Migration Amendment (Protection and Other Measures) Bill 2014


Senator SESELJA(Australian Capital Territory) (12:37): 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.

The ACTING DEPUTY PRESIDENT(Senator O'Neill): Order! Please refer to your colleagues here in the federal parliament by their correct title.

Senator SESELJA: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

Senator SESELJA: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.

Senator Hanson-Young:You opposed complementary protection.

Senator SESELJA:The Department of Immigration and Border Protection has confirmed that between March 2012 and March 2013, the Labor government applied the 'more likely than not' test to complementary visa applicants.

Senator Hanson-Young:You don't know what you are talking about.

Senator SESELJA:Labor even argued that this was the appropriate threshold in the Federal Court. This threshold is not being raised in any way; it is—

Senator Hanson-Young:The coalition never—

Senator SESELJA:simply being returned to the level set by Labor when they were in government.

Senator Hanson-Young:You don't give a damn.

Senator SESELJA:Senator Hanson-Young interjects for a range of reasons, but let's be clear on a couple of things. She should be embarrassed about her party's position—

Senator Hanson-Young:'She?' 'She' is the cat's mother. Why don't you call me a woman and tell me to shut up? Go on.

The ACTING DEPUTY PRESIDENT: Senator Seselja, you were doing very well ignoring the interjections. Please continue your remarks through the chair.


Senator SESELJA: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)