Thursday, 19 March 2015
Migration Amendment (Protection and Other Measures) Bill 2014; In Committee
I have got a question for the minister in relation to the explanatory memoranda—the additions—that have just been tabled. Could the minister please outline the purpose of those additions to the explanatory memorandum and the impact that they will have on those affected by this bill overall.
I, unfortunately, have to say that I do not think that anything I actually say is going to change the way that Senator Hanson-Young votes in relation to this particular piece of legislation. Quite frankly, I think I am wasting the committee's and the Senate's time in seeking to address something upon which the government and the Australian Greens are fundamentally at different ends of the political spectrum. I do not think there is one part of this legislation that Senator Hanson-Young is going to agree to. But, Senator Hanson-Young, I have tabled the explanatory memoranda and I refer you to them.
I take that to mean that perhaps the minister does not want to have a conversation about this. However, at the last minute, we have received a nine-page addition to the explanatory memorandum. For the sake of clarity, I would like the minister to explain why this was needed and the impacts of it. I think this is what the committee stage is for: being able to understand the legislation better and to inform not just us as legislators but of course those interpreting the act once it passes. It is absolutely in line with what we do in this place. If the minister does not like it, perhaps she is in the wrong house.
If Senator Hanson-Young had actually listened to my summing up speech she may have been enlightened as to the reasons that the explanatory memorandum has been updated.
The purpose of the addendum is to provide additional material to the explanatory memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014. The addendum is a response to a request by the Senate Standing Committee for the Scrutiny of Bills in its 10th report of 2014 dated 27 August 2014 and questions that had arisen in relation to certain measures in this bill as it progressed through the Senate. I am happy if the senator would like me to re-read exactly what I have already read into the Hansard. Following consideration of and reports by the Senate Legal and Constitutional Affairs Committee, the Parliamentary Joint Committee on Human Rights and the Scrutiny of Bills Committee, we have:
tabled an addendum to the explanatory memorandum to the bill which provides further detail on certain amendments made by schedules 1 and 4 of the bill. These measures relate
as I have already stated—
to the identity and integrity measures in schedule 1 of the bill, specifically proposed sections 91W, 91W(a) and 43A; and to the Migration Review Tribunal and Refugee Tribunal integrity measures relating to providing oral statements of reasons following an oral decision.
In relation to the reasons for providing an oral decision, again, I took the Senate through those in my summing-up speech, where I stated:
The tribunals will also have the discretionary power to provide an oral rather than written statement of reasons following an oral decision, but a written one will be available—
and this was one of the concerns that was raised—
on request within 14 days. It is not anticipated that oral decisions and statements will be made in complex cases but will be reserved only for a review of cases involving simple facts and very straightforward statutory interpretation where the relevant case law is well settled.
Could the minister enlighten us as to why this was needed in the explanatory memorandum rather than as an amendment in the legislation itself. It would make much more sense to safeguard against anybody being subject to a miscarriage of justice by having it in the legislation itself rather than in the explanatory memorandum. Perhaps I am missing something: could the minister explain why the government's advice is that it should be in the EM rather than the bill.
The minister will no doubt answer the inquiry just made by the Greens senator. I chaired the Legal and Constitutional Affairs Legislation Committee where we went into this bill in great detail. The senator who has just spoken is a participating member of that committee and usually involves herself in deliberations relating to migration matters.
The Greens senator, had she been paying attention at the Senate committee inquiries, would have known when these issues that the minister has just referred to were raised. She would also have seen the majority report of the Legal and Constitutional Affairs Legislation Committee, which went through these matters in some detail. In fact, the government's amendments and additions to the explanatory memorandum were exactly what the committee by majority agreed to.
I cannot help but agree with the minister in that this seems to be an ongoing campaign by the Greens political party simply to garner some political support by what I call the migration industry—an industry that has grown up and which does not like some of the things which, effectively, bring some order and regularity to our immigration system and the way we deal with claims from asylum seekers.
Much of the work of the committee is extended because of questions by the representatives of the Greens political party, who never seem to listen to the evidence but simply, as is appropriate to their political outcomes, raise issues which have already been raised and spoken about and explained by various of the witnesses. But the Greens political party seem to just use these proceedings to run out the standard mantra that they always use. It does not matter what the bill is, there is a series of emotive words used by the Greens political party about any migration matter, whether it is relevant to the bill or not. Quite frankly, I could not agree more strongly with the minister's comments that it is not part of the process that really assists this committee; it is just something to grab a headline, using emotive words—the same words that are used, I might say, no matter what the issue is.
The particular Greens senator involved does, as I say, insert herself as a participating member in some of the inquiries. Regrettably, it is not often that that particular representative of the Greens political party stays for the whole time. She simply comes in, gets the attention of the media and then leaves. I only raise these matters because, quite frankly, the Senate has a lot of work to do. There are a lot of serious bills to be addressed. The questions that the representative of the Greens political party is asking were all fully canvassed at the Senate committee hearings. The reasons were given. As a result of that, the majority of the committee put forward recommendations, which I am delighted to say the government has taken up. It shows that this is a government that does listen to sensible options put forward by members of the community. It is a government that does listen to senators in this parliament working, usually constructively, through these committees to improve on legislation which the government wants to gets through and which the committee acknowledges has a purpose. But the committee has, on a number of occasions, identified things where bills could be improved. As I say, I am absolutely delighted that we have a government that is prepared to listen to suggestions for improvements and to act on them.
The questions which are being raised with the minister now by a representative of the Greens political party are the sorts of questions that were fully canvassed in the committee hearings. They are, again, issues which were the subject of a written report, which I would have hoped the senator might have read. If she had, she would not be asking these questions, because the answers are all clearly explained in the committee report, which again I commend to the chamber. I thank again the government for listening to the suggestions made for improvements.
Senator Macdonald is correct: the revised addendum addresses crossbench and opposition concerns that were raised during the various Senate hearings that have been held in relation to this bill. As I said, I actually thanked the crossbenchers and the opposition for working with the government in a constructive manner so that we could come to some form of consensus on this bill. As I have already stated in the summing-up speech, as I have also already stated in my first answer to Senator Hanson-Young, the government considered the reports that were provided by the various committees, we acknowledged the concerns that were raised and we have now addressed those concerns within the addendum to the explanatory memorandum of the Migration Amendment (Protection and Other Measures) Bill 2014.
But I go back to this again: it really does not matter what I say, Senator Hanson-Young, you and I both know that, on this particular issue, you dealt yourself out approximately six years ago. The crossbench and the opposition have negotiated with the government and we have come to a reasonable conclusion. But, in terms of the addendum, you were part of those committee hearings, you know exactly what the majority reports say, and the government has addressed the concerns raised. We have not addressed your concerns, I have no doubt, Senator Hanson-Young, but, as I said, I do not think it matters what we do in this place; it is not about to address your concerns.
Chair, I will take your direction about moving through the circulated amendments.
The CHAIRMAN: There is a running sheet, but I am happy to take any amendments that are moved. There are none before the chair now.
by leave—I move Australian Greens amendments (3) and (1) on sheet 7572:
(1) Clause 2, page 2 (after table item 1), insert:
(3) Schedule 1, page 4 (before line 2), before Part 1, insert:
Part 1A—Amendments commencing on Royal Assent
Migration Act 1958
1A After section 35A
35B Protection visas—advice and application assistance
(1) This section applies to an applicant for a protection visa who meets the criteria prescribed by the regulations for the purposes of this subsection.
Entitlement to advice and assistance
(2) Subject to subsection (3), the applicant is entitled to receive independent immigration legal advice and assistance in relation to his or her application.
Limitation on assistance
(3) The applicant is not entitled to any assistance after:
(a) the protection visa has been granted; or
(b) if the protection visa is not granted and the application applies to have the decision reviewed—the review has been finally determined.
These amendments go to the need for legal assistance. The minister is right in one respect—that the Australian Greens are fundamentally opposed to a number of the things that are in this bill and we do not support the bill. We do not support the idea of schedule 2, in particular, in terms of its watering down protections for those who fall outside of the refugee convention but need complementary protection, particularly young women and girls who are facing some of the world's most awful atrocities—honour killings and awful things like that. But there are a number of other elements of this bill as well that are fundamentally bad in terms of what they are going to do in putting people's lives at risk. As I said in my speech on the second reading, this bill misses the point. It misses the realities of what it is like to be a refugee—the realities of how many people have to flee, what they have to do to get out of their countries in the first place and the journey that they take to find safety, whether it is here in Australia or elsewhere.
Given all of that, the minister is right that the Greens are opposed to this bill. But we also accept that there is majority support in this place between the Labor Party and the government on this. They believe that things need to be tougher when it comes to how Australia treats asylum seekers and refugees. I do not understand how much tougher it can really get when we lock children up, throw away the key, have them sit in indefinite detention and drive them mentally crazy. You would wonder how much tougher it can get, but, apparently, both the Labor Party and the government are willing to find out.
One of the things that we have tried to do in this bill, despite our opposition to it, is to say that there are some fundamental aspects that, if tweaked, would give a little more fairness to the system—a bit more in line with what you would expect from a fair and decent country like Australia, a country that upholds the notion of the rule of law. These two amendments, (3) and (1), go to providing legal assistance to those affected directly by this bill. One of the reasons this is important is that we know that the decisions made about whether a refugee's claim is accepted or not are life and death decisions. We have to make sure that we are not unnecessarily putting people's lives at risk. That means ensuring that people have the ability to put forward their case clearly, with an understanding of their requirements. It makes the system more efficient, which I know is one of the objectives of everybody in this place—to make the assessment process, the processing of people's claims, more efficient so that we are not unnecessarily tying up the process or, indeed, keeping people in detention or on bridging visas for any longer than need be. But, in order to do that, we need to provide legal assistance to people to help them fill out their applications.
People used to be given legal assistance to help them fill out their claims to ensure that they knew what their obligations were and to streamline the process. That legal assistance was cut some time ago. It has not been afforded to asylum seekers in this country for quite a while now, and it is time we reinstated it. If we are going to start changing the rules, people need to know what those new rules are and how they can abide by them. It is simply about showing not just a bit of care but a bit more fairness towards people as they have to manoeuvre their way through what is now becoming a pile of new processes and hurdles that they have to jump over. That is what these amendments do: they reinstate legal assistance for people so that they can successfully abide by the new rules as set out in this bill and in the bill that was passed by this place last year. It will hopefully mean that fewer mistakes are made by our immigration department, by the people who are making the assessments. If we believe that people need to give all of the information up-front and that they need to give clear explanations about where their identity documents have come from or where they have gone, we need to make sure that they have a full understanding of what the rules are and what is expected of them. Giving them legal assistance is, of course, the best way of doing that.
The government will be opposing the Greens amendments. As I have already stated, the government acknowledges that there will always be a small number of vulnerable individuals, including unaccompanied minors, who may not be able to clearly present their claims without assistance. The government will continue to have arrangements in place to provide funded application assistance to a small number of the most vulnerable individuals, including unaccompanied minors, through a primary application information service. Replacing the Immigration Advice and Application Assistance Scheme with a needs based system for primary processing, which is the primary application information service, for only the most vulnerable eligible persons is similar to government funded assistance arrangements for those who arrive lawfully by air or sea and seek protection, and provides a clear focus to funding migration assistance to only those people who are considered vulnerable. Removing access to the IAAAS from all protection visa applications at review is designed to encourage the provision of full, personal and accurate claims as early as possible in the primary application process.
The opposition has entered into an arrangement with the government in regard to the detail of this bill. As a consequence, it may be of assistance to the committee to know that the Labor Party will not be supporting any of the Greens amendments. In terms of the specifics—and I do not need to go through this on each and every occasion, but I will on this matter—the Labor Party's view is that we have to ensure that we are able to offer protection to people in need. To do so, we have to have a robust and efficient framework for the administration of decisions and the making of decisions about who qualifies and who is established as a genuine refugee, and to have measures in place to prevent the gaming of the system. There is no doubt that there are some who will seek to game any system. This includes applicants who use primary application as a dry run and then rebuild their application for review at a review stage based on feedback from the primary decision maker. This is clearly not the intent of the review process. It is reasonable if there is new information that is provided but it is equally reasonable that the applicant provide a reasonable explanation as to why that information was not available at an earlier stage.
The Greens have moved a couple of matters within the one set of amendments and I want to note that item 3 seeks to reinstate the regime of independent legal assistance for applicants that was a feature of the former Labor government and would be a feature of a future Labor government's regime.
The CHAIRMAN: The question is that amendments (1) and (3) on sheet 7572 be agreed to.
I move Australian Greens amendment (4) on sheet 7572:
(4) Schedule 1, Part 1, page 4 (lines 2 to 25), to be opposed.
These are amendments being made to the issue of burden of proof and new claims.
This is one of the issues that was raised consistently throughout the Senate committee process—particularly, a number of legal experts are concerned about changing the expectations and shifting the burden of proof onto asylum seekers, particularly those who have been traumatised for many years in having to flee persecution and then again, of course, through Australia's detention process.
Remember that this bill will impact directly on those who have been considered to be part of the legacy caseload. These are people who have not been able to have their claims dealt with up until now. The idea that without legal assistance—that we have just seen voted down in this place—the burden of proof is shifted to them in such a unfair and unbalanced way, I think—and this is the Australian Greens view—is going to put lives at extreme risk. We are quite concerned about it.
Also, of course, there is the issue of the new claims element—identity documents—and how that impacts on family members. When they have been on their journey as a refugee for a number of years, many people—for example, people who have fled Afghanistan four or five years ago and who are now living in Australia—have not been able to put forward their claim. The circumstances in their home towns in Afghanistan has changed a lot in the last four or five years. Often the safety of family members has been impacted throughout that time—those who remained behind. In fact, we continue to hear, sadly, on a very regular basis that asylum seekers who are living here in Australia and waiting for their refugee claims even to be started are getting awful phone calls or notices from home that their sons, daughters, mothers, fathers, brothers, sisters or family members have been targeted and killed by the Taliban throughout that process, over that long period of time that they have been waiting to get their refugee claim sorted and, of course, for family reunion.
We have already put these people through enough. The shifting of the burden of proof and not allowing an understanding of the very real impacts of this time lag are having very real life-and-death impacts on them and their families. It is a little callous—just trying to ignore the realities of that. So that is what this amendment is about, and I hope there are other members in this place who are willing to support this amendment. It is not outlandish, it is simply about trying to put a bit more balance into this legislation.
The government will not be supporting this amendment. It merely provides a smaller reasonable obligation on the applicant. It is subject to the reasonableness test and the measure formulises a reasonable expectation. It is actually consistent with practices in the United States, the United Kingdom and New Zealand.
The CHAIRMAN: The question is that part 1 of schedule 1 stand as printed.
by leave—I move Australian Greens amendments (1) and (3) through to (5) on sheet 7681:
(1) Schedule 1, item 2, page 5 (lines 3 to 12), to be opposed.
(3) Schedule 1, items 4 to 10, page 5 (line 18) to page 6 (line 22), to be opposed.
(4) Schedule 1, item 11, page 6 (line 25) to page 7 (line 14), section 91WA to be opposed.
(5) Schedule 1, items 12 and 13 (lines 28 to 32), to be opposed.
These amendments also follow another one, which will have to be tested separately. Together, these amendments remove the elements that this bill deals with in terms of bogus documents. I understand on face value the argument that people who do not have their right documents should not be given the benefit of the doubt. I understand on face value why that seems like a very reasonable argument.
But what that argument does is dismiss the realities of the circumstances people are in when they flee persecution. Often, people have to be smuggled out of their countries in order to keep them safe and to get them across the border. If you were a government official in the Iraqi government under Saddam Hussein, for example, and you started to raise concerns with what was going on, perhaps speaking to the media or speaking to officials outside Iraq about the acts things the Saddam Hussein government was committing, it would be very difficult for you to leave that country with your own identity and your passport stamped, knowing that the government is watching your every step. That is the reality of people who are fleeing for genuine protection reasons.
Unfortunately, it does create complexities for a country like Australia when people do arrive on our doorstep. It does mean that is difficult to find out exactly who people are. It does mean that we need to do a little bit more digging and a bit more research. It does mean that sometimes we have to give people the benefit of the doubt. I must say, I would prefer to give people the benefit of the doubt than to say no to giving somebody protection because we simply do not want to understand the realities of why that person had to come here with a fake passport.
I remember being in high school and reading stories and watching films about the heroic decisions to flee Nazi Germany or occupied France. Many hundreds and thousands of Jews were smuggled out of those countries on false identity documents. It is how they did it safely. I am not saying that these people should not be questioned and I am not saying that we should not look at the details of their identity documents; what I am saying, however, is that we should not just put a cross next to their application because a document in the first instance does not look genuine or, indeed, is not genuine because they have had to use it in order to flee atrocities and to flee safely. It is often getting out of your country that is the hardest thing to do in the first place: being undetected, without being caught and often having to lie to your family about where you are going and the journey you are going to take.
I tell you what, if I had to leave my country because my government was targeting me or my family and I had to use a fake passport to do it, I would. I would assume that every other one of us in this room, if it was about life or death and saving our children, if it meant having to take a fake passport to get out before you are caught, before you are in jail, before you disappeared and before there was bullet put in your head, then you would.
I move the amendments as outlined.
Mr Chairman, the government will be opposing these amendments. The government has accepted that there are exceptional circumstances which may prevent an applicant for a protection visa from providing documentary evidence of identity, nationality or citizenship—for instance, the circumstances of some stateless people. We have clearly outlined the steps we are taking in relation to the—