Border Protection: Tony Abbott, George Brandis and Scott Morrison

19/09/11

TRANSCRIPT OF THE HON. TONY ABBOTT MHR,

JOINT PRESS CONFERENCE WITH SENATOR THE HON. GEORGE BRANDIS SC, SHADOW ATTORNEY-GENERAL, AND MR SCOTT MORRISON MHR, SHADOW MINISTER FOR IMMIGRATION AND CITIZENSHIP,

PARLIAMENT HOUSE, CANBERRA

Subjects: Border protection.

E&OE…………………………………………………………………………………………

TONY ABBOTT:

Ladies and gentlemen, thanks for coming this afternoon. I’m going to make a brief statement, then I’ll ask George and Scott to speak very briefly, then we’ll obviously take a few questions.

For at least a decade the Coalition’s position has been crystal clear. Our position for at least a decade has been – to use the memorable words of the Prime Minister – “we will determine who comes to our country and the circumstances under which they come.” My position ever since becoming the Leader of the Opposition is that we will stop the boats but there is a right way and a wrong way to try to stop the boats. The right way to stop the boats is Nauru, temporary protection visas and turning boats around where it is safe to do so. The wrong way is to cobble together in confusion and panic a one-for-five people swap which has been proven not to work.

Now, as most of you know, last Friday, George and Scott and Julie Bishop and I were briefed by senior officials of the Government and by the Solicitor-General on the Government’s initial proposals to amend the Migration Act. The difficulty with the initial proposals was that it clearly stripped out the protections which the Howard Government had explicitly built in to the Migration Act to ensure that people who were sent for offshore processing did not lose ordinary human rights protections. Effectively, the proposals that the Government put to us last Friday amounted to offshore dumping, not offshore processing. Now, we made those points crystal clear to officials and to the Solicitor-General in the course of that briefing last Friday night. So, today at midday, the Prime Minister put a different proposal, different proposed legislation to me which I have subsequently had a chance to consider with my senior colleagues.

Effectively, the new proposal that the Government has put today concedes the force of our argument on Friday evening without actually addressing it. What the Government’s new proposal does is pay lip service to protections without actually guaranteeing them. That’s the problem with the Government’s new proposal. Arguably – and I’ll ask George to speak to this in a moment – arguably the Government’s proposal today is actually an inferior proposal to the one last Friday because it increases the risk of judicial review without actually strengthening the rights protections that were entirely absent last Friday.

Now, the Coalition has an alternative position. I will be taking to our party room tonight a proposal for amendments which will put beyond legal doubt the ability of the Government to send people offshore for processing, provided they are sent to countries which have acceded to the UN refugee convention. This will restore offshore processing while also keeping protections. It will restore offshore processing while retaining offshore protections. It’s, in my judgement, a much superior proposal to that which the Government has put forward.

You will already have or will shortly receive a note that we have from the former Solicitor-General David Bennett who has analysed the Government’s proposals from Friday night and from today and the proposed amendments that I will be taking to the party room tonight and he concludes that our proposal provides more legal certainty and more rights protections than either of the Government proposals. In effect, our proposal is a win-win: certainty plus protections, offshore processing plus protections, whereas the Government’s proposals, particularly today’s, are a lose-lose: doubt as to whether anything the Government does can survive legal scrutiny, while not guaranteeing offshore protections. So, this is what’s happening. Obviously I’ll have more to report this evening in the wake of the party room discussion but I might now ask first George and then Scott to say a few words.

GEORGE BRANDIS:

Well thank you, Tony. You’ve just had distributed to you Dr Bennett’s advice. If I can take you through it you’ll see that it annexes under Schedule 1 the two versions that the Government has put to us, version one being the Friday night version and version two being the version given to Mr Abbott at lunch time today and then as Schedule 2, the draft amendments that we will be taking to our party room at 6.30 tonight.

Can I direct you, in particular, to the final paragraph of Dr Bennett’s advice, paragraph 3.2 which speaks to the Coalition’s proposed amendments and which speaks for itself. Can I just very briefly expand on the point of the inferiority of the version put to Mr Abbott by the Prime Minister at lunch time today. Might I remind you that the reason the High Court struck down Minister Bowen’s declaration with Malaysia was because it was not objectively satisfied that the four criteria set out in section 198 A (3) of the current Migration Act were able to be satisfied and in approaching the matter in that way the Court applied a legal principle known to lawyers as ‘jurisdictional error’. If the facts weren’t there, there was no jurisdiction to make the declaration.

The way, therefore, in order to remove any legal doubt is to ensure that amendments to the Act are drafted in a way which does not make the Minister’s declaration depend upon contestable facts. What the Prime Minister, in the version that she produced to Mr Abbott at lunchtime today has done, has actually been to reintroduce into the matters about which the Minister needs to be satisfied a number of criteria that are arguably contestable facts and that is why it seems to us that the version is, if anything, weaker than the version that was given to us on Friday evening. The way to do this, therefore, is to ensure that there is the appropriate protections, but that the protections do not depend upon contestable facts and the way that you’ll see in Schedule 2, the Opposition proposes we go about this, is to leave the Minister’s discretion wide and indeed unreviewable but subject to one important limitation: that is, that it is only exercisable in relation to a country which is a party to the UN refugee convention. Whether or not a country is a party to the UN refugee convention is not a contestable fact, it’s a black and white question and therefore the legal problems which beset the existing section 198A and which, in our view, would potentially beset what was produced today by the Prime Minister to Mr Abbott would not arise.

TONY ABBOTT:

Thanks George. Scott?

SCOTT MORRISON:

Thank you Tony, thank you George. What the Prime Minister needs is not a blank cheque from the parliament, they need a decent policy and that’s the problem. This Government has had a series of policy failures in this area, starting with their decision to abolish the Howard Government’s border protection regime three years ago – 12,000 people, 241 boats later, this is the mess we’re in from the Government’s own design. Whether it was the failure to handle the Oceanic Viking crisis, whether it was the failed Afghan asylum freeze, whether it was the failed East Timor policy and now the failed Malaysian Solution, the Prime Minister wants a legal blank cheque for more policy failures. Well, what I think the Leader today and the Shadow Attorney-General have made very clear is that we can secure offshore processing. In fact, the Solicitor-General’s own opinion, as he said very clearly to us last Friday, does not rule out going to Nauru but the measures we’ve put forward today further strengthen both the processing and the protections but it also provides the opportunity for this Government to return to good policy: the policies that Tony Abbott has outlined today, the policies that are designed to stop the boats, that have stopped the boats and will stop the boats and that remains our policy objective.

TONY ABBOTT:

Thanks Scott. Ok, are there any questions?

QUESTION:Mr Abbott, obviously the impact of your amendment would be to rule out Malaysia, that’s not a signatory to the convention. If this develops into a stand-off and the Government persists and puts its bill to the test, how will you respond to the part that deals with unaccompanied minors? Would you want see that split and pass that or are you prepared to vote the whole lot down if the Government persists with a single the bill?

TONY ABBOTT:

Well, we’ve got an alternative proposal to the Government’s. We think our alternative proposal is a better proposal all round. I would like to think that just as I’ve considered the Government’s proposal, the Government will now consider our proposal.

QUESTION:

What if it’s rejected, though?

TONY ABBOTT:

Well, let’s cross that bridge if and when we come to it.

QUESTION:

What is your response to the Prime Minister’s often made appeal to you that the Government, executive government, should have the right to deal with, well, this issue as it sees fit? Don’t you recognise that right for her?

TONY ABBOTT:

Look, I don’t believe it’s the Opposition’s duty to provide a blank cheque to a bad government and I think any suggestion that the Opposition should write this Government a blank cheque is it doesn’t pass the common sense test. Our responsibility is to good policy, our responsibility is not to support bad policy and we’ve said all along that we think the one-for-five Malaysian people swap is a bad deal and the fact that the boats have kept coming – notwithstanding the fact that this has now been in the public arena for quite some time – demonstrates that it isn’t good policy.

QUESTION:

On turning back the boats, and I think that was done six or seven times under the Howard Government, the last time was about 2003. Now, it wasn’t pursued, one because the Defence Force didn’t want to do it anymore, secondly because boats were routinely sabotaged and now we’ve got a third problem with that proposition because the Indonesians won’t accept it because there is no nod-and-a-wink agreement at an agency level. So, how do you propose to pursue a policy which looks unworkable?

TONY ABBOTT:

Well, I don’t think we can safely adopt that conclusion. It hasn’t been tried. It just hasn’t been tried. Now, I think that what could have been managed by the Howard Government under the then Indonesian leadership is more than capable of being matched by a future Coalition government with the current Indonesian leadership. The current Indonesian leadership is pretty well disposed towards Australia and I think if these things were done without the kind of hairy-chested megaphone diplomacy that we saw from Kevin Rudd at the time of the Oceanic Viking, there’s no reason why it can’t work.

QUESTION:

So, you are effectively conceding that you would need some arrangement, whether it be government-to-government or agency-to-agency. In the Howard Government time there was an agreement between the agencies, a tacit agreement albeit, regarding turning back the boats. Is that what you’ll need?

TONY ABBOTT:

Well, you always have to have – as part of effective operations against people smuggling – constructive relations with Indonesia. I see no reason why we can’t have better relations with Indonesia than the current Government has and I don’t see why the kind of arrangements which previously allowed boats to be turned around under the right circumstances can’t be put back in place.

QUESTION:

Why are you so determined to insist on the recipient country being a UN convention-signing country when in government you didn’t insist on that at all? Isn’t this just a political point you’re making against the Government?

TONY ABBOTT:

Well, I think it is very important to note that the Howard Government explicitly put human rights protections into the Migration Act as part of the establishment of offshore processing. The Howard Government – let me make it crystal clear – explicitly put human rights protections into arrangements for offshore processing.

QUESTION:

They haven’t been taken out. They’re still there.

TONY ABBOTT:

Well, indeed, they have been taken out. They have been taken out by this Government’s proposal. I mean, the whole point of this Government’s proposal is to explicitly remove from the Migration Act the human rights protections that the Howard Government thought should be there. So, people who for years pilloried the Howard Government as heartless and brutal are now proposing to remove even those protections that the Howard Government thought were necessary. Now, the best way, we think, to ensure that the Minister can make these decisions without exposure to judicial interference, if that’s the right word, while at the same time guaranteeing human rights protections, is to put the UN convention requirement in there. We think this is the best way of having certainty and protection and that’s what we want to secure.

QUESTION:

Mr Abbott, just on the UN protection, Indonesia’s not a signatory. So are you, by insisting on this amendment disqualifying your own tow-back policy? Are you going to return people to a country that’s not a signatory but insist the Government can’t do the same?

TONY ABBOTT:

Well the point I make is that our obligations are not triggered at that point in time. They are triggered once people have made landfall in Christmas Island.

QUESTION:

Can we come back to Phil’s earlier question about the children? If you had your Nauru solution by itself wouldn’t there still be a problem with moving the children, under the High Court ruling?

TONY ABBOTT:

Well, Michelle, let’s wait and see what the Government does. Let’s wait and see how the Government responds to our proposal.

QUESTION:

But your amendments don’t go to that, Mr Abbott.

TONY ABBOTT:

Well, Andrew, as I said, the Government has put a series of proposals to us. It put one set of proposals to us on Friday. It’s put a different set of proposals to us today. We have done our best to consider these matters in good faith. We are responding in good faith, now let’s wait and see. But I do make this very fundamental point that processing in Nauru avoids the sorts of difficulties that processing in Malaysia inevitably will entail.

QUESTION:Why doesn’t your amendment have not just the refugee convention but also the UN conventions for the rights of children?

TONY ABBOTT:

Well, Hugh, as I said we’re putting a counter proposal to that of the Government. Let the Government deal with the proposal that we are putting forward.

QUESTION:If it’s accepted by the Government don’t you still have a problem with children?

TONY ABBOTT:

Well, the fact of the matter is that we are putting, Michelle – and we are going around and around in circles here, so I’m going to ask for another question on another subject – but I want to make it crystal clear that we are putting a counter proposal to the Government’s proposal that we think restores certainty while maintaining protections and I think that is what a responsible opposition in these circumstances does.

QUESTION:You say that the changes that the Government’s proposing would remove the protections put in under the Howard Government but as late as this morning Scott Morrison was saying that you think that your policy is already legal under what exists now. So, surely then, by agreeing to some of the Government’s changes but insisting on inserting the UN convention clause all you’re doing is making sure the Malaysian deal is ruled out. So, surely this change is not necessary under what you’ve been saying this morning and it’s only designed to ruin the Government’s policy?

TONY ABBOTT:

Well, let me make it crystal clear if I can that we don’t believe that – as the High Court decided the other week – Nauru is ruled out and indeed the Solicitor-General on Friday confirmed that Nauru was still a viable option under the High Court’s decision. What we do want to do, though, is as far as is reasonable put these things beyond legal dispute and that’s why we have put forward an alternative, an alternative which is not open to the kind of legal disputation which the Government’s says is now inevitable under the High Court’s decision. Now, because you’ve raised Scott, Scott do you have any response that you wish to make?

SCOTT MORRISON:

Sure. I mean, I have always said that the position of the High Court never ruled out us taking people to Nauru and that was confirmed to us last Friday. I’ve also said we were prepared to look at provisions which strengthen the Migration Act. Those two positions are not inconsistent with each other and that is exactly what we are doing here. This bill as we’re proposing it as amended would certainly strengthen the Migration Act and certainly strengthen offshore processing.

QUESTION:

So, do you have concerns then about Nauru being challenged? I mean, you say that your policy is legal and it couldn’t be challenged but at the same time you are agreeing to changes…

SCOTT MORRISON:

No, what I said was the High Court did not rule out Nauru as an option and it never has and the Solicitor-General has also formed that view. It doesn’t rule it out. He has never said that and that’s all we’ve ever said.

QUESTION:

So why don’t you just leave in place what’s in the Act now if you think that that would shore up your policy?

SCOTT MORRISON:

We’re happy to improve legislation where legislation can be improved. What we’re trying to do here is improve legislation and we’ve put forward an option to the Government and we’ll wait and see what they say.

QUESTION:

Did you communicate your position to the Prime Minister during your meeting earlier, that is tell her that you couldn’t support her proposal and that you had a counter proposal?

TONY ABBOTT:

I indicated to the Prime Minister in our discussions earlier today that I had very grave reservations about the proposal that she’d put to us on Friday; that the Coalition had a disposition to give the proposal a second reading but then to move amendments in the committee stage. It was at that point that she came up with this new proposal and, as I said, our reaction to the new proposal – now that we’ve had time to look at it – is that in fact it is inferior to the original proposal in that it is more open to legal challenge and doesn’t actually give any additional protections.

QUESTION:

Given that you want to protect human rights and so on, do you have a timetable for getting up your amendments and finishing off [inaudible] problems with the migration law? Do you want to see it signed and delivered by the end of the year?

TONY ABBOTT:

Well, it’s really up to the Government to determine how quickly things are handled in the parliament and I want to make it, again if I can, crystal clear why we are in this position. We are in this position because the current Government closed down the Pacific Solution and the current Government gave the people smugglers a business model. Since the current Government gave the people smugglers a business model we’ve had 240 boats and 12,000 illegal arrivals. The current Government is responsible for the existing position. The current Government is responsible for handling it. Now, we are responding in good faith to proposals that have been put to us by the Government. We have come up with what we think is a better position and it’s now up to the Government to handle it as best it can.

Thank you.