PM: I'm joined today by Chris Bowen, the Minister for Immigration and Citizenship and we're here today to speak about some of the implications from yesterday's High Court decision. Can I say at the outset, yesterday's High Court decision was a deeply disappointing one. The Government had worked for some period of time on the arrangement with Malaysia, we had done that because we wanted to send the strongest possible message to people smugglers that we wanted to put them out of business, that we wanted to break the people smugglers' business model.
We had been advised and understood from the past that the most effective thing you can do, the strongest possible message you can send to people smugglers is to deny them the product that they sell, they are selling people a passage to Australia and we had taken advice and considered all options and possibilities and believed that the arrangement with Malaysia would take that product out of the hands of people smugglers. They would no longer be able to say to people that they were able to get them to Australia because people would come here only to be taken to Malaysia.
The Government therefore pursued this agreement because we thought it was the strongest possible message we could send to people smugglers to end the plying of this very evil trade. The Government first discussed internally the arrangements with Malaysia last year and the Minister made the first contact with Malaysia in December last year. Over a considerable period of time we worked through the details with Malaysia and internally to Government and of course along the way we took the best possible advice including legal advice. Our legal advice was that our ability to do this was in the current law, we were advised that our legal case was strong, we were advised that our legal case was strong in part because the courts have considered similar questions in the past and looking to those precedents we were advised that if those precedents were followed our legal case would be a strong one.
Yesterday in the High Court what we saw was the High Court enter into a different construction of the relevant section of the Migration Act. Effectively, if you like, yesterday the refugee and asylum seeker law of this country changed, changed from how it had been known and understood before with a different interpretation of the legislation. The High Court's decision basically turns on its head the understanding of the law in this country prior to yesterday's decision.
In that case we of course need to consider as a Government what is the best way forward. Last night Cabinet met for a consideration of this matter and we received oral advice from the Solicitor-General, now I do want to stress that his advice is preliminary and it was oral advice, I have requested the Solicitor-General to provide advice in writing as soon as it is possible for him to do so and as a matter of urgency, however I do want to say based on the general understandings we have at this point of the meaning of yesterday's High Court case, that it appears that the following is its meaning. I do want to caution that advice of course is preliminary, but I do believe that it's worth saying, that there are questions over the future of offshore processing arrangements that must be considered and it's far from clear, 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.
Now it's on these matters that of course the Solicitor-General's written advice will deal and it is our intention when that advice is received to release that advice publically.
Can I say looking at yesterday's High Court decision I believe that it represents a missed opportunity in preventing us from transferring asylum seekers to Malaysia at this time it represents a missed opportunity. A missed opportunity to enhance our region's response to the evil of people smuggling, a missed opportunity to make a real and important contribution to the region's approach to the transnational crime of people smuggling through the Bali framework, the framework that the Minister for Immigration and of course the Minister for Foreign Affairs worked on in Bali earlier this year with our regional friends and neighbours and it is a missed opportunity, a missed opportunity to send the strongest possible message to people smugglers, a missed opportunity to send a message to asylum seekers not to risk their lives at sea and get into boats and we tragically saw at Christmas Island around Christmas time what that can lead to with the loss of life of men and women and children.
The Government will received the written legal advice from the Solicitor-General and we will digest that advice and at the appropriate point make a comprehensive statement about the Government's plans following the High Court decision.
The Minister for Immigration yesterday made his first instance responses to the High Court case, I'll turn to him now for some comments on an aspect of the case that to date hasn't been as publically reported on as other parts.
MINISTER BOWEN: Thank you very much Prime Minister. As the Prime Minister said, yesterday's judgment casts into question a range of matters in relation to offshore processing. One matter which there has been some questioning about is the situation of unaccompanied minors. It's quite clear from yesterday's judgment again that the situation with unaccompanied minors has changed under law. Yesterday the High Court ruled that no unaccompanied minor could be removed from Australia to any other place without the written permission of the Minister for Immigration as guardian and that would be a matter which would in all likelihood be judicially reviewable which would make the removal of unaccompanied minors to any offshore location under any regime one which is highly problematic. That again, as the Prime Minister said, is something the Government will need to consider in the light of revised advice from the Solicitor-General and of course it would impact on any offshore processing scheme that was conducted by this Government or any future government.
PM: We're happy to take questions.
JOURNALIST: So it's the end of offshore processing for asylum seekers?
PM: As I said we have received oral advice from the Solicitor-General and we will receive his written advice, however what I can say at this stage is that there are very clear questions over whether or not this judgment permits offshore processing, practically speaking, in other locations including locations where offshore processing has occurred before. Now we're in a situation, preliminary, oral advice from the Solicitor-General to Cabinet last night, we will receive his written advice and we will publically release it.
JOURNALIST: You presided over the failed East Timor solution, you jumped the gun on the Malaysian solution, how much responsibility do you bear and do you owe the people of Australia an apology?
PM: Well let's get the facts right because it always helps to do that. We worked hard on this Malaysia arrangement, an innovative arrangement, an innovative arrangement to transfer people back to Malaysia so we could send the toughest possible message of deterrence to people smugglers who ply a very evil trade. Now we acted on legal advice, on legal advice that our case was sound. The High Court decision yesterday has effectively changed our understanding of refugee and asylum seeker law in this country. Now of course, based on further legal advice from the Solicitor-General we will respond to that decision.
JOURNALIST: Has Minister Bowen offered you his resignation at all?
PM: Well let's be clear about what's happened here. The High Court yesterday took a decision that has effectively changed refugee and asylum seeker law in this country.
JOURNALIST: So that's a no?
PM: Well I'll finish my sentence thank you, and if you look at the public reporting of this today there are now many legal experts out there commenting on the decision, some of them are saying that they are greatly surprised by this decision, some of them are saying that they find the decision in comprehensible, beyond understanding, some are obviously saying that they do understand the decision, but when you've got that wide diversity, that really wide diversity of legal responses after the judgment is taken, I think that's telling us something about the nature of this decision.
Minister Bowen at all times acted on the best advice available to him and acted with a clear determination and resolve to break the people smugglers' business model and that's what I asked him to do as Minister.
JOURNALIST: Ms Gillard have you spoken to the Opposition or any of the crossbenchers about what happens next?
PM: No I haven't.
JOURNALIST: Would you consider amending the Migration Act?
PM: As the Minister made clear yesterday we will work through all options but we'll do it with a careful and methodical approach, and so the first thing that you need to do is get legal advice on the meaning of this decision. As soon as we Cabinet took oral advice from the Solicitor-General, that happened last night, the evening the decision came down. Understandably the Solicitor-General needs some time to put his advice in writing, that is being done now, when that advice is received then we will release it publically.
JOURNALIST: How embarrassing is this for you as Prime Minister?
PM: Well we are not the first Government to go to the High Court and to have legislation overturned, it's happened to governments in the past, it'll happen to governments in the future. What you need to do as a government is respond when the High Court has made a decision and we will, we will respond with our determination, to act on people smuggling. What I don't want to see as Prime Minister of this country, is men, women and children getting on boats and potentially losing their lives, and it was our determination to not see men and women and children get on boats that drove us over the many months that we worked on the arrangement with Malaysia. Now the High Court's made a decision-
JOURNALIST: But Prime Minister you haven't been particularly successful in achieving that or trying to achieve that have you?
PM: Well let's once again deal with the facts because they come in handy. Dealing with the facts, and Minister Bowen can give you all of the statistics on this, we have seen a far less number of arrivals in the past few months since we announced the arrangement with Malaysia than we saw in the same period last year. We had been aiming of course to send a tough message to people smugglers, we have been acting on the legal advice that we had been provided with. Now yesterday the High Court changed from interpretations of the past, and to give you just a flavour of that because I think it's important, 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. So we acted on legal advice, we've seen yesterday's decision from the High Court, we will respond to it but we will respond in the way in which we go about our work; carefully, methodically and that means we'll get the written advice from the Solicitor-General.
JOURNALIST: So have you spoken with Malaysia (inaudible).
PM: I'll go to the Minister on that question.
MINISTER BOWEN: Yes, I've been in -
JOURNALIST: Are you still committed (inaudible).
MINISTER BOWEN: I've been in contact with my ministerial counterpart Minister Hishammuddinas you would expect he understands the legal situation in Australia, he is very supportive of our position, he has recommitted Malaysia to working very closely with Australia on all these issues of people smuggling and border security and he has indicated that from his point of view this does not in any way diminish or effect the very warm working relationships between Australia and Malaysia.
JOURNALIST: Will you still have to accept those refugees from Malaysia?
MINISTER BOWEN: As I indicated yesterday, this was an arrangement negotiated in good faith with Malaysia. The High Court decision yesterday is in no way down to any action of the Malaysian Government so we would view it in that light and our inclination would be to continue with that. What we have said is that we will reserve the right and consider our position in relation to the overall humanitarian intake.
JOURNALIST: Minister are you considering resigning (inaudible)?
MINISTER BOWEN: Look my response to that question is the same as it was yesterday. I have a job to do, I have an obligation to this Prime Minister, to this Government and to this country to see this job through. This Prime Minister gave me a job to do and I intend to continue to do it. The easy option would be to resign, the only thing that would happen if I resign would be my quality of life might go up but nothing else is going to be impacted by that. I have a job to do and I intend to continue to do it.
JOURNALIST: Who (inaudible) that this was announced before it was signed, sealed and delivered?
PM: Well with respect, what's the relevance of that to the High Court decision yesterday? Nothing.
JOURNALIST: Ms Gillard what's your advice on an increased risk of additional boats arriving in Australian waters and has there been any preparation for that?
PM: Well we maintain a constant vigilance when it comes to the prospect of boats making their way to Australia, we obviously invest heavily in efforts in our region to detect and prevent people getting on boats, paying a people smuggler, giving their money over to what is a transnational crime and risking their life at sea. We've got more assets patrolling our border than we've ever had before as a result of the actions of the Labor Government, so we'll continue to do everything that we do to patrol and protect Australia's borders.
I used the language of missed opportunity before and I think it is the right language. This is a missed opportunity through transferring people to Malaysia to send a very strong message of deterrence to people smugglers.
JOURNALIST: Is there an increased risk because of this decision and have you taken any steps as a result of that and have there been any steps taken to step up security or make preparations at Christmas Island?
PM: We are always on the highest possible alert in terms of patrolling our borders, that's what we do and I do believe that this is a missed opportunity. I am obviously concerned that in a circumstance where we can't transfer a plane load of asylum seekers to Malaysia and send that very tough message, I am concerned about what that means in terms of boats trying to make their way to Australia and so of course we'll continue to do all of the prudent work that we do in relation to patrolling and protecting our borders.
JOURNALIST: Have you guaranteed to the left factions of your party that you'll rule out using Naurr and temporary protection visas?
PM: The only guarantee I ever give is that every decision we take will be taken in the national interest.
JOURNALIST: You went down the path of off-shore processing when increased boats were a real (inaudible) headache. (Inaudible) for you?
PM: It's not about that, it's about doing the right thing in circumstances where we are dealing with people smuggling, we've got people who are making money, profiting off the misery of others and we all watched some dreadful, dreadful images on our TV screens around Christmas time last year of children losing their lives at sea. Our motivation here has been to stop that evil trade, to stop the risk of those drownings, that's what motivated us in putting together this arrangement with Malaysia, that's what will motivate us as we look at options following the High Court decision.
JOURNALIST: Ms Gillard why are temporary protection visas still an option, that's something Labor's (inaudible).
PM: We will make a comprehensive statement when we're in a position to. I think the prudent thing now is to work through and get the written legal advice from the Solicitor General and we'll do that.
JOURNALISTS: (Inaudible)
PM: Just one second, we'll go here first, yes.
JOURNALIST: (Inaudible)
PM: Clearly we can work through questions of cost, we are focused at the moment on dealing with the consequences of this decision so any of those issues we'll deal with at the time of the comprehensive statement.
JOURNALIST: There's speculation that Peter Beattie might run for Federal politics and even has his eye on your job. Are you shaking in your boots at that prospect?
PM: I've got a lot of important things to do and I don't much worry about newspaper idle gossip and speculation.
JOURNALIST: Ms Gillard, also on cost, the part of the cost that was announced before associated with sending the 800 asylum seekers to Malaysia, are we still spending that money?
PM: Spending the eight?
JOURNALIST: The money that paid for sending the 800 asylum seekers to Malaysia, setting up infrastructure and all the related costs with that. Are we getting some of that-
PM: I think it's best for us to give a complete accounting of all of these questions when we do the comprehensive statement, but obviously, given that there won't be people transferred to Malaysia following yesterday's decision, we were ready for a transfer. As you know, that transfer cannot go ahead. Given that transfer is not going ahead, clearly some costs that would have been associated with that transfer won't be incurred, but we'll give a complete view about costs and consequences at the time that we respond to the High Court decision.
JOURNALIST: Has Australia already made commitments to spend money in Malaysia (inaudible)?
PM: It's not a question of that, no. The money was associated, the money for facilitating people being transferred was about facilitating people being transferred so clearly we're in a situation where the transfer we had hoped to do will not be going ahead.
JOURNALIST: Will any of the 4,000 go to Western Australia?
PM: Well we'll make a statement about that matter at the relevant time as the Minister said during the course of this press conference.
JOURNALIST: Are arrangements being made a detention centres around the country to accommodate more asylum seekers?
PM: Look I'll turn to the Minister about detention management arrangements but obviously the Minister keeps all of these things under daily watch and prudent preparation.
MINISTER BOWEN: As the Prime Minister said, this is something we manage on a regular basis. Of course over the last three months we've seen a significant reduction in the number of people in detention facilities around the country, it was over 6,000 people just three months ago, it's now around 4,000 and falling, that's as a result of a number of measures this Government has taken - faster processing, better security processing, the movement of families and children into the community and of course the reduction of boat arrivals particularly since the announcement of the Malaysia arrangement. All have contributed to a very substantial reduction in the number of people in our detention centres and facilities across the country.
JOURNALIST: About less than 20 rooms were burnt out in the Northern Immigration Detention Centre yesterday or the day before, sorry, what's happening to those people that were staying in those rooms, where are they being moved to?
MINISTER BOWEN: There have been people who were involved in that that have been moved to the correctional facility in Darwin in conjunction with the Northern Territory Police and those investigations will continue-
JOURNALIST: It wasn't 20 people involved in the fires so however many, I'm asking the people that were staying in those rooms not the people that lit the fires.
MINISTER BOWEN: More than 20 people have been moved to the correctional facility at Darwin.
JOURNALIST: (Inaudible) open for six months, will that stay open longer now?
MINISTER BOWEN: No.
JOURNALIST: Mr Bowen how many of the 4,000 have been settled in Australia already and does this decision impact in any way on the rate at which those people will be resettled here?
MINISTER BOWEN: Some have already been transferred to Australia and that's a great thing and I think it's been very important to see those people who didn't have the money to pay a people smuggler, couldn't dream of having enough money to pay a people smuggler to come to Australia, to have the chance of a new life in Australia.
In terms of the exact number that had been already resettled in Australia we could provide you that figure but the, as I've said, and my inclination, the Government's inclination would be to continue as we had agreed with the Malaysian Government
JOURNALIST: You said earlier that the numbers in detention had gone down, does that include the numbers that have come from Malaysia?
MINISTER BOWEN: Well they're not going into detention because they are genuine processed refugees who get immediately settled into the community.
JOURNALIST: You mentioned earlier that you had discussions with your ministerial counterpart in Malaysia and your inclination is to proceed with receiving those refugees. Did he tell you that he expects you to continue (inaudible)?
MINISTER BOWEN: No, he told me that he regarded the arrangement as a good solid and sound one and that he was committed to working with Australia on these and related issues into the future.
JOURNALIST: (Inaudible)
MINISTER BOWEN: Sorry?
JOURNALIST: (Inaudible)
MINSTER BOWEN: It's just around 4,000 in detention facilities and then there's other people living in the community, families and children in particular.
JOURNALIST: (Inaudible) warn you internally that the Malaysia deal might fall over prior to the High Court challenge?
PM: Our legal advice was that our case was sound.
JOURNALIST: So there was no internal-
PM: Our legal advice was that our case was sound, in terms of the way in which our case was put, I'd refer you to the submissions of the Solicitor General before the High Court. But included, of course, in those submissions was relying on earlier precedence of courts dealing with comparable questions including precedence authored by the current Chief Justice of the High Court to take just one example.
JOURNALIST: You mentioned that fewer asylum seekers have arrived since announcement of the deal. Now that the High Court has made this decision do you feel the reverse?
PM: Well as I made clear in answer to the question from over here, we are obviously concerned about the prospect of further arrivals. We had sent a message of deterrence by the announced of the Malaysia arrangement. We wanted to send an even bigger message by the implementation of the Malaysia arrangement. We're obviously concerned now that the prevention of the transfer that we were positioned to do sends a different message to people smugglers. We are concerned about that.
JOURNALIST: Have there been any discussions with the leader of Papua New Guinea related to the Manus Island centre or with Nauru or any other country in the region?
PM: As has been a matter of public record for some time now we've been in negotiations with PNG-
JOURNALIST: (inaudible) decision?
PM: No, not to my knowledge.
MINISTER BOWEN: As the Prime Minister says we have a Memorandum of Understanding signed with Papua New Guinea for the Manus Island detention facility. Of course we've indicated to Papua New Guinea that this High Court case will need to be examined and its implications will need to be considered and Papua New Guinea completely understands that.
JOURNALIST: Have you spoken with other countries?
MINISTER BOWEN: No.
JOURNALIST: How long will it take to get this advice in writing?
PM: We've asked the Solicitor-General to do that as a matter of urgency.
Thank you very much.