Why the Coalition will not support Labor’s Amendments to the Migration Act to allow the Malaysian People Swap Deal

Listening to Julia Gillard speaking about her Malaysian people swap deal over the last few days, in Parliament and outside, has been truly remarkable.

She has sought to argue that in some way the Opposition is not acting in Australia’s national interest because we are not supporting her planned amendments to the Migration Act.

This is wrong.  Julia Gillard has got herself into a terrible mess. She wants our help to get out of the mess.  But to do so she wants us to support her poor policy – when we have a better policy which worked under the Howard Government and would work again.

Julia Gillard did not get into this mess overnight.  It took four major steps over four years.  The first step was that when Labor came to government in 2007, it abandoned the previous Howard Government policy of offshore processing of asylum seekers.  This had occurred at either Nauru or Manus Island (part of Papua New Guinea), and it succeeded in reducing the rate of boat arrivals to low levels. The second step was that, in response to a rapidly growing number of boat arrivals, and the terrible disaster at Christmas Island in recent months when a boat foundered and many asylum seekers lost their lives, Ms Gillard announced in May this year that she had done a deal with Malaysia under which we would send 800 asylum seekers to that country and Australia would accept 4,000 refugees in return.  The third step was that this arrangement was challenged in the High Court – which found that it was in breach of Australia’s Migration Act.  Step four was that Labor proposed changes to the Migration Act so as to allow the Malaysian deal to proceed.

We do not support Labor’s changes.  First, we do not think they are not necessary to allow a return to the policy of offshore processing on Nauru and Manus Island.  As we have consistently said, we believe this is the best approach to discourage the arrival of asylum seekers by boat.  Secondly, we think that Labor’s amendments sweep away important safeguards contained in the Migration Act.

Notably, proceeding from step one to step two involved a sudden reversal of position by Labor, particularly as Malaysia is not a party to the 1951 Refugee Convention.  Julia Gillard said just last year, “I would rule out anywhere that is not a signatory to the Refugee Convention” (on 6PR 8/7/2010).

After step two occurred, we proceeded rapidly to step 3 because – surprisingly – Labor did not seem to consider the possibility of successful legal challenge when it struck the Malaysian deal.  The High Court upheld the challenge, by 6 votes to 1, principally on the basis that Australia’s Minister for Immigration Chris Bowen had not validly exercised his power to move the asylum seekers to a third country (Malaysia.)  His power to do so is under section 198A of the Migration Act, a section inserted by the Howard Government in 2001 when it first introduced the offshore processing arrangements.

Section 198A says that the Minister may lawfully send asylum seekers to a third country, as a matter of Australian law, but only if the Minister certifies that certain conditions are met in that third country: these include that they will have the right to seek asylum in that third country; that they will be granted certain protections while seeking asylum; that the protections will be maintained if they are granted asylum; and that all of this will happen in accordance with accepted human rights standards.  In essence, this section was a mechanism by which Australia could remove asylum seekers to third countries while continuing to meet its obligations under the 1951 Refugee Convention.  The High Court found that Chris Bowen’s certification was not validly made (in other words, these conditions were not in fact met.)

Julia Gillard claimed that her policy would ‘break the people smugglers’ business model’. The implication was clear; unlike Nauru and Manus Island, where the treatment of asylum seekers was essentially in the hands of the Australian government, asylum seekers sent to Malaysia would be out of Australian control.  Asylum seekers would face the serious risk of being exposed to much harsher conditions in Malaysia.  The problem however was that this squarely raised the question of breaching section 198A.  The Howard Government’s approach, using Nauru and Manus Island, was essentially crafted to meet the requirements of section 198A; the Malaysian deal was not.

When the High Court found, unsurprisingly, that the deal Malaysian breached section 198A, the Gillard Government was faced with having to amend the Act if it were to proceed with the deal. Labor therefore proposed an amendment which essentially completely abandoned the safeguards in section 198A.  The Opposition has declined to support the amendment. 

The fact is, the Coalition has been consistent in its position for a decade.  When the Coalition introduced offshore processing, we also established clear safeguards for asylum seekers, in section 198A.  A system operating in accordance with these safeguards achieved the desired policy objective: by the time the Howard Government left office there were very few asylum seekers left in immigration detention.

By contrast Labor tried one policy; then sharply reversed it; and now seeks to criticise the Coalition for maintaining a consistent position.  It is a criticism we wholly reject.