PM: Good afternoon. I'm joined by the Minister for Immigration and Citizenship. For a number of months now the Government has been working to implement the most effective policy we can in relation to refugees and asylum seekers.
What has always guided us through this process is implementing what will work, is protecting Australia's borders while protecting the values that we hold dear as Australians and particularly upholding our obligations under the Refugee Convention. That means over a number of months we've worked on an arrangement with Malaysia, we've worked on that arrangement because we believe it will be the most effective deterrence, it will protect our borders whilst at the same time honouring the obligations we have under the Refugee Convention. The arrangement with Malaysia is the equivalent of turning boats around but without any of the risk of losing life at sea. It's a arrangement that has been founded on a regional framework, one that we worked with countries in our region to strike at the meeting in Bali. It is one that the United Nations High Commissioner for Refugees was prepared and remains prepared to be involved in implementing. It's also one which would see 4000 more refugees come to this country, people who are genuine refugees and many of whom have been waiting for years.
As is well known the Opposition has opposed this arrangement. But since the High Court case that hasn't been the debate. Since the High Court case the important question that has presented to our nation is whether Executive Government should have the power it needs to strike and implement the offshore processing arrangements it believes are best. That has been the question that we've faced up to since the High Court case. It's not a question of whether it should be Malaysia or whether it should be PNG or whether it should be Nauru, the question is whether government should have the power it needs to make offshore processing arrangements as it sees fit.
This poses for our nation a profound national interest question. It's the kind of question on which people expect political leaders to work together. It's the kind of question on which Australians want to see a solution, they don't want to see business as usual politics, they want to see us working together to get something done, to get a solution in place. In line with that sentiment since the High Court case the Government has been prepared to show the Opposition the work that it needs to come to its conclusions in relation to legislating. First and foremost we made Departmental officials available and then on Friday we made a legal briefing available to the Opposition. During the course of that legal briefing draft amendments were presented to the Opposition. It was clear in that briefing that those draft amendments were one way of a number of ways of making sure that the Government could get legislation that would give Executive Government the power it needs so that it can do offshore processing.
Today I've met with the Leader of the Opposition and I've provided him with a new set of draft amendments. This new set of draft amendments has the same ultimate legal effect, that is it would enable Executive Government of the day, this Government or any government in the future, to make the arrangements it needs to or believes desirable in relation to offshore processing. But it makes it clear in these arrangements that the Minister in determining that offshore processing would occur in a particular country would need to have regard to the national interest and specifically would need to have regard to whether or not the country that asylum seekers were being taken to met the principle obligations under the Refugee Convention, that is the obligation of non-refoulement, which means that people should not be returned to a place where they would face persecution, and secondly that their claims would be processed.
I've provided those amendments, that new draft, to the Leader of the Opposition today and they will be released publically.
The Leader of the Opposition is now considering those amendments as drafted, as I say they have the same ultimate legal effect and when a legal briefing was held on Friday it was clear that there were a number of ways of reaching this outcome.
I've also said to the Leader of the Opposition if it assists his consideration, the Minister of Immigration and the Attorney-General will work with their counterparts, the Shadow Attorney-General and the Shadow Minister for Immigration to work through the amendments that have been presented to the Leader of the Opposition today.
I'm very happy to take questions.
JOURNALIST: Prime Minister will your changed amendments expose your Malaysia policy to another High Court challenge?
PM: Well we've worked hard with our legal advisors to get amendments that are legally sound and our advice is these amendments are legally sound.
Yes we'll go here first and then come back through.
JOURNALIST: (inaudible) slightly farcical given that we were told a week ago, two weeks ago, that the issue was returning the law to what we know before High Court and the non-refoulement was the key phrase, the key issue? Given that your amendments, proposed amendments that were released on Friday went well beyond that, removing natural justice, then why should we have any faith that this one is actually going to satisfy the test that you've set before?
PM: Well I think first and foremost you've misunderstood the High Court case frankly. The High Court case was ruling on the Migration Act and the decision was unexpected as has been made clear, ruling on the Migration Act and ruling on whether or not a set of things had to be what are called jurisdictional facts and they included in that set of things, things like not just whether transferees from Australia had to be the subject of particular protections but whether all asylum seekers in that nation had to be the subject of particular protections. Clearly the amendments that we are circulating to you today do not equate with the High Court's current construction of the Migration Act, it is different to that, it would require the Minister to have regard to the national interest, would require the Minister to have regard to the two core obligations of the Refugee Convention. We've always in the Malaysia arrangement made sure that those obligations in the Refugee Convention and a number of others beside would be honoured. I'll turn to the Minister who may want to say something about that too.
MINISTER BOWEN: Well I think as the Prime Minister says the draft that was released on Friday made it clear that the Minister must weigh up the public interest and the advice to us clearly is that in weighing up the public interest the Minister would need to weigh how to comply with the international obligations. It is clearly open to the Government to also more expressly provide that in weighing up the national interest the Minister must have regard to the principals of non-refoulement and access to processing to make it crystal clear so that there can be no doubt and so that some of the concerns expressed over the weekend are dealt with. That's a perfectly appropriate course for the Government to take, to say well if you've got some concerns we're happy to make it more explicit in the legislation that our international obligations will be complied with in this way while returning the common understanding of the Migration Act to its pre-High Court position.
PM: Yep we'll go to Michelle and then come back, yes?
JOURNALIST: I'm just wondering how in drafting this legislation, or giving orders for it to be drafted, you overlooked some basic human rights question in the first place and you did this over the weekend-
PM: That's complete nonsense Michelle, complete nonsense. We have worked with our legal advisors throughout this process always on the basis that this nation would honour its Refugee Convention obligations - always. Now in drafting the amendments there isn't one way to do that, there's rarely one way to draft a piece of legislation, there are always a number of ways of drafting a piece of legislation-
JOURNALIST: (inaudible)
PM: That's completely untrue Michelle, completely nonsense. Throughout all of this, whether we go back to the original announcement that the Minister and I made about the arrangement with Malaysia we have said this nation would honour its obligations under the Refugee Convention, we have always said that. And when you look at the specifics of the Malaysia arrangement it does honour our obligations under the Refugee Convention, and since the High Court case in working with our legal advisors we have always said we would honour our obligations under the Refugee Convention. It is unsurprising that there are more than one way, there's more than one way of drafting that into the legislation. The draft that we are releasing publically today and which I have given to the Leader of the Opposition has greater assurance on the face of it about that, that is there are more words, but the Government was always going to honour its obligations under the Refugee Convention, to contend anything else is simply incorrect.
JOURNALIST: Mr Abbott, to some extent and certainly quite a few Coalition MPs I suppose we've all spoken to, say that the simple bottom line is that they don't like the Malaysia solution, it's bad policy and they won't support anything that allows you to proceed with it. Was that the position that Mr Abbott put to you today in your meeting?
PM: Look, I'm not going to other discussions in the room. Mr Abbott said he would consider the amendments that I presented to him today.
Yes, Chris.
JOURNALIST: Prime Minister, just to be absolutely clear on this new amendment that you're proposing, you're saying that there are more words but they are meaningless words because they have the same effect as what you proposed-
PM: I'm saying outcome wise, is the same. This Government was always, is always, will always honour its obligations under the Refugee Convention. The amendments presented on Friday required the Minister to have regard to the public interest. We would say, of course, the public interest goes to these questions. These amendments require the Minister to have regard to the national interest and then gives specific examples of what the national interest is.
JOURNALIST: Prime Minister, is natural justice still in, or has natural justice been taken out? Has that phrasing been changed at all?
PM: I'll turn to the Minister and you'll be able to have the specifics.
MINISTER BOWEN: That amendment remains as it was on Friday and just to clarify what that means: that means, in effect, that decisions to transfer individuals to countries that are designated under the Act, would in effect be at the discretion of the Minister and that makes it clear that that is not in effect a matter for judicial review and that's the intention of those provisions.
JOURNALIST: (inaudible) whether you're saying that this is about protecting, among other things, protecting values that we hold dear as Australians-
PM: The values we hold dear. Well there are a lot of values we hold dear. Domestically we hold dear things like the fair go, but what I am referring to here is we are a nation that for many long years, decades, has been a signatory to the Refugee Convention and what we do needs to be in accordance with our Convention obligations and everything this Government has ever proposed has been in accordance with our Convention obligations.
JOURNALIST: Did you get the impression that Mr Abbott's willing to work in a bipartisan way on this?
PM: I'm not going to impressions.
Yes, Phil.
JOURNALIST: (inaudible) Matthew's question, do you have any measure of confidence that Mr Abbott will, is prepared to allow the Malaysia situation to happen, or did he give you any sign of hope in your meeting, that if you get the wording exactly right that could happen?
PM: Look, Mr Abbott left the meeting saying he would consider these amendments. So, they're the words I am saying now, I don't think it's appropriate for me to speculate on demeanour or motivations and I'm not going to do so. Paul.
JOURNALIST: Prime Minister, I just wondered if you could clarify on natural justice, as I understood your answer that would mean if any government wanted to send asylum seekers to Nauru, the same amendment would need to apply?
MINISTER BOWEN: As we've said, as the Prime Minister said very clearly, the whole intention of this process is to restore the common understanding, the pre-High Court position, the pre-High Court position was that the Minister of the day had the opportunity to designate or declare a country as an appropriate country for third party offshore processing if the Minister was satisfied with the arrangements in place, and that then people who arrive in Australia by boat would be transferred to that country and that while the government may be in a position to consider individual circumstances, that is not something that is open for judicial review.
JOURNALIST: (inaudible) key intent of the Howard legislation was precisely to take away from asylum seekers their ability to seek judicial review, of them being sent away?
MINISTER BOWEN: With respect Paul, I think that mainly refers to other legislation, the excision legislation, which is related to but separate to the designation of a third country.
PM: Can we just, I believe people are getting themselves confused here and so let me address some of that confusion.
First and foremost we have believed under the current Migration Act that it was a decision for Executive Government about offshore processing. Yes, the Migration Act has sections in there that required the Minister to turn his mind to a set of things, but it was believed until the High Court case that those matters were not capable of judicial review. And in the past that section has enabled asylum seekers to be transferred to countries that are not signatories to the Refugee Convention, for example under the Howard Government that section enabled asylum seekers to be transferred to Nauru.
As is now a matter of record, the High Court took a more expansive interpretation than that. In our view, as advised by the Solicitor-General, that puts at risk the ability of Executive Government, this Executive Government or any Executive Government in the future, to make offshore processing arrangements. Our aim is to put the Act in a form which enables Executive Government to make offshore processing arrangements.
Now, any Executive Government, whether it's this one, or one in the future, would be bound by its Refugee Convention obligations as well, and of course we'd make offshore processing arrangements that also acquit the Refugee Convention.
Now the draft that was presented on Friday used the language of public interest. This draft uses the language of national interest and specifies two matters that the Minister needs to consider. But let's be clear about the aim here, the aim here is to have as a decision for Executive Government, not for the High Court, how offshore processing arrangements are made.
Yes, it would enable the Malaysia arrangement; it would enable a government of a different persuasion, should one ever be elected, to make arrangements with Nauru. They are properly decisions for Executive Government. But what will come before the Parliament is this concept - that it should be the decision of Executive Government, not the courts.
Yes, Andrew and then we'll come over this way.
JOURNALIST: Mr Abbott said in a statement on Friday, I think he might have repeated it today, he said the Solicitor-General confirmed in the briefing the recent High Court decision did not rule out offshore processing in Nauru, and to say he said this was inaccurate. Do you think that he is verballing-
PM: No, no, no, I just used the language of risk and I've used it deliberately. And I direct you to the Solicitor-General advice which we publicly released and the Solicitor-General, in going through all of these things, looked at circumstances in Nauru and basically said it was not without legal risk-
JOURNALIST: (inaudible)
PM: Then - I'll direct you to the words of the Solicitor-General - and if you want legal words, I think the best words of the Solicitor-General are his. So it's not without risk.Then you get to the other question, the other question relates to a complex set of matters involving unaccompanied minors and I'd also direct your attention to the Solicitor-General's advice on that.
What that all adds up to is if you were - and we are not - but if you were a government that wanted to implement processing on Nauru, then if you took heed of that Solicitor-General advice, you would want to amend the Migration Act. That's the fact, that's the case.
Yes, Sabra.
JOURNALIST: (inaudible) have you talked to Mr Abbott about timing now that you'd like this legislation ideally before Parliament, and when you'd like an answer back from him?
PM: It's the Government's intention to introduce this legislation on Wednesday. It will be introduced in the normal course, that is it will be introduced and adjourned following the Minister's second reading speech.
Yes.
JOURNALIST: Is it your understanding that Tony Abbott's biggest concern is the refoulement-
PM: I think it's, questions are best directed to Mr Abbott about his concerns. What we've done is presented a new draft of the legislation. Mr Abbott has publicly said that he has had on his mind some questions about protections. Well, this further draft I believe gives him further assurance on that, in that we've got this draft with national interest and with these matters the two key obligations in the Refugee Convention specifically referred to.
We'll just, despite Sean's heroic efforts we'll take Karen, because we haven't had one from SBS.
JOURNALIST: Prime Minister, how do you reconcile the changes proposed in this draft with the platform of the ALP that suggests that asylum seekers must have their claims processed under Australian law on Australian territory?
PM: I'd direct your attention to all of the Labor Party's platform and I don't have it in front of me, so I can't give you the clause number, but if you read all of the section you will find a clause that talks about making arrangements within our region and within countries within our region. I remind you that the Malaysia arrangement is one that stands on the regional framework negotiated in Bali, it's part of our working in the region, the first bilateral arrangement under that regional framework.
JOURNALIST: Isn't the platform internally contradictory then?
PM: Well, have a look at it in its entirety and it's clearly my view that the Malaysia arrangement is in accord with Labor's platform.
Thank you very much. Yes, Phil.
JOURNALIST: (inaudible) guardianship provisions, will that be tied to the, is it one bill, one package, or will the two measures be tied together through the-
PM: They'll be brought together in the same bill. Correct.