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Migration Bill contravenes human rights

Senator WRIGHT (South Australia) (11:37):  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-

Senator O'Sullivan:  Illegally.

Senator WRIGHT:  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.

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