The Senate Legal and Constitutional Affairs Committee is conducting an inquiry into the Migration Amendment (Complementary Protection) Bill 2009.
Complementary protection is the protection owed by a State that falls outside the scope of the Refugee Convention. Complementary protection obligations are found in the non-refoulement provisions of various human rights treaties, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Bill provides for a protection visa to be granted to a person where there is a real risk that he or she will:
- be arbitrarily deprived of his or her life; or
- have the death penalty imposed on him or her and it will be carried out; or
- be subjected to torture; or
- be subjected to cruel or inhuman treatment or punishment; or
- be subjected to degrading treatment or punishment.
Enactment of the Bill would be an important step towards the recognition of Australia’s non-refoulement obligations. To date, these obligations have received insufficient legislative protection. This failure has been commented upon by the Committee against Torture, the Human Rights Committee and the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
On 28 September 2009, the Human Rights Law Resource Centre made a submission to the inquiry, entitled The Right to Protection and the Obligation of Non-Refoulement. The HRLRC’s submission argues that, while the Bill will significantly improve and strengthen Australia’s complementary protection regime, there are a number of issues which should be addressed before the Bill is passed into law. In particular, as currently drafted, the Bill:
- sets out a list of grounds upon which Australia will grant protection obligations which is narrower than the grounds for protection under international law;
- requires that risks be ‘necessary and foreseeable’ and constitute ‘irreparable harm’, in a manner that does not accurately reflect the position under international human rights law;
- inappropriately imposes a requirement of intent in the definition of cruel, inhuman or degrading treatment; and
- excludes protection for certain classes of people, despite the absolute and non-derogable nature of Australia’s protection obligations.
The HRLRC submission provides a brief overview of the basis of Australia’s non-refoulement obligations under international law and discusses and makes recommendations regarding each of the concerns listed above.
The Senate Committee is due to report on 16 October 2009.
