High Court decision
Wednesday, 31 August 2011
Press Conference, Canberra
Well, thanks for coming everybody. Let’s make no bones about it: today’s decision by the High Court is a profoundly disappointing one; disappointing to the Government, disappointing to me. It is a significant blow to our efforts to break the people smugglers’ business model.
The High Court today has applied a new test to how protections are to be demonstrated when it comes to third country processing. What the High Court has decided today is not what was previously considered as understood and accepted law. This decision has potential ramifications, not only for our arrangement with Malaysia, but for offshore processing more generally.
Of course, we’ve commissioned urgent legal advice on the implications of this decision for offshore processing generally. Because of its significant potential ramifications, it is appropriate, of course, that the Cabinet carefully and methodically consider its position in relation to further options. We’ll do so as quickly as is prudent, but we’ll make sure we get it right.
While this is a blow, it does not undermine our resolve to break the people smugglers’ business model through a regional arrangement. We’ve made progress that people didn’t think would be possible. We negotiated a regional framework through the Bali Process, which many people said would not be possible. We negotiated an arrangement with Malaysia which many people said would not be possible.
What’s clear is that since we’ve done those things, the people smugglers have been in retreat. In the time since the announcement of the Malaysia arrangement, the number of people arriving in Australia by boat has fallen. We’ve had around half the number of arrivals, of people arriving by boat, in the period since the announcement of the Malaysia arrangement than the same period last year.
It’s also the case, despite the Opposition’s hypocrisy, that we’ve seen many less arrivals by boat since the announcement of the Malaysia arrangement than in the same period following the previous Government’s announcement of Nauru. And that, combined with other changes this Government’s brought in to place over recent months, means that we currently have around 2000 people less in immigration detention facilities than we had just three months ago – around 2000 people less. We’ve had the people smugglers in retreat.
Now, today’s decision is a significant blow, but it does not undermine my or the Government’s determination to break the people smugglers’ business model. Now, as I said just a few moments ago, the Cabinet will need to take some time to consider its position carefully, and therefore in terms of detailed questions I’ll be limited in what I can say today. But within those constraints, I’m more than happy to take some questions. Mr Coorey -
Journalist: Mr Bowen, if offshore processing is still allowable – paragraph 128 of the judgement seems to suggest Nauru’s still okay – if that is the case, will Nauru now be an option to be considered by the Cabinet?
Bowen: I’m not ruling anything in or out in terms of our response.
Journalist: How can you claim virtue in the drop off in the arrival of boat arrivals when that was on the basis of a threat of removal, which now has been obliterated by the High Court ruling?
Bowen: Well, I think, Andrew, it showed the potential of this arrangement. Just the announcement of this arrangement had an impact. I’ve said all along that to have full impact it would need to be implemented and that asylum seekers and people smugglers would need to see planes being taken back to Malaysia to have the full impact. But I think just the announcement of it made people smugglers and asylum seekers think twice and three times about the decision to make that dangerous journey to Australia. And so that’s what I mean when I say it already had an impact, but to have its full impact then clearly it would need to be fully implemented. Michelle -
Journalist: Mr Bowen, you spoke to us very confidently a couple of weeks ago that you were sure the legal advice was solid, that you were sure you were on solid ground. How did you and the Government get it so wrong?
Bowen: Well, the legal advice was very solid. The legal advice was very clear that we were on solid ground. The High Court, as I’ve said earlier, has today applied a new test to how protections should be demonstrated. Clearly, that is something which had not been understood before -
Bowen: - I’m answering a question and then I’ll come to you. Of course, we respect the decision but it is clearly a new test which had not previously been read into the Act. Dennis -
Journalist: Mr Bowen, you say earlier that it was not previously understood, the High Court’s interpretation, and yet the High Court judgement cites DFAT advice which it describes as making salient points which it adopts as its basic argument for ruling out the Malaysian solution. Isn’t it your responsibility as Minister to have considered that DFAT advice along with the advice from Immigration, and how could you have got it so wrong when DFAT had given you precisely what the High Court has announced today?
Bowen: I don’t accept the characterisation of your question that DFAT was not giving advice that Malaysia was an appropriate country under the Act, because the advice to me clearly was not that and I accepted that advice.
Journalist: You say ‘new test’, but the High Court found that you misconstrued the current legislation and you didn’t take into consideration any of Malaysia’s international or domestic laws, so there is no new test. You just misunderstood the current laws.
Bowen: Well, no, I don’t agree with that characterisation.
Journalist: You don’t agree with the High Court?
Bowen: No, I don’t agree with your characterisation of the High Court, with respect. Clearly, the High Court has today said very clearly that for third country processing to be appropriate, there must be obligations legally binding, either under domestic law or international law. So take, for example, previous arrangements: that wasn’t always the case. So I think the advice to me, clearly, and to the Government was clearly that that was not a necessary test. The High Court has found differently today, which we respect. Just here -
Journalist: What will happen to the 330 people in limbo?
Bowen: Well, the Cabinet will consider our overall policy settings, and of course that will have implications for those 330 people. And I will make further statements about that in due course. Marcus -
Journalist: Minister, paragraph 134 relates to the DFAT advice. It says that the observation of the judges was that the DFAT advice demonstrated that none of the first three criteria stated in the Act was or could be met in the circumstances of these matters. How can you say the DFAT advice supports you when 134 clearly says it doesn’t?
Bowen: I don’t agree with your characterization. I think no, the DFAT advice should be taken as a whole, and in context with the DIAC advice made it clear that it was open to me to make that declaration. Phil -
Journalist: Minister, have you or anybody from the Government or your department today spoken to any representatives from Nauru and do you plan to speak to anybody from Nauru? And on a second point, if the Malaysia deal is completely sunk, will the Government still take the 4000 people?
Bowen: There’s been no communication with Nauru today. In relation to the 4000 people: clearly, this was an arrangement negotiated in good faith with Malaysia and we will deal with that accordingly. In terms of the overall humanitarian intake, which was clearly linked to breaking the people smugglers’ business model through this arrangement, increasing the humanitarian intake as we broke the people smugglers’ business model, again the Government would consider that and we will make further statements about that in due course.
Journalist: I don’t understand that answer. Is that a yes, you’ll take the 4000, or is there now some doubt?
Bowen: My position is that the arrangement with Malaysia was entered into in good faith by Australia and Malaysia. We said we’d take those 4000, Malaysia has had no impact on today’s decision, therefore I would be inclined to continue to take the 4000 and the Government would consider the intake because, very clearly, we wanted to increase the intake. We wanted to take more refugees, but we wanted to do so as we broke the people smugglers’ business model through this arrangement. The Government is entitled now to consider its position. Alison -
Journalist: Minister Bowen, with regards to your comments that the very announcement of the Malaysia agreement saw a drop off in the number of boats arriving. Is the inevitable conclusion of today’s judgment that you are expecting a pick up in boat arrivals?
Bowen: Well, I think you can expect people smugglers to be capitalising on this arrangement and to say that, ‘You can come to Australia now because the Malaysia agreement has been ruled invalid by the High Court.’ Just here -
Journalist: What do you understand the financial cost to the Government being of this legal challenge at this stage?
Bowen: I don’t have a figure in terms of the legal bill at this stage. Mr Coorey -
Journalist: When you say Cabinet is going to discuss where to from here, when is it? Is it going to be Monday next week or are you going to have an earlier one?
Bowen: We don’t comment on when Cabinet meets.
Journalist: Minister Bowen, have you given any consideration to resigning your post?
Bowen: I have a responsibility to see this job through. It’s a difficult job. It’s perhaps, it would be fair to say, the hardest job I’ve ever done, but it is not a job I intend to run away from. I have obligations to the Government and to the nation to see this issue through.
Journalist: Minister how much money has been spent setting up infrastructure and so on in Malaysia already to –
Bowen: Well, it is well known that we have been very advanced in our preparations; we have transit centres arranged, etcetera. As to the detailed cost, that’s not something that’s currently been assessed.
Journalist: Minister, the Migration Act which you relied on says that the third country has to meet relevant human rights standards in providing protection. I don’t understand how could you have got it so wrong?
Bowen: Well, Malaysia is a signatory to some United Nations conventions, not the Convention on Refugees but to some others. Nauru, at the time it signed the arrangement with Australia, was not a signatory and did not have a functioning and effective Migration Act. So I believe, on the basis of the advice given to me and the Government, the declaration at the time I made it was an appropriate one to make.
Journalist: Would you consider changing the Migration Act to circumvent today’s –
Bowen: I’m not ruling any options in or out today. Dennis -
Journalist: Mr Bowen what’s the ramifications for Manus Island and is this decision a Cabinet decision and not yours personally?
Bowen: When you say, which decision?
Journalist: The carriage of this policy, has it been yours or has it been directed as a joint Cabinet decision?
Bowen: Well, very clearly it’s been a policy that I have implemented in my role as Minister, but of course it’s received Cabinet endorsement at every step along the way, as is appropriate in a well functioning Cabinet Government that we are.
The other question was Manus – look, as I said earlier, there are potential ramifications for offshore processing generally. We’ve sought advice on that, there have been readings made into the Migration Act today which we’ll need to consider in relation to Manus Island and offshore processing more generally.
Journalist: Has the decision, do you think, potentially damaged our relationship with Malaysia, given that the High Court’s found –
Bowen: Well, I would hope not. I think this has been an arrangement negotiated with Malaysia in good faith. I note that the High Court stressed in its findings that it was not finding that Malaysia did not provide those protections, but simply it was not demonstrable in law, and I think we would make that clear to Malaysia, that that was not the High Court’s finding that those protections did not exist.
The relationship between Australia and Malaysia is first class, it’s as good as it ever has been. It’s first class in terms of the personal links between ministers and prime ministers; Prime Minister Gillard and Najib, myself and Minister Hishammuddin and all the colleagues. It’s first class and I would hope will continue to be.
Journalist: Have you spoken to anybody in the Malaysian Government today? Have they given any indication of a willingness to maybe change their laws domestically?
Bowen: Of course we’ve communicated today those results to the Malaysian Government, as you would expect. We are not going to be requesting Malaysia change its domestic laws, we don’t lecture other countries as to how their laws should be constructed.
Journalist: You mention that the people smugglers will capitalise on this ruling from the High Court. With that in mind, has the Government, or will the Government, seek measures to increase capacity of detention facilities in Australia?
Bowen: Well, my intention is to continue in the work to break the people smugglers’ business model, which has seen, together with the other initiatives I’ve implemented, 2000 less people in detention facilities in Australia; more than 6000 three months ago, just around 4000 now. That’s a considerable achievement which means that, in time, we can continue to close detention facilities rather than open them if we continue to have that success. Andrew -
Journalist: Just on the 4000: given that you’ve said you’re inclined to accept 4000 from Malaysia and yet you’re leaving open the question as to whether you’d reduce the overall intake, could it be that we take fewer people from places from Africa?
Bowen: Well, that’s the natural conclusion that you would reach: if we are leaving open the option of reducing the humanitarian intake, then yes, that would mean less people are received in Australia as refugees.
Journalist: How long can you leave these people in limbo, that have come that were part of the Malaysia solution?
Bowen: Well, we’ll deal with it as quickly as is prudent.
Journalist: What’s the significance of the decision on unaccompanied minors? What does it mean now?
Bowen: Again, we’d need to consider that. That’s a significant decision. It has potentially significant ramifications, but obviously our focus has been on the broader question over the last few hours.
Journalist: On that point: do you accept that you have a conflict of interest in potentially sending unaccompanied minors overseas?
Bowen: Look, we’ll be responding in detail to all the points of the High Court case.
Journalist: A few weeks ago Andrew Metcalfe made some very serious points about mandatory detention. Is it now time to rethink that policy, given that you are expecting more boats to arrive?
Bowen: The first answer is no, the Government’s position is very clear. Secondly, I think there’s been considerable misconstruing of Mr Metcalfe’s comments. Mr Metcalfe reflected back to the committee its terms of reference. The terms of reference of the committee are to consider the effectiveness of mandatory detention. Mr Metcalfe pointed that out to the committee.
Mr Morrison and I actually agree on that; one of the few things, perhaps, we agree on. Mr Morrison has said he thought Mr Metcalfe was simply reflecting the terms of reference of the Committee. Nobody asked – no member or senator asked – Mr Metcalfe about his comments, because they found them to be particularly unexceptional, because he was reflecting back to the committee its own terms of reference; the terms of reference the Liberal Party signed off on in the motion that they introduced into the House of Representatives to set up the inquiry.
Journalist: How can you credibly claim that a new test has been created today when you haven’t read the decision?
Bowen: With respect, I have read the decision.
Journalist: Well then, in that case you will know they expressly cite the offshore processing decision last year, which was a unanimous decision. They base their decision very, very clearly on the express wording of the Act. What advice do you have which is contrary to the decision of six of the seven judges and will you release it?
Bowen: The legal advice to me was very clear: that the declaration I made was allowed to be and enabled to be made by me under the Migration Act. The legal advice was very clear. There is a longstanding Commonwealth precedent that Commonwealth Governments do not release their legal advice, which I will be continuing. Dennis?
Journalist: What are the ramifications for the regional framework that, as you said, part of the Bali framework, that this was going to be a forerunner to regional agreements; does this make a problem for the region?
Bowen: Well, it has ramifications for offshore processing more generally, as I’ve said repeatedly. I don’t believe – and I certainly hope it does not make offshore processing impossible – and I certainly don’t believe it makes regional engagement impossible, because that is the only solution sustainable in the long term for breaking the people smuggler’s business model: working with nations in our region, as we’ve done. Phil -
Journalist: Mr Bowen, I know you’re not ruling anything in or out, but what about Temporary Protection Visas? Are they still off?
Bowen: I’m not going to pre-empt Cabinet’s decisions. I’m not ruling anything in or out.
Journalist: Refugee groups have called on you to begin processing for people who are in limbo. Will you start doing that?
Bowen: I’ve already answered that question Phil.
Journalist: Minister Bowen, how damaging is this for the Government? I mean, the Opposition’s already been out describing it as an incompetent farce.
Bowen: Well, asylum seeker policy is always a controversial area. What counts is not whether it’s controversial but whether the Government is making progress in terms of implementing its policy of regional engagement, which we’ve been doing.
Journalist: Minister, how much responsibility are you taking personally for this policy failure?
Bowen: I’m the Minister, I’m responsible. I don’t accept the premise that the policy is a bad one. I’m proud of the policy. The policy is a good one. The policy is one which was designed to let us increase our humanitarian intake, stop people making that dangerous journey by boat to Australia.
That is the Government’s intention and objective and remains so, and I’m proud of the policy. I’m proud of the fact that we were able to achieve a regional agreement which many people said we wouldn’t be able to do.
I’m proud of the fact that this Government is determined to break the people smugglers’ business model. I’m proud of the fact that those 4000 people in Malaysia, who would never have the money or the inclination to risk their life on a boat, will no longer need to do so. I’m proud of that. I think it’s an elegant policy, which achieved those objectives.
Now, I respect the High Court’s decision but it doesn’t mean I walk away from the fundamental points of the policy, which is one the Government can continue to be proud of.
Journalist: You said that you haven’t spoken to Nauru today. In recent weeks, in recent months, have you spoken to Nauru about the possible reopening of a centre there?
Journalist: [inaudible] when’s Cabinet meeting?
Bowen: I’ve already said we don’t comment on Cabinet meeting times.
Journalist: Without saying when, will you schedule it ahead of time?
Bowen: We will deal with the matter as prudently as is possible and as quickly as is prudent. But I’m not going to, I don’t announce Cabinet meeting times, and as you know, I don’t talk about Cabinet meetings before or after they’ve happened.
Journalist: Can I ask this then? Will you be convening a special Cabinet meeting to deal with this?
Bowen: I don’t convene Cabinet meetings Phil, the Prime Minister does.
Journalist: But why the secrecy? It’s ridiculous.
Bowen: Because Cabinet meetings are a matter for the Cabinet, and I don’t reveal and I don’t comment on the timing of Cabinet meetings.
Journalist: But they’re not usually secret, surely, the actual fact of the meeting?
Bowen: I don’t comment on the timing of Cabinet meetings, Michelle.
Thank you very much. Cheers.