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.
34 thoughts on “Malaysia deal not sunk yet”
guytaur
September 12, 2011 at 10:36 amTTH
Simple the polling is wrong. You guys still need the National party to win in the Reps. Without Coalition there would be a majority Labor Government not a minority with green and Independent.
Just getting that simple reality wrong shows how off the plot you are.
Same Stale Shoes
September 12, 2011 at 10:37 am@Guytaur
Do you have a legal background at all? I think you’ve really misunderstood Tassie Dams… or ignored it.
Ratification of international treaties like the Refugee *Convention* does not enact them into Australian law. Any court is limited to merely attempting to interpret legislation in keeping with the treaty, they cannot invalidate it on the basis of inconsistency. What I understand the government’s advice to be is to remove the offending section (s198A(3)) and draft clearly that their intention is not to be bound by international treaty obligations in this regard, perfectly within their rights. Provided that section is removed any decision of the Minister to remove asylum seekers for offshore processing is non-justiciable.
guytaur
September 12, 2011 at 10:53 amSame stale shoes
That is what you think. However once tha law is in to undo you must either de ratify a Treatybor show how legislation abides by the intent. It is clear that to undo the previous Court ruling you have to go shaker the intent of the treaty. Intent that was reaffirmed by the leaders of both political parties. A case of either keep the treaty or break it.
Breaking the treaty is what is required for legislative change to work.
guytaur
September 12, 2011 at 11:09 amWhat is important for now is that to be challenged the legislation has to pass parliament.
So far it is looking like the Opposition is going to vote no along with the Greens. Thus we will have messy on shore instead of messy off shore policy by default.
Same Stale Shoes
September 12, 2011 at 11:14 am@Guytaur
That’s what I know from my law degree and from reading the majority judgement of the recent decision.
You’re clearly wrong about what ratification of a treaty means. I state again, it does not materially affect the validity of Australian law; no court can invalidate legislation on the basis of inconsistency with a ratified, unenacted treaty. I really suggest you Google it before your idiocy gives me colon cancer.
The majority justices in general, and French CJ in particular, stated clearly s198A(3) of the Migration Act formed the basis of the decision that the Minister’s declaration was justiciable. Refugee Convention obligations merely linfluenced a finding that the ss(3) grounds happened to not be satisfied with respect to Malaysia. If the subsection is removed, the legislative defect is cured.
guytaur
September 12, 2011 at 11:22 amSame stale shoes
I freely admit I could be wrong. But then I am not a lawyer or politician. My whole point remais. There will be a challenge. By someone expert in the law enough he got it right last time when the Government and Opposition legal teams did not.
So even your law degree may be of not much help in making you right.
What case btw mr expert has the High Court stated once legislation is in place backing a treaty can a government put in place legislation to undo a treaty?
guytaur
September 12, 2011 at 11:23 amSorry. Last sentence. …without breaking said treaty
TheTruthHurts
September 12, 2011 at 11:36 am[“IMMIGRATION Minister Chris Bowen has warned the Labor caucus of a $4 billion annual drain on the budget under a return to onshore-only processing of asylum-seekers. “]
Well there we have it folks, onshore processing is more expensive then offshore processing at Nauru or anywhere else for that matter.
You stop the boats, you stop the costs. You stop the boats, you stop the deaths.
Onshore processing is gonna be significantly more expensive because of the flood of boatpeople. Nauru was so cheap because there were so few boatpeople arriving(60 per year).
guytaur
September 12, 2011 at 11:44 amTTH
What was the figure for Nauru again?
On shore is cheaper. It is even cheaper than Malaysia if you stick to the 90 days for medical and security checks. Then release to community or deport depending on status. No more abusing human rights because DIAC is not doing it’s job properly.
Same Stale Shoes
September 12, 2011 at 11:47 am@Guytaur
Your point, that there will still be a High Court challenge with a Migration Act amendment, is not strictly untrue but is misleading. Any such attempted challenge would NOT be on the basis of the previous decision and would have the same chance of success as the dozens of applications that are rejected by the High Court on a regular basis. Please appreciate that immigration is a highly unsuccessful area of judicial review.
I’ll sum up your point regarding the government’s legal advice: “you never know!”. Not strictly untrue, but a meaningless point. Of course, I don’t assume that I’m 100% right in thinking an amendment to the Migration Act would be unassailable, but there’s no reason to think it wouldn’t be.
I’m confused by the phrasing of your question, but I’d respond by pointing out that there is no legislation in place to enact our obligations under the Refugee Convention. Even if there was, new legislation contrary to the Convention would impliedly repeal it, if it didn’t do so expressly. As stated above, the effect of ratifying the Convention is limited. Courts may only attempt to interpret legislation in keeping with the Convention. That’s it.