Deborah O'Neill (Robertson, Australian Labor Party) Share this | Link to this | Hansard source

My question is to the Prime Minister. What is the government's response to the recent decision by the High Court regarding the processing of asylum seekers?

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

I thank the member for Robertson for her question. It is a serious question about a matter that is a serious issue in our national public policy debate and a serious question for our country. The processing of asylum seekers has featured in our politics for a very long period of time, well over a decade. During that period we have seen tragedy at sea, we have seen people get on to leaky boats, we have seen people pay money to people smugglers and give money to people who are preying on their desperation. I believe across this parliament people generally want to ensure that we do have an orderly migration system and that we are doing what we need to do to protect Australia's borders but that, at the same time, we are extending the compassion and concern that our nation has shown over many decades towards refugees—that is, that we honour our obligations under the refugee convention.

During the course of today I did provide the Leader of the Opposition with some newly drafted amendments to the Migration Act. They are to achieve what the government set out to achieve after the High Court case—that is, they are to achieve a situation where executive government has the power to make the decisions it believes necessary in relation to offshore processing. The opposition received a legal briefing on Friday and a set of draft amendments were provided at that point. There are obviously a number of ways of achieving the same outcome. I have provided Leader of the Opposition with a new draft and I thank him for his consideration of that new draft.

What we are talking about here is an issue that is of national importance and I believe Australians today are looking to this parliament to act and to show some resolution. I believe Australians are looking to this parliament to deal with these new amendments in a way that is not politics as usual. I believe the Australian nation is looking to us to deal with these new amendments in a way that is not politics as usual, in a way that resolves this issue and enables the nation to put it behind us. As we come to consider these new amendments, I believe that is what should be on the mind of every member of parliament. This issue is asking us to act in a way different to politics as usual and to seek some common ground.

In providing these new amendments to the Leader of the Opposition today, we seek some common ground. The new amendments have been provided in the spirit of not pursuing politics as usual. The new amendments have been provided so our nation can put this issue behind us and move on, confident that executive government has the powers it needs to implement offshore processing as it sees fit but always in accordance with our obligations under the refugee convention.

Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

My question is to the Prime Minister. I refer the Prime Minister to what she considers substantial changes between Friday and today of the amendments that the government proposes to make to the Migration Act. Given the confusion that surrounds the government's changes from just Friday to Monday does this not simply confirm that the Prime Minister has a caucus management problem as well as a border protection problem?

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

Order! The member for Cook, the last part of that question is beyond the standing orders.

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

Can I say to the shadow minister, the objective of the government, and I hope it is shared as an objective of this parliament, is absolutely clear. It has been clear over a long period of time now, clear over many long months. That objective has been that we should take the most effective action possible to deter people from getting on leaky boats and from potentially risking their lives. We should take the most effective action possible to deter people from putting themselves in the hands of people smugglers who are seeking to profit from their misery. Our objective has been over many long months—apart from sending the most effective message of deterrence—that in designing a policy we should make sure that we are doing our best to protect Australia's borders but that, at the same time, we are doing our best to protect the values that Australians hold dear. And so at every stage the government has worked for effective deterrence and border protection coupled with honouring our obligations under the refugee convention. So when we entered into discussions with Malaysia, because we were advised and properly saw this as the most effective deterrence measure, we did it on the basis that our nation would always honour our obligations under the refugee convention. At its heart, the refugee convention is about not returning people to places where they would be persecuted, and the arrangement with Malaysia ensures that.

It is also about making sure that people can have their claims processed, and the arrangement with Malaysia ensures that. It also goes through and ensures that people will have identification papers, that they would not be subject to the sanctions on illegal migrants, that they would have access to education and the ability to seek work. The United Nations High Commission for Refugees has indicated that they are prepared to work on the implementation of this arrangement. That is because we have worked on this arrangement as a part of a regional solution, firstly, going to the big regional meeting in Bali to work on a regional framework, and that was agreed. Then this is the bilateral arrangement under the auspices of that framework.

At the same time, in honouring our refugee conventions in this arrangement, we have ensured that we would extend our compassion to 4,000 more genuine refugees, people who are in Malaysia and have been there for years. I was asked about the government's objective.

Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Mr Speaker, I rise on a point of order. My question went to what the Prime Minister describes the significant changes between last Friday and Monday and she is not addressing what has changed between last Friday and Monday.

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

Order! The member for Cook should be reminded that his question went beyond that, which is not very helpful. The Prime Minister is responding to the question.

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

Thank you very much, Mr Speaker. I was explaining what the government has always sought to achieve here. Then, when the High Court made its decision, which was unexpected, the government still seeks to achieve the same objectives that it wanted to achieve from the start. That now requires us to legislate and to amend the Migration Act to put beyond doubt that the executive government has the power to implement offshore processing arrangements.

Now, there is inevitably more than one way to draft a set of amendments. When the opposition was briefed on Friday a draft set of amendments was provided, and when they were provided in the discussion in the meeting it was clear that there was more than one way of achieving this objective. The Leader of the Opposition expressed concern about some matters. In the new draft I believe he will see additional clarity on the matters about which he expressed concern. The Leader of the Opposition has said to me that he will now consider those amendments and I believe that to be highly appropriate.

Tony Abbott (Warringah, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source

Mr Speaker, my supplementary question goes to the assurances that the Prime Minister referred to in the answer to the member for Cook. Why then does the government's latest draft legislation say that the assurances need not be legally binding?

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

That clause was in the draft that the Leader of the Opposition was provided with on Friday. It is in the draft that the Leader of the Opposition has been provided with today. Clearly, it is the government's view in instructing the drafting of these amendments that governments can make arrangements between them that are honoured by both sides. We have made an arrangement with Malaysia, which it has freely entered into, and, frankly, apart from being insulting to our friends in Malaysia, there is no reason to assume that Malaysia would not honour the obligations it has freely entered into.

At the end of the day, I do not ask the Leader of the Opposition to endorse the arrangement with Malaysia. I understand that he is opposed to it.

Opposition Members:

Opposition members interjecting—

Christopher Pyne (Sturt, Liberal Party, Shadow Minister for Education, Apprenticeships and Training) Share this | Link to this | Hansard source

My Speaker, I rise on a point of order. The Leader of the Opposition's question was very simply: what is the point of making an arrangement with a third country that is not legally binding?

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

Order! The member for Sturt would resume his seat. The only point of order possible is of direct relevance. The Prime Minister is responding to the question.

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

I was making the point that I am not asking the Leader of the Opposition to endorse the arrangement with Malaysia, but I am asking him to agree to amendments which would give executive government the power to act. To give the Leader of the Opposition a good example of where that power might be necessary, if we go back to the Howard government's arrangements with Nauru, they were a nonsignatory country in the days of those arrangements. The arrangements were not legislated in either Australia or Nauru. They were only enlivened by a memorandum of understanding between the two nations. So if in the future a government decided that it wanted to replicate exactly the circumstances that the Howard government had engaged in with Nauru at that time, it would need power as expressed in this amendment in the clause that the Leader of the Opposition has pointed to.

Ed Husic (Chifley, Australian Labor Party) Share this | Link to this | Hansard source

My question is to the Minister for Immigration and Citizenship. Minister, what is the best way to break the people-smuggling trade and deter people from taking the dangerous boat journey to Australia? How important is it for protections for asylum seekers to be put in place as part of any broader protection policy?

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

I thank the member for Chifley for his question. We know that the most effective deterrent for boat journeys to Australia is to remove the product that people smugglers wish to sell, and that is the opportunity of settlement in Australia.

Mr Hartsuyker interjecting—

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

Order! The member for Cowper is now warned!

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

That has been the consistent advice to this government and that advice has been provided to the opposition. The arrangement with Malaysia that this government has entered into achieves just that outcome. It provides for people to be returned to Malaysia for processing alongside the 90,000 other asylum seekers and refugees in Malaysia. It returns them to where the vast majority, well over 80 per cent, begin their boat journey to Australia—the country of Malaysia.

There are sound policy and humanitarian reasons for supporting the processing of asylum seekers offshore when it is part of a sensible and well thought out regional framework. Importantly, our regional approach involves Australia playing more of a role in resettling refugees and assisting countries in the region towards more consistent standards and treatments. The Malaysia agreement delivers significant humanitarian and protection outcomes in the region.

The honourable member for Chifley asked about the importance of protections and they are protections outlined in the Malaysian arrangement. The guarantee of non-refoulement, the guarantee of access to health and education and work rights as appropriate and the commitment to ensure access to processing are all outlined in the arrangement with Malaysia. There are two ways to deal with protections. You can negotiate them with the country involved, you can work them through, you can consult with the UNHCR or you can simply adopt the policy of turning boats around on the seas, which would not have those protections built in. It would be open to the government to adopt the policy of turning boats around on the high sea, which apart from being dangerous not only to asylum seekers but to Australian naval personnel would also result inevitably, where those boats are not sunk or sabotaged, in those boats being returned to Indonesia. Indonesia is not a signatory to the refugee convention. Anybody who is returned to Indonesia would have no protections guaranteed through negotiations with this government. They would have no guarantee of non-refoulement, no guarantee of work rights, no protections built in.

If people are going to criticise protections built in with the Malaysian arrangement, it is appropriate that they also reflect on what the result would be of a policy of turning back boats, which is the policy of the opposition. It is the case that there are protections that can be built in with refugee signatory countries—Indonesia is not one of those—but I do note that being a refugee signatory country alone is not necessarily a guarantee of protection. For example, Afghanistan and Iran, our two largest source countries, are signatories. Iran is the country which the honourable member for Cook has proposed for a transfer agreement. But we on this side of the House would not see it having the appropriate protections in place.

We want to ensure that this government and future governments have the power to be able to manage Australia's border protection policies. Without this legislation being proposed by the government, there is no confidence that we could have any effective offshore processing regime. The questions this week are: can the two major parties in this country, which both support offshore processing, reach an agreement to make it lawful? Will we reach an agreement for the policy that both sides of this House support? Will we have an effective and lawful offshore processing regime? And can we work in the national interest? They are the questions people in the region are waiting to see answered. On this side of the House, we are committed to doing so.

Tony Abbott (Warringah, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source

My question is again to the Prime Minister. Why did the Prime Minister say in her last answer that boat people could not be sent to Nauru under the existing legislation when the Solicitor-General said on Friday that the recent High Court decision did not rule out offshore processing in Nauru and that to say that he did say so was inaccurate.

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

To the Leader of the Opposition, he has misconstrued the point I was making in my last answer. He was asking me about a clause in the amendments that he has been provided with, and that clause was about assurances being gained between two countries which were not legally binding. That was his question to me. So I took his question to me to be: why would you want that in there; when would you use it?

The government is seeking to use that clause with Malaysia. But I was pointing out to the Leader of the Opposition for policy consistency that it is the kind of clause that would have been necessary for the Howard government when it entered into its arrangement with Nauru had the High Court taken the same interpretation then that it takes now. When the Howard government entered into its arrangement with Nauru, Nauru was not a refugee convention signatory country. That is a fact. No shaking of anybody's head will wish that fact away. When the Howard government entered into the arrangement with Nauru, it was not a legislated arrangement in Australia or in Nauru. There was a memorandum of understanding between the two nations which spelt out obligations on each side—that is, it is a comparable situation. It was not the end point because it was for processing rather than for transfers. But, on those points, it is a comparable situation to where we are with Malaysia. It is not a refugee convention signatory country but we do have an arrangement with it which spells out obligations. That was the point of my last answer.

Tony Abbott (Warringah, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source

Mr Speaker, on a point of order: my question was clearly about the Prime Minister's assertions as to the legal position regarding Nauru and I quoted to her the Solicitor-General's clear opinion on Friday—

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

Order! A point of order on a question is not an opportunity to repeat the question. The only point of order is whether the response is directly relevant. A question that commences 'Why did you say in a previous answer' leads to the Prime Minister being able to be directly relevant on the basis of her explaining why she said something in the previous answer. The Prime Minister has the call.

Julia Gillard (Lalor, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source

I was directing my answer to that part of the Leader of the Opposition's question which went to my previous answer. He also asked me about the Solicitor-General. The Solicitor-General, in written advice on the question of Nauru that we have distributed, the opposition has and is publicly available, has said further information would be needed. He also pointed to the fact that there is legal risk. If you want to put it beyond doubt then you would amend the legislation. In addition to the general circumstances about Nauru, I would direct the Leader of the Opposition's attention to the Solicitor-General's advice which deals with the complex and difficult question of unaccompanied minors. He would need to direct his attention to that as well. I say to the Leader of the Opposition: the grading he used for the Solicitor-General's opinion is not right. I would direct him to the two comprehensive pieces of legal advice which have been provided to the opposition and provided publicly.