By Adam Fletcher

On the 4th of this month the new Coalition Government introduced a Bill entitled the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013. In a way, the title is apt because the Bill would return control over Australia’s refoulement obligations to the Minister, where it used to lie under the previous Coalition Government.

Let me take a step back and explain. Refoulement is the international law term for returning people to a place where they risk torture or other ill-treatment, or even death. It is absolutely prohibited in international law – under the Refugees Convention, the Convention against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Sometimes people fleeing dangerous situations don’t come under the international law definition of a refugee, which, despite what the Government keeps telling us, is very strict and difficult to meet. For example, they might be persecuted in their home country for reasons other than race, religion, nationality, political opinion, or membership of a particular social group. These may include ‘honour killings,’ unrestrained blood feuds and genital mutilation.

Prior to March 2012, the only recourse for these people, if they still faced a dire threat on their return, was to appeal to the Minister personally. After the change to an ALP Government in 2007, Immigration Minister Evans understandably decided he was uncomfortable having this sort of life-or-death power. As a result, Minister Evans and Attorney-General McClelland asked their Departments to develop legislation to enshrine this gravest of international obligations in legislation, so that evidence of a risk of ill-treatment or death would be considered by the experts (immigration decision-makers, courts and tribunals) in the normal course of the Protection Visa application process.

I was part of a small team which worked on the Bill for the Migration Amendment (Complementary Protection) Act 2011 (Cth). As a Government lawyer advising on human rights, it was a privilege to work on a project which strengthened the implementation of our obligations and which brought us into line (at least on this issue) with like-minded countries including New Zealand, Canada, the US and most European nations. The changes were also recommended by no fewer than three Parliamentary Committees and the Australian Human Rights Commission, in addition to international human rights bodies.

Contrary to popular perception, immigration and refugee policies at the time remained restrictive by world standards, and there was no question of an expansive piece of legislation which protected all sorts of people who failed to qualify as refugees. To qualify under the Complementary Protection legislation, you have to face a real, personal risk of ill-treatment or death as a necessary and foreseeable consequence of your return. If you arrive offshore by boat, or are deemed a security risk, you need Ministerial permission to apply for complementary protection. That is an extremely high bar, and indeed the Government was criticised at the time for setting it too high. Still, it was a necessary and important step forward from the previous system, which applied no fixed criteria, was unreviewable, and had no proper legal basis. It is disturbing to see such a reform threatened.

There was talk of a case earlier this year opening a ‘loophole’ which could see thousands of claims reconsidered, but these would only be claims in which the Government hadn’t already considered the complementary protection criteria, which is perfectly reasonable. Keep in mind these are not people who are simply claiming they are better off in Australia – they have evidence to show that there is a real chance they could die or suffer cruel, inhuman or degrading treatment on their return. In any event, floodgate arguments are notoriously ill‑founded.

On the latest figures available, only a tiny proportion of Protection Visas are granted on complementary protection grounds. So when Minister Morrison claims ‘widespread abuse’ and sees the need to ‘regain control’ by repealing the Complementary Protection provisions, what he’s really saying is that he wants to make compliance with Australia’s non‑refoulement obligations optional again. The Explanatory Memorandum for the current Bill says it:

…does not propose to resile from Australia’s international obligations, nor is it intended to withdraw from any Conventions to which Australia is a party. Anyone who is found to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations.

If that is true, then there is no need to change the current system. For the Government to argue that it is more appropriate for a politician and his advisers to decide a person’s fate, rather than expert decision‑makers and judges who have considered all the evidence, is just perverse. Former Immigration Minister Evans called it ‘playing God’ with asylum-seekers’ futures, which neatly encapsulates the moral case for the best possible decision‑making process. Apart from anything else, the exercise of Ministerial discretion only comes after the Protection Visa application process, which can take months or even years, making for a terribly inefficient process overall. Even then, the discretion is ‘non-compellable,’ which means the Minister can turn a blind eye, and the applicant will have no recourse.

Between 2002 and 2006, the Edmund Rice Centre did on-the-ground research into people who had been deported to danger from Australia. Their findings were truly shocking – deaths, disappearances and torture were all documented. The Centre made the point about the need for a proper complementary protection system eloquently:

Few reasonable people would dispute that Australia has a right to protect its borders. However, that right is not absolute. A basic concern for life, human rights and justice underpins most of the concerns expressed to the Government about the way it implements its border protection policies. In addition, Australia is obligated under a variety of International Conventions not to remove people to places in which they are not safe.

Surely we do not want a return to the dark days of an opaque, unaccountable system which produced such repugnant results? If we do, we might as well tear up Australia’s UN membership, because we are clearly not committed to upholding even the most fundamental and compelling of our human rights obligations.