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Tuesday, 20 September 2011
Page: 10809

Asylum Seekers

Mr RUDDOCK (Berowra) (14:35): My question is to the Prime Minister. I refer the Prime Minister to the opinion of senior counsel and former Solicitor-General, David Bennett QC, that the coalition's approach to offshore processing:

… provides more protection for asylum seekers than the two Government versions and it is less likely to be the subject of complex judicial proceedings.

Given that the coalition's approach would allow offshore processing to restart immediately, will she now adopt the coalition's amendment or does she disagree with David Bennett's advice?

Mr Melham: You didn't do too well in 2001.

The SPEAKER: Order! The member for Banks is warned. The member for Banks joins the six other people who are warned, and he knows—and I hope the other six know—that it is a precursor for a potential naming, which would really blot his copybook.

Ms GILLARD (LalorPrime Minister) (14:37): In answer to the member's question, given the member has served as a minister for immigration in an earlier government, he would be well aware that government turns to the Solicitor-General for legal advice. We have received legal advice, we have released it publicly, and the opposition has been briefed on it. I could take the member to many parts of the legal advice but perhaps it will suffice to take him to paragraph 3, where the Solicitor-General—and the Solicitor-General has been working with other legal advisers so obviously it is the considered opinion—says:

Our short advice is as follows. In the light of—

and then he refers to the High Court case—

Plaintiff M70 we do not have reasonable confidence on the material with which we have been briefed that the power conferred by s 198A could currently be exercised to take asylum seekers from Australia to either Nauru or to PNG for determination of their refugee status.

They are the words of the Solicitor-General.

Mr Morrison: Mr Speaker, I rise on a point of order on relevance. The question from the member for Berowra dealt with advice that was provided on the government's amendments tabled on Monday. She is reading from advice from the Solicitor-General on previous amendments.

Government members interjecting

The SPEAKER: Order! The member for Cook will resume his seat. The Prime Minister is responding to the question and, as I have said before, I am not in the business of marking people's homework. To my mind, she is being directly relevant to the question.

Mr Robb interjecting

The SPEAKER: Order, the member for Goldstein!

Ms GILLARD: The member asked me a question which included a form of words about why we don't immediately start processing in Nauru. That was the question I was asked. So I am directing the member's attention and the House's attention to the advice of the Solicitor-General. When I said at the start of this answer that the member who asked me the question, having served as a government member—

Mr Christensen interjecting

The SPEAKER: Order! The member for Dawson is warned.

Ms GILLARD: knows that government relies on the advice of the Solicitor-General, he nodded. That would have been his experience as a minister. It is our experience and my experience as Prime Minister, and the advice of the Solicitor-General is as I have outlined it.

That is before we get very complex set of questions involving unaccompanied minors. The minister, having served as a minister for immigration, is well aware of the very complex set of legal and policy questions involving unaccompanied minors, and the High Court has had something to say about the law involving unaccompanied minors as well. And so, relying on the Solicitor-General's advice, the factual circumstance that the government finds itself in, and that all members of this parliament find themselves in, is that the legal advice available to us is that one could not commence processing offshore without incurring legal risk. The Solicitor-General has particularly pointed to legal risks also involving complex questions around unaccompanied minors. That is the legal issue.

The government is seeking to resolve that legal issue in the national interest so this government and future governments have the kind of power in relation to offshore processing that the member had at his disposal when he was minister for immigration when he did have asylum seekers processed in a non-refugee convention country. I say to the member who has asked the question that maybe he might want to consider and advise his counterparts in the opposition how inappropriate it is for them to try to manoeuvre this parliament into the end of offshore processing by basing their argument on the refugee convention when in government their actions were not associated with refugee convention countries. There is a word for that, and it is called hypocrisy.