Senator REYNOLDS (Western Australia) (11:15): I too rise today to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. This is a bill that is vital to the continued success of legislation passed in this place last year to secure our borders and to speed up processing of genuine asylum seeker claims.

I would like to state up-front that I believe it is in our national interest that we are able to determine the identity of those seeking asylum in Australia. I believe it is simply the right thing to do. This bill clarifies and codifies the responsibilities on asylum seekers to assist authorities in proving who they are and where they come from— hardly an unreasonable expectation of somebody seeking asylum in this country.

I previously rose to speak on the migration and maritime powers amendment bill last year, which was passed by the Senate on the final sitting day of last year with the support of the Palmer United Party and senators Day, Leyonhjelm, Muir and Xenophon. Already in this short time and as a result of that legislation, we are making significant improvements for our border protection agencies. We are also providing greater support to those who have arrived illegally by boat. That bill last year reaffirmed the coalition’s strong stance on border protection in a way that I believe is both timely and therefore humane—sadly, two characteristics that were not readily evident in the past government’s border protection policies.

About Senator Milne’s language in her speech just then, with Australia going ‘rogue’ and torturing people— really! How utterly offensive to all Australians, to the Australian government and to the men and women of our border protection and other relevant agencies—

Senator Milne: Mr Acting Deputy President, I rise on a point of order. I just want to point out that the special rapporteur, Juan Mendez, said we were in breach—

The ACTING DEPUTY PRESIDENT ( Senator Bernardi ): Senator Milne, this is a debating point; it is not a point of order. You have had your opportunity to speak.

Senator REYNOLDS: I also note that I understand when that report was made, no information or verification was done of those particular claims. So it is hardly a very credible report, I would suggest.

Again, I would ask those opposite—and particularly those in the Greens—who are coming in and using such awful language and making such terrible suggestions about our border protection agencies: where were they when 1,200 people or more died the most heinous deaths, and 8,000 children went through detention? Where were they then?

Senator Hanson-Young: Where were you?

Senator REYNOLDS: When were they worried about human rights?

Senator Hanson-Young: Where were you?

Senator Di Natale interjecting—

The ACTING DEPUTY PRESIDENT: Order! Senator Hanson-Young! It is clear to me that Senator Reynolds wants to continue without disorderly interjections, so I would ask that both Senator Di Natale and Senator Hanson-Young cease being disorderly.

Senator REYNOLDS: If they would like me to answer the question, I will tell you where they were—they were actually supporting the Labor Party and their policies that implemented this. And they supported the Labor government, so I think that is where they were.

Senator Hanson-Young: Where were you?

Senator REYNOLDS: By Senator Hanson-Young equating this government and the people who serve in this government with Nazi Germany and by using some of the most heinous crimes against women—rape, genital mutilation and other such torture—to try to suggest that this government and the men and women who serve this government are torturing and would support the torture of these women is utterly offensive.

In their speeches, both Senator Hanson-Young and Senator Milne have also made a series of extremely vague and unsubstantiated allegations that this legislation breaches international legal obligations, including non- refoulment. But as always, there was not one specific shred of evidence of which convention it breached or what section or precedent it may breach. Again, there was nothing from those on the other side except overblown hyperbole and rhetoric.

Last year’s legislation reintroduced temporary protection visas, and they are now a critical component of the government’s key objective to process the current backlog of illegal maritime arrivals. To me, this is a humane outcome. Under the previous government—that they supported—and its legislation it could take up to seven years to process people. That is not a humane outcome.

The legislation also included the introduction of the fast-track system, amongst other measures to achieve this. As a result of that legislation—pleasingly and wonderfully—the number of children in detention has fallen from a high of nearly 2,000 under the previous government to less than 120 today, as I understand it. And action is now being taken to get the remaining number out of detention.

This bill before the Senate today is another crucial step in ensuring a safe and secure Australia, and it is one of a raft of measures to resolve the immigration status of the illegal maritime arrivals legacy caseload—a disgraceful 30,000 people—who arrived under the previous Labor government with the support of the Greens. Thirty thousand people were waiting up to seven years to have their claims processed. That is not humane!

Senator Hanson-Young: What’s that got to do with female genital mutilation? The ACTING DEPUTY PRESIDENT: Order! Senator Hanson-Young!

Senator REYNOLDS: This bill is also crucial for the legislative measures passed by parliament last year to—

Senator Hanson-Young: And now you want to send them back!

The ACTING DEPUTY PRESIDENT: Order! Senator Hanson-Young: you are being disorderly. I would ask you to cease interjecting, please, so that Senator Reynolds can conclude her statement to the Senate.

Senator REYNOLDS: Senator Hanson-Young would like some facts, Mr Acting Deputy President, and I would love to provide them: 1,200 people died under the policies of those opposite, 8,000 children were in detention and 30,000 people were waiting for up to seven years to have their claims processed by the government that the Greens supported. Those are the facts, as inconvenient as they are for the Greens and for those opposite.

The amendments under this bill—

Senator Hanson-Young: Now you want to send them back to be shot.

The ACTING DEPUTY PRESIDENT: Senator Hanson-Young, you have had your contribution already to this debate. We do not need you chiming in on others—

Senator REYNOLDS: I listened in silence—

Senator Hanson-Young: You weren’t even in the room. That’s how much you care.

Senator REYNOLDS: I listened to both of you.

The ACTING DEPUTY PRESIDENT: Order! Senator Hanson-Young, you are being disorderly.

Senator REYNOLDS: The amendments in this bill seek to clarify the responsibilities on asylum seekers so that this identification can occur as soon as possible after arrival. The amendments codify the existing responsibilities of asylum seekers in relation to protection claims in the Migration Act 1958. The bill clarifies that any person’s claim for a protection visa must be comprehensive and supported to the best of the asylum seeker’s ability— hardly unreasonable in the circumstances.

I would like to reiterate that these responsibilities exist currently and that the proposed amendments make no changes to the requirements placed on asylum seekers. The amendments seek to clarify these responsibilities in the legislation. Further, these responsibilities are consistent with an acknowledged, longstanding principle of international refugee law—that is, ‘the burden of proof lies on the person submitting a claim’. That is the current burden of proof in international refugee law—although you would not know it from listening to those opposite.

This principle is an important one. In making a claim, an asylum seeker must provide supporting evidence to the best of their ability, to allow our border protection officials to decide whether there is an obligation to provide protection. Again, on behalf of the Australian people, this is not an unreasonable requirement. Without the assistance of the asylum seeker making the claim, the jobs of our border protection and immigration officials become extremely difficult—if they cannot prove who these people are. Whilst officials can continue to ask questions and seek clarification on information given by the applicant, early and full presentation of claims allows refugees to be recognised much earlier, which again is the more humane outcome rather than making them wait years and years.

Further, the amendments will allow our border protection officers to process asylum seekers in an efficient manner, which will see those who need asylum granted protection at the earliest possible opportunity instead of having to wait up to seven years as is currently the case. The importance of presenting a full claim for protection at the earliest opportunity is, as I have said, essential both for the claimants and the Australian government.

Currently, non-genuine asylum seekers can, and do, exploit the application process by presenting new claims or evidence at the review stage. This deliberately causes significant delays in processing their claims and the claims of other applicants. This bill enables the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence that is not raised at the earliest possible opportunity. Again, this is a very fair and reasonable requirement. This will discourage the late presentation of evidence and ensure that applications are able to be processed in a timely manner. If people can provide the evidence, they should provide it at the earliest possible opportunity.

The bill includes safeguards to ensure that applicants with a genuine need for protection are dealt with appropriately. If new claims and evidence are accompanied by a reasonable explanation as to why this information has been provided later, the tribunal will address all the claims and evidence on their merits. These amendments strike a totally appropriate balance between deterring abuse of the system—which is clearly occurring at the moment—and ensuring procedural fairness for those who are in genuine need of assistance.

We are all too aware that many asylum seekers, on the advice of people smugglers, destroy their identity documents before they arrive in Australia, assuming that they will just be given the benefit of the doubt. I know from my personal experience in this policy area that people smugglers do recommend to asylum seekers that they give up their identity documents before they are permitted to board boats in Australia. We know this. We know it is true and we know it has been a longstanding practice.

These identity documents have previously been used by the same asylum seekers to travel to Indonesia, sometimes on one, two or even three different flights, through customs and borders in a number of countries before they get to Indonesia. We know that for many of them their identity documents did exist but they are destroyed to give them a better chance and to exploit our goodwill and our current systems.

If you are a genuine refugee, an identity document should be the most important document that you hold and you should retain it throughout your journey to Australia because it will also assist to prove your case. The destruction of these documents, quite rightly, raises concerns about the validity of asylum seekers’ claims, as does the use of forged documents, which is also something that occurs.

Establishing a person’s identity, nationality or citizenship is central to determining protection visa eligibility. People smugglers do not screen their customers on the basis of whether they are a genuine refugee or not; this point is irrelevant to them. As long as they have the cash, they will take them. They will take anyone who has the US$10,000 dollars or more—although, I understand it is a bit cheaper lately due to our border protection policies. They do not screen them for the genuineness of their claims.

We cannot rely on the simple fact that a person has paid a people smuggler—and flown through a number of countries, ending up in Indonesia, with or without documentation—to prove that they are in fact a genuine refugee. The simple fact that they have put themselves on this boat is not sufficient for us to say, ‘Yes, they are a genuine refugee’. We must be able to establish their identity. It is, therefore, vital that the use of bogus identity documents, and the destruction or discarding of documentary evidence, is discouraged and not rewarded. The measures proposed in this bill are critical in this respect.

Despite what Senator Milne has just told us, this amendment is not a case of Australia going rogue, Australia going it alone or evidence of international exceptionalism, because, in fact, it is in line with legislation already in the United States, in the United Kingdom and in New Zealand. So this is hardly going rogue. It is hardly going against our international obligations or an example of exceptionalism.

I would also like to address some of the claims of those opposite that there are no safeguards. The safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. I will say that again: the safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. The codes of procedure within the Migration Act will ensure these new measures are used appropriately and that all protection visa applications will continue to be assessed in good faith.

The primary purpose of these amendments is not visa refusal but to ensure that asylum seekers are aware of the importance of providing genuine documentation as soon as they can. To rebut what has also been suggested by the Greens speakers: where an applicant has a reasonable explanation for failing to produce original documents and has taken all reasonable steps to do so, these amendments will not be invoked. Additionally, these amendments represent a fair and balanced approach to handling claims in the absence of documentation provided by the applicant. I believe it is absolutely imperative that our Border Protection officials are able to determine the identity of those seeking asylum in Australia, and these amendments are critical to ensuring that they can.

I am also aware that the opposition have indicated that they support all parts of this bill other than schedule 2, which concerns the ‘more likely than not’ threshold for complementary protection. ‘Complementary protection’ is a term that describes a possible visa pathway for a category of people who, whilst not meeting the refugee convention definition, are nonetheless in need of protection on the basis that they would face serious violations of their human rights if sent back to their receiving country. For this class of people, the bill seeks to restore the originally intended ‘more likely than not’ threshold, which I think is a very good thing and a fair thing.

This threshold is an acceptable position open to Australia under international law and is consistent with the thresholds adopted in both the United States and Canada, despite the assertions by the Greens that this somehow represents Australia going rogue; it does not. Despite what they would have us believe, this test does not require decision makers to precisely determine whether there is a 48, 49 or 47 per cent chance of an asylum seeker being subject to torture. It is not a quantifiable, greater than 50 per cent chance style of test—and that is very clear. The Greens’ assertion is simply not true. Civil courts in this country make judgements every day based on the balance of probability. The ‘more likely than not’ test is the same threshold. It is a fair and reasonable standard to use in the case of complementary protection.

It is interesting to note that this threshold is the same threshold that was initially adopted by the Labor government when the Migration Amendment (Complementary Protection) Act commenced in March 2012. I say that again: this is exactly the same threshold test that was introduced by Labor in 2012. It is par for the course that Labor are now rejecting the very threshold that they themselves adopted. This bill’s intention is not to raise the threshold but merely to return it to the level which was set by Labor. Once again, those opposite are seeking to derail the government’s pledge to take control of our borders and restore faith in Australia’s immigration measures.

If Labor and the Greens vote with the government today, we could ensure that thousands of illegal maritime arrivals have their asylum applications dealt with in the most efficient and—

Senator Di Natale: They are not illegal.

Senator Wright: They are not illegal.

The ACTING DEPUTY PRESIDENT ( Senator Gallacher ): Order!

Senator REYNOLDS: They are illegal maritime arrivals.

Senator Di Natale: They are not illegal.

Senator REYNOLDS: Illegal maritime arrivals, IMAs.

Senator Wright: They are not illegal.

The ACTING DEPUTY PRESIDENT: Order! Senator Reynolds has the call.

Senator REYNOLDS: I think it is pretty clear: illegal maritime arrivals. Despite the fact— Honourable senators interjecting—

Senator Cormann: Mr Acting Deputy President Gallacher, on a point of order: as you know, interjections are highly disorderly. The Greens have not stopped interjecting. I would ask you to call the Greens to order.

The ACTING DEPUTY PRESIDENT: There is no point of order, but I do remind senators in the chamber that everyone is entitled to be heard in silence. Senator Reynolds.

Senator REYNOLDS: This bill sends a clear message to people smugglers and asylum seekers alike about the importance of identity documents and the benefits of presenting a full claim as early as possible. The government are not in the business of denying protection visas to those who genuinely meet the criteria, but we will not provide them to those who board a boat without a genuine claim. We must be able to determine who is genuine and who is not. It is simply in our national interest to do so.

We must also be able to determine who is a potential risk to our community. While these cases are rare, there are documented cases of asylum seekers who have gone on to commit heinous crimes in our community. We do have a duty of care to all Australians. This bill will provide clarity to asylum seekers and give our Border Protection officials the tools necessary to process claims efficiently and fairly.

It is for these reasons that I will be supporting the bill, and I commend it to the Senate.