If the government succeeds in scrapping complementary protection laws for asylum seekers important checks and balances will be removed, and enormous inefficiencies created in a system that is already choked, writes Jane McAdam.
OPINION: A Senate Committee will examine today whether or not Australia should get rid of laws that prevent our government from deporting people to places where they are at risk of being killed, tortured, or exposed to other cruel, inhuman or degrading treatment.
Known as "complementary protection", these laws were enacted only 18 months ago for good reason. Although the government acknowledges that international human rights law prohibits it from returning people to such abuses, it wants the Immigration Minister personally to decide every case. This would be a retrograde step. It would bring back enormous inefficiencies to a system that is already choked, and would remove the checks and balances that the current legislation provides. There is also a risk that some cases would never be examined at all, since the minister's power is completely discretionary.
The importance of complementary protection was highlighted last Thursday, when the High Court issued an injunction preventing the Immigration Minister from returning a 65-year-old Hazara asylum seeker from Afghanistan. The court held that the Refugee Review Tribunal had not properly considered his complementary protection claims, and there was sufficient evidence to suggest that if he were deported without proper consideration of his claim, he could be killed (as a number of other asylum seekers removed by Australia had been).
The case is important for two reasons. First, it shows why the government's proposals before Parliament to repeal our complementary protection provisions are worrying. The High Court found that previous decision makers had made a mistake in their application of the law. Yet, if this had been a purely discretionary decision by the minister, then a court wouldn't have had the power to review it. In other words, the man would have been deported and possibly exposed to death or other very serious human rights violations in Afghanistan.
Secondly, the case shows what a system of checks and balances is all about. As in any other areas of the law, it is important to ensure that decisions can be checked for error – especially when the outcome might be a matter of life or death. The problem with the government's desire to return to a wholly discretionary approach is that no review is possible. In fact, the minister can't even be compelled to exercise his discretion to examine the complementary protection claim in the first place. This means that there is no guarantee that an asylum seeker's claim that she might be tortured, for instance, will be assessed, and even if it is, then there is no way to have the decision reviewed.
The result is that Australia may unlawfully send people back to serious harm, violating our international law obligations – and surely our basic understandings of humanity and decency – in the process.
This week, the Parliamentary Joint Committee on Human Rights (an even spread of Liberal and Labor members, plus a member from the Nationals and the Greens) concluded that the government's proposed changes to complementary protection not only risked violating Australia's non-refoulement obligations, but also contravened other rights under international law, such as the right to an effective remedy, the right to a fair hearing, and the right not to be arbitrarily detained. It said that the government's suggestion that the ministerial discretion process could satisfy Australia's human rights obligations was nothing more than "a series of unsupported assertions".
The Senate Committee would therefore be wise to recommend that complementary protection stay on the books. It is a transparent and functional process that allows for procedural fairness. It enables protection claims to be heard and disposed of more quickly. It is much more efficient than the ministerial process that the government wants to reinstate – a process that former Immigration Minister Chris Evans described as a vast waste of ministerial time, and tantamount to one person "playing God" with asylum seekers' futures.
Complementary protection implements Australia's international obligations in a clear and systematic way, and provides for checks and balances. It brings us into step with what other democratic countries do, like the 28 countries of the European Union, as well as Canada, New Zealand, the US, Hong Kong and Mexico.
And it does not lead to an opening of the floodgates: last year, only 57 of 1200 protection visas granted onshore were for reasons of complementary protection – less than 5 per cent. In short, the government's proposed repeal of complementary protection and return to a non-compellable and non-reviewable discretion is at odds with Australia's absolute duty to respect the principle of non-refoulement under international human rights law.
Jane McAdam is Scientia Professor of Law and the director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW.
This opinion piece was first published in the Sydney Morning Herald.
Read more in The Age.