This morning I was greeted by the following rather startling statement courtesy of none other than Tony Abbott..of course.
THE Gillard government faces a choice between doing a deal with Tony Abbott to bring back the Pacific solution or bowing to the demands of its stirring Left faction and scrapping the overseas processing of asylum seekers altogether.
To provide some background to this issue I will refer to the opinion of Frank Brennan, Professor of Law at the Australian Catholic University and Visiting Professorial Fellow at the University of New South Wales.
No government can engage with legal certainty in offshore processing without first having Parliament amend s.198A. If there be no amendment of the Act, government must expect a legal challenge to any proposal for offshore processing wherever the announced destination. The legal challenge would commence in the High Court but probably be referred back to the Federal Court for a trial on the factual issues of protection and adequate processing. There would then be an appeal to the Full Court of the Federal Court followed by an application for special leave to the High Court. All this would take some months.
Tony Abbott then went on to claim that the government was looking for “an excuse” to abandon offshore processing. An excuse? Surely having to amend s.198A of the Migration Act amounts to somewhat more than just an excuse. There is the added issue that even IF the Gillard government accepted Tony Abbott’s offer to support amending the Migration Act that it is likely that in spite of any amendment, that the High Court would refer back to it’s original decision and declare an amendment unlawful. Politically there is very little chance that the government would side with Abbott against the Greens whose support they need for effective government.
Chris Bowen has also quite rightly pointed out that due to the previous High Court decision whereby all asylum seekers have access to the Australian justice system that neither Manus Island nor Nauru provide any deterrent whatsoever to people smugglers.
”It just means that people get processed and the majority get settled in Australia. It doesn’t break the model.”
He also cautioned that the High Court ruling made it unworkable to send unaccompanied minors to Nauru or Manus Island, which is Coalition policy, and suggested that could not be simply fixed with legislation. ”This is a matter I think everybody needs to reflect on,” Mr Bowen said.