Bill threatens to remove last safety net for refugees

The federal government is having another crack at taking the “protection” out of “complementary protection” for asylum seekers. “Complementary protection” refers to Australia’s obligations under human rights treaties not to return people to torture or other serious harm – obligations that “complement” those under the UN Refugee Convention.

But if a new migration bill is passed – as was recently recommended, with some minor clarifications, by a Senate committee – it will redefine complementary protection so that it offers no real protection.

If passed, the bill could mean that, for example, a person at risk of torture by the Syrian government would have to prove that he could not have gone to a part of the country controlled by Islamic State.

The Coalition government has put up two earlier bills on complementary protection since taking office. The first tried to get rid of it, the second tried to drastically rewrite it. This third bill is more technical, which increases the likelihood of it passing parliament.

But because of changes to Australia’s refugee laws in 2014, the risks to asylum seekers have also increased.

Complementary protection and Australia

Australia’s complementary protection obligations were implemented into law in 2012. This offered an important safeguard for a small category of people who were otherwise not protected by the somewhat limited terms of the Refugee Convention.

For example, the convention focuses on the reasons a person fears harm, rather than the risk of serious harm itself. Complementary protection would, for example, protect a person from indiscriminate torture.

Until now, this has been a small, sensible extension of domestic law to protect existing international legal obligations. Only 216 visas have been granted as a result of this legislation. Yet the Coalition government has had it in its sights since 2013.

In December 2013, it introduced a bill that would have abolished complementary protection. This bill stalled.

In June 2014, the government introduced another bill, which sought to send a person back if the risk of torture was less than 50%. That part of the bill did not pass.

The third bill was introduced in October 2015 and has attracted much less scrutiny. Immigration Minister Peter Dutton has not even responded to a parliamentary committee’s concerns that the bill is inconsistent with Australia’s international legal obligations. These are concerns shared by, among others, the UN High Commissioner for Refugees and the Australian Human Rights Commission.

To their credit, both Labor and the Greens have so far steadfastly opposed these attempts to roll back complementary protection. Labor and the Greens have made it clear that they will oppose this bill. The crossbenchers will decide its fate.

Taking the ‘protection’ out of ‘refugee protection’

Immigration law has been in a state of constant flux in recent years as the government strives to keep people seeking asylum away from Australia and stave off the threat of legal challenges. In December 2014, dramatic changes were made to the definition of a refugee in Australian law, and to the way in which Australia determines that someone is a refugee.

These changes mean that a person now has to prove they could not move to any other country that might be “safe” – even if they would be destitute there, and even if that place is “safe” only because local militias or warlords control it.

Applying this definition strictly, it’s hard to see how even fleeing Syrians and Iraqis would currently qualify as refugees. The likely result is that many people who are refugees will no longer be given refugee status in Australia.

This is made even more likely because of the introduction in December 2014 of a new process for determining if a person was a refugee, known – misleadingly – as “fast track” processing.

The process, which applies to around 30,000 people in Australia, introduces strict new time limits for asylum seekers to put together their refugee claims and evidence. It removes the right to a full review of the initial decision by the Department of Immigration.

These changes came in after the government removed funding for legal help for those who came by boat. This means that most asylum seekers will be struggling through the new system alone.

A safety net

The combined effect of these changes is to make it much more likely that people will be refused protection as refugees – even if they are refugees.

As a result, many more people will need the safety net of complementary protection to save them from torture or persecution. Yet the government’s latest bill would remove that safety net by copying the changes to the refugee definition into the complementary protection context.

The government’s argument is that these changes are needed to make complementary protection “consistent” with the new refugee definition. But, as the Refugee and Immigration Legal Centre pointed out in its submission to the inquiry, complementary protection is there to complement. If the tests were identical, then there is no point to complementary protection.

The larger point is that two bad laws don’t make a good law. Both laws mean that we are now asking: is there anything you could theoretically have done to save yourself from harm, even if doing it would have been completely unreasonable, extraordinary or even in some cases impossible?

This question misses the whole purpose of these laws – to protect people in real danger.

Silent Vigil against Border Force Act - Saturday 11 July Coffs Harbour

Doctors and Child Welfare Professionals Against the Border Force Act: A 30-minute silent vigil

Saturday July 11^th 09.30am at The Big Banana

The Border Force Act 2015 carries penalties of up to two years in prison for unauthorised disclosure of information related to immigration detention. It prejudices the ability of healthcare professionals to do their jobs.

The AMA, RACP, RACGP, ACEM, AMSA, ACN, RANZCP and others have called for urgent amendments to the Act to allow health care professionals and child welfare workers to advocate effectively for their asylum seeker and refugee patients.

Silent vigils have been held all round Australia to protest at this repressive, anti-democratic legislation.

Please join us on Saturday to show that people in Coffs Harbour and the Mid North Coast care too.

Find more info at the Facebook page for this event at the following URL and QR Code, or just turn up:  http://tinyurl.com/pdachkx

Extract from comment by George Newhouse on Border Force Act Guardian

Extract from comment by George Newhouse on Border Force Act

The Australian government moved on Tuesday to address what they believe are “factually incorrect and highly misleading” statements about the draconian secrecy provisions of the new Border Force Act.

Both the department and border force claim the new laws will not prevent concerned professionals from reporting cases of child abuse, or speaking about other matters of public interest relating to immigration detention centres.

It is surprising that government officials do not understand the practical implications of the new secrecy laws. They make it difficult, if not impossible, for doctors and other care workers to publicly raise their concerns without fear of two years imprisonment.

The minister has said that doctors, teachers or other care workers are protected from prosecution under the secrecy provisions of the Border Force Act by the operation of the Public Interest Disclosure Act, often called the “whistleblower law”. But outside of Australia the effectiveness of that safeguard is limited, because of a mismatch in the coverage of the two laws.

The Border Force Act contains strict secrecy provisions that cover all government contractors, including doctors, even outside of Australia. By contrast, the protection of the Australian whistleblower law does not extend to disclosures made about the conduct of a PNG or Nauran Government official or worker, or of any person who is not an Australian government contractor or officer. That includes detainees, or even a local priest in an offshore immigration detention centre.

In addition, the whistleblower law offers no protection to those who make a public disclosure about the actions of an Australian government minister or policy, even if it harms people.

For example, if the minister implemented a policy of refusing any refugee on Nauru or PNG medical treatment in Australia – even if it were recommended by a doctor – any disclosure of that action or government policy would not be protected by the whistleblower law.

If the problems outlined above aren’t enough to deter doctors and care workers from making public disclosures, the long list of hurdles within whistleblower law are likely to put them off.

These extensive bureaucratic requirements include the need to exhaust all internal complaints processes before any public disclosure of information occurs, which is likely to substantially delay disclosure and have a chilling effect.

Under the law, whistleblowers have to make complex legal assessments about whether their disclosure has been “adequately dealt with” under internal review procedures before they can speak out.

Once they go public, disclosure must be limited to the issue which was the subject of the original internal complaint. Too much disclosure is not protected, and there is little guidance about where the boundaries lie.

Finally, the whistleblower law is directed at disclosure of suspected or probable illegal or other wrongdoing. It would not normally protect the clinical and ethical consultations about patients that take place between medical practitioners within immigration detention centres, and their colleagues or specialists outside the immigration system.

It is true that there is an exemption to the secrecy provisions in the Border Force Act which would allow a medical or allied practitioner or a teacher to report suspected child abuse or neglect inside an Australian immigration detention centre. However this exemption only applies to workers in Australia because they are covered by State and Territory mandatory reporting laws.

Unfortunately and relevantly, this exemption is of no use to a doctor, teacher or care worker where Australian mandatory reporting laws do not apply, such as in Nauru or Papua New Guinea.