INTERVIEW WITH FRAN KELLY, ABC RADIO NATIONAL BREAKFAST
Posted September 05, 2011
FRAN KELLY: Minister, good morning.
CHRIS BOWEN: Morning, Fran.
KELLY: Minister, if, as you say, the legal advice is that the High Court has also struck out Nauru and Manus Island, why not announce right here, right now, that asylum seekers will be processed in Australia?
BOWEN: Well, Fran, what we need to do is work through all the issues. We do need to – I’ve said it before many times but I’m going to keep saying it – we do need to break the people smugglers’ business model, because as Mary Crock said, these are serious issues when people risk their life to get to Australia. And if we can come up with a much better regional solution which deals with source, transit and destination countries, that’s been my objective for 12 months; that’s what the Malaysia arrangement set out to do.
Now, the High Court has fundamentally changed the position last week in relation to the common understanding of the law. New common law was made and it’s incumbent on government and opposition and all involved to sit back now and give that proper consideration, and that’s exactly what we’re doing.
KELLY: But really, hasn’t the High Court decision left you with the fact that there are really only two options on the table: onshore processing in Australia or offshore processing in Nauru, perhaps?
BOWEN: Well, the High Court has clearly said that not only was my declaration of Malaysia invalid, but the clear interpretation and extrapolation of that is that Minister Ruddock’s declaration of Nauru and PNG were also similarly invalid because of the new test the High Court has applied. And all the legal advice is that that makes the processing of people in Nauru and PNG without legislative change very difficult indeed: open to challenge and difficult to implement.
So this is a very fundamental change. It turns on its head what’s been the fundamental understanding of Australian migration law for 10 years now and you don’t respond to that in a matter of hours or days; you deal with that appropriately and consider all the options and that’s exactly what we’re doing very methodically.
KELLY: The Opposition accuses you of misrepresenting the legal opinion because while it might have said that Nauru under Philip Ruddock’s model would be illegal, that Nauru is changing. For instance, it’s in the process of becoming a signatory to the UN Refugee Convention, it will change its domestic law and that it therefore will comply with the High Court ruling.
BOWEN: Well, I note that Mr Abbott admitted yesterday he hadn’t read the Solicitor-General’s advice.
KELLY: Well, that’s the advice from his Shadow Attorney-General.
BOWEN: Well, you know, the Shadow Attorney-General is a political figure. He’s not the independent government legal advisor, he’s the alternative Attorney-General. He’s making a political point.
But I’d make these following points. Firstly, the Solicitor-General’s advice – and it’s the advice of two other senior counsel as well, joint advice – makes it clear, and I’ll quote, ‘We do not have reasonable confidence on the material we have been briefed in that the power conferred by the Act could currently be exercised to take asylum seekers from Australia to either Nauru or PNG.’ It does then note that Nauru is signing the Convention, but then notes that there’s a number of other tests which Nauru would have to satisfy.
It’s not just this advice: a lawyer involved in the plaintiffs, the other side, Ron Merkel QC, has provided advice which is public and he says under the present regime his obligations, which relate to the fundamental human rights of refugees, cannot be transferred to another country unless that country offers access and protection rights akin to those offered by Australia. You’ve got Professor Rothwell saying New Zealand would be the only country that would qualify. So Mr Abbott saying there’s nothing changed in the Solicitor-General’s advice is just putting his head in the sand. Just like he ignores other experts, he’s ignoring the lawyers.
KELLY: Doesn’t it bring you back to the fact that you have two options: to process people here in Australia onshore or to try and get the Act changed to open up offshore processing again, and Tony Abbott is offering you support to do that? Are you going to take up that offer?
BOWEN: Well, he said that he would offer support only in extent to Nauru and PNG. We’d need to consider all our options. It is the case that legislative change would be necessary for offshore processing, but Nauru and PNG – PNG in particular – we’ve said would be a complement to a regional arrangement. But in and of itself, they don’t solve all the problems – they’re not a silver bullet. So we need to consider all our options and that’s exactly what we’re in the process of doing.
KELLY: So do you agree with Professor Crock, then, that Nauru and PNG under the Pacific Solution did not stop the boats, that it was not that that stopped the boats, it was the sinking of SIEV X and the negative message that sent to people who were thinking about it, and also Indonesia simply not being able to keep up with the efforts to stop people at source?
BOWEN: By and large, I do. I think that Nauru and PNG when they were in the Pacific solution were, if you like, a bit of a glamour bluff. The then-government said, ‘You come to Australia, we’ll send you to Nauru.’ Now, of course, what they then did was resettle the majority of the genuine refugees in Australia. I think there were a range of factors which led to the slowing of the boats. I think the fall of the Taliban in Afghanistan, the peace accord in Sri Lanka were important.
I think also what we tried to achieve in the Malaysia arrangement is a safe way of returning people to a source or transit country, which is, all the evidence shows, the ultimate deterrent. The ultimate deterrent is to say, ‘If you get on a boat and come to Australia you’ll be returned.’ Now, the previous Government did that by turning boats around on the high seas, which was highly dangerous and risked the lives of asylum seekers. That was their objective, though: to say if you get on a boat you won’t achieve anything, because we’ll turn your boat around and point it back towards Indonesia. Now, that’s still their policy, even if it’s got kids on it, which highlights the hypocrisy that has underlined their whole approach on this.
But our approach is to say, ‘Well, look, we agree, you need to return people to be processed in line with all the other people waiting for resettlement, but you do it in a structured way, with protections built in’, and that’s what the Malaysia arrangement under the regional framework was designed to achieve.
KELLY: So just briefly on that, could changing the Act make Malaysia a lawful option again? Could it keep it alive for you?
BOWEN: Well, of course there’s many options available.
KELLY: So you’re not ruling out trying to resuscitate the Malaysia solution?
BOWEN: I’m not ruling anything in or out, as I’ve said previously. But as Mary Crock said, you can change the law, you can change the Migration Act to allow any options, because what the High Court has done is interpreted the existing Migration Act, they’ve interpreted it in a different way than it had been interpreted in the past. And it’s open to the Parliament then to reflect on that and to amend the legislation accordingly to achieve the outcome that the Parliament was trying to achieve in 2001.
KELLY: So you could have another go at Malaysia?
BOWEN: Well, I’m not ruling anything in or out.
KELLY: Okay. While you’re not ruling anything in and out while you’re considering the options, what about the 335 asylum seekers on Christmas Island who arrived after that Malaysia agreement was signed and are now effectively in legal limbo? Will they have to wait while you work out all the options?
BOWEN: No, look, obviously it’s going to take some time to – even if we went down the legislation road, that would take some time to get through the Parliament – it’s necessary that we process these people, that’s the right thing to do and that’s what we’ll be doing.
KELLY: So when will you process these people?
BOWEN: Well, their processing will commence – it will obviously take, every processing takes time as their claims are assessed – but their processing will commence.
KELLY: And if they’re found to be genuine refugees, they will be resettled in Australia?
BOWEN: Well, yes, that’s the current system. If they’re not found to be genuine refugees, we’ll take steps to return them where possible, but that’s always difficult.
KELLY: And just briefly, as the Minister, are you relieved to have legal advice in hand ruling out offshore processing?
BOWEN: Well, Fran, no, because I think that the situation is that we worked very hard over the last 12 months to get a genuine regional agreement and we achieved that, and many people said we wouldn’t but we did. Now, then to have this situation arise does change the game completely, but it does show that, you know, some of the commentary around that, you know, somehow the way the Government handled the Malaysia arrangement means that it was struck down in the High Court – what was struck down in the High Court was similarly, in effect, not in words but in effect, it means the arrangements put in place in Nauru and PNG last time were similarly invalid and therefore that changes the arrangements for all of us going forward, and that’s why I’m saying we all have to take a step back and reflect on the way forward.
KELLY: Minister, thank you very much for joining us.
BOWEN: Nice talking to you, Fran.
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