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Christine Milne: "Our asylum laws are against humanity & common decency"

The Australian Greens Leader, Senator Christine Milne, addresses the senate to oppose the Migration Amendment (Protection and Other Measures) Bill, which would require asylum seekers to prove that they are more than 50% likely to be persecuted if they were returned.

Senator MILNE: I rise to oppose this appalling piece of legislation, the Migration Amendment (Protection and Other Measures) Bill 2014. I oppose it because it confirms what many other countries around the world are saying-that is, that Australia, as a state party in the United Nations, has gone rogue on human rights, on international law and torture. It is not something that the Australian community is proud of. It is not something that decent people around the world can understand. How is it that a country like Australia, a rich country, could imagine that it can behave so appallingly and absolutely thumb its nose at international law.

I do not know about other senators in this chamber, but I felt really ashamed and horrified when Juan Mendez, the special rapporteur to the Human Rights Council, in Geneva, found that Australia's indefinite detention of asylum seekers on Manus Island, the harsh conditions and the failure to protect certain vulnerable individuals, all amount to breaches of the Convention Against Torture. So our government is involved in torturing people. And that just turns up on the news in amongst everything else as if this is just normal behaviour in Australia-torturing people. As a community, surely we do not support torture. As a community, surely we do support international law.

When Australia signs up to a convention on human rights, on refugees, on climate change, or on biodiversity-whatever we sign up to in the international community-there are expectations that we will adhere to those rules. Yet under the Abbott government, and additionally under the former Rudd and Gillard governments, there has developed this view of Australian exceptionalism-that for some reason all other countries in the United Nations have to adhere to environmental law, to international law and to refugee law but Australia does not. Somehow, our circumstances are so exceptional that everybody else should be held to the law except us, and we can do as we like. Well, we cannot do as we like. We are shaming ourselves and demeaning Australia's reputation, and it is something the rest of the world will hold us to account for, not only now but into the future. We used to have a proud record and now we have a record of shame.

I want to go through some of the issues here. This bill carries with it the very likelihood that Australia will deport people back to danger, breaching our obligations under international law. It seriously compromises Australia's protection determination system, it erodes procedural safeguards, and it puts Australia at risk of breaching its non-refoulement obligations. You cannot send people back to a place where they are going to be tortured, raped, murdered, jailed and so on for the beliefs that they hold and the reasons they are seeking asylum.

It is not illegal to seek asylum. It is not; and yet day in, day out, we have Abbott government ministers talking about 'illegals'-as if people are illegal when they are exercising their rights under international law. It is not illegal to seek asylum and, for the benefit of Senator Macdonald and others, there is no queue. This idea that people seeking asylum are going outside some orderly queue is complete and utter nonsense. There are people seeking asylum all over the world as a result of appalling changes of regime and as a result of wars and civil wars. Look at what is happening in Syria at the moment, for example: hundreds of thousands of refugees have poured across the border into Jordan and other countries in the region. We are seeing massive trauma out of Afghanistan and Pakistan-Hazaras being tortured. We are seeing people who were tortured in Sri Lanka under the Rajapaksa regime. There is no orderly queue; it is not illegal to seek asylum. That is what the government need to understand, and they need to stop undermining international law.

The idea that you would require someone to prove that they are more than 50 per cent likely to be persecuted if they were returned is absolutely appalling and ridiculous. At the moment people are not even being given an opportunity to explain their situation with the accelerated processing that has gone on under the former Labor government and now under this government. It has been brought to an absolute point with the Sri Lankan asylum seekers who were being interviewed at sea. We know that was just a joke in the scheme of things, in terms of any serious assessment of their claims for asylum.

I want to talk about Sri Lanka for a moment because it really highlights just how appalling this government is. The Rajapaksa regime, in my view, was the closest thing to a totalitarian dictatorship masquerading as a democracy we have had in this region. Mahinda Rajapaksa and his brothers ran Sri Lanka as a police state. They got rid of the head of the judiciary. They disappeared anyone who stood up against the regime, in white vans. The white van would pull up outside their place; the person would be dragged into the van and then they would be tortured and disappear. And it was not just the Tamils. It was exactly as has happened in the past: they went after the intellectuals; they went after journalists; they went after anyone who was an opinion leader and disappeared them-tortured them and threatened them. They made a genocidal response to the Tamils-taking away their land, persecuting people and refusing to deal with the crimes that occurred at the end of the civil war.

When the Rajapaksas sent the head of their admiralty-who had overseen that shocking bombardment which killed hundreds and thousands of civilians at the end of the civil war in the north-east-to Australia as Sri Lanka's high commissioner, I wrote to Prime Minister Rudd and said, 'Do not accept his credentials. He is accused of international war crimes. He must not be accepted in Australia.' Other countries had sent back the credentials and refuse to recognise some of these criminals who were being sent out by the Rajapaksas. But no: the Labor government accepted his credentials. I am very pleased to say that, during the entire time he was here, I refused to meet with him or to go to any conferences or anything that he put on at the high commission. I am very pleased that the new Prime Minister of Sri Lanka has withdrawn and recalled all of these people, including three from the high commission here in Canberra who had been accepted by the Labor and Liberal governments as suitable people to represent the diplomatic corps. At least the new government in Sri Lanka has recalled them. They will suffer the consequences of the law in that country and go through the trials which will now occur around the war crimes that occurred at the end of the civil war.

Knowing full well what the Rajapaksas were doing, Australia went along with it. We have sent Sri Lankan asylum seekers back to Sri Lanka where we know people have been tortured, raped and jailed-and worse-since they have been returned. Yet, if you ask the Australian government through this whole time, 'What tracking did you do of the people you sent back?' they will say, 'Oh, it's not our job to do that unless they come to the embassy and complain. It's not our job-we just send them back.' Now we discover, as a result of the new prime minister who came out and said;

When human rights were being trampled, and democracy was at bay, these countries were silent. That is an issue for Sri Lanka.
Worse than that the new prime minister, Prime Minister Wickremesinghe, came out and said that Australia decided to pay the price of looking away from human rights abuses in Sri Lanka in order to get cooperation from the Rajapaksas on stopping asylum-seeker boats. It was a deliberate strategy: an agreement between Sri Lanka and the former Australian government-and this one-to look away. In particular, the Abbott government did a deal with the Rajapaksas to look away on human rights in order to get cooperation to 'stop the boats'. The domestic policy of stopping the boats-the popularity of the Abbott government-was more important than what happened to those people. More importantly there is the fact that we, as Australians, decided proactively to ignore human rights issues in Sri Lanka and turn a blind eye. Now, as inevitably occurs, a change in the regime has occurred. We will see what is finally revealed. We will not get it out of here; it will be refused under every FOI request anyone puts in. But we will get it from the Sri Lankan end-how former minister Morrison and Prime Minister Tony Abbott secured this deal with the Rajapaksas to the point where Prime Minister Abbott said, on 3 July 2014, that Sri Lanka is a society 'at peace.' That is a cynical lie. It was known at the time to be untrue. It was not a country at peace. It was a country going after the Tamils engaged in the most appalling behaviour. And here were we as a nation screening people in the most superficial way and refouling them to Sri Lanka. This is an appalling indictment on our country.

You now have to prove you are 50 per cent likely to be persecuted if you are returned. If you are only 49 per cent likely to be tortured or raped, well, you can be sent back to face that but if you are 51 per cent likely, you can stay-what a nonsense is that? The High Court made an interpretation of this back in 1989 with Justice Mason when he said this has to be interpreted as a substantial chance of suffering torture or jail or persecution if you are returned. What you had to prove in order to be regarded as a refugee was a significant chance, a real chance-not a remote chance but a real chance. It was not a choice of saying, well, you are more likely than not, which is how this government wants to change it.

How can someone prove they have a 50 per cent or more or less chance of being persecuted? You either have a real chance of being persecuted or a remote chance. But 50 per cent is going to be a totally subjective judgement and it is yet another example of this government doing everything it can to send everybody back and say they were unable to prove to a satisfaction of a 50 per cent likelihood test. Are you 51 per cent likely to be raped or 49 per cent? Well, let's make a decision on that-and off you go if you have got a 49 per cent chance. That is appalling behaviour contrary to the High Court ruling that was made in '89 and has been actually upheld in the High Court ever since.

Complementary protection is for people who have been subjected to gross violations of their human rights but for non-refugee convention reasons because the refugee convention does not look particularly at issues of gender or sexuality. So it is people who face a real risk of torture upon returning to their country of origin or women fleeing honour killings or genital mutilation, for example. I find this extraordinary because Minister Bishop has made a very big issue of trying to crack down on female genital mutilation. She said, quite rightly, it is illegal in all states and territories. She has said it is vital that family members or friends who know about any such plans to let the authorities know. She was horrified at the prospect of fathers sending their daughters overseas where they would be subjected to this practice. We have the minister who represents the Prime Minister on this, Senator Cash, coming out making great speeches and op-eds on her opposition to female genital mutilation. Yet we now have the very same government that is supposedly outraged by this practice now allowing people to be sent back to actually suffer this fate because it is abolishing complementary protection. That is appalling.

We have got to the point where this legislation has been opposed by all the key stakeholders groups-UNICEF, the Law Council of Australia, the Castan Centre for Human Rights Law, Amnesty International, the ANU College of Law, the Asylum Seeker Resource Centre, the Human Rights Resource Centre, the UNHCR-with all of them saying exactly what the Greens are saying here: this is contrary to international law, it is country to human rights, it is contrary to human decency and it is making Australia's reputation globally go to a point where we are seen as a rogue nation. The UNHCR had this to say: is UNHCR's long-held view, supported widely by state practice, that it is incumbent upon the decision-maker to use the means at his/her disposal to produce the necessary evidence in relation to the application. This may not, however, always be successful and there may also be elements that are not susceptible of proof. In such circumstances, if the applicant has made a genuine effort to substantiate his/her claim, all available evidence has been obtained and checked and the examiner is satisfied as to the applicant's general credibility, the applicant should, unless there are good reasons to the contrary, be given the benefit of the doubt.

There is no benefit of the doubt here in this legislation. What this legislation does is remove the benefit of the doubt because the government wants to send people back-plain and simple.

You would think that Australia, in this exceptionalism that is talked about by the government, is somehow having this rash of refugees that does not occur in other countries. If you look at a country like Austria, for example, it has something like 70,000 a year, which dwarfs Australia. Even if you look at 2013 when Australia had 20,587, there were 70,000 going into Austria.

Italy, in the first month of this year, had 6,000 arrivals by boat yet the Italians debate whether the lengths they go to rescue people are good enough and whether they need to do more. Jordan is suffering, as I said, the pressure of hundreds of thousands of refugees in that country yet the Jordanians continue to offer refuge to people because they understand that these people are genuine and they are running away from conflict situations where their lives are at risk. Firstly, countries like Jordan deserve our support and assistance in doing what they can but equally we have to do our bit doing what we can to uphold the law, uphold international law, recognise it is not illegal to seek asylum. Secondly, there is no queue. People leave for all kinds of reasons and regimes change. You cannot say today 'you have a 50 per cent chance'. You cannot predict what is going to happen in the future, what the changes are going to be; you can only take the evidence before you.

This government is determined to do everything it actually can to load the whole system against the poorest, most vulnerable people that you could find-that is, people who have been forced to leave their country because of fear for their lives, fear for their families and fear for their futures. This really is a disgraceful piece of legislation and it should be opposed on the basis that it is against humanity, and against international law and against common decency. As Australians representing our community in this parliament we should vote it down.


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