COMMONWEALTH OF AUSTRALIA PARLIAMENTARY DEBATES SENATE Official Hansard No. 14, 2001 MONDAY, 24 SEPTEMBER 2001 THIRTY-NINTH PARLIAMENT FIRST SESSION—TENTH PERIOD BY AUTHORITY OF THE SENATE INTERNET The Votes and Proceedings for the House of Representatives are available at: http://www.aph.gov.au/house/info/votes Proof and Official Hansards for the House of Representatives, the Senate and committee hearings are available at: http://www.aph.gov.au/hansard SITTING DAYS—2001 Month Date February 6, 7, 8, 26, 27, 28 March 1, 5, 6, 7, 8, 26, 27, 28, 29 April 2, 3, 4, 5 May 9, 10, 22, 23, 24 June 4, 5, 6, 7, 18, 19, 20, 21, 25, 26, 27, 28 August 6, 7, 8, 9, 20, 21, 22, 23, 27, 28, 29, 30 September 17, 18, 19, 20, 24, 25, 26, 27 October 22, 23, 24, 25, 29, 30, 31 November 1, 12, 13, 14, 15, 19, 20, 21, 22 December 3, 4, 5, 6, 10, 11, 12, 13 RADIO BROADCASTS Broadcasts of proceedings of the Parliament can be heard on the following Parliamentary and News Network radio stations, in the areas identified. CANBERRA 1440 AM SYDNEY 630 AM NEWCASTLE 1458 AM BRISBANE 936 AM MELBOURNE 1026 AM ADELAIDE 972 AM PERTH 585 AM HOBART 729 AM DARWIN 102.5 FM Monday, 24 September 2001 SENATE 27603 Monday, 24 September 2001 We cannot lose sight of the fact that refugees will ————— be amongst those people travelling to Australia without authority. The PRESIDENT (Senator the Hon. But it is critical that Migration Act powers to test Margaret Reid) took the chair at 12.30 p.m., these claims effectively match the challenge be- and read prayers. ing posed by organised and sophisticated attempts MIGRATION LEGISLATION at nationality, identity, and claims fraud. AMENDMENT BILL (No. 6) 2001 The second major challenge lies in the increas- MIGRATION LEGISLATION ingly broad interpretations being given by the AMENDMENT BILL (No. 5) 2001 courts to Australia’s protection obligations under the refugees convention and protocol. First Reading The convention does not define many of the key Bills received from the House of Repre- terms it uses. sentatives. In the absence of clear legislative guidance, the Motion (by Senator Hill) agreed to: domestic interpretation of our obligations has broadened out under cumulative court decisions That these bills may proceed without formali- so that Australia now provides protection visas in ties, may be taken together and be now read a cases lying well beyond the bounds originally first time. envisaged by the convention. Bills read a first time. These generous interpretations of our obligations Second Reading encourage people who are not refugees to test Senator HILL (South Australia—Minis- their claims in Australia, adding to perceptions ter for the Environment and Heritage) (12.31 that Australia is a soft touch. p.m.)—I table a revised explanatory memo- Significantly, every protection place in Australia randum relating to the Migration Legislation which is obtained through deception and every Amendment Bill (No. 6) 2001 and move: protection place which is provided to a person who would not be covered by the proper inter- That these bills be now read a second time. pretations of the refugees convention because of I seek leave to have the second reading the way domestic law has developed, represents a speeches incorporated in Hansard. place taken from the neediest of refugees lan- guishing in refugee camps around the world. Leave granted. Australia is proudly one of the very few countries The speeches read as follows— which has a formal program to resettle refugees in MIGRATION LEGISLATION AMENDMENT consultation with the UNHCR. BILL (No. 6) 2001 The challenges to the integrity of our onshore This bill is aimed at addressing two critical chal- determination processes and the broadening out lenges facing Australia’s refugee protection ar- of our convention obligations in domestic law rangements and our ability to effectively contrib- directly undermine the capacity of Australia to ute to international efforts to protect refugees. contribute effectively to protecting refugees both Firstly, the continuing influx of unauthorised arri- in Australia and who are in refugee camps and in vals to this country is a tangible indicator of in- most need of resettlement. creasingly sophisticated attempts to undermine Our action in legislating on the application of the the integrity of Australia’s refugee determination refugees convention is consistent with the princi- process. ples recognised in international law that states The evidence is clear and growing – that large have the right to define how they will implement numbers of these people have, but disposed of, their obligations under international treaties. identifying documentation before arrival in Aus- The bill will include measures to allow the min- tralia. ister to draw adverse inferences when a person The smuggling operations which are providing does not have identity documentation or if they this travel give often highly detailed information refuse to make an oath or affirmation about the and coaching to these arrivals on appropriate truth of the information they have provided. claims and country knowledge and on Common- The bill will also stop the refugees convention wealth assessment procedures to maximise their being interpreted so broadly that people who were chance of successfully gaining a visa. never envisaged to be refugees manage to obtain refugee protection in Australia. 27604 SENATE Monday, 24 September 2001 The government has been concerned for some treatment, and other events that threaten a per- time that the refugees convention has become so son’s capacity to subsist. widely interpreted that it is in danger of failing Providing a definition of persecution in the legis- the very people that it was designed to protect. lation will ensure that the level of harm necessary Australia grants a higher proportion of claims for to constitute persecution will be at a level in- refugee status than even the UNHCR assessing tended by the refugees convention. the same caseload on their way to Australia. The legislation will also provide that to invoke This generosity is in itself attracting people with protection the convention reason must be the es- the means to pay a people smuggler or who can sential and significant reason for the persecution. afford air fares to our region and who wish to The convention was not designed to protect peo- seek a more prosperous way of life. ple who fear persecution for personal reasons This is not what the convention was designed for. that have little or nothing to do with the conven- The bill will define the fundamental convention tion – for example because they have failed to term, persecution, as an appropriate test of serious pay their family’s debts. harm. Yet recent court case law provides for this very Exclusions for serious non-political crime and scenario. particularly serious crime, will also be defined to The legislation will also prevent people from ensure that only those people who merit protec- using elaborate constructs to claim that they are tion receive it. being persecuted as a member of a family and The legislation will also allow contrived claims thus under the convention ground of a particular for refugee status in Australia to be disregarded. social group, when there is no convention related reason for the persecution. Australia remains committed to providing appro- priate protection to refugees consistent with our This will remove a potential avenue for criminal international obligations. families to claim protection on the basis of gang wars- not those that the government would see as However we intend to send a strong message to warranting international protection. people smugglers and to others wishing to exploit our provisions, that abuse is not on. I am also concerned about court decisions that have recognised the claims of applicants who It is both Australia’s right and responsibility as a have deliberately set out to contrive claims for sovereign state to ensure that the convention is refugee status after arriving in Australia. implemented responsibly and consistently by all decision makers in accordance with the express Such action, deliberately seeking to attract hostile intentions of parliament. attention from a home country government, makes a mockery of an applicant having a real Persecution is a key concept in considering fear of persecution. claims for refugee status and it is not defined in either the convention or Australian legislation. The legislation will make it clear that any actions by a person taken after arrival in Australia will be Our legislation should reinforce the basic princi- disregarded unless the minister is satisfied that ples of persecution under the convention – that the actions were not done just to strengthen for a person to require protection the persecution claims for protection. must be for a convention reason, and the persecu- tion must constitute serious harm. The convention was not intended to provide pro- tection to applicants who contrive claims in sec- The legislation will also prevent people obtaining ond or third countries and who have no other protection in particular circumstances where there basis for claims to refugee status. is no real fear of persecution for a convention reason. However, in exceptional cases where a person has acted purely to strengthen their claims, and so as The fundamental intention of the convention is to a result needs some protection, my ministerial provide protection to those who fear persecution intervention powers will allow me to intervene in so serious that they cannot return to their home the public interest. country. Article 33 of the refugees convention provides It was not intended to protect people facing dis- that a person who has been convicted of a ‘par- crimination or hardship in comparison to life in ticularly serious crime’ and is a danger to the Australia.