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Monday, 19 September 2011
Page: 10487

Asylum Seekers


Mr KEENAN (Stirling) (14:40): My question is to the Prime Minister. I refer to the call by Western Australian Labor Senator Mark Bishop that the government should reopen Nauru. As Senator Bishop said:

… you can have a proper office there doing the processing, staffed by Australian officials applying Australian law.

Isn't Senator Bishop right?


Ms GILLARD (LalorPrime Minister) (14:41): I thank the shadow minister for the question. As I have made clear in parliament over a number of days as we have discussed this matter, we are determined to implement the arrangement with Malaysia because the advice to us is that it would have the maximum deterrence effect. The advice to us—and this advice has been shared with the opposition—is that it would have the maximum deterrence effect. The advice to us is that Nauru would not have that deterrence effect, and that advice has been shared with the opposition.

Can I also say to the shadow minister who asked the question: at the end of the day, whether you determine that Malaysia is the best way forward or, as those opposite have determined, that Nauru is the best way forward, what will come before this parliament and the amendments that I have given the Leader of the Opposition today are not specific about Nauru. They are not specific about Malaysia. They are about empowering government to act.

The shadow minister who asked the question obviously does believe that Nauru is the best solution. I would refer him not only to the Solicitor-General's advice but to the advice of respected commentators like Ron Merkel QC: 'In respect of both Nauru and PNG, there must be great doubt that a declaration by the minister would be valid.' He is obviously saying you need to legislate. Stephen Estcourt QC said, 'Any declaration of Nauru or PNG under section 198A(3) would, notwithstanding the obvious points of distinction, likely meet the same fate as the recently invalidated declaration with respect to Malaysia.' International law expert Professor Don Rothwell said:

… offshore processing in Malaysia, as per the High Court's decision, and in Nauru or Papua New Guinea, would not be legally permissible.

Finally there are the views of the shadow Attorney-General, who provides advice to the opposition and who on radio said this—

Mr Pyne: Mr Speaker, on a point of order: the Prime Minister was asked about the advice of Senator Mark Bishop, and that is the advice that we would like her to address.

The SPEAKER: Order! The Manager of Opposition Business will resume his seat. My reading of the standing orders on direct relevance does not mean that other advice cannot be used in being directly relevant to the question.

Ms GILLARD: The shadow Attorney-General said on radio:

No, let … let me … let me put this in my own words: that if Nauru were to make itself compliant with all its obligations under Section 198—sorry, under the UN Refugee Convention and Section 198a of the Australian Migration Act—then the Nauru solution would work. But I do acknowledge that there is a sufficient area of doubt that it would be prudent and desirable to put the matter beyond doubt by legislative change.

I frequently do not agree with the shadow Attorney-General, but I do agree with that. The proposition that will come before this parliament is a proposition about amending the Migration Act. We have a view about Malaysia. The opposition has a view about Nauru. That is as it may be, but the proposition that will come before the parliament, in the words of Senator Brandis, is a proposition that would be prudent to pass even if the eventual aim was processing in Nauru. That is what the Leader of the Opposition needs to consider. I thank the Leader of the Opposition for meeting with me today and I thank him for indicating that the opposition is considering the amendments that have been provided to them today.