Julia Gillard is likely to rescue her High Court-doomed Malaysia Solution policy, with Labor MPs expected to back changes this morning to the current Migration Act to allow offshore processing.

Caucus is meeting at 9am to vote on the policy, after earlier meetings this morning with cabinet. The opposition is expected to also back the immigration law changes as paves the legal return to processing on Nauru, an opposition policy.

Andrew Probyn in The West Australian argues the most likely move is that the government will propose the immigration minister “be given unfettered discretion to declare another country suitable to send asylum seekers”, with the drafting options to include Manus Island, Nauru and Malaysia, although the government won’t actually re-open Nauru as that would be seen as a win for the opposition. “The West Australian understands this is the favoured option Cabinet will discuss today because it would not only circumvent the High Court’s ruling but also put the Opposition Leader’s preference for reopening the detention centre on Nauru beyond legal doubt,” writes Probyn.

Offshore processing is still valid despite the High Court decision, it just requires a little work by the government, writes former Commonwealth solicitor-general David Bennett in The Sydney Morning Herald:

“… there is no legal reason why steps could not be taken with Nauru, Papua New Guinea or Malaysia (or indeed any other willing partner country), which would enable the minister to declare them satisfactory. It is significant that Nauru has now acceded to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Much attention to detail would be required. In particular, any agreement with Australia should, unlike the agreement with Malaysia, be expressed to be legally binding.”

Gillard will have to “stare down the dissent” from left-wing MPs within her own party in order to get the policy passed, writes Steven Scott in The Courier Mail. “But there is growing concern within the ALP that a deal with Tony Abbott could end up hurting the party and see it lose more votes to both the Greens and the Coalition,” notes Scott.

Stewart West, an immigration minister in the Hawke government, came out swinging against Gillard and Bowen in The Age today:

“How stubborn and arrogant can they be? Prime Minister Julia Gillard and Immigration Minister Chris Bowen are exceeding their earlier petulance over the High Court’s decision on asylum seeker policy. They are determinedly placing themselves to the right of Tony Abbott.”

But how difficult will the opposition — who the government is likely to need in order to get the Migration Act passed — be on these changes? It supports offshore processing on Nauru but not Malaysia, explains shadow immigration spokesperson Scott Morrison in The Australian:

“On Nauru it is more possible to deliver and guarantee practical protections because it is a small country with a very supportive government and a people who have a very strong connection with Australia. In Malaysia, and even Papua New Guinea, the delivery of protections and changes to domestic law are far more difficult.”

Tony Abbott is “putting politics ahead of policy”, argues Dennis Shanahan in The Australian. “Instead of being content to force the Gillard government into a humiliating deal with the Coalition to remedy the policy problem left by the High Court’s rejection of the Prime Minister’s Malaysia asylum-seeker-refugee swap, Abbott is giving no quarter,” he writes.

Meanwhile, Erika Feller, the senior United Nations High Commissioner for Refugees official that the government cited in its High Court submission as being supportive of the Malaysia deal now argues for a “top to bottom” review of Australian refugee policy and is offering the UNHCR to conduct it. “It might well be that for a whole range of reasons a review of the process would suggest that it’s just much more expeditious, more effective and probably fairer to review the claims in the proper national system onshore,” Feller told ABC Radio’s Sunday Profile.

The majority of voters want asylum seekers to be processed onshore, according to the latest Fairfax/Neilsen poll, reports Phillip Coorey in The SMH. Its results found that 54% “believe asylum seekers arriving by boat should be allowed to land in Australia to be assessed”, writes Coorey. Meanwhile, 25% say boat arrivals should be processed offshore, 16% believe boats should be “sent back” and 4% were uncertain. The phone poll was taken just last week, so well after the High Court’s decision.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey