PM: I had the opportunity to speak to Sam Stosur and congratulate her on her remarkable win. She is a woman who is heading for a celebration and I assured her that the whole Australian nation would be celebrating with her. This is a remarkable achievement, Sam is the first woman to win a grand slam title since Evonne Goolagong in 1980. She's the first to win one in the US since Margaret Court in 1973. So a great achievement. I did have to say to her that I was unable to watch all of the match, I was having the scores yelled out to me this morning but it reached a point where we had some other work to do so I wasn't able to watch it all, but I know around the nation there would have been millions of Australians transfixed and watching it point by point, so congratulations to Sam Stosur.
I'm here with the Minister for Immigration and Citizenship to deal with another matter and that is the Government's response to the High Court case. The Government has been working and considering its response for a period of time. As is well known a number of months ago the Government announced that we were intending to seek an arrangement with Malaysia to transfer asylum seekers to Malaysia. We determined that that was the best course of action to smash the people smuggler's business model. We determined it was the best course of action to make sure that we sent the maximum message of deterrence and stopped people getting on leaky boats where they could lose their lives - men, women and children, and tragically we've seen men, women and children lose their lives on our shoreline.
We determined to pursue the arrangement with Malaysia because we also believed that it opened up a good dialogue within our region, that it was based on a regional process which came to fruition in Bali and abled us to work through regional solutions. And finally we determined it was the best approach because it would enable our country to take 4,000 refugees from Malaysia, people who have waited often for many years to get a chance at a new life and a new start in a country like Australia.
Malaysia offered the best answer to the issue of asylum seekers and people smuggling then, it offers the best answer now. And so we are determined to pursue bringing to life the arrangement that we have made with Malaysia. So today I can announce that the Government has determined that it will bring to the Parliament amendments to the Migration Act that enable the Government to make the decisions necessary to have asylum seekers transferred and processed in third countries.
These amendments will be broad in nature. They will enable the government of the day to design and implement its best solution. The best solution from our point of view is the arrangement with Malaysia with a complementary centre in PNG. But the amendments we will bring to the Parliament will be broad amendments which will restore to executive government the ability to make the arrangements that it sees fit for the transfer and processing of asylum seekers in third countries.
There's been a lot of discussion about what works when it comes to deterring boats and I want to talk for a moment about what works. There have been a lot of claims in the public domain that having a processing centre on Nauru would work. The advice to Government consistently has been crystal clear, that having a processing centre on Nauru would not have the deterrence effect that we seek.
The Howard Government did process asylum seekers in PNG and on Nauru and the outcome of that arrangement was that around 95 per cent of those who were resettled who had been processed on Nauru were resettled in Australia. People smugglers have got that message and they now understand that a processing centre on Nauru is really just like another Christmas Island, it's a place where you are processed but if your claim is accepted you will be settled in Australia. What that means is that people smugglers are able to say to people that going to Nauru is the same as getting a ticket to Australia.
Well we've been determined to send a stronger message of deterrence than that, which is why we are determined to implement the arrangement with Malaysia. The arrangement with Malaysia means that people will not see their claims processed in Australia. It's very different from the circumstances with Nauru.
Now I understand that views vary across the Parliament on these questions and the Opposition, despite expert advice to the contrary, continues to pursue Nauru as its option. That is as it may be and if there is a future Liberal government that has that as a perspective then under the amendments that we will bring to the Parliament, that future government would be able to enact that plan. But the Government, based on expert advice, does not agree that Nauru is a deterrent. Our advice couldn't be clearer and that's why Malaysia, when we announced it, was the best option for smashing the people smugglers' business model and it remains the best option today.
In terms of the Parliamentary proceedings I do note that the Leader of the Opposition said last Monday and I quote his words, “I think that our country should have the best border protection policy that the government of the day thinks that it needs and I'm prepared to work constructively to give the Government, to restore to the Government, the option of a third country offshore processing which it says the High Court and the Solicitor-General has denied to it.”
Well on these words Mr Abbott and I are in agreement and the amendments that will be brought to Parliament will reflect those words, it will put executive government in the position to make the decision that it sees fit and our decision is that Malaysia says you will not get to Australia, Nauru says you'll get a ticket to Australia, that's why we are determined to implement our arrangement with Malaysia.
I'll turn now to the Minister for some comments and then we'll take questions.
MINISTER BOWEN: Thank you very much, Prime Minister. As you know, in 2001 the Parliament passed legislation to allow for offshore processing. This was legislation supported by both sides of the Parliament at that time. The clear understanding of both sides of the Parliament until the High Court decision was that this enabled the Minister for Immigration of the day to nominate a country for third party processing where the Minister had made the determination that the protections in place were appropriate. Indeed, under that existing legislation, a declaration was made for Nauru and Papua New Guinea by Minister Ruddock, which were thought until the High Court decision to still be valid and still be in effect. The High Court not only ruled invalid the declaration of Malaysia, but the legal consensus is that the reasoning of the High Court also meant that Minister Ruddock's declarations of Nauru and Papua New Guinea should also be held to be invalid.
The High Court found not only was the Minister's decision reviewable, but there are a range of circumstances which should be taken into account, going to the legal enforceability of protections, work rights, health and education, which in the views of many eminent legal commentators have meant that New Zealand would be the only country in our region in which third country processing could occur. It's been the view not only of the Solicitor-General, but of Mr Kennett, Mr Lloyd, Mr Merkel and Mr Estcourt, all Senior Counsel or Queen's Counsel, that the High Court judgement ruled out not only Malaysia, but Papua New Guinea and Nauru as well. The legislation that we will introduce into the Parliament will seek to return the Migration Act to the previous understanding of both sides of the Parliament, from 2001 to 2011.
In relation to unaccompanied minors and children, obviously the High Court made a number of findings there as well. The result of the High Court's finding was that no unaccompanied minor could be removed from Australia without the written agreement of the Minister and that that written agreement was judicially reviewable and it must be established it was in the best interests of the child to be removed. Importantly, our advice is that that ruling applies not only to asylum seekers, but to failed asylum seekers. That is to say an unaccompanied minor who claims protection in Australia, they are found not to be a refugee by the department, they appeal that to an independent review, are found not to be a genuine refugee, go through the courts and fails, and then if the Australian Government took steps to return them as a failed asylum seeker, they would be able to claim under the High Court's ruling that it was not in their best interests and they should not be removed from Australia, and that would be a claim which would be likely to succeed. Now, in our view, that is clearly not sustainable as public policy and we will also seek to return the law to its previous understanding that the Minister for Immigration of the day has the discretion to deal with these matters as appropriate.
Now, of course we are working very carefully through the proposed legislation. We've been working on options since the High Court decision, but the Cabinet has today approved this way forward. We are testing proposed legislation to ensure that it's as robust as possible. It's being tested not only with the Solicitor-General and the Attorney-General's department, but with eminent Senior Counsel from the private sector to ensure that it is as robust as it possibly can be. I would envisage that the Opposition would be briefed on the proposed legislation in the coming week, that we would move to introduce legislation into the House of Representatives in the next sitting week.
Prime Minister.
PM: Thanks. Michelle.
JOURNALIST: Minister Bowen, are you comfortable with trying to reverse the ruling on unaccompanied minors, especially people found to be genuine refugees, surely you do feel some obligation to them and secondly, are you yourself or Ms Gillard going to have face to face negotiations with the Opposition to try to ensure that you can get bipartisanship on this whole package?
MINISTER BOWEN: In relation to unaccompanied minors, Michelle, these are very emotional and difficult issues, of course. And I know how strongly people feel those issues and I know that the issue of how to deal with unaccompanied minors has weighed on many Immigration Ministers because there are important decisions to be made. I think the overriding obligation is to stop unaccompanied minors risking their lives on that dangerous boat journey to Australia. The overriding obligation is to say to parents, ‘Do not risk the lives of your children to get the prospect of a visa in Australia.' These are difficult matters. As I've said before, unaccompanied minors have a range of backgrounds and a range of circumstances. They vary in age from people who are very clearly children to people who may say that they're unaccompanied minors but on further testing it appears apparent that they are not. But I think all these issues need to be weighed up and it's important that the Government of the day have the discretion to deal with them as appropriate.
PM: We'll take it one at a time and Michelle, in answer to the second part of your question, in terms of the wording of the amendments, the Government is taking expert advice and we will brief the opposition on the wording of the amendments.
On the principle though, there's nothing to negotiate. The question for Mr Abbott here is a crystal clear one - does he believe executive government should have the power to implement its policy on asylum seekers and refugees - full stop, yes, no.
Laura.
JOURNALIST: Prime Minister and Minister, can I just clarify given what the Opposition has said about these issues, is there any point in having another look at the agreement with Malaysia to try to address some of the concerns that they have expressed about that agreement in order to get a bipartisan position on this legislation?
PM: Let's be clear about what we're talking about bipartisanship on. We're talking about bipartisanship to pass legislation which enables executive government to put into place its policy. I am not asking Mr Abbott to agree with us on Malaysia. He can criticise Malaysia up hill and down dale and I will maintain my objection to Nauru, it's costly and it won't work, and I don't believe that Mr Abbott should be agitating for a solution that is costly and doesn't work. But that is as it may be and that's a debate that will continue in our national conversation.This is something else, this is about government having the power to act. We will seek the power to act, we will use that power to implement our arrangement with Malaysia and a complementary centre in [PNG]. Mr Abbott may choose to say to the Australian people that if he is ever Prime Minister he will sweep that away and put a centre in Nauru, that is a matter for him, but the discussion now is around the legislative amendments. Mr Abbott has said on the public record that he believes that executive government, to use his words: “I'm prepared to work constructively to give the Government, to restore to the Government, the option of third country offshore processing”.
I'm not asking him to do anything more than honour those words.
Latika.
JOURNALIST: Prime Minister, do you agree with John Faulkner that this is against Labor Party platform and Minister, after, could I just specify with you, are you planning to remove the requirement that you be a legal guardian for unaccompanied minors?
PM: Latika, if you are asserting - and you may be - that John Faulkner said that in Caucus, then that's not true, number one. Number two, this is in accord with Labor's platform.
Yes, Karen. Sorry, I missed out going to the Minister then.
MINISTER BOWEN: Briefly, in response, the legislation we will propose would return the situation to being that commonly understood, which is that the Minister for Immigration has responsibilities under the Immigration Act to ensure appropriate removals, and also that the Minister for Immigration's role as guardian would involve the Minister taking into account the best interests of the child but the Minister's overriding responsibilities would be as previously understood.
In relation to whether guardianship should change, that is of course something the Government would consider down the track. There are a range of options, but clearly, whoever is the guardian, the Minister for Immigration must have the ability to apply discretion to appropriate removals.
PM: OK, we'll go to Karen and then we'll come to this side. Karen.
JOURNALIST: Prime Minister, you and the Minister are dealing with legal issues, but there are many people, including many in your own party, believe there is also a moral question here, what do you say to those people, including those in your own party, who are argue that it's morally reprehensible for Australia to be turning people away and insisting on offshore processing? How do you respond to that?
PM: Well when I spoke to Labor Caucus today, and I should say that Minister Bowen and I took the proposition that we've outlined to you this morning to Cabinet and it was endorsed and then took it to Labor Caucus and it was endorsed. I don't normally go to Caucus discussions, but I will say this, I have said to my Caucus colleagues that we are a political party that has multilateralism in our DNA, we believe in global engagement, we believe in multilateral engagement, we believe in doing things like signing and honouring the Refugee Convention and the proposal that we have put as a Government, and the one we are determined to implement, does acquit our obligations under the Refugee Convention.
Secondly, we are a political party that has always been prepared to take the steps necessary to have border protection and to ensure that we had an orderly migration system. I refer you in that regard to the creation of mandatory detention by Minister Gerry Hand way back when. I take you in that regard to the statements of Kim Beazley and others made as Labor Leader in Opposition - Kim Beazley, Kevin Rudd, all made statements about how focussed we were on border protection. That is our heritage, that is who we are.
This is an innovative proposal that brings together the maximum possible deterrence effect to smash what is truly an evil - people smuggling - whilst holding true to the Refugee Convention and extending our compassion to people who are beyond our line of sight, that is the people who are waiting in Malaysia, as genuine refugees seeking a chance of a new life and we'll give that new life under this policy to 4,000 of them.
JOURNALIST: Prime Minister, the Opposition has clearly opened the suggestion that they would insert an idea that a country to receive asylum seekers has to be a signatory to the UN Human Rights Convention. Now that would obviously rule out Malaysia, would you accept any such amendment, which would in effect rule out Malaysia?
PM: Let me firstly go to the detail of the Opposition's proposal there and then go, I think to the attitude. Firstly, to the details, my very clear recollection is that the Leader of the Opposition Tony Abbott, during the 2010 election campaign, said that he was committed to boat phone. That is he would sit in Kirribilli, looking over Sydney Harbour and he would issue instructions to patrol boat commanders to turn boats around and see them return to Indonesia, a country that is not a signatory to the Refugee Convention and beyond that he would never trouble himself about the fate of the people on that boat.
Now, boat phone, of course was laughable at a series of levels. Number one, failing to understand that people smuggling has mutated as a crime, people don't sit there and allow their boats to be turned around now, they disable the boats. Number two, that Indonesia does not receive such boats. So it was always a laughable policy proposition.
But it does seem to me interesting that that was the Leader of the Opposition's policy and plan during the election campaign, but now he is saying something completely to the reverse.
And then can I say more broadly, the Leader of the Opposition conducts himself, not as the alternate Prime Minister, but as the leader of a protest party. He seeks to wreck, he seeks to be negative on every occasion. Well, negativity has its consequences - this is serious. What Tony Abbott decides on this matters. This isn't about slogans, it's not about sound bites, it's about solutions.
This is a big test for Mr Abbott and on this occasion I hope he passes the test.
JOURNALIST: (inaudible) if Tony Abbott just says no, that he's not going to (inaudible) anything that would allow you to go Malaysia, do you have a fall back, or is it this or nothing?
PM: We will bring these amendments to the Parliament. This is a test for Tony Abbott. It is a test as to whether he is guided by the national interest, or he is always guided by his political interest.
Now we know on most days Mr Abbott gets up and thinks to himself ‘how can I wreck something today?' and on most days he gets up and says ‘what facts can I pretend don't exist today?'. He does that on climate change day after day. I don't expect any of that conduct to change, but his negativity here would have a cost for this country. This is not about the politics, this is about Australia controlling our immigration settings and particularly Government controlling our immigration settings. And I am not asking Tony Abbott to give me any more power as Prime Minister than he would seek for himself if he were ever Prime Minister.
Now, what can be the reasonable argumunt for denying that as legislation through this Parliament.
Paul Bongiorno.
JOURNALIST: A direct implication of that answer is that much at stake here is offshore processing, if this bill goes down that's the end of offshore processing?
PM: Well the High Court decision as interpreted for us by our legal counsel, the Solicitor-General, and we have released that advice, it is very clear from the Solicitor-General's advice that without legislation you cannot proceed with legal confidence about offshore processing. Whether that offshore processing be in Malaysia or PNG or Nauru, you cannot proceed with legal confidence. You can also not deal with the circumstance of unaccompanied minors and I'd be dreadfully concerned and I believe this would be shared by many, many people that we wouldn't want to embark on a policy or proposal that potentially risks sending a message to people smugglers that they should fill boats with kids. So we need to legislate and because we need to legislate, we've made a decision about what that legislation should look like.
I'm asking Tony Abbott to seriously consider the Government's proposal that this legislation gives executive government the power it needs for offshore processing and following that serious consideration, where we will help him every step of the way with any briefings he needs, we've already made one available, we'll make briefings on the legislation available. When he's working his way through he should be able to say yes to the Government's proposal, it's actually a point of principle should executive government have this power and actually in his words last Monday he basically answered it. I'll turn to the Minister for Immigration to see if he wants to say anything about the High Court case and offshore processing.
MINISTER BOWEN: Well clearly as I've outlined, and has been commonly commented upon, the High Court's tests have made offshore processing need to comply with a new high bar - a bar so high that several eminent commentators have said that New Zealand would be the only country in the region to qualify as an appropriate country for offshore processing. So if this legislation did fail, it would make offshore processing very, very difficult indeed for any government, this Government and succeeding governments, to implement in any meaningful way.
JOURNALIST: Prime Minister thank you, you're effectively at the moment, I don't think we have any deterrent do we, because the law is in limbo so how urgent is it that you get this legislation dealt with, are you planning to fast track it and are you worried that there may be attempts by say the Greens to confound its passage?
PM: Well on timing I'll go to the Minister.
MINISTER BOWEN: As I indicated we would be looking to introduce the legislation into the House next week. Mr Abbott has previously said that he would, in the national interest, work to ensure its expeditious passage through both Houses of Parliament. If he sticks by working in the national interest he'll stick to that commitment.
PM: And can I say on the second part of your question the test here is for Tony Abbott. Andrew.
JOURNALIST: One of the criticisms that the Opposition have put is that the 800 that you would send back to Malaysia under the deal would be quickly exhausted, what advice have you been given either by the Minister or the Secretary or both as to the effective deterrence of this and is it, have you been told that you would never get to 800 because the deterrence would be so great?
PM: Well we've received very clear advice, I'll turn to the Minister to deal with the advice question and then I'll make a comment too.
MINISTER BOWEN: The very clear advice we've received is that arrangements like the arrangement with Malaysia are by far the most effective deterrent for all the reasons the Prime Minister outlined, that other arrangements which simply involve offshore processing with a very good chance of being settled in Australia do not provide that deterrent.
Also, importantly the advice to us has been that the very announcement of the Malaysia arrangement had some effect, but for it to have full effect - for it to be fully recognised throughout the region, it would need to be implemented. People weighing up whether to make that journey to Australia would need to see the transfers occurring - the planes dropping people off in Kuala Lumpur, in order for it to have full effect and until and unless it is fully implemented we wouldn't see the full disincentive effect because people would be weighing up is this measure going to pass the Parliament, will it get through the courts, they have reserved their judgement.
JOURNALIST: (inaudible) that it would be exhausted, I mean 800 people over 4 years?
PM: If I can deal with that point. That is as it may be, and Tony Abbott can claim that every day, every minute, every second from now until kingdom come, that's a matter for him. What we're asking him to consider, what we're asking him to do, what we believe he should do in the national interest is join with the Government in amending the legislation so executive government can make the decisions it believes necessary to transfer asylum seekers to third countries. I do not ask Mr Abbott to endorse or applaud the Malaysia arrangement, I do not expect him to do that, what I do ask him to do, what he should do, is he should come to this Parliament and say he will join with the Government in putting the legislation in the right form so Government can make the decisions. I will make a different set of decisions to him, he will contest those decisions, that is what the democratic system is for, but he shouldn't deny executive government the ability to make these decisions and if he goes down that path, he is effectively denying himself the legislative foundation stone he will need for the policy he says he supports.
We'll go to Speersy and then we'll do one or two more, Phil Coorey's clearly going to need some form of medical aid if we're out in this cold for too much longer.
JOURNALIST: Just back on Matt's question, what happens as of this announcement to any boat arrivals, are they held pending deportation or are they processed in Australia?
PM: I'll go to the Minister.
MINISTER BOWEN: Until the legislation is passed, it would be appropriate to process in Australia.
PM: And just because Phil, we'll do last three and Phil asked, yes one here, one here, one here.
JOURNALIST: Prime Minister you mentioned multilateralism just before, during the negotiations with Malaysia did you try and encourage them to sign the UN Refugee Convention or during these coming months will there be some sort of move by the Australian Government to encourage them along that track?
PM: Well I'll go to the Minister specifically on Malaysia. Of course in discussions with the region we encourage people to become signatories to the relevant conventions, that's one of the things we do and we'll continue to do it but we're also not under any illusions about the likelihood of major nations in our region moving to become signatories to the refugee convention. I mean we will continue to put that and to advocate for it, but we're also realists about the prospect of it happening. Minister.
MINISTER BOWEN: As is well known, we've had very intensive negotiations with Malaysia over a period of six months, and in those negotiations we made our position clear to the Malaysian Government that it would be important for the fundamental tenant of the Refugee Convention, which is non-refoulement, to be applied to the 800 people we transfer and also that there be appropriate safeguards and standards for human rights and people being treated with dignity and respect, that was the focus of the discussions.
There was also a focus of our discussions with Malaysia, the role of the UNHCR in Malaysia. Malaysia has had the experience of the biggest increase in asylum seekers on its shores of almost any nation in the world over the past decade. And we talked to Malaysia about the UNHCR, we involved the UNHCR in discussions and I think one of the reasons the UNHCR found this to be a workable arrangement was that it involved Malaysia in the discussion about better protection outcomes across the region, something Malaysia was very keen to be involved in, because Malaysia recognises this is a regional issue and recognise that consistency of approach is important.
So the discussions didn't go to Malaysia signing the Refugee Convention, we don't lecture other nations about what they should and shouldn't sign, but what we did have is a good and productive discussion about protection outcomes across the region.
JOURNALIST: Prime Minister have you put a price tag on the cost of onshore processing, a budgetary impact and just to clarify with the unaccompanied minors issue, will that require other amendments to other acts other than just the Migration Act?
PM: The Minister will deal with those.
MINISTER BOWEN: In relation to costs, clearly if there was onshore processing and the Government revised its projections as to the number of arrivals that would have an impact on the budget bottom line and that impact would be in the order of $4 billion over the forward estimates if we returned to the sorts of arrivals we've seen in previous times.
In relation to the amendments, there would be consequential flowing amendments, it wouldn't just simply be one amendment to section 198A of the Migration Act, there would be consequential flowing amendments but they would be of more a technical nature.
JOURNALIST: (inaudible)
MINISTER BOWEN: No, $4 billion total cost -
JOURNALIST: Total offshore processing, not over and above. Do you have an extra cost?
MINISTER BOWEN: Well if you compare that to the various costs in the budget estimates that already exist, but we're talking a very significant increase in the order of billions of dollars.
PM: Ok we'll take last question from Phil.
JOURNALIST: A couple of answers ago you said you didn't expect Tony Abbot to applaud or endorse the Malaysia plan. If he gives you the power to do as you wish and send asylum seekers to Malaysia, do you undertake if there are problems or failures with the policy to accept full responsibility for that and not try and share it with others who supported the legislation?
PM: Look the Government's policies are the Government's policies and we take responsibility for them. Mr Abbott's political approach is if I said the sky's blue he would say no it's not, now we that that's the case, we see it on evidence every day and if someone comes up with a fact he finds inconvenient then he simply denies it's a fact, he does that with climate change, all of the time, simply denies that facts exist. So I expected that to be Mr Abbott's political approach, that relentless negativity, that's what he will do.
On this question I anticipate his relentless negativity will continue about the policies that the Government implements so however well Malaysia works the he will say it's a failure, that is what Mr Abbott will do. Well all of that can happen, that's what Mr Abbott wants to do with Australian politics be relentlessly negative. But what I am pointing out today is the real costs if he goes so far that he uses that negativity to stop Government having the power it needs to implement the arrangements it believes are best to deter boats. Now we've got the clearest possible advice that Malaysia has got a strong deterrence effect, the clearest possible advice that the message from Malaysia will be ‘you don't get to Australia'. I want to send that message, I need to have the legislation changed to do it, and the proposition for Mr Abbott is, will he vote for that legislative change understanding that he needs that legislative change too if he were ever Prime Minister to implement the solution that he advocates to the Australian people.
Thank you very much.