George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Let us not forget as we approach this debate that, in the last several days, many lives have been lost in the waters to the north-west of Australia, and that is a human tragedy. So the decision this parliament makes about the most effective border protection policy is as important a decision as this parliament can possibly be making because human lives literally depend upon us getting the answer right.

For all the moral posturing that we have heard in this debate, including the moral posturing we heard just momentarily from Senator Bob Carr, we have one task in the end, and that is to arrive at the policy, to choose the policy, that is most likely to be effective to stop the people smugglers. I can understand the frustration of the public when they see lives being lost at sea and they see us here in Parliament House debating this measure and being unable to come to an agreement. I understand that frustration; I share it. That frustration is evident in the newspapers this morning: 'Lives, not politics'; 'Paralysis in parliament'; 'Our politicians fail again'. But if we are to be true to ourselves, if we are to approach this issue both intelligently and conscientiously, we have to contend for the policy that we believe will be most effective to stop these horrible events.

There is a call for bipartisanship and, on the ultimate issue, there is bipartisanship because everyone in this parliament wants people smuggling stopped. So, on the ultimate issue, we are not in disagreement. We are in agreement. Even the Greens are in agreement with the government and the opposition. We all want the people smuggling stopped. So the question is not whether but how. It is a question of means, not a question of ends. It seems to me that, in deciding what policy is most effective to stop the people smuggling, it is quite the wrong approach to say there should be a compromise if the compromise is between a policy that has demonstrably failed and a policy that has demonstrably succeeded. That is the choice. It grieves me to say this but I do fear that, on the part of the Prime Minister and her government, there is an element of stubborn pride in refusing to acknowledge that the Howard government's policies worked. That is empirically demonstrable.

In the six years between the implementation of the tough policies that the Howard government announced at the end of 2001 and their abandonment by this government in the name of a phony appeal to compassion in August 2008, the number of unlawful arrivals fell from several thousand a year in the years prior to the Howard government's new policies to 301 people in six years. The number of vessels fell to 16 across those six years. Since those policies were abandoned, almost 20,000 people have come in fewer than four years and, although it is difficult to calculate, more than 550 or so people have drowned. From the time the Howard government began to implement its Pacific Solution, announced at the end of 2001 but implemented from the beginning of 2002 with the opening of the Nauru detention centre, not one person drowned at sea—not one. Since those policies have been abandoned more than 500 souls have drowned. I do not say the government acted in bad faith in abandoning those policies—it did not want this to happen—but it acted foolishly. I remember Senator Evans, then the minister for immigration, standing up in this chamber and saying, 'We are going to get rid of your inhumane policies with softer policies.' Those were not his very words but that was the effect of what he said. I remember the opposition warning that, if the tough policies were replaced with softer policies, that would be a magnet for the people smugglers—and that, tragically, is what has happened. As a direct consequence of that terrible policy error, more than 500 men, women and children have perished at sea in the last 3½ years.

I said it before: our obligation as legislators is to get the policy right. There has been much talk of the Malaysia solution. The Malaysia solution has never operated. The belief, evident in the contribution that Senator Bob Carr just gave, that the Malaysia solution would work is based on a hope. To use the word that Mr Andrew Metcalfe, the Secretary of the Department of Immigration and Citizenship used to me last year when he briefed the opposition, it is based on a 'conjecture'. It is the best estimate of the officials, I acknowledge that, but it is a conjecture, because the Malaysia solution has never been in operation. We do not know whether it will work or not. But this we do know: Malaysia is not a signatory to the refugee convention and in order to operationalise the Malaysia solution the government would be required to repeal from the Migration Act section 198A, inserted by the Howard government, which stipulates minimum human rights protections. It stipulates that a country to which asylum seekers are sent for processing must meet relevant human rights standards in providing protection for refugees. That is the effect of the amendment that Senator Abetz foreshadowed in his contribution on the second reading speech earlier. We will not countenance a migration and refugee policy which entirely strips all human rights protections and standards from Australian law. That is what the High Court demanded in August last year. And we will not countenance it.

Senator Carr, in asserting that the Malaysia solution would work—a hope, a piece of conjecture—said in the contribution we have just heard from him that, in the period between the announcement of the Malaysia solution on 7 May last year and the decision of the High Court on 31 August last year, the number of refugees dropped sharply. He took that as empirical evidence that the Malaysia solution would have worked. Unfortunately, what Senator Bob Carr just told the Senate was wrong. In the four months between the announcement of the Malaysia solution by Ms Gillard on 7 May 2011 and the High Court's decision in the Malaysia solution case on 31 August 2011 there were 1,092 asylum seekers who came to Australia in that four-month period when the Malaysia solution was the policy of the Australian government, before it was struck down by the High Court. In the previous four months, the equivalent period antecedent to the Prime Minister's announcement of the Malaysia solution, there were 1,172 asylum seekers who came to Australia. There was no material difference in the numbers at all—none. So if we take up Senator Bob Carr's invitation to compare the rate of passage of asylum seekers after the announcement of the Malaysia solution with the rate for an equivalent period before the Malaysia solution, there was no significant difference at all.

I said at the start of my remarks that what this is about is choosing the right policy. The right policy is a policy that is effective. It seems to me that if you are a rational decision maker and it is acknowledged, as the government by implication does acknowledge, that your policy has failed and you are looking for a new policy, a policy that will work, what you would rationally do is return to a policy that did demonstrably work. And the Howard government's policy did demonstrably work. That is not merely an assertion by me; it is an incontrovertible fact: 301 asylum seekers in six years, and no drownings, versus more than 19,000 asylum seekers since the policy change, and more than 550 drownings. Why wouldn't you, unless you were constrained from doing so by stubborn pride, go back to policies that worked?

We have heard the argument: 'Well, the Pacific solution was a product of its time. It may have worked then, but it will not work now.' We do not know for certain, just as we do not know for certain whether the Malaysia solution would work, either—although, when applying to the Malaysia solution the test that Senator Bob Carr invited, it is shown not to work. But, nevertheless, the fact is that we are in a position of choice under uncertainty. When you are a decision maker making a choice under conditions of uncertainty, it seems to me that a rational decision maker would say, 'Well, in seeking to replace the policies that have demonstrably failed, let our first port of call be to see if the policies that demonstrably succeeded will succeed again.' That is the point.

The government concedes its policies have failed. Empirically, they have demonstrably failed. We know the Howard government policies succeeded. We accept that there is an argument that maybe those policies would not work so well again. Maybe they would not. But would you not try? Wouldn't your stating point, as a rational decision maker, be to say, 'Let us see if the policies that demonstrably succeeded in the last decade will still succeed in this decade'? Why would you not do that, unless your decision making capacity was intruded upon and corrupted by stubborn pride, by the inability to concede that John Howard was right. And would not that be a preferable course than to adopt a so-called solution—the so-called Malaysia solution—about the success of which there is absolutely no certainty and that, if we were to apply the test Senator Bob Carr just told us we should apply, is likely to fail, and, unlike the Nauru solution, strips all human rights protections from refugees—every last one?

That is the coalition's approach. That is my approach. We cannot promise that a return to the successful policies of the last decade would be a success again, any more than Senator Bob Carr or any other member of the government can promise that the Malaysia solution would be a success. But we know these two things: firstly, the Nauru solution satisfies the human rights tests and the Malaysia solution does not; secondly, we know that the Nauru solution succeeded when last it was tried and there is no reason to believe—or to presume, as the government does—that it cannot succeed again. So why would you not give it a try?

We should rise above partisan politics in this debate when human lives are being lost. But rising above partisan politics means you acknowledge that, just possibly, your political opponents did get it right. It means putting your pride to one side and acknowledging the demonstrable fact that the Howard government's policies worked, that the Rudd and Gillard governments' polices have failed, and that if you really want to solve this problem the starting point for any rational, dispassionate decision maker is to see whether the policies that worked before will work again.