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Immigration law changes send shivers down my spine

Speeches in Parliament
Penny Wright 3 Dec 2014

Senator WRIGHT (South Australia) (11:12):  I rise today to speak about the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and to put clearly on the record my disgust for what is an outrageously cruel bill. The content of this bill sends shivers down the spine of all Australians who care about human rights and who consider that the moral health of our nation can be judged by how we treat our fellow human beings who are most in need.

 

If passed, this bill will widen the immigration minister's powers, marginalise international law and the rules of natural justice and muzzle the ability of Australian courts to scrutinise the government's treatment of asylum seekers. It will also establish a new high-water mark in the cruelty Australia is willing to show to those men, women and children who come to us from persecution and violence and throw themselves on our mercy. Increasingly, our wellsprings of mercy are running completely dry.

The title of this bill refers to the legacy caseload-that is, the 30,000 people who sought Australia's protection between August 2012 and December 2013 and who have suffered the physical and mental anguish of mandatory detention, family separation, uncertainty about their legal status, and the constant risk of removal to Nauru or Manus Island. To quote the New South Wales Bar Association, this bill goes far beyond what is necessary to deal with the legacy caseload. It involves serious departures from Australia's international obligations to human rights and, more generally, to the extent that the bill does deal with the legacy caseload, it does so in a way which is procedurally unjust and unfair.

One of the thousands of submissions received by the Senate Legal and Constitutional Affairs Legislation Committee has described the bill as 'punitive and nasty' and written so as to suggest that, 'asylum seekers are being punished for their temerity in seeking our compassion; for taking at face value our oft-proclaimed commitment to human rights and the rule of law.'

Along with other migration bills before the parliament, this bill constitutes the single biggest change to Australia's asylum seeker policy ever made. The bill's six schedules would fundamentally change the way protection claims are assessed. The bill changes the criteria by which a person is found to be owed protection and the nature of the protection provided by Australia to those in genuine need. It also changes the legal status of those seeking our protection and empowers a range of government agencies to restrict or remove their liberty. In each schedule, the bill removes the now rare existing features of the Migration Act which operate to protect the rights and interests of asylum seekers, in favour of a system that departs from international law and rule of law principles.

As the Greens spokesperson on legal affairs, I have to raise particular concerns about those features of the bill that remove procedural rights and review rights, long-standing protections against oppression in our Australian legal system. These features prescribe a legal framework for the determination of refugee and protection status that is contrary to international law and rule of law principles.

In a move of shameless legal manipulation, the government uses this bill to remove references to the refugee convention from the Migration Act and replaces them with the government's own interpretation of the convention. How can we possibly persuade other countries to fulfil their international obligations when our own actions show that we are prepared to manipulate and undermine an important international convention? Our hypocrisy will be seen for what it is.

This bill also removes fundamental procedural rights to safeguard the integrity of what can be a life-or-death decision about a person's need for protection. It does this by introducing a new fast-track procedure which will give asylum seekers one shot at setting out the evidence needed to substantiate their protection claim to an immigration official, but without providing them any access to independent advice or support. They will not be able to have the merits of the claim reviewed by the Refugee Review Tribunal.

There are so many other egregious betrayals of human rights and rule of law principles in this bill. Unfortunately I do not have the time to go into it. But there is a deep chasm between this proposed law and a principled, fair and dignified approach to providing protection to those in genuine need. The Australian Greens strenuously oppose the passage of this bill. This bill is indefensible and un-Australian.

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Full text of original speech:

 

SM Notes for Second Reading Speech – Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014

I rise today to speak about the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014.

The Australian Greens oppose the passage of this outrageously cruel Bill.

The content of this Bill sends shivers down the spine of all Australians who care about human rights and who consider that the moral health of our nation can be judged by how we treat those most in need – our fellow human beings

If passed - this Bill will widen the Immigration Minister’s powers, marginalise international law and the rules of natural justice and muzzle the ability of Australian courts to scrutinise the Government’s treatment of asylum seekers. 

It will also establish a new high watermark in the cruelty Australia is willing to show -  to those men, women and children who come to us from persecution and violence - and throw themselves on our mercy…

Increasingly – our wellsprings of mercy have run completely dry….

The title of this Bill refers to the ‘legacy caseload’ – that is the 30,000 people who have sought Australia’s protection between August 2012 and December 2013 - and who have suffered the physical & mental anguish of mandatory detention, family separation, uncertainty about their legal status and the constant risk of removal to Nauru or Manus Island.

However - to quote the NSW Bar Association - this Bill ‘goes far beyond what is necessary to deal with ‘legacy caseload’.

It involves serious departures from Australia’s international obligations, both as to human rights and more generally.

To the extent that the Bill does deal with the ‘legacy caseload’, it does so in a way which is procedurally unfair and unjust.”

Another one of the - thousands of submissions - received by the Senate Legal and Constitutional Affairs Committee has described the Bill as “punitive and nasty” and written so as to suggest that “asylum seekers are being punished for their temerity in seeking our compassion; for taking at face value our oft-proclaimed commitment to human rights and the rule of law.”

The significance of the changes proposed in this Bill should not be understated. 

Along with the other Bills before Parliament, this Bill constitutes the single biggest change to Australia’s asylum seeker policy ever made.

The Bill’s six schedules would fundamentally change the way protection claims are assessed.

 The Bill changes the criteria by which a person is found to be owed protection - and the nature of the protection provided by Australia to those in genuine need.   It also changes the legal status of those seeking our protection - and empowers a range of government agencies to restrict or remove their liberty. 

In each Schedule - the Bill removes the rare existing  features of the Migration Act which operate to protect the rights and interests of asylum seekers - in favour of a system that departs from international law and rule of law principles.

My colleague Senator Hanson Young has already described the impact that this Bill will have on the lives, health and wellbeing of the 30,000 men women and children subject to its ruthless measures. 

Senator Hanson Young has talked of the brutal changes proposed in Schedule 6 which – chillingly - classify children born in Australia to asylum seeker parents by the deliberately depersonalising and Orwellian term:  ‘unauthorised maritime arrivals”.

They are then required to be detained and transferred to Nauru.

As the Greens spokesperson on Legal Affairs - I will use this opportunity to raise particular concerns about those features of the Bill that remove procedural rights and review rights – longstanding protections against oppression in our Australian legal system.

These features prescribe a legal framework for the determination of refugee and protection status that is contrary to international law and rule of law principles. 

In a move of shameless legal manipulation, the government uses this Bill to remove references to the Refugees Convention from the Migration Act - and replaces them with the Government’s own interpretation of the Convention. 

These changes – purporting to allow Australia to turn its back on the document that 145 nations have signed up to as the legal framework for the international protection of refugees - have been condemned by the UNHCR and the Parliamentary Joint Committee on Human Rights as contrary to international law.

This go-it-alone approach also has implications for any attempt Australia might make -  in future - to engage the countries of our region in co-operating to address issues around processing and resettling asylum seekers.  

How can we possibly persuade other countries to fulfil their international obligations when our own actions show that we are prepared to manipulate and undermine an important international Convention?   Our hypocrisy will be seen for what it is.

This Bill also re-introduces temporary protection visas and safe haven enterprise visas. 

These visas - which only last for 3 or 4 years - and limit family reunion - require people found to be genuine refugees to continually re-establish their internationally recognised right to protection – just because of the way they entered Australia. 

As Save the Children has explained, TPVs “will mean people fleeing persecution are left in limbo -  forced to prove and re-prove they are refugees. The emotional and mental cost of such uncertainty is enormous and well documented.”

The reintroduction of these visas is being pursued in the face of a significant body of medical evidence - which shows the detrimental effects that TPVs have on people’s mental health - and in blatant disregard of the actual facts.

They are a - hateful, punitive - thing.

The policy settings that existed - last time TPVs were introduced -  have fundamentally changed -  none of the deterrence based arguments applies any more.

 This is because TPVs cannot possibly be seen as a deterrent to the 30,000 asylum seekers already in Australia - whose only other options are to return to a place of harm or face indefinite detention. 

 

Nor can TPVs be considered a deterrent to any future asylum seekers arriving by boat – because if they are intercepted they must be removed to Nauru or Manus Island -  and will never even be offered a TPV.

This Bill also removes fundamental procedural rights to safeguard the integrity of what can be a life-or-death decision about a person’s need for protection. 

It does this by introducing a new ‘fast track’ procedure - and by establishing the Immigration Assessment Authority – the IAA - to deal with the claims of asylum-seekers who have arrived by sea in Australia without visas - on or after 13 August 2012.

This ‘fast track’ process gives asylum seekers one shot at setting out the evidence needed to substantiate their protection claim to an immigration official – but without providing them any access to independent advice or support. 

So, a woman who is fleeing politically motivated sexual violence - for example - will be required to assemble evidence to substantiate her claim without any expert help or support – and she will only have limited time to do it.

To make things worse - under the fast track process - applicants for protection visas will no longer be entitled to have the merits of their claim reviewed by the Refugee Review Tribunal. 

In some cases – but not all – they may be able to have a negative decision fast track reviewed by a new independent body - the Immigration Assessment Authority.

But such a review by the IAA will not involve a hearing where the applicant can set out his or her claim for protection….

Rather - the IAA will make a decision purely on the papers –  the will not be interviewed or have the opportunity to comment on an application – and the applicant will not be allowed to provide new information or evidence - except where ‘exceptional circumstances’ exist.  

This is a very different approach to the existing approach of the Refugee Review Tribunal – which is “inquisitorial” in nature – That means that its aim is to find out the most accurate, update to date information about the claim - maximising the chance of getting the decision right.

What an interesting concept…. Maximising the chance of getting the decision right. But let’s be really honest about this - is that what the government is really seeking to do here?

Getting the decision right? Truly ascertaining if someone is a genuine refugee?

The procedures set out in this bill actually clearly point to this Australian government seeking to limit the number of people who are found to be “genuine refugees” – thereby limiting the onus on Australia to meet its fair share of responsibility for dealing humanely with those seeking asylum from persecution and violence.

On the other hand, the new IAA process will be highly dependent upon the initial claim – which under the new provisions – would have been made on the run, without access to legal advice and probably without the applicant fully understanding what he or she is required to set out.

This is a very similar system to the one which was declared by the UK High Court to be unlawful on the basis that there is an ‘unacceptable risk of unfairness’ because that the system does not provide for ‘early instruction of lawyers to advise and prepare the claim, and to seek referrals for those who may need them, with sufficient time before the substantive interview.’

The unfairness in this system is obvious to anyone who has ever worked with refugees – many of whom have provided written submissions opposing this Bill.  As these experts explain, “people fleeing countries where government institutions are weak or predatory are understandably – initially - fearful of Australian officials. Asylum seekers are often traumatised by their experiences and unable to put the whole of their claims into a logical or coherent narrative. They do not understand what is important and what is incidental in recounting their stories. It takes some time before they feel safe. When sexual violence is also involved, it can be many months or even years before an asylum seeker feels enough trust to be able to divulge the nature of their suffering.” 

It is also important to note that even this substandard form of review will be off limits to certain categories of asylum-seekers who arrived by sea –for example those who the Minister decides to exclude based on his or her opinion that their claim is manifestly unfounded.  This effectively renders the Minister judge and jury in a decision that could cost a person their life, their family and their future.

When taken together, the Australian Human Rights Commission has warned that these changes will:

significantly reduce the rights of asylum seekers travelling to - or arriving in - Australia

increase the risk that they will be wrongly found not to be refugees; and

increase the risk that they will be returned to a place where they have a well-founded fear of persecution, because of a lack of judicial oversight of relevant decisions

These changes are also unlikely to lead to the type of ‘efficiency gains’ the Government coldly hopes for - particularly if protection applicants continue to be denied access to legal advice.

As the Law Council of Australia has pointed out , the lack of access to legal advice at the initial application stage - coupled with the removal or restriction of merits review -are likely to lead to more applications to the High Court based on common law judicial review principles. This will undoubtedly lead to further inefficiencies, and prolong the process of determining Australia’s protection obligations.

The Bill also seeks to amend the Maritime Powers Act 2013 to remove judicial scrutiny of whether Australia complies with certain human rights obligations. It seeks to remove a role for judges and in a Under these changes, people seeking Australia’s help can be arrested at sea and taken to another country, without anyone listening to their concerns and without any judicial assessment of whether this would put them at risk of persecution. It restricts the court’s capacity to invalidate government actions at sea, provides that the rules of natural justice do not apply to certain key actions, and suspends Australia’s international obligations in the context of powers exercised under the Maritime Powers Act.

As a result, these changes effectively license the Government to breach international law and the rules of natural justice when conducting boat turn-backs and detaining asylum seekers at sea.  As many submission makers have pointed out, this combination of increased power and decreased legal scrutiny is particularly concerning given the secrecy currently surrounding ‘on-water’ operations’.

I must also remind this House that these wide ranging changes to the legal framework concerning asylum seekers will – if enacted – have life changing consequences for the lives, rights and future of vulnerable (often unwell) people who have no access to legal advice.  People who may not be able to read or speak English and who may be suffering from acute trauma or mental illness will be left to navigate this almost impenetrable legal system alongside exhausted immigration officials struggling to make decisions on poorly prepared and incomplete applications.  

 

This state of affairs comes to us courtesy of this Government’s short-sighted decision to withdraw funding to the modest but highly efficient Immigration Advice and Application Assistance Scheme last year.  It has been placated to a small degree only by a very limited form of assistance to some applicants determined by the Department to be particularly vulnerable, and the pro bono efforts of the legal profession and community legal centres - both of which will be completely overwhelmed should the changes proposed in this Bill become law.

These are by no means the only concerns the Australian Greens has with this Bill, but rather a brief overview of the depth of the chasm between this proposed law and a principled, fair and dignified approach to providing protection to those in genuine need.

 

The Australian Greens will be opposing the passage of this Bill subject to any amendments that may knock out those aspects which are indefensible and intolerable.

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