Bowen misrepresents Solicitor-General’s Advice

04/09/11

Contrary to the claims by the Minister for Immigration, Mr Bowen this morning, the Advice of the Commonwealth Solicitor-General does not rule out the possibility of offshore processing on Nauru, following the High Court’s decision striking down the “Malaysian solution”. It leaves that possibility open.

What the Solicitor-General advises, so far as concerns Nauru, may be summarized as follows:

1. The declarations made under s.198A of the Migration Act by the former Immigration Minister, Mr Ruddock, on 2 October 2001, and 25 November 2002, would not have satisfied the tests set out by the High Court. The principal, but not exclusive, reason they would have failed to meet those tests because Nauru was not a party to the Refugee Convention at the time. As well, the Solicitor-General emphasized the absence, at the time, of protections under the domestic law of Nauru.

2. The accession by Nauru to the Refugee Convention, which comes into operation on 26 September 2011, is “a material change of position of Nauru. The coming into force of the Refugees Protocol in Nauru has subjected it to obligations under international law, obligations which provide at least the elements found to be missing by the majority in Plaintiff M70 [i.e. the High Court decision] in relation to Malaysia.” [paras. 34-35]

3. In order for offshore processing in Nauru to meet the High Court’s tests, two conditions must be satisfied: “first, that appropriate arrangements were in place to ensure practical compliance by Nauru with its obligations under the [Refugee] Convention and the Protocol; and, secondly, that Nauru in its treatment of asylum seekers and refugees complied in practice with human rights standards acceptable at least to the United Nations High Commissioner for Refugees.” [para. 3]

I yesterday spoke to the Minister for Justice of Nauru, the Hon. Mathew Batsiua, who affirmed to me that his Government intended to take such steps as were necessary to enact domestic laws which ensured that Nauru was compliant with the High Court’s decision.

Given that the Nauruan Government is prepared to take those steps, it now remains for the Australian Government to demonstrate that it has the political will to make the Nauruan solution effective.

Since the Government has considered that it is in the public interest to release the Solicitor-General’s most recent Opinion, there is no excuse for it not to release the Solicitor-General’s earlier advice, and other legal advice – now shown to have been erroneous - on the basis of which it decided that the “Malaysian solution” would withstand legal challenge.