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

I beg your pardon: for not supporting the Malaysia solution. We do not support the Malaysia solution—we never have—and we are unashamed of not supporting it because, as the High Court of Australia itself found, there were fundamental gaps in human rights protection in Malaysia which the so-called Malaysia solution did not deal with and could not guarantee protection from. One of those gaps was the custom of the Malaysian authorities to subject asylum seekers as a matter of routine to corporal punishment—to whipping. Do you think that we are ashamed of not sending men, women and children to a jurisdiction where they were liable to be whipped? No, we are not. We do not think that that was the right thing to do. It was not then, it still is not. We did not support it and we are proud not to have supported it. The Malaysia solution predated, in the government's consideration, the Nauru solution—the solution which worked.

Thirdly, Senator Feeney, let me take up what you say about Australia's international treaty obligations. Australia's international treaty obligations should be respected by all sides of politics, but treaties are obligations between nation states; they are always subject to domestic laws. Senator Hanson-Young, in the weird, cloud cuckoo land of the Greens, where everyone greets one another as a fellow Earthian, seems to think that there is a hierarchy of laws that puts international law above the laws of nation states. Not so, Senator Hanson-Young. We do not have global government—thank goodness! Treaties are not part of domestic law unless specifically enacted, and treaty obligations are always subject to and able to be attenuated by domestic legislation—not the other way around. Australia's treaty obligations are subject to the laws of this parliament—not the other way around. And while a law of this parliament might adopt a treaty obligation, the fact of the existence of a treaty not domestically legislated for does not tie this parliament's hands in seeking to abate or attenuate the obligations assumed under the treaty.

We make no apology at all for saying that the will of the Australian parliament, reflecting the will of the Australian people, is the paramount consideration here. If that means that a law passed by this parliament, with the mandate of the Australian people, abates a treaty obligation, then so be it. But nobody should say that a treaty obligation is superior to the domestic law of Australia in circumstances where the treaty obligation has not itself been enacted by the domestic law of Australia.