
In addition to these new protections, the bill also removes a number of statutory bars to implementing the government's fast-track process established in the legislation passed last year. Until we pass this legislation, the majority of the maritime arrival backlog—which is around 22,000 people at the moment, living in the community on bridging visas—will not fit the definition of a fast-track applicant and cannot be processed as such. As I said in my earlier remarks, the legislation passed last year has played a significant role in fast-tracking the backlog of maritime arrivals who are claiming asylum. These are people living in circumstances which I think we all recognise are not ideal. We prefer to process their applications as soon as possible, but we simply cannot with so many people and also with so many avenues for appeals and disputes to emerge which hold up the process for everyone, including those who probably have genuine and applicable asylum claims.
The bill contains a number of other safeguards and protections to ensure procedural fairness to protection visa applicants. Of course, decision makers must act themselves in good faith—just as the applicants must—fully assess protection visa applications and afford procedural fairness to asylum seekers. Decision makers are also provided with guidance to be aware of the special needs of vulnerable applicants and to ensure that appropriate support and consideration is provided. For instance, the department's Procedures Advice Manual, Gender Guidelines and Refugee Law Guidelines assist in assessing claims from vulnerable applicants, including women and applicants with an intellectual disability. Vulnerable applicants include unaccompanied minors, survivors of torture or trauma and applicants who are physically or mentally incapable of taking full responsibility for their claims. Under the requirements of the Migration Act, decision makers are required to act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers. Vulnerable applicants will also receive help to present their claims. They have the right to seek privately arranged application assistance—as does, of course, any person who is claiming protection in Australia.
This bill also seeks, as Senator Seselja said earlier, to restore the 'more likely than not' threshold for complementary protection. There is no change in this bill to the threshold applied to the refugees convention. I note that the Labor Party at this stage have indicated that they will support other parts of the bill but not those in schedule 2. Those concern the 'more likely than not' threshold for complementary protection. As Senator Seselja pointed out, this is a little strange, although we are getting used to it. The Labor Party had a position in government; they have a different position in opposition. They seem to have had a change in principle about and attitude to the budget and migration legislation, and they cannot, in my view, always explain why.
In 2012, the Labor government introduced complementary protection provisions. They were inserted into the Migration Act in March 2012. The 'more likely than not' threshold was stated in their policy originally but was not followed through in legislation. So it was their policy in early 2012. It is now not their policy. I am not sure what their policy on border protection will be at the next election, but, if it is anything like their policy before the 2007 election and before the 2010 election, it will lead to weakening of our border protection laws, potentially opening the gate again to more arrivals, more difficulties for our processing of applications and more hold-ups for people who are actually genuine refugees around the world who are seeking to come to this country for protection.
There is also evidence that this was the Labor Party's policy, because the Department of Immigration and Border Protection confirmed that, between 24 March 2012 and the Federal Court decision on 20 March 2013, the Labor government applied the 'more likely than not' test to complementary provision applications. So, even though it was not in the legislation, it was a test that was applied in practice by the then Labor government. Labor even argued in the Federal Court that the proper threshold was 'more likely than not', but this was unsuccessful.
This legislation does not raise the threshold. It does not change the threshold that was applied. It simply seeks to clarify in legislation, to codify, a test that was being applied in a policy sense but that the court ruled was not applicable. It is the court's right to do that, but of course this is a matter where we as a parliament can resolve that, no, we would like to look at these things in a different way, and we would like to apply a 'more likely than not' test. That would not provide for the kinds of court decisions we saw in 2013.
I said earlier that there have been claims made that this 'more likely than not' threshold is not consistent with our international obligations, but it is an absolutely acceptable position under those obligations, and it is consistent with the thresholds that are adopted by other countries similar to ours in terms of human rights and our record, such as the United States and Canada. Specifically, the 'more likely than not'—sometimes called the 'more probable than not'—threshold is reflected in the views of the UN Human Rights Committee in its General Comment No. 31 and the United Nations Committee against Torture in its comment No. 1 as to when a non-refoulement obligation will arise:
… the risk … must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.
So it seems to me that there is quite a bit of evidence there that it is consistent with our international obligations and that, by passing this specific piece of legislation, we will simply be re-establishing the test that was applied in some years of the Labor government. It does not seem to me an overly controversial change, and I have not seen any reason why we should change from that process.
But this is not unusual, because the Labor Party and the Greens have, unfortunately, blocked or not supported almost any of the changes that we have tried to make to fix the crisis they created. It was during their time in government that we had almost, or maybe even a little bit above, 50,000 arrivals to this country of people seeking asylum. Because of that, we ended up with 30,000 of them with their applications unprocessed when the coalition came to government. We had almost 2,000 children in detention at the peak during the Rudd Labor government, and when the 2013 election was called we had 1,743 children in detention. In 2007, there were zero children in detention when the Labor government came to power, and we would like to get back there, because I do not want to see kids in detention if we do not have to. I want to make sure we have a system which processes people's refugee claims as quickly and as humanely as possible, but we cannot do that unless we have a system which deters people from trying to abuse the system. If we have a system that people can easily abuse and take advantage of, there will be no avoiding processing backlogs and therefore, under the detention policies that both major parties support, a lot of people, including children, having to remain in detention.
It is a very good outcome that today we have fewer than 120 children in detention, and hopefully that can be reduced to zero over the next year or so. This bill that we are passing today, or that we hope to pass today, would help achieve that, because it will free up our application process, it will make sure that people have to act in good faith when they make a claim, and it will reduce the delays that currently beset the processing of applicants for asylum in this country.
I rise to make a short contribution to the debate on the Migration Amendment (Protection and Other Measures) Bill 2014. I note the concerns raised by a variety of stakeholders in relation to this bill, and I thank those who have made contact with my office. Their views have been extremely helpful for me in reaching a position on this bill.
As we have already heard during this debate, this bill has four schedules. Schedule 1 of the bill contains amendments which contribute to the integrity and improve the efficiency of the onshore protection status determination process. The measures clarify the responsibility of asylum seekers and encourage complete information to be provided up-front. The measures apply to all asylum seekers regardless of their mode of arrival. Schedule 2 of the bill contains amendments relating to clarifying the threshold for Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Schedule 3 of the bill contains amendments relating to making a valid application for a visa, and schedule 4 contains amendments relating to the Migration Review Tribunal and Refugee Review Tribunal.
I am pleased that Labor has moved amendments to schedule 1; however, I have concerns that, due to the removal of legal assistance and the shifting of the refugee status determination process from an inquisitorial process to an adversarial one, there is a real chance that genuine refugees may be sent back to their home countries, where they face persecution or harm.
I support schedules 3 and 4, but I cannot support schedule 2. Schedule 2 introduces a higher risk threshold for assessing Australia's protection obligations in respect of non-citizens under the International Covenant on Civil and Political Rights and the convention against torture. The purpose of this amendment is to restore the risk threshold for complementary protection to the higher threshold that was intended when the complementary protection framework was inserted into the act in 2012. I note that the explanatory memorandum was amended to clarify the operation of the new test, but what really matters here is that the threshold is changing. This change arguably brings a greater chance that people could be returned to persecution or serious harm. Is this increased chance something I want resting on my shoulders? As stated by Mr David Manne during the Legal and Constitutional Affairs Committee hearing:
… the proposed 'more likely than not' test would ultimately significantly increase the risk of Australia making the wrong decision on whether or not somebody should be protected from serious harm. The test raises the real prospect of returning people to persecution or other forms of life-threatening harm, in violation of our non-refoulement obligations. That is the bottom line here.
Last Thursday I attended an event hosted by Maurice Blackburn to celebrate the release of Australian-born asylum seekers and their families from detention. I met with the children and families that I helped prevent from being deported to Nauru. It was an emotional night and one that I will treasure forever. I cannot, in good conscience, support a change that raises a real prospect of returning children and families, such as those that I met last Thursday, to persecution or other forms of life-threatening harm.
There are aspects of this bill that I support, along with the Labor Party. I will be supporting Labor's amendments to remove schedule 2 and I look forward to listening to the debate continue at the committee stage. Thank you.
It gives me pleasure to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. The coalition went to the last election with a promise to build a safe and secure Australia. A key part of this—
Madam Acting Deputy President, I cannot ignore Senator Cameron. He is the light on my hill sometimes. But I am happy to talk about promises, because we went to the election promising to stop the boats, which we have stopped, and we went to the election promising to get rid of the carbon tax; we got rid of the carbon tax. We promised to get rid of the mining tax and we promised to get the budget under control. That is what we are doing at the moment except for the rambunctious behaviour of the Labor Party and their rather quirky approach to good fiscal and economic management.
Senator Cameron interjecting—
As much as I would love to have a good chat with Senator Cameron, I think we should focus today on the coalition's commitment to stop the boats. The coalition went to the last election and the 2010 election to stop the boats, because we wanted to build a safe and secure Australia. This included a package of policy measures we took to the last election and included turning back the boats where safe and the reintroduction of temporary protection visas, which were previously very successful in stopping the boats during the term of the Howard government.
Despite being opposed by Labor and the Greens at every turn, this government's strong stance has been an excellent success to date in stopping the boats, preventing deaths at sea and getting children out of detention. We are building a safe and secure Australia.
Senator Cameron interjecting—
We have had some interjections here, but I am very happy for them to talk about Labor's record and the Greens' record when they were in government. They do not want to talk about their record when they were in government. For Labor and the Greens, for the period between 2007 and 2013 they have a collective amnesia about what happened with border protection and building a safe and secure Australia. It was Labor and the Greens under the Rudd-Gillard-Rudd governments that weakened Australia's borders and caused an influx of people smuggling and boats arriving on Australia's shores. Labor pursued 11 immigration policies while they were in government. Tony Abbott, Scott Morrison and Peter Dutton have led the government's charge to build a safe and secure Australia—
I take your point—the Prime Minister and the relevant ministers. The most excellent Prime Minister Tony Abbott and his most excellent ministers have pursued fantastic policies to build a safe and secure Australia; but, sadly, despite the government's success, Labor and the Greens continue to refuse to support the only policy package that is actually getting children out of detention.
When Labor came to office in 2007, there were no children in detention. There were none. There were zip, there were zero, there were null, there were nil. There were no children in detention. Children in detention under Labor and the Greens peaked at 1,992. In 2007, when Labor came to power, there were no children in detention, but at the peak under the Labor-Greens government there were just under 2,000 children in detention. What I am hearing at the moment are the interjections from Labor in terms of why they are not proud but suffering collective amnesia as to why there were 2,000 children in detention under the Rudd-Gillard-Rudd governments.
In August 2013, just before this coalition government came to power, there were 1,743 children in detention. Today, thanks to the policies of the coalition government and support from crossbench senators, there are no children in detention on Christmas Island and under 120 children in detention on the mainland. I agree with the previous speaker, Senator Canavan, that none of us wish to see children in detention, which is why when the Howard government lost office in 2007 there were zero children in detention. So I am sometimes perplexed by Labor's approach to securing our borders considering their failures between 2007 and 2013. These statistics more than anything highlight the hypocrisy of Labor and the Greens when it comes to border protection.
The Migration Amendment (Protection and Other Measures) Bill 2014 seeks to build upon the coalition's successful border protection policies, in particular those introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which for ease we will just call RALC and which was passed on the final sitting day of last year. RALC reintroduced temporary protection visas. This was about getting children out of detention on Christmas Island and introduced the fast-track system amongst other measures.
This bill seeks to amend the Migration Act 1958 to increase efficiency and enhance integrity in the onshore refugee and complementary protection status determination status and is necessary for RALC to work efficiently. This bill clarifies the responsibilities of asylum seekers to provide and substantiate claims in relation to protection visas so that, if they do not cooperate with the government to establish their identity, they will not be given the benefit of a protection visa. This strong stance is in line with the law in other comparable nations such as the United States, United Kingdom and New Zealand. The bill will enable the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence raised by a protection visa applicant for the first time at the review stage. Currently, non-genuine asylum seekers can game or play the system by presenting new claims or evidence to bolster their original unsuccessful claims, causing significant processing delays for other, genuine applicants. Under this change, the incentive will be for all applicants to present all of their documentation and evidence at the first instance rather than seeking to have multiple bites of the cherry.
The bill will also create grounds to refuse a protection visa application where an applicant refuses or fails to establish their identity, nationality or citizenship. Establishing an applicant's identity is vital for making a decision to grant or refuse a visa. An individual's identity, nationality or citizenship can have a direct bearing on whether they engage Australia's protection obligations. These measures make it clear that Australia expects protection visa applications to be made in good faith and that presenting bogus documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation.
The bill also restores the 'more likely than not' threshold for complementary protection. This was originally Labor Party policy when they introduced the complementary protection provisions back in March 2012. But, yet, in another display of hypocrisy on border protection, because of their collective amnesia of the period between 2007 and 2013 Labor are now opposed to the measure—one which they actually argued for in the full Federal Court when they were in government. The coalition government are not seeking to raise the threshold but merely to return it to the level which was set by Labor.
To be clear though, the bill makes no change to the threshold applied to the refugee convention and the fast-track process established by the RALC cannot operate fully unless a number of technical amendments in the bill are passed. Without the bill passing, the majority of the illegal maritime arrival backlog, which is approximately 22,000, living in the community on a bridging visa do not fit the definition of a fast-track applicant and cannot be processed as such. In all of this, the government are committed to ensuring Australia's compliance with its international obligations under the refugee convention, the International Covenant on Civil and Political Rights and the Convention against Torture.
The statement of compatibility with human rights which accompanies the bill addresses relevant human rights issues for each measure. I propose to look in detail at a couple of the measures in the bill. This bill is intended to improve the integrity of the consistency of decision making and prevent exploitation of the protection visa determination process, including the merits review system, by applicants not genuinely pursuing a protection claim.
The amendments in this bill send a clear message that asylum seekers have certain responsibilities. For instance, they are responsible for establishing their identity, nationality or citizenship wherever it is possible to do so. They are also responsible for making comprehensive claims to protection supported by evidence as soon as possible. The measures will apply to all asylum seekers regardless of their mode of arrival.
These amendments are necessary to ensure continued public confidence in Australia's capacity to assess claims for asylum and to support the Australian community's expectations that asylum claims are made in good faith. They are an effective response to the evolving challenges in the asylum seeker case load, recent judicial decisions and the management of the backlog of illegal maritime arrivals. It must be stressed that the bill is consistent with Australia's international obligations under the refugee convention, the International Covenant on Civil and Political Rights and the Convention against Torture.
In terms of procedural fairness, decision makers must act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers in accordance with the codes of procedure in the Migration Act. Decision makers are also provided with guidance to be aware of the special needs of vulnerable applicants and to ensure appropriate support and consideration is provided. For instance, the department's procedures advice manual, gender guidelines and refugee law guidelines, assist in assessing claims from vulnerable applicants, including women and applicants with an intellectual disability. Vulnerable applicants include unaccompanied minors, survivors of torture or trauma and applicants who are physically or mentally incapable of taking full responsibility for their claims.
I want to go to clause 5AAA of the bill. The purpose of this provision is to strengthen the integrity of Australia's processes for assessing protection claims. Early and full presentation of claims allows refugees to be recognised at the earliest opportunity. Proposed clause 5AAA clarifies and clearly communicates responsibilities with regard to protection claims and supporting evidence by stating existing responsibilities on the face of the legislation. This measure puts a basic responsibility of an asylum seeker beyond doubt by stating it on the face of the legislation.
Proposed clause 5AAA expressly places the responsibility on the asylum seeker to make their case for protection. It clarifies that a claim that a person engages protection needs to be comprehensive and supported to the best of the asylum seeker's ability. This is an existing, basic expectation of the Australian community and the government, as well as a longstanding, general principle of refugee status determination that the burden of proof lies with the asylum seeker.
New clause 5AAA codifies the obligations of an asylum seeker within the Migration Act, consistent with the way in which obligations of a decision maker are codified. Proposed clause 5AAA states, 'The responsibility of a person seeking protection in Australia needs to specify all the particulars of their claim and to provide sufficient evidence to establish the claim.' This responsibility is consistent with an acknowledged, longstanding principle of refugee status determination. According to the UNHCR handbook at paragraph 196:
It is a general legal principle that the burden of proof lies on the person submitting a claim.
There are also responsibilities of the decision maker under clause 5AAA. It clarifies that the minister or their delegate has no responsibility or obligation to assist in making a claim on behalf of an asylum seeker or to assist in establishing that claim. It clarifies that it is not the role of the decision maker to advocate on behalf of a person seeking protection.
The role of the decision maker is to decide whether there is an obligation to provide protection by appropriately investigating and evaluating a claim for protection. The duty to evaluate and ascertain all relevant facts is shared between the applicant and the decision maker, consistent with UNHCR guidelines. The decision maker should ensure the applicant presents the case as 'fully as possible and with all available evidence' to 'assess the applicant's credibility' and 'evaluate the evidence' in order to establish the facts of a case, consistent with the UNHCR handbook at paragraph 205. Decision makers may continue to ask questions, seek clarification and check that a person's claims are consistent with generally known facts and the specific country situation in question. Procedural fairness requirements of decision makers are codified in the act and will continue to apply. Decision makers must act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers in accordance with the codes of procedure in the Migration Act.
Any available evidence that supports the specific protection claims made by the applicant is to be presented. Under 5AAA, there is no prescribed list. Detailed, up-to-date country information will be available to decision makers. The minister or delegate needs to be satisfied, based on their assessment of the claims and evidence provided by the applicant, that the visa criteria are met. Consistent with page 40, paragraph 205 of the UNHCR handbook, the applicant is to supply all relevant information in as much detail as necessary for relevant facts to be established. The applicant should:
… make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.
In the time available to me, I will also touch upon sections 91W and 91WA of the Migration Act. The purpose of these provisions is to encourage people seeking protection in Australia to provide documentary evidence of identity, nationality or citizenship wherever possible. While both sections include a refusal power, their primary purpose is not visa refusal but compliance with the objective of establishing, with genuine documents, the refugee's identity, nationality or citizenship. The changes proposed to sections 91W and 91WA are needed to discourage the use of bogus identity documents and the destruction or discarding of documentary evidence of identity, nationality or citizenship by or on behalf of people seeking protection in Australia. These measures are appropriate to the central role that establishing identity, nationality or citizenship plays in granting a protection visa. Establishing identity allows accurate assessment of a person's protection claims, particularly in a time of increased dual and multiple nationalities. These measures also help safeguard the Australian community from people who have committed serious crimes.
Under the existing section 91W, a decision maker may request that an applicant provide documentary evidence of identity, nationality or citizenship. At the time that request is made, the applicant is warned that the decision maker may make an inference—
Senator Cameron interjecting—
We have missed Senator Cameron! Senator Cameron must, I think, have been reading some very interesting emails—because the Labor benches were very quiet while we were talking about children in detention. Why did we not have some pithy and witty interjections from the Labor Party then? Where were you?
Senator Cameron interjecting—
What were you saying when children were in detention under Labor? Where were you when those nearly 2,000 children were in detention? Where were Senator Cameron and the Labor Party? Where were they? You know what? They were in power! They were in government! The Labor Party were in power and in government when 2,000 children were in detention. Now we have collective amnesia from the Labor Party. They have this appalling, sanctimonious approach to the 120 children—and the number is going down—we have in detention. This bill should be supported. (Time expired)
I support the second reading of the Migration Amendment (Protection and Other Measures) Bill 2014. However, I want to put that support in context because I do have concerns about a number of aspects of the bill. As a preface: at the end of last year I did support the government's bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, to reduce the legacy case load and to reintroduce temporary protection visas. I have previously set out my reasons for doing so and I will not re-canvass that debate, but I think this bill needs to be seen in the context of that earlier bill.
First, I will indicate the areas of the bill I have serious concerns about and that I will not be able to support. Schedule 2 of this bill is particularly problematic. I know the government has indicated that schedule 2 is intended to clear up drafting issues that arose out of the Federal Court of Australia decision on 24 October 2012 in Minister for Immigration and Citizenship v Mzyyl and Refugee Review Tribunal. I think it is fair to say, looking at the decision of Justices Lander, Jessup and Gordon, that they did have issues with the former government's drafting of the previous legislation—so I can see why the current government wants to clarify that.
However, I do have an issue relating to complementary protection, which is what schedule 2 deals with. The refugee convention provides that protection should be afforded to people who flee from a country out of a fear of being persecuted due to their religion, nationality, race, social group or even political opinion. However, there are, each year, a number of people fleeing countries for reasons that are outside those grounds. That is why complementary protection is important. I have been given a number of examples by the office of the Hon. Richard Marles, the shadow minister for immigration. I am grateful to his office for this information—as I am to the minister's office and his advisers for their great assistance in walking through aspects of this bill with me. I am genuinely grateful for that. The examples I was given included those at risk of honour killings or of female genital mutilation—or it could be that someone has been threatened by an organised criminal group in the country where they are from. These examples do not fall into the usual categories of race, religion, nationality, social group or political opinion covered by the convention, but clearly those people are at real risk for another reason. That is why this complementary protection issue is important.
The former Labor government introduced an administrative framework for complementary protection not covered by the convention. It was, as I understand it, effectively struck down by the Federal Court of Australia on 24 October 2012. Again, it was primarily, I think, an issue of drafting.
The fundamental principle here is whether the test should be if a person is at real risk of significant harm or if a person is more likely than not to suffer significant harm. Clearly, 'real risk' is a more benevolent test and a broader test than 'more likely than not'. Putting my lawyer's cap on, 'more likely than not' implies a threshold of greater than 50 per cent. I think that, when you are considering the risk of people facing very serious injury or even death if they go back to the country from which they have fled, that is simply too high a standard; it is too onerous and too unreasonable. So I cannot support schedule 2 of the bill in good conscience, for those reasons. I understand the government's motivations in respect of it; I can see what they are saying in terms of the Federal Court decision of October 2012, but I think that the 'real risk of significant harm' test is the preferable test. I compliment the minister's office on engaging in a very constructive discussion in respect of this.
That leads me to the other schedules of the bill, and I will just briefly discuss those, because I expect that we will have a fairly robust committee stage of this bill. I expect that Senator Hanson-Young, on behalf of the Australian Greens, will provide a very fulsome and constructive contribution in the committee stage in the context of how this will work and what the potential implications are. I think that that is very healthy in the committee stage of this bill.
There are some aspects of schedule 1 that do concern me. I will need some clarity in the course of the committee stage in terms of the issue of sufficient explanation. I think that the opposition is of the view that you can either provide evidence or a reasonable explanation. The government says that you should provide both. Having discussed that with the minister's adviser recently, my understanding of the government's position is that, if you provide a reasonable explanation and take reasonable steps to provide the evidence, that will suffice. I just want to know how that will work; that may satisfy some of the concerns that have been expressed in relation to that.
There are circumstances where individuals do not have documents or have used bogus documents because they are fleeing imminent danger and prosecution, and documents have been destroyed through no fault of their own. There are other allegations that have been made that people have destroyed their documents deliberately, sometimes on the advice of people smugglers, which can be very problematic. We need to look at that very, very carefully. I would like to see how that would work in terms of what is being proposed by the government and whether it should be 'and' or 'or' in the context of evidence and 'reasonable explanation'. That is an issue that needs to be dealt with.
In the committee stage, I would like an explanation of family reunions from the government. The bill says that you need to apply for a family reunion at the same time as the primary person is seeking protection. Sometimes that may not be practical. If the bill is suggesting that the people seeking family reunion also have to show that they are at risk of persecution, then I think that that would be perhaps quite unreasonable. For instance, if there is a member of a family that is subject to a death threat, the threat of mutilation or another threat by an organised criminal group, then there are issues of complementary protection; I do not think that it is reasonable to expect that members of the family also have to be subject to the same sort of threat. The fact is that, if your loved one is subject to that sort of threat, a family reunion of the immediate family is not an unreasonable consideration. That ought to be taken into account.
There are issues in respect of amending the Migration Act to include proposed section 5AAA. Senator McGrath mentioned this in his contribution, and he made reference to paragraph 196 of the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status. I do not want to misquote Senator McGrath and his considered contribution, but I think he said that it would not be inconsistent with that. He quoted the UNHCR handbook:
It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, 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 goes on to make further reference to that. My understanding of that is that the proposed section may well sit rather uneasily with the existing section 56 of the act, and I would like an explanation from the government as to how those sections would interact in respect of that. I think it is a technical issue, but I think that it is also a live issue in terms of the application of the act.
There are further questions in respect of the issue of bogus documents. Clearly, there may be some applicants who are fleeing persecution and who—in order to get out of a country because of the risk of imminent harm or even death—have used bogus documents. But there may be other circumstances where bogus documents are used where there is no such imperative. Obviously, that would concern me.
So the committee stage of this bill will be quite important. I hope that schedule 2 will be knocked out, because I think that it simply goes too far. I think there are a number of questions about how schedule 1 will apply, and I would like to test that in the course of the committee stage and, of course, to listen to my colleagues as it is tested. I look forward to the committee stage of this bill—as much as you can look forward to any committee stage of a migration bill! It is important that this be sorted out.
The final comment that I wish to make is that I think the government's main ethos in respect of this bill is that it wants to deal with the legacy case load efficiently, and I understand that. But obviously—and I think that the government should have no issue with this—any effectiveness and any efficiency needs to be tempered by fairness. That is what the key issue will be in the committee stage, particularly in the context of schedule 1. So those are the matters that need to be looked at. I look forward to the committee stage of this bill.
I too rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. As has been stated by many who have preceded me in this debate, this bill came about as a result of the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which was passed on the last sitting day of the parliament in 2014. Part of that piece of legislation created temporary protection visas. As you know, Madam Acting Deputy President, it was those temporary protection visas that enabled us to get those children who had been in detention on Christmas Island out of detention. It is very important to put in context the importance of what is trying to be achieved by resolving the asylum legacy case load. We had some 2,000 children in detention at the peak, and we have systematically reduced that number. This measure just seeks to ensure that the last of those children are out of detention and that in the future it does not happen again.
Part of this is to make sure that we fast-track the system so that we can accelerate in the most efficient and effective way the reduction of that legacy case load. Senator Xenophon—and many before who have made a contribution on this bill—raised the issue of the complementary protection provisions within the bill. I have to say I was a little surprised to learn that the Labor Party are choosing not to support schedule 2 of the bill in relation to these complementary protection initiatives, particularly given their track record in this area. All this is seeking to do is to make sure that the people who are seeking complementary protection by this mechanism are genuine. It seems a pretty reasonable request to me.
Concerns have been expressed that people may have bogus documents or may not have documents that will be able to substantiate the validity of their claims of who they are, where they have come from and what kind of danger they might be in should they be returned to the country from which they have fled. It is not the only mechanism by which they will be assessed as to the validity of their claim. Senator Xenophon made the comment that the efficiency that is sought by these measures must be tempered by fairness. I do not think there would be anybody in this chamber who does not believe that that statement should hold true across all legislation, but particularly in the area of migration.
There is this idea that we are not going to support a mechanism which gives the government the power to be able to assess whether somebody is using this mechanism to get into the country unfairly. We need to remember, with our migration intake, that every person who seeks to come to this country unfairly or without valid reason, who is not able to genuinely have refugee status, who is not genuinely able to establish their bona fides under the complementary protection mechanisms of this bill, actually puts a genuine person further down the queue.
We also need to remember that, with the limited resources that we have to process the applications that the government is faced with day after day, from people who genuinely wish to come to this country because they are trying to escape persecution from the country which they have sought to leave, we need to have some system by which we can prioritise those people who have got a genuine need to come to this country. I put that on the table—that we need to be balanced in making sure that, in the process of trying to be efficient and effective and deal with those people who most need our help, we do not end up getting our system clogged up to save one person while sacrificing so many of the people who genuinely need help in Australia, to escape the persecution that they may have been receiving in the country from which they have come.
As I said, the bill is intended to improve the integrity and the consistency of decision making. It is to prevent exploitation of the protection visa determination process and the merits review system by applicants who are not genuinely pursuing a protection claim. Let us make it very, very clear. These amendments are specifically to send a message to asylum seekers that they too have a level of responsibility if they wish to come to this country as refugees or under the complementary protection mechanisms of this bill.
It does not seem an unreasonable thing for the person who is seeking asylum to actually have the capacity to establish their identity, nationality or citizenship and to have the responsibility for making the claim as to why they are seeking this particular protection and providing the evidence. As has been mentioned, there are obviously going to be circumstances and cases that will necessitate alternative mechanisms by which the bona fides of their claim are going to need to be assessed, but overwhelmingly the people who are coming to this country will have some method by which they can provide evidence in support of their claim as to why they should genuinely be able to seek to have protection of the Australian government in their claims for migration.
Quite clearly this bill seeks to put some balance into the argument between making sure that we speedily and effectively process these people, many of whom are absolutely genuine—and I do not think anybody has made ever made any suggestion that these people are not genuine—and the process of making sure that we have a speedy—