Migration Amendment (Protection and Other Measures) Bill 2014 - Second Reading - 16/03/2015


Senator IAN MACDONALD (Queensland) (10:35): 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.

The bill:

… 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.

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