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It's time Parliament had a say on 'disgraceful' PNG solution

Frank Brennan |  04 June 2014

Fig leafOn Monday night, this exchange took place on ABC 4 Corners between presenter Kerry O'Brien and Archbishop Mark Coleridge about Australia's new system of offshore processing and resettlement for asylum seekers arriving on Australian territory without a visa.

O'BRIEN: Archbishop Coleridge, one of the most powerful moments in the new Pope's reign was his very pointed and poignant visit to the Italian island of Lampedusa to see and be seen with the north Africans who risked their lives on leaky boats to seek asylum in Europe. Now, have you wondered what Pope Francis might think of Australia if he were able to visit the Manus Island detention centre?

COLERIDGE: I think he would be appalled. Just recently, Australian bishops put out a very clear and strong, but measured statement on this very point and I think Pope Francis would subscribe to that statement very strongly, saying that the current policy, supported by both sides of politics, is morally unacceptable and shames our country. And, the need for it to be reconsidered is urgent and what is puzzling and indeed troubling in all of this is that you have politicians who are not themselves cruel people, quite the contrary, but they are presiding over a policy which has to be named cruel.

This cruel arrangement cannot be scrutinised by our courts and it has never been approved by our Parliament. In the name of democracy, in the name of Australian self-respect, and in the name of human rights protection and the rule of law, it is time this arrangement was presented to our Parliament for its approval by our elected representatives or for immediate ditching. This arrangement constitutes a flagrant exercise of wanton executive power without any checks and balances. It's a disgrace.

In his second reading speech for the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 on 21 September 2011, then Labor Immigration Minister Chris Bowen said:

This bill amends the Migration Act 1958 and the Immigration (Guardianship of Children) Act 1946 to clarify the framework for taking irregular maritime arrivals, who arrive in Australia at an excised offshore place, to another country for assessment of their protection claims. The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.

Importantly, he then went on to spell out the political accountability entailed in the Executive providing materials to the Parliament. He said:

In order to strengthen political accountability, the new section 198AC requires the minister to lay before parliament several documents for the purpose of informing the parliamentary — and public — debate on the designation of a country as an 'offshore processing country'.

These documents include:


  • a statement of the minister's reasons for considering the designation to be in the national interest;
  • a copy of any written agreement — whether binding or not — with the designated country relating to the transfer of persons;
  • a statement about consultations with the Office of the United Nations High Commissioner for Refugees;
  • a summary of any advice received from UNHCR about the designation; and
  • a statement about any arrangements that are in place, or will be put in place, for the treatment of transferees.


These are criteria that do not go to the validity of the designation. They go to political accountability. In enacting these amendments, this government is plainly intending to re-enliven the arrangement entered into with the government of Malaysia. It is also intending to allow the coalition, opposite, to re-enliven its proposal to transfer boat arrivals to Nauru, should it one day carry the responsibilities of government.

The government believes the Malaysia arrangement is far the superior, removing, as it does, the essential product people smugglers are able to sell their vulnerable customers: the prospect of likely resettlement in Australia.

By comparing the Malaysia and Nauru options, Bowen was suggesting that Malaysia was superior because it included a requirement that those moved to Malaysia were not permitted to return to Australia. He envisaged that any resurrection of the Nauru option would entail the possibility of a durable solution being provided by way of resettlement in Australia.

But for the intent of getting around the High Court decision in relation to the Malaysia solution, members of Parliament and the public were led to believe that any other designation would be for the purposes of temporary offshore processing and not for the purposes of permanent offshore resettlement.

Neither the PNG Agreement nor the Nauru Agreement negotiated by Kevin Rudd before the commencement of the 2013 election campaign have been scrutinised or approved by the Parliament. It's time they were.

The Nauru agreement depends for legality on the fig leaf of parliamentary coverage given by the tabling of documents by Minister Chris Bowen on 10 September 2012 when he told Parliament:

By presenting the designation and accompanying documents in accordance with the legislation, we are providing the parliament with the opportunity to be satisfied that they are appropriate. Again, I call on both houses of parliament to approve this designation, to enable the first transfers of offshore entry persons to Nauru and to provide the circuit-breaker to irregular maritime arrivals called for by the (Houston) expert panel's report.

The Memorandum of Understanding (MOU) tabled by Bowen provided: 'The Commonwealth of Australia will make all efforts to ensure that all persons entering Nauru under this MOU will depart within as short a time as is reasonably necessary for the implementation of this MOU'.

The Parliament did not disallow the designation of Nauru as a 'regional processing country' in September 2012 but that was because all parliamentarians including Bowen thought that the proposal was that Nauru be a temporary processing country, not a permanent resettlement country which it now is.

On 3 August 2013, Prime Minister Kevin Rudd, appearing with Baron Waqa, the President of Nauru, said, 'Today we are pleased to announce that we've reached a new Regional Resettlement Arrangement, one that supersedes the Memorandum of Understanding we signed last year.' Rudd was conceding that this new arrangement bore no resemblance to the one presented to Parliament in September 2012.

The requirement to table such documents in Parliament was legislated when the Parliament decided that it wanted to exclude the High Court from scrutinising future arrangements like the Malaysia Solution. The substitute was that the Parliament itself would have the chance to disallow any arrangement entered into by the Minister for Immigration acting in what he considered to be the national interest.

Rudd went on to say, 'Our Governments have agreed that the Republic of Nauru will not only maintain and extend its regional processing capacity, but it will also provide a settlement opportunity to persons it determines are in need of international protection.' On the eve of the 2013 election, government did this, spared all scrutiny by the High Court and the Parliament.

The Rudd Cabinet purported to be completely immune from all supervision by the other arms of government when deciding to ship asylum seekers, including genuine refugees, across the Pacific Ocean to very precarious futures. The Abbott Cabinet has simply pursued the Rudd policy without feeling any compunction to present this enormous policy change to Parliament despite its doubtful legality.

Presenting the Instrument of Designation of PNG to Parliament on 9 October 2012, Minister Bowen said: 'By presenting the designation and accompanying documents, in accordance with the legislation, I provide the parliament with the opportunity to be satisfied that what is in place, and will be put in place, is appropriate.' He told Parliament: 'Today's designation of Papua New Guinea is a further step in the government's task of implementing the (Houston) panel's recommendations.'

The accompanying documents included the MOU with PNG which was very specific in dealing only with an Assessment Centre at Manus Island. It stated: 'Papua New Guinea will establish an Assessment Centre in Manus Province for the purposes of this MOU. The Government of Australia will guarantee that all persons entering Papua New Guinea under this MOU will have left within as short a time as is reasonably necessary for the implementation of this MOU.'

Members of Parliament who decided not to disallow the instrument of designation would now be surprised to know that they were agreeing to the establishment of the PNG Solution. The PNG Solution was no part whatever of the Houston Panel recommendations.

It is important to recall that the Houston Panel envisaged that UNHCR and other resettlement countries would be approached with a view to resettling those found to be refugees in Nauru and PNG. It explicitly provided that 'If such refugees require resettlement in Australia, this would be provided at a time comparable to what would have been made available had their claims been assessed through regional processing arrangements.'

Answering a question from the Chief Justice of the High Court about the PNG solution on 13 May 2014, Mr Donaghue QC for the Commonwealth said:

Our submission is that this scheme established by Subdivision B does authorise the taking of persons who may or may not have protection claims to a regional processing country and that it does so whether or not that is consistent with Australia's obligations as a matter of international law.

In saying that, I should point out to your Honours that in the Malaysia Declaration Case at paragraph 117, your Honours acknowledged that the content of international law in that scenario, with respect to persons who have claims that may not have been assessed, is a matter upon which opinions differ.

But, in the event that it is found that such removal is contrary to international obligations, we submit that it is, nevertheless, specifically authorised by this scheme which is why the scheme emphasises that it is for the Minister and for the Parliament to decide, subject to political accountability, whether or not a designation should occur and be allowed to operate in accordance with the scheme.

Parliament has never been asked about the Rudd or Abbott PNG solutions of 2013 and 2014. It's high time the scheme was brought back to Parliament for the application of a fig leaf of political accountability.

At least it would give the Greens, Clive Palmer's senators, the DLP and disaffected ALP members the opportunity to state their principled case against the new scheme which is not for temporary offshore processing but for permanent offshore resettlement. Our senators should insist that only activities consistent with the documentation provided to them in 2012 be maintained on Manus Island and Nauru.

If the Executive government wants to conduct on Manus Island and Nauru long term detention and resettlement with no option of settlement in Australia rather than short term processing with an option of settlement in Australia, they should seek parliamentary approval. If we are to maintain an arrangement which is 'morally unacceptable and shames our country', we should at least do it with parliamentary approval.

Frank BrennanFrank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Fig leaf image from Shutterstock



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Submitted comments

Well said, straight to Parliament then, do not pass Go...

Sue Daniel 05 June 2014

So is the High Court forever locked out of this issue by the Executive? And when Rudd changed the meaning of the Nauru arrangement was he misleading Parliament? Ditto Bowen with the change of meaning in the PNG arrangements. If so, isn't this challengeable in law?

Rhyll McMaster 05 June 2014

It appears that the coalition government has ignored the parliament in the framing of its emigration policy in much the same offhanded manner as President Obama has even more frequently by- passed the American Congress when it suited him. Democracy seems expendable in the home of the brave and the land girt by sea.

grebo 05 June 2014

I don't know what's going on within the Labor Party about our cruel policy. Recently I sent an email to every Labor MP about it, and most did not reply. Those who did were non-committal. I know that there are two members who have proposed a softening of policy, but seems that went nowhere. Has anyone any inside information?

Janet 05 June 2014

Thank you, Frank, you have explained a complex legal issue in a way ordinary people can understand. Long ago in England there was a war which, simply put, pitted the advocates of Parliamentary Governance against those of Absolute Monarchy. It was a sad and bloody conflict with much collateral damage and suffering. Nonetheless it decided a vital issue in our political tradition. It appears the same issue is being raised here, that of the balance between the Executive and Legislature. This has gone largely unnoticed.

Edward Fido 05 June 2014

Frank, I had the idea when this government was elected, the prevailing mantra was "stop the boats" which the Australian people, the taxpayers, wholeheartedly approved of. This is being done. However, one also has to consider that these asylum seekers are being given asylum and the reasons for the seeking of such - freedom from persecution, medical assistance, etc, are being fulfilled at the cost of $60,000 per person. Why don't you point out that kind kind of justice instead of harping on "cruelty"

shirley McHugh 05 June 2014

So - lots of words but what is the answer?

Jackie 05 June 2014

Thank you, Frank for your legal explanation. Parliament won't want to examine the present situation because most Australians don't want asylum seekers here. Australians have been swayed, though, by politicians themselves. One of the first speeches Julia Gillard made on becoming PM was to say that it was fine for people to be concerned about border protection. We have, then, both sides of parliament agreeing with our cruel policy together with most Australians. That many asylum seekers are Muslims is a further sticking point. On the positive side, we have the legal position that Frank has explained and we have a fairly large number of Australians who feel ashamed that our politicians and fellow Australians condone the inhumane treatment of already traumatised human beings. Protest rallies are now being held around the country and organisations such as GetUp are training people in non-violent protest. These are signs of hope but is it enough? Who is going to pursue the legal position that Frank has explained?

Anna 05 June 2014

Haven't the Liberal party won on this issue hands down. It is their best issue for winning votes! Refugee activists have helped them with their silly comments about rednecks racists etc. No one is listening to them and they just help Morrison get away with whatever he wants.

angela 05 June 2014

It was great to see the flowering of A/Bish Coleridge under the influence of Francis`s ministry. Long may it continue.

Eugene 05 June 2014

Congrats to the Abbott Government for carrying out the "impossible" task of turning back the boats as promised. If the ALP Government had done the same, hundreds if not thousands of lives would have been saved. Keep up u the Abbott program and the problems of temporary and permanent resettlement will eventually be solved.

Bill Barry 05 June 2014

Archbishop Coleridge is quoted as saying "...and what is puzzling and indeed troubling in all of this is that you have politicians who are not themselves cruel people, quite the contrary, but they are presiding over a policy which has to be named cruel." I beg to differ: people need to be judged by their words and actions, not presumed character. The toxic political rhetoric and extreme policies which knowingly inflict harm on vulnerable people speak volumes about the individuals who have put these policies in place. Diplomatic niceties let too many off the hook.

Kate J 05 June 2014

It is true, by stopping the boats as promised by Tony Abbott, the problems of temporary and permanent resettlement will eventually be solved. Good on you Tony Abbott.

Ron Cini 05 June 2014

Frank Brennan’s sanctimonious moralizing about Australia’s offshore asylum seeker policies is highly selective. After coming to power in 2007 – and under sustained pressure from the asylum-seeker lobby - Labor dismantled a system which had kept mostly self-selecting economic migrants out of Australia about five years. And surprise! Tens of thousands of them start streaming into Australia again – with over 1200 of them drowning in the process. And those who got here have so far cost us $12 billion. To handle this self-created mess and stop the flow Labor resorted to all sorts of half-backed solutions. including offshore detention which the Coalition has inherited. Meanwhile, thousands of genuine Syrian refugees who really need our help been prevented from coming to Australia because these “asylum seekers” got here first. And Brennan gets into a self-rightious lather because the Government didn’t give the asylum-seeker lobby in Parliament every legalistic and political opportunity to scuttle a new policy that has probably already saved hundreds more lives! Incidently, refugees who have entered Australia legally are strongly opposed to illegal asylum seekers. Such illegal entrants reduce legal refugees' chances of bringing their family members to Australia who are still stuck in refugee camps.

dennis 06 June 2014

To those who say the government's asylum seeker policy is saving many people from dying at sea, most asylum seekers are genuine refugees and have escaped from a life so bad they would prefer to drown at sea than return. I find it difficult to comprehend that our government, with the acquiescence of the majority of Australians, have dehumanized and demonized asylum seekers. Their treatment, at least in Naru and on Manus Island, is disgraceful. Many are extremely mentally distressed. One despairing asylum seeker, living in the community, took his own life this week, realising he would be sent to Sri Lanka, where, as a Tamil, he would be persecuted. Our government obviously is aware of the situation of Tamils in Sri Lanka but has made it clear it sides with the Sri Lanka government. Apparently the cost of asylum seekers is of concern to some. It costs far more for them to be in detention centres than it would if they were living in the community. They are human beings, just like we are and have every right to seek asylum from persecution.

Anna 06 June 2014

My experience is similar to Janet's whenever I write to politicians, (usually Labor) about the situation. But that doesn't mean I'll stop. Thanks, Frank, once again. Anne

Anne Benjamin 06 June 2014

"Illegal asylum seekers", Dennis? Everyone has a right to seek asylum. Until their claims have been processed, and found to be unsubstantiated, they are well within their rights. We, on the other hand, are in contravention of our duties under the refugee conventions we've signed. I know Labor is no better than the Coalition in this matter, but that isn't the issue!

Joan Seymour 06 June 2014

I wonder if Abbott's supporters on this topic would like to comment on the LNP failure to support the Labor idea of sending the refugees to Malaysia? The refusal to back the Malaysian solution was all about Abbott not wanting Labor to solve the problem. Abbott didnt give a damn about people drowning, he was just interested in him being able to present the solution.. Anyone who denies this is a fool.

John 06 June 2014

I am an ashamed Australian.. ''Stop the boats'' statement of our Govts. is an insult to our intelligence... What about the people on the boats.? How cold and calculating is that! Not a word of assistance or compassion for those risking their lives for freedom. What sort of a country have we become? Let us not go too far in this selfish, cruel direction. We may not be able to change, and that is where 'evil ' could take over., as it did in Europe in the middle of the last century.. Is it time our Parish Priests supported their Bishops and publicly denounced our Govts Policy on treatment of refugees, especially those desperate enough to attempt to come to Australia by boat.

bernie introna 06 June 2014

Since when is it sanctimonious moralising to ask that our parliament be given the opportunity to consider a truly novel approach to dealing with asylum seekers? It might just be a call for due process and the use of appropriate checks and balances. I said this when Rudd was PM and say it now when Abbott is PM. Let's give the rule of law a go, even when dealing with asylum seekers. Given that the boats have stopped, we should now give some more sensible consideration to durable solutions for those detained on Nauru and Manus Island.

Frank brennan Sj 06 June 2014

Thank you Father Brennan. It is writings such as yours which help to restore, at least just a little, my faith in the Church. Thank you for your clarity re our legal and humanitarian obligations. Jackie asks 'What is the answer?' It is a concerted and strengthened continuation of advocacy for justice for asylum seekers in its many and varied ways. It appears that our voice is increasing and if this continues our politicians will eventually hear us for we represent votes. It is up to those of us who have not been brainwashed by the many false statements to speak on behalf of those who have no voice. No-one chooses where they will be born. I sometimes wonder what Abbott would do if he was in a situation of extreme conflict with daily threats of rape to his daughters, his home being destroyed and family members killed. Would he in such a situation seek to escape persecution and at great risk escape to a safer country. It seems that some people are unable to empathise with such suffering and for some reason believe they are above the need to help others. Not only help but it's right to add to their suffering, to their persecution. I simply cannot understand this line of reasoning.

Robin Jones 06 June 2014

What a novelty the rule of law would be in Australia, it died in 1992 with the passing of the first illegal prison without charge for innocent people.

Marilyn 06 June 2014

Frank Brennan contends that the rule of law on the Manus Island issue hasn’t been given a fair go by federal parliament. Doubtless other legal experts would disagree, noting that the relevant documents were tabled and the matter debated at some length by parliament. But now that the boats have been stopped, as he concedes, the unmanageable asylum-seeker mess has been transformed into a managable problem. We now have to only deal with a few hundred asylum-seekers on Manus Island. Let’s process them quickly. Classify 90% as genuine refugees as is usually done, though not because they’re bonafide refugees but for administrative reasons (it saves endless appeals to the High Court by the AS lobby) . Let then quickly settle in Australia and then we can use the billions spent on asylum-seekers to help genuine refugees such as the Syrians in Lebanon etc who’ve lost all. Hopefully too there might be a few billion left to provide shelter to thousands of our own homeless (refugees?) who sleep in our streets every night. But unlike asylum seekers they are not really the “cause de jour” for the PC brigade at present are they?

dennis 09 June 2014

There are many letters here praising the government for "stopping the boats". They have not stopped. People are being sent back, but we are not being told about it. How many have drowned on the way? We don't know. Out of sight, out of mind, people are being treated unspeakably in our name. And as for the complaint about how much each "transferee" is costing us--if they were allowed to work and make a new life, they would be paying taxes and enriching our country with their intelligence and hard work. And we would save our national soul.

Rose Marie Crowe 09 June 2014

There is no rule of law on Manus or Nauru because Australia made sure there was none.

Marilyn 09 June 2014

Dennis states that "the relevant documents were tabled and the matter debated at some length by parliament". FALSE and FALSE. That's my point. So why not table the relevant documents drawn up by the Rudd Administration in its dying days, and why not have a parliamentary debate?

Frank Brennan SJ 09 June 2014

I agree with this article. The Australian Parliament is a joke with very little informed debate. Members are forced to 'toe the party line' and comply with the wishes of the despicable leaders of both major parties. The treatment of refugees and asylum seekers continues to be inhumane, shameful and embarrassing for Australia. Most Australian people are apathetic and only interested in their level of income and consumer spending. I was recently disgusted at the lack of outrage when a Tamil Sri Lankan refugee in Geelong was forced to commit suicide because of the fear of persecution if he returned to Sri Lanka.

Mark Doyle 12 June 2014

I am quite prepared to accept that the majority of Australians want the boats stopped. Then arise the questions: how can this be done ethically? how can it be done respecting the rule of law and the sovereignty of parliament and the separation of powers. Even the second question should be of concern to all citizens, and not just lawyers. The historical perspective is important. The High Court struck down the Malaysia solution. Both sides of Parliament agreed that they did not want the High Court scrutinising this sort of deal again. So it was agreed that the scrutiny would be applied 'with a light touch' by both houses of parliament being able to disallow any future arrangement. At no time did anyone suggest that it be done by the Executive with no scrutiny other than the three year ballot box which is not the rule of law but populist rule of the mob. Both houses waved through the resurrected Pacific solution. A year later, Kevin Rudd then decided that he could use the existing designations for Nauru and PNG as temporary offshore processing countries as the basis for a completely new arrangement for permanent offshore resettlement countries – an arrangement which has never been scrutinised by Parliament. Imagine if Sarah Hanson Young had stood up in the Senate back in 2012 and opposed the designation on the basis that it opened the door to permanent relocation of refugees to Nauru and PNG. Many senators and commentators would have told her to stop being so shrill and to stop following her wild imagination and that she should get back to the matter at hand. Presumably the government thought that the High Court was locked out. I am still not certain about that. And time will tell no doubt when a challenge is ultimately brought. But meanwhile we have an arrangement designed and put in place by the Executive without parliamentary approval and without the opportunity for parliamentary disallowance. This is a serious democratic deficit particularly when community leaders including all our bishops (and the Pope!) are questioning the morality of what is in place. There is an added public policy reason for seeking the parliamentary review. The boats have now stopped. The Abbott government is confident that the smuggling racket is smashed and that the Indonesians are now basically on side. So the boats will remain stopped whether or not there is any one left on Nauru or Manus Island. So what ethical or political imperative is there for keeping people locked up in such inhumane circumstances? When the inevitable royal commission on all this is ultimately convened, we would all save the taxpayers many millions in compensation if we could terminate the gulags as quickly as possible. If we were serious about looking after those people, we would have sent in our own military rather than contracting the matter out to inexperienced corporations. It is imperative that our Senators on the cross benches take a long hard look at this once they are all in place next month, for the good of the detainees, and for the good of our democracy.

Frank Brennan SJ 12 June 2014

Conceding that some people want boats stopped is pretty irrelevant Frank, who cares what the ignorant think? The fact is under the law everyone has the absolute right to sail here under their own steam and by their own will and seek our protection and that right must be protected before anything else. There is no such thing as stopping any boats, it's not our ocean and not our right.

Marilyn 12 June 2014

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