Laura Smyth (La Trobe, Australian Labor Party) Share this | Link to this | Hansard source

My question is to the Minister for Immigration and Citizenship. Will the minister outline to the House the implications of last week’s High Court decision on the processing of asylum seekers? How has this decision been received and what is the government’s response?

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I thank the honourable member for her question. Last Thursday the High Court delivered its decision on the challenge to refugee processing of offshore arrivals. It is very important to be clear about what this decision did and did not do. The court has found that the refugee status assessments and independent merits review is subject to judicial review in some circumstances relating to procedural fairness. Importantly, this decision has no impact on the government’s capacity to establish a regional processing centre which would be operated as part of an international framework. However, there are doubts and serious questions about whether decisions made by Australian government officials in third country processing would be subject to judicial review where they are not part of an international agreement and where they are not partnered with international organisations.

I note that the opposition have sought legal advice on the issue of whether the Nauru solution would be made impractical by the High Court’s decision. They got it from their preferred independent and impartial legal adviser, Senator Brandis. I am sure the House will be relieved to know that, after deep consideration in his chambers, Senator Brandis has given the opposition policy a big tick and cleared it on legal advice. But you do not always have to get legal advice from somebody who happens to be the shadow Attorney-General. There are other lawyers in Australia. For example, Julian Burnside QC was asked about this last Thursday. He was asked whether the opposition’s policy would stand up. He said, ‘I think there is a respectable—

Opposition Members:

Opposition members interjecting—

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! The minister will be heard in silence. It amazes me when people are interjecting on their own interjections, because they surely cannot hear the answer. I cannot hear it. The minister has the call. He should be heard in silence. I hope he is heard in silence.

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Mr Burnside QC said this—

Opposition Members:

Opposition members interjecting—

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

It is funny how Mr Burnside is apparently less impartial than Lord Brandis of Brisbane, according to those opposite!

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! The minister will ignore the interjections, and interjecting will cease.

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Mr Burnside said, ‘I think there is a respectable argument that if officers of the Australian Commonwealth operating in Nauru make a life and death decision they also would be subject in the same way to review that the High Court has said today.’

It is important when considering implications of the High Court case that we base our policy responses on the consideration of the facts. I noticed on Lateline on Thursday night the member for Cook was asked to respond to my suggestion that the so-called Nauru solution might be caught up in the High Court case. The member for Cook said this:

Well, if Chris Bowen’s right, then that means the 47,000 applications that were made offshore for protections visas in Australian missions and with Australian officials around the world or the thousands of other applications that are made for skilled visas and others would all be reviewable by the High Court.

That is what the member for Cook said—‘If Chris Bowen’s right, this would need to be true.’ Guess what? It is true. The honourable member for Cook appears to be unaware that those applications are subject to judicial review by Australian courts. It just goes to show that when it comes to policy it is important to be good at more than sound grabs. It is also important to be good at sound policy, which the honourable member for Cook and his colleagues appear not able to be. The government will continue to work through the implications of the High Court decision in a calm and methodical manner, and the opposition might care to do the same in relation to the High Court implications for their own policy.