High Court decision, legislation to restore Migration Act powers, unaccompanied minors, Nauru

Interview with Ali Moore, ABC Lateline(minister.immi.gov.au)

Ali Moore: Minister, many thanks for joining Lateline tonight.
Chris Bowen: Pleasure, Ali.
Moore: You've said the government's amendments will be broad in nature. How broad? Will they include objective, measurable criteria for determining the suitability of a third country, or will it be entirely at the minister's discretion, whoever the minister happens to be?
Bowen: Well, Ali, I'll be releasing the detailed amendments during the course of the week. We'll be providing them to the Opposition, as you would expect. The nature of the amendments is to return the law to its pre-High Court understanding, the understanding of both sides of the Parliament and the general understanding of the 2001 legislation, which it is to provide for the minister of the day to have the discretion where the minister is satisfied with the arrangements in place to nominate our country for third party processing, third country processing. And that will be the intent of the amendments and it will be very clear in these amendments the intent of the Parliament.
Moore: At the same time, that legislation introduced in 2001 also did have, I guess, a number of criteria attached to it. Do you foresee that there would continue to be criteria; it won't be a totally discretionary thing?
Bowen: Well, Ali, the High Court read into those criteria several understandings which had not previously been there in relation to the demonstrable nature of the laws of the nation, to the standards that go into some detail in terms of work rights in education and health, etcetera, and that really did change the understanding of both sides. So much so, that not only was the declaration of the Malaysia agreement and Malaysia invalid under the High Court ruling, but the clear level consensus is that Mr Ruddock's declarations of Nauru and PNG must be held to be invalid under that ruling as well.
I think it's appropriate that the government of the day have some pretty broad discretion to nominate a country for third party processing. Of course, it must be done in line with our international obligations and of course I expect governments of both persuasions would do that. But it's clear that I think the Parliament intended that there'd be some discretion for the minister of the day and the intent of the changes will be to return to that pre-High Court position.
Moore: So, in essence, if we're talking pretty broad discretion, as long as the minister is satisfied, that would be sufficient?
Bowen: Well, that was the clear intention of the 2001 changes, that it's a matter for the government of the day, that the executive's got to have the ability to make the appropriate decisions in terms of the orderly migration program and to nominate, in terms of our foreign relations and our negotiations with other countries and the protections that are negotiated for the people we transfer, that it's a matter for the government of the day and then the government's accountable: the government's accountable to the Parliament, the government's accountable to the people, the minister's accountable for the changes or the decisions that are made and has to justify those decisions to the Parliament, to the people, and I think that's an appropriate thing.
Moore: And what's your legal advice about the ability to mount a challenge under your amendments? Will they be watertight?
Bowen: Well, clearly, we're taking our time to make sure the amendments are as robust as possible, Ali, as you would expect us to do, given the High Court decision. Now, obviously this is a highly litigious area. We've seen that in a very high-profile sense over the last few weeks, and no doubt lawyers would be poring over the amendments to assess the possibilities for challenge and we can't discount the possibility of further challenge. But our responsibility is to take all the best advice to make sure that the amendments are as robust as possible, and that's what we've been doing and that's what we'll continue to do.
Moore: Of course, you want to amend both the Migration Act, but also the Immigration (Guardianship of Children) Act, which will allow minors to be sent to third countries. Is that far more complicated, trying to amend the Guardianship of Children Act because of the obligations of the guardianship of the state and also of course obligations under the Convention of the Rights of Children? Is it a far more complicated business?
Bowen: No, I'm not sure I'd characterise it as being far more complicated. The High Court's ruling effectively made the transfer of unaccompanied minors impossible, effectively, because it found that the unaccompanied minor could only be transferred with the written agreement of the minister who is the guardian, that that decision must be based on the best interests of the child, which was then judicially reviewable. And so you'd have a long process of judicial review before any transfers could occur. And importantly, that applied not only to asylum seekers, but to people who not been regarded as refugees. So, if somebody fails in their attempt to become a refugee, they're rejected by the department, don't win on appeal, fail in the courts, then they could then run the argument, ‘Look, I'm under 18, it's not in my best interests to be transferred to another country.' That, in our view, is not a sustainable policy.
So, again, Ali, what we'd be simply attempting to do is return the law to its pre-High Court understanding, which is that the minister has obligations to consider the case of the child, to consider the best interests, but there are also obligations under the Migration Act and it had always been held previously that the minister's responsibilities under the Migration Act were to be read as important and the responsibilities as guardian were not to trump, if you like, the obligations for the minister under the Migration Act, and we'll be seeking to return that pre-High Court understanding.
Moore: And if the Malaysian solution does become enacted under the final arrangements, who will do the assessment? Will it be child welfare officers or will it be Immigration officers making the determination about the fitness of a child to be sent to a third country?
Bowen: Well, they're not necessarily mutually exclusive, Ali. We do have well-qualified assessors in the Department of Immigration who do specialise in child welfare matters and it will be Department of Immigration officials involved in this, but they are well-qualified people who have wide experience in managing these sorts of issues. We'll continue to engage with organisations, particularly the UNHCR. We have every seen them as a particularly important partner in developing this policy –
Moore: And they've not approved those arrangements, yet, have they? They haven't actually said to you they're happy?
Bowen: Well, they're not a signatory to the arrangement, but we have taken their feedback very much on board and their feedback very much shaped the final arrangement with Malaysia, and we do regard their feedback in relation to matters that go to unaccompanied minors and others as important. But that is not to say that the Australian Government and the Department of Immigration won't of course be the final arbiters on these things, as we need to be under the law.
Moore: You're yet to brief the Opposition on the details. How confident are you of getting their support? Of course, they've described this as ‘a legislative excuse to implement an already failed and flawed policy'.
Bowen: Well, look, it's really a matter for them. Mr Abbott said last week that he thought the government of the day should have the discretion to implement the policy the government of the day feels is necessary for border protection. Now, we feel this is the necessary policy. We made the briefings available to the Opposition so that they had the same information available to them as we've had to us. That advice, that information is that their policy would be ineffective, that Nauru would an ineffective deterrent because people would simply be processed on Nauru and then the majority of people who are regarded as refugees would be settled in Australia. The experience from last time is that well over 90 per cent were settled in Australia or New Zealand. Now, how is that a deterrent? It simply doesn't work as a deterrent. What it does is break people's spirit along the way, and there are still people who were resettled into Australia who have significant mental health issues as a result of their time on Nauru. So it broke the people's spirit, but it didn't break the people smugglers' business model.
Now, we've made that advice available to the Opposition. That's not just departmental advice; that's advice from all the experts: from the Department of Immigration, from the national security adviser, from the ambassador for people smuggling issues. The government's top officials have been made available to the Opposition. So if they ignore that advice and if they, in an act of political bloody-mindedness, say, ‘Well, if you won't do Nauru, we're not going to give you the options or the ability to implement your policy,' well, that will be a matter for them to explain to the Australian people. We don't expect them to endorse the Malaysia arrangement, we don't expect them to applaud it, we don't expect them to welcome it. But it is the government's policy, and given Mr Abbott's comments, if he sticks to those comments, then he'll support the legislation.
Moore: Minister, there have been by anyone's, I guess, estimate a few false starts in terms of asylum seeker policy. Is this the last shot in the locker?
Bowen: Well, this is a difficult area, Ali, and we did have the change in the High Court's interpretation of the law. That was a setback; it was a disappointing setback, I've made that clear in the past. But we've dealt with it. We took it on board, we took our time to consider our response over the last week-and-a-half, and we've announced that response today and it's a strong response. It is a response which has considered all the options. We went back and I said everything's on the table; that's the appropriate thing to do. But we examined all the options, we took the advice, and all the advice to us is that the Malaysia arrangement is the appropriate one for breaking that model.
Moore: And is there also advice from your department about the potential impact of high levels of boat arrivals in the context of having onshore processing only? Have you had advice about potential social disharmony?
Bowen: Well, I know what you're referring to there, Ali, and this is an important point, and some of the comments that have been made by people who should know better in the political spectrum about senior department officials, most notably the secretary, I think are most unfortunate. Clearly, I've said in the past publicly that it's important that we have an orderly migration program to support public confidence and support for a high migration program. Now, there are some senior departmental officials who made that point who have been intimately involved for 30 years in the migration of millions of people to Australia and who believe passionately in a multicultural Australia and who believe passionately in a non-discriminatory immigration policy. And for people like Mr Metcalfe to be criticised in the most unfair and unfortunate manner by people like Senator Brown, I think is a very unfortunate development. And I think it's a legitimate point for people in government and government advisers to make that support for the orderly migration program is important. And really, for people to make that sort of commentary without having first-hand knowledge of the advice of the department to the government, I think was a most unfortunate thing.
Moore: A final quick question, minister. You said today that offshore processing is in accord with Labor's platform. Chapter Seven of the national platform says ‘Labor's protection policies will be based on the following principles: protection claims made in Australia will be assessed by Australians on Australian territory'. How does that sit with offshore processing?
Bowen: Well, I made the point to the caucus and more generally that this is a policy which is firmly in accord with Labor values. Now, there are various areas of the platform that people can point to to support their arguments. We'll have a discussion about the platform in December, and no doubt –
Moore: Is it time to change the platform?
Bowen: Well, and no doubt in December, there will be, as there normally is at Labor Party conferences around these sorts of issues, a debate and I'll be participating in that as Immigration Minister and I'll be putting the case for a regional framework. I'll be putting the case for the people who don't often have a say in this debate, the people who sit in camps waiting for resettlement who often miss out, the people who risk their lives on their boats and in many cases lose their lives. These are people who deserve a say in this debate as well, and I'll be putting that case at the Labor conference and I'll be putting it vigorously.
Moore: Chris Bowen, I'm sure many others will also put it vigorously as well. Many thanks for joining Lateline. Thank you.
Bowen: I'm quite sure you're right. My pleasure, Ali. Thank you very much.


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