Back to square one on refugees
Australian Broadcasting Corporation
The Malaysia solution looks all but dead and the Government's immigration policy appears to be in tatters. With few options left, have we seen the end of off-shore processing? Or could this signal a return to the Howard government's Pacific solution?
TranscriptCHRIS UHLMANN, PRESENTER: The Prime Minister has delivered an extraordinary response to the High Court's ruling, accusing the Chief Justice of inconsistency. Julia Gillard says the judgment was deeply disappointing, overturned existing precedents and rewrote the Migration Act. As Hayden Cooper reports, she's now getting urgent legal advice on her options.
HAYDEN COOPER, REPORTER: There can be little doubt about the significance of the High Court's momentous ruling, for rarely does the judiciary intervene so absolutely in the decisions of the executive. But what does it mean for future policy in this most contentious area?
JULIA GILLARD, PRIME MINISTER: Effectively, if you like, yesterday the refugee and asylum seeker law of this country changed. The High Court's decision basically turns on its head the understanding of the law in this country prior to yesterday's decision.
FRANK BRENNAN, AUSTRALIAN CATHOLIC UNIVERSITY: This is an enormous blow to governments of both political persuasions.
HAYDEN COOPER: Law professor and human rights expert Frank Brennan believes the ruling has major implications for all forms of off shore processing and casts a dark cloud over Nauru and Manus Island as possible solutions.
FRANK BRENNAN: A profound cloud. What we can say is that there are two hurdles. First of all, the necessary precondition that you have a legal regime in place - that's where Malaysia fell. Manus Island and Nauru: maybe they'd get over the necessary hurdle, but do they actually have sufficient protection in fact of human rights and proper processing of people in those countries? An open question.
HAYDEN COOPER: And for either side of politics, if they did decide to go ahead with Nauru or Manus Island, they'd be challenged in court, wouldn't they?
FRANK BRENNAN: Undoubtedly. It would be challenged on the basis that neither Nauru nor Manus Island gives sufficient protection in fact to human rights and does not have a sufficiently robust and transparent system for processing refugee claims, and we wouldn't know the answer; the Government wouldn't know the answer until a court ruled.
HAYDEN COOPER: The Prime Minister agrees. She's claiming the ruling is a setback, not just for her plans, but for the Opposition's too.
JULIA GILLARD: It is far from clear whether the court's ruling would, practically speaking, permit the operation of offshore processing in other locations, even in locations where offshore processing has been conducted in the past.
HAYDEN COOPER: But the judgment does distinguish between past and present policies, stating clearly that the arrangement with Nauru was very different from the Malaysian proposal.
TONY ABBOTT, OPPOSITION LEADER: Let's face it, Nauru happen under this legislation, Malaysia can't happen under this legislation, and that's why if the Government's fair dinkum, it really a does have to look to Nauru.
HAYDEN COOPER: There are many immediate and urgent questions for the Government to answer, like what to do with the 300 asylum seekers who were destined for Malaysia, and what policy, apart from offshore processing, actually works?
The numbers of annual boat arrivals speak for themselves. The steady flow all but ceased after 2001, then a change of government, a softening of policies and they returned in the past three years. Now 4,500 asylum seekers are being held on the mainland, and they're spread all over the country, from east to west, north to south, in a mix of detention centres and community accommodation. The system is stretched and sprawling. Another 800 asylum seekers remain on Christmas Island.
The Government now expect an influx of boats, taking advantage of the policy stalemate.
JULIA GILLARD: We are obviously concerned about the prospect of further arrivals.
HAYDEN COOPER: For raising all of these questions and compounding their problems, Government ministers are furious at the High Court and they're going after the Chief Justice. As one put it, Robert French has zero credibility.
DAVID BRADBURY, PARLIAMENTARY SECRETARY: It won't be members of the High Court that take the phone call that Chris Bowen had to take after a boat crashed into the rocks at Christmas Island.
HAYDEN COOPER: Even the Prime Minister's taken the dangerous step of joining in the criticism of the highest court in the land, accusing the nation's chief justice of being inconsistent.
JULIA GILLARD: The current chief justice of the High Court, his Honour Mr Justice French, considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.
HAYDEN COOPER: But like it or not, the court has ruled. There's no going back.
FRANK BRENNAN: This is not a matter of judges inventing rights, it's not a matter of judges developing the common law. It's simply a matter of judges saying, "We are interpreting a statute, a very complex statute." But guess what?: complex laws are the very field work of judges. Judges interpret complex laws. That's what they've done here, and everyone's left with the result.
CHRIS UHLMANN: Hayden Cooper with that report. And of course we did ask the Immigration Minister on to discuss this again and hopefully we might see him next week.