INTERVIEW WITH WALEED ALY, ABC MELBOURNE BREAKFAST
Posted September 13, 2011
WALEED ALY: Chris Bowen is the Immigration Minister and he joins me now. Chris Bowen, good morning.
CHRIS BOWEN: Good morning, Waleed.
ALY: Should we be reading this attempt to come up with legislation to circumvent the High Court’s decision as another chapter in the Government’s continuing stoush with that court?
BOWEN: Well, no, I think what you can read it as, is the Government saying that we believe the law should return to its pre-High Court understanding – nothing more, nothing less than that. And in 2001 the legislation was passed by the Parliament, both sides of Parliament voted for it. It was very clearly understood by both sides of the Parliament to give the minister of the day discretion to nominate a country for third party processing, offshore processing, where the minister was satisfied with the protections and arrangements in place. Now, the High Court –
ALI: Can I go to that High Court decision, because it obviously took a different position. The High Court took issue with your plan because it said that Malaysia isn’t legally bound to give asylum seekers certain rights and protections, it isn’t a signatory to the Refugee Convention, it doesn’t even recognise the legal category of a refugee in its domestic law, and it isn’t bound by anything that’s in your arrangement with Malaysia. So these sound like pretty good reasons to anyone who’s concerned about the rights of asylum seekers; not everybody is, but if you are they sound like pretty strong reasons. You clearly are going to have to redraft the law so that those things don’t matter anymore. Is that what you’re going to be doing?
BOWEN: Well, no. As I say, Waleed, we had a clear understanding of the law previous to the High Court decision, and that was if the minister of the day was satisfied with the protections. Now, in relation to Malaysia, we negotiated, I negotiated with the Malaysian Government, in consultation with the UNHCR protections, which went to the guarantee from the Malaysian Government not to refoule people, to respect the principle of non-refoulement, to give them work rights, to treat them with dignity and respect and in accordance with human rights standards. Now they –
ALI: - None of which are legally binding, which is the point that the court made.
BOWEN: Well, but the point is that, I think pretty clearly, the understanding of the legislation was that if a political commitment is given by a sovereign government to another sovereign government, that is something that governments deal with all the time. Now, not only did the High Court ruling mean that Malaysia couldn’t proceed without legislation, but very clearly Minister Ruddock’s declarations of Nauru and Papua New Guinea from his time as Minister, which had been thought to be valid and in force until the Wednesday of the High Court ruling, are now invalid, to be held invalid and shouldn’t be acted upon.
So this was a significant change and we’ve stepped back, we’ve worked through the issues and we do think the 2001 legislation as it was commonly understood is an appropriate thing, because we think the government of the day has got to have the ability to run its policy and to have the discretion to do this where appropriate –
ALI: But the whole point of the separation of powers is that the Government doesn’t have the discretion to do just anything.
BOWEN: Well, no, but the Parliament has the right to make laws as well, Waleed, and that’s a pretty fundamental principle.
ALI: I understand that, but I guess what I’m going to is what these laws are ultimately going to do, and it sounds to me what you’re saying is that they’re going to lower the standard that the High Court set for the protection of the rights of asylum seekers, because the court was requiring not an agreement that’s not legally enforceable – it isn’t even an agreement, it’s actually called an arrangement – it’s requiring more than that, it’s saying that what we want to see is that there’s some kind of legal protection for these people. Now, it sounds like, from what you’ve said and would be necessary anyway, that you’re going to lower that standard. Is that right?
BOWEN: Well, the High Court interpreted that law in a certain way, and they interpreted the law to say, as you say, that there should be legally binding commitments founded in either signatures to conventions or domestic law, but also that the standards that should apply should be highly comparable to those in Australia, with the result as such that eminent commentators have said that the only country in our region that would qualify for offshore processing is New Zealand. Now, clearly –
ALI: And Nauru’s a signatory to the Convention now?
BOWEN: They have signed, they’re in the process of ratifying –
ALY: Okay, so that improves the situation, doesn’t it?
BOWEN: Well, it’s one factor, but very clearly, we’ve got five Senior Counsel or Queen’s Counsel, independent, who have said that they do not believe that it would be feasible to pursue the Nauru option without legislation, and they are not only the Government’s solicitors, but solicitors for the other side in that court case and other barristers who’ve been asked to give advice on that.
ALI: And I guess we’ll see if that legal advice stands up, because we’ve seen in the past it doesn’t always. You’ve more or less conceded that the High Court decision means you can’t send unaccompanied minors to another country for offshore processing. Doesn’t that effectively mean you’re forced to create an exception to your Malaysia deal, which means that it doesn’t break what you call the people smugglers’ model?
BOWEN: No, and again, the High Court did change the law on this issue. It had been commonly understood that the Minister for Immigration had the power to remove people, including unaccompanied minors. Now, the High Court ruled that that could only happen when the minister had effectively agreed that it was in the unaccompanied minors’ best interest and that was reviewable by the courts.
So effectively, it’s unworkable, and interestingly and accordingly, that applies not only to asylum seekers but to all unaccompanied minors: so people who may claim asylum and then have that claim rejected and not be regarded as a genuine refugee, after all the appeal mechanisms, so not only the department –
ALI: Sure, but the point is that now it’s created a necessary exception to your rule.
BOWEN: No, and as I’ve announced yesterday, Waleed, we’ll be returning the law to its pre-High Court understanding, so that the government of the day has the discretion to deal with these matters appropriately. Because what we cannot have is a situation where people know they can send their children on boats, if they’re regarded as a refugee they’ll be granted a visa and then they can sponsor the rest of the family in, and even if they’re not regarded as a refugee, they can stay in Australia, and this is a –
ALI: More broadly, sorry, can I just broaden –
BOWEN: But I want to make this point, Waleed, it’s a very important one: it’s very dangerous and anything which encourages children onto those boats is something that I don’t think is acceptable.
ALI: I want to, more broadly, though, there was a poll that was published in Fairfax yesterday, there were other polls before it, that found a majority of those, and in this case 54 per cent, think we should move to onshore processing. Only 25 per cent favour offshore processing. Why will you not just embrace that, given that it’s ultimately more humane and that’s what the public actually want? Why this obsession with trying to do things offshore when it’s really expensive as well?
BOWEN: Well, Waleed, sometimes commentators might accuse politicians of being poll-driven; this is one example where, clearly, we are being driven by what we believe is the right policy. The right policy is a regional framework.
I don’t think that offshore processing by itself – if it’s not part of a regional agreement, not part of Australia playing an increased role in resettling refugees from our region, taking more refugees, helping countries like Indonesia and Malaysia and Thailand deal with the very complex issues of asylum seekers – I don’t think that it plays a role, but I think if it’s part of that broader framework, then it can and it should. I think that that’s appropriate. You know, opinion polls in the immigration space will always move around, but the bottom line is you’ve got to stick to what you believe is the right policy.
ALI: Can I come to the other story that’s around today and this is the deepening of the Craig Thomson affair. Kathy Jackson, who has been investigating or has referred this investigation into the Health Services Union, had something to say on this. This is what she had to say.
KATHY JACKSON: [grab] There may be corrupt activities occurring in the Health Services Union and I’ve promised to our members as my fiduciary duty that we get to the bottom of this.
ALY: Now, this concerns the fact that Craig Thomson and others as well, which I’ll come to in a moment, but Craig Thomson has been alleged now to have received commissions while being on the board of the Health Services Union, so there’s a corruption allegation in addition to everything that we’ve had before. Now, what I guess this comes to is ultimately what are you, the Government of which he is a Member of Parliament, doing about this given that the allegations of corruption keep coming?
BOWEN: Well, what we’re doing about it is letting the police investigate, and that’s the appropriate thing. There’s one place and one group of people who should investigate this, and that’s the police force, and –
ALI: It seems extraordinarily passive, though, doesn’t it, because –
BOWEN: Well, no, it’s not, because, look, this is an important point, Waleed, and I think there’s been some extraordinary comments made by the Opposition about this. I mean, frankly, if there’s allegations of criminal behaviour, it is entirely inappropriate, and you talked about the separation of powers before; well, here is a very clear example of how the separation of powers should work and that is politicians do not investigate allegations of criminal behaviour, the police do. Now, if George Brandis wanted to be a policeman –
ALI: I’m not asking you to investigate an allegation of criminal behaviour, though. That’s not –
BOWEN: With respect, you are, Waleed.
ALI: No, I’m not. I’m asking you to exercise a judgement that’s not a legal judgement about whether or not it’s appropriate when there is this much suspicion surrounding a member of your Government that you show some leadership about it.
BOWEN: Well, but Waleed, what you’re effectively saying there is that we should circumvent a police investigation, that’s what you’re suggesting. You’re suggesting, with respect, that we shouldn’t let the police get on with the job, that we should take some other form of action.
ALI: No, police can get on with the job and they will make a judgement whether to prosecute. I’m not asking you to prosecute him, I’m asking you to make a decision about whether or not –
BOWEN: Well, Mr Thomson has denied the allegations very strenuously.
ALI: Have you looked into those denials to see whether or not they stand up?
BOWEN: Well, he’s entitled to the presumption of innocence and he’s entitled to have the police investigate those claims. He’s entitled for that to occur without people second guessing what’s going on and he’s entitled for the police to be able to get on with their job. Now, George Brandis has criticised the NSW Police; he made allegations, the NSW police looked and them and said there’s no case for them to pursue it. Now, that’s up to the police. It’s not a matter for the Liberal Party, the Labor Party or anybody else. If the police investigate allegations and then say, ‘There’s nothing further for us to investigate’, that’s to be respected.
ALY: So is the principle –
BOWEN: There’ve been other allegations being made here; Mr Thomson has strenuously denied them, and it’s appropriate they be referred to the police and that the police be able to get on with the job. This is a very important principle, Waleed.
ALI: So is the principle here then that there is no inquiry, no questions need to be asked by a political party about the conduct of its members, unless the police ultimately conclude that there’s been criminal behaviour?
BOWEN: Well, where you’ve got the allegation of criminal behaviour and it’s a matter of whether that criminal behaviour occurred or didn’t occur, the police not only have the resources and the ability and the skills to investigate it, it’s their role in our society. It’s not the role –
ALI: But they’re running a different investigation. I’m not asking you to run a criminal investigation, I’m just asking –
BOWEN: Well, what are you asking us to investigate? There are allegations that have been made that have been referred to the police and they should be allowed to occur. We’re not running some sort of kangaroo court here.
ALI: No, but I’m asking you to do a little bit more than nothing.
BOWEN: And the police should investigate.
ALI: [inaudible] given that you’ve got to make a decision about this, that’s not legal but is one of, well, partly politics but also just to do with the principles of how your party is going to run.
BOWEN: Well, Mr Thomson’s an elected Member of Parliament. He was elected by the people of Dobell, he held office as Chair of the Economics Committee, which he’s relinquished, and apart from that as a Member of Parliament he’s entitled to get on with his job. If there’s allegations to be made about him, people are entitled to make those allegations to the NSW Police, which is what they’ve done.
ALI: What about the fact this goes deeper, because also implicated is the union boss, Michael Williamson, who’s a member of the NSW Right faction, which we know is a powerful faction and was involved in the toppling of Kevin Rudd, and meanwhile his daughter is the Prime Minister’s media officer. So how long can you put up with these sorts of connections floating around in the public space and being investigated?
BOWEN: Well, the point’s the same, Waleed. I mean, you’re repeating allegations; that’s fine. I don’t know if those allegations are true or not, because it’s up to the police to investigate them.
ALY: And you don’t want to find out until the police tell you?
BOWEN: Well, no, because I’m not a policeman, Waleed. If I wanted to be a policeman, I had the opportunity, I could have joined the police force. I chose a different career path. The police investigate these things and it’s up to the police to investigate them.
ALI: Just finally, the carbon tax legislation enters Parliament today, I understand.
BOWEN: Yes, I understand so.
ALI: Is this ultimately going to be legislation that, perhaps with other issues, kills off the Government?
BOWEN: No, it’s a difficult and complex reform in a controversial policy area, but it’s what we believe in. We believe that climate change is real and we believe we’ve got to do something about it. Now, I understand that can be unpopular. I understand that there’s elements of the media who strongly disagree and that’s going to cause us some political grief. But it doesn’t mean you walk away from it and we will argue the case for action on climate change, for a price on carbon because we believe and have believed for a long time that climate change is real and is caused by human activity, and there’s an obligation to do something about it.
ALI: Thanks very much for your time this morning. I appreciate it.
BOWEN: Thanks, Waleed. Good on you.
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