Where to from here?


Australian Broadcasting Corporation

Broadcast: 05/09/2011

Reporter: Heather Ewart

With the Malaysian solution all but dead, the Gillard Government hasn't ruled out an asylum seeker deal with the Opposition. Tony Abbott is pushing for the re-opening of Nauru and a return to Temporary Protection Visas, but a return to Pacific Solution policies would see the Prime Minister face internal conflict. However, according to the advice of the Solicitor General, any form of off-shore processing is likely to require legislation and some form of bipartisan co-operation.


CHRIS UHLMANN, PRESENTER: Tonight federal Cabinet's wrestling with how it rebuilds its border protection regime from the rubble left by last week's High Court decision. That demolished its plan to send asylum seekers to Malaysia and legal advice suggests any return to offshore processing will be fraught.

The Coalition says it's prepared to help, but Government ministers suspect that's a gift horse like the one the Greeks left for the Trojans.

National affairs editor Heather Ewart reports.

HEATHER EWART, REPORTER: The small Pacific island nation of Nauru finds itself at the centre of a chess game being played out between the Government and the Opposition over offshore processing. Nauru has long been Tony Abbott's preferred option.

TONY ABBOTT, OPPOSITION LEADER: I am prepared to work constructively with the Government to put third country offshore processing beyond legal doubt.

JULIA GILLARD, PRIME MINISTER: I do clearly want Mr Abbott to clarify whether he is talking about a sincere desire to work with government on offshore processing broadly or whether he's talking about his narrow plan.

TONY ABBOTT: The ball is in the Prime Minister's court. The Coalition is serious about trying to give the Government some options, some serious policy.

JULIA GILLARD: We are at a stage where, first and foremost, opposition needs to come to grips with the legal advice.

HEATHER EWART: And so it goes on and on. What has become clear over the weekend is that legal advice from the Solicitor-General on the impact of last week's High Court ruling means that not only the Malaysia solution, but also Manus Island in Papua New Guinea and Nauru are no longer options for offshore processing of asylum seekers.

JULIA GILLARD: What that legal advice means is that we do need legislation to put beyond doubt offshore processing arrangements. It is not correct to say, based on that advice that for example, Nauru, which is Mr Abbott's plan, could be proceeded with without legal risk, and the Solicitor-General points to that legal risk.

RON MERKEL, FORMER FEDERAL COURT JUDGE: I think in a nutshell what the Government can't do is transfer our Convention obligations to provide protection to refugees to other countries that aren't in a position to provide the same kind of protection. So, that is outside the law.

JULIA GILLARD: We won't do things that are in breach of the Refugee Convention; of course we wouldn't. But there isn't one way to acquit our obligations under the Refugee Convention.

HEATHER EWART: What other ways the Prime Minister envisages were not specified, but what's dawning on both sides is that to salvage any form of offshore processing will require legislation. As the Government begun to mull over its options in a Cabinet meeting late today, it's guided by the advice of the Solicitor-General and two other senior counsel along with advice by a Melbourne barrister, Ron Merkel QC, commissioned by the activist group GetUp!

RON MERKEL: The real problem with Nauru and Papua New Guinea, putting aside all the legalities, is simply they're unable in their own economic framework to accept refugees and give them protection and give them an opportunity for the future to resettle. So Australia can only spend them there on the basis of Australia agreeing to take them back, which is precisely what happened after Tampa, precisely what happened Nauru and will be precisely what happens with these so-called Nauru offshore solutions.

BOB BROWN, GREENS LEADER: She should not cave in to the Coalition. She shouldn't cave in to the extreme right. She should join the Greens in working out how to bring asylum seekers ashore in Australia and ensure that they're treated humanely.

HEATHER EWART: But while the Government says all options are on the table, it does still appear to favour some form of offshore processing and doesn't even rule out the possibility of legislation to revive the Malaysia solution.

FRAN KELLY, ABC RADIO NATIONAL COMPERE: Could changing the Act make Malaysia a lawful option again? Could it keep it alive for you?

CHRIS BOWEN, IMMIGRATION MINISTER: Well of course. There's any options available.

FRAN KELLY: So you're not ruling out trying to resuscitate the Malaysia solution?

CHRIS BOWEN: I'm not ruling anything in or out, as I've said previously.

FRAN KELLY: So you could have another go at Malaysia?

CHRIS BOWEN: Well, I'm not ruling anything in or out.

TONY ABBOTT: Well I think that the Malaysia deal was always a bad deal. It was a very bad deal. But as I said, I'm not in the business of ruling things in or ruling things out. Now, I don't wanna be too prescriptive here. I am trying to make it easier for the Prime Minister to go down the path of third-country processing that she has said for so long now she wants to go down.

RON MERKEL: But more importantly, neither political party can realistically look at another High Court challenge with the potential loss, and this is such a complex area now as a result of the High Court decision, both in terms of law and fact, that any solution that's not clear-cut will be unattractive to both parties.

HEATHER EWART: Human rights lawyer David Manne, who initiated the recent High Court challenge, has indicated he's prepared to do it all again. The other very big hiccup here for both sides is this point:

JULIA GILLARD: The legal advice also goes to the circumstances of unaccompanied minors and what it makes crystal clear, absolutely crystal clear, is that in order for unaccompanied minors to be sent to a location outside Australia you would need legislative change.

HEATHER EWART: Is that feasible?

RON MERKEL: Look, through legislation they can achieve a number of possibilities, but there's one area probably that they cannot legislate around, except in a cruel and inhumane way and that's with children. It's been a fundamental principle of our legal framework for hundreds of years that governments, parliament, government officials must act in the best interests of children.

HEATHER EWART: As well, the Government has the problem of some restive left-wingers in the party who never liked the Malaysia solution or the idea of offshore processing.

DOUG CAMERON, LABOR BACKBENCHER (Friday): The position of the left is that we should initiate a platform that was determined by the national conference in 2009, and that platform says clearly that there should be onshore processing and that people should not be processed offshore.

HEATHER EWART: You can bet this will be another very troublesome issue for Julia Gillard to be thrashed out at the next national conference at the end of the year. Today there was no further on-the-record protest from the left, and perhaps that's partly because there's no united position on this. Like all ALP factions, it too has its fair share of marginal seat holders worried about an electoral backlash over border protection policy.

For now, the Greens are hedging their bets.

BOB BROWN: The silly question that often gets put to me is: will we withdraw support from the Gillard Government and put the Abbott Government in? Which is far worse. Of course we won't.

HEATHER EWART: But that can't be interpreted as extending to green support for Government legislation to enable offshore processing. So, if the Government wants to take that path, it would need to rely on the Opposition to get it through Parliament. The only other option is onshore processing, amid calls for a co-operative program with Indonesian authorities to crack down on people smugglers.

Do you think that the Government and the Opposition have clearly locked themselves in to offshore processing no matter what?

RON MERKEL: I think they've become prisoners of their own rhetoric, and the answer to that is probably yes. But if we're ever going to get out of this terrible bind we're in now, it should have the Government finally do what it was elected to do, and that is demonstrate some vision and leadership and not be hide-bound and enslaved by the past, but starting to look for real solutions for the future.

HEATHER EWART: As its deliberations continue, the Government has to get this right. It can't afford any more ad hockery on border protection policy.

CHRIS UHLMANN: And of course we've asked again to speak to the Immigration Minister. He was unavailable today. We hope to speak with him soon. Heather Ewart with that report.

Editors note: The reference here is incorrect. The Greeks left the Trojan horse; not the Trojans. The reporter has been ordered to study Classics.