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Tuesday, 13 September 2011
Page: 9894

Asylum Seekers

Mr MITCHELL (McEwen) (15:23): My question is to the Minister for Immigration and Citizenship. Will the minister outline to the House the implications of the recent High Court decision on offshore processing? How is the government responding to this decision and what other approaches have been proposed?

Mr BOWEN (McMahonMinister for Immigration and Citizenship) (15:23): I thank the honourable member for his question. The House is well aware of the High Court judgment on 31 August, which changed what was well accepted and understood on both sides of the House as to the interpretation of the changes to the Migration Act which the member for Berowra introduced in 2001. The clear understanding, until that High Court decision, was that they enabled the minister for immigration of the day to nominate a country for third-party processing, where the minister had made a determination that the protections in place were appropriate. Under that legislation, a declaration was made for Nauru and for Papua New Guinea by the former minister, the member for Berowra, which, until very recently, was held to still be in force and still be valid.

The strong legal consensus, at least amongst anybody who does not have the name 'George Brandis', is that not only did the High Court judgment rule out the Malaysia arrangement but also that the declarations made by the honourable member should now also be regarded as being invalid. We have had five Senior Counsel or Queen's Counsel provide written advice to that effect: Gagaler SC, Lloyd SC, Kennett SC, Estcourt QC and Merkel QC. Merkel QC, for example, said: 'In respect of both Nauru and PNG, there must be great doubt that a declaration by the minister would be valid.' From Stephen Estcourt QC: 'Any declaration of Nauru or Papua New Guinea under section 198A(3) would, notwithstanding the obvious point of distinction, likely meet the same fate as the recently invalidated declaration in respect to Malaysia.' Or we have the international law expert Professor Don Rothwell, who said:

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

But it seems that, not content with ignoring climate scientists and not content with ignoring economists, alone they are now ignoring the lawyers as well. We have had the member for Cook denying that legislation will be necessary for a processing centre at Nauru.

They seem to base this on the advice of Senator Brandis, the Liberal Party's spokesman on legal issues, who sits in his office, stroking his chin, saying, 'Should I advise that Liberal Party policy is legal or illegal as shadow Attorney-General? As the Liberal Party spokesman on legal matters, should I say the Liberal Party would be in breach of the law or not?' He weighs these matters up very carefully, I am sure. But, clearly, if the Liberal Party are to be regarded as fair dinkum, they will accept the consensus of legal opinion, just as they will accept the consensus of opinion on the effectiveness of Nauru.

Earlier in question time, we had the member for Tangney talking about an FOI request released as recently as six months ago—they were right on to it, as quick as a flash. What the member for Tangney did not quote was another segment of that FOI, which said:

… the vast majority of those who arrived at excised offshore places and who were found to be refugees were settled in Australia or New Zealand.

That is direct advice from the department of immigration which confirms the advice that has been given to this government consistently, which the Prime Minister referred to yesterday. Over 90 per cent of those resettled from Nauru were resettled in Australia or New Zealand. The Leader of the Opposition may claim that being sent to New Zealand is a deterrent, but I am going to defend New Zealand. It is not a deterrent for people to arrive in New Zealand by boat; what it does show is that their policy continues to be a failure. They should act in the national interest and work with the government. This is a test for the Leader of the Opposition: will he act in the national interest or in his own cheap political interest?

Ms Gillard: Mr Speaker, I ask that further questions be placed on the Notice Paper.