Back from its winter recess, the Australian Parliament has now passed the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2011 which was first introduced to the Parliament in September last year as a response to the High Court's decision striking down the so-called Malaysia solution.
Ten months ago the stand-off between the Government and the Opposition over this bill related to the choice between Malaysia and Nauru as prospective offshore processing countries.
The Coalition wanted Parliament to insist that any country eligible for designation as an offshore processing country would be a signatory to the Refugees Convention. The Government wanted to retain the liberty of designating Malaysia immediately as an appropriate offshore processing country.
The Houston Expert Panel has provided the necessary political circuit breaker. The Coalition dropped its insistence that any potential offshore processing country be a signatory to the Convention. The Government dropped its insistence that Malaysia be pursued immediately as an appropriate offshore processing country.
The Government and Coalition remained in agreement that the Parliament should legislate to lock out the High Court from scrutinising the human rights protections offered in any offshore processing country. No major political party wants the High Court scrutinising future offshore processing arrangements in the same way that the High Court was able to strike down the Malaysia deal which the Coalition still describes as 'abominable'.
The panel was in agreement with the High Court that last year's Malaysia deal fell well short on human rights protection.
On Tuesday, Philip Ruddock, the chief architect of the Pacific Solution Mark I congratulated the panel for its competent outlining of the issues and options. He then put this challenge to Government:
What they are saying is that this Government's proposal is for mandatory detention in Nauru and Manus Island indefinitely until a place can be found after others in the queue have been accommodated. If this measure is going to work this government has to make it very, very clear that, for all of their statements that they would walk away from mandatory detention, they are now implementing indefinite mandatory detention offshore.
If people understand that, it may have the impact that the government seeks. But you cannot be unambiguous about the language you use. The message has to be clear not only to the people smugglers but also to their client base.
Thus the need for locking out the High Court. Nauru will only work as a deterrent if the package includes indefinite mandatory detention and protracted waiting before processing and resettlement. The Pacific Solution Mark I depended for its success on John Howard's bluff that refugees from Nauru would never end up in Australia. Mark II will depend on Julia Gillard's bluff, and that of her successors, that refugees in Nauru will have to wait there for many years.
All major political parties now hope they can confine people in Nauru for years on end without any prospect of court supervision and without any need for Parliament to revisit the matter. Scott Morrison, the Shadow Minister for Immigration, told Parliament on Tuesday:
These amendments ensure that, case by case, countries to which offshore arrivals are sent will be approved by this parliament. This means that a very heavy burden of responsibility now falls on this parliament. Previously there were the section 198A protections in the Migration Act. These were introduced by Mr Ruddock when he was Minister for Immigration to ensure that people who were processed offshore had legally binding protections.
If anyone doubts that those protections were legally binding, they need only look at the High Court decision of last year which proved that they were legally binding because the Malaysian people-swap — that abominable arrangement — was ruled out by the High Court on the basis of the insufficient nature of the declaration which made Malaysia, and particularly the people-swap arrangement, available to the government.'
Morrison, Ruddock and most of their parliamentary colleagues on either side of the aisle proceeded to vote to abolish these safeguards.
The Government has accepted the panel's recommendation that 'decisions in relation to how (asylum seekers) in Nauru would be processed would be determined by Australian officials in accordance with international obligations'. If people are to be detained indefinitely as Ruddock says, the Australian officials will need to institute a 'go slow' in processing refugee claims.
Though Parliament has done all it can to exclude the High Court, the Constitution (s.75(v)) which is beyond the reach of politicians (even when they are in panic mode) does provide the High Court with jurisdiction to order Australian officials to perform their legal functions. And if the deliberate 'go slow' by the bureaucrats is aimed at detention stretching into years rather than months, the High Court could well be asked to determine whether the initial detention of people arriving by boat is indeed punitive (as of course it is intended and trumpeted to be).
Under our Constitution, punitive long term detention is the sole preserve of the courts. It's called the rule of law and the separation of powers. If the Australian officials on their years long 'go slow' are not exercising any functions under Commonwealth law, there could well be questions about the legitimacy of the expenditure by the Commonwealth in the absence of specific statutory allocations for long, slow punitive detention. The High Court opened this door in the recent school chaplains' case.
The deliberately punitive regime will run into further problems once a person is proved to be a refugee. Now that Nauru is a proud signatory of the Refugees Convention, it is bound to provide proven refugees in their territory with a full suite of rights including 'the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment'; 'the same treatment as is accorded to Nauruan nationals with respect to elementary education'; 'the same treatment with respect to public relief and assistance as is accorded to Nauruan nationals'; social security; and 'travel documents for the purpose of travel outside Nauru, unless compelling reasons of national security or public order otherwise require'.
If Ruddock is right, Australian officials will have to start schooling their Nauruan colleagues in breaching the provisions of the Refugees Convention before the ink is dry on Nauru's ratification.
I am one Australian who will not be holding his breath waiting for a revised Malaysia deal which measures up to the human rights protections recommended by the Houston panel. I still can't see our immediate neighbours like Malaysia and Indonesia being much interested in a regional processing agreement for all asylum seekers arriving in the region. The Panel with its savvy international experience felicitously noted: 'Going beyond principle to addressing how greater regional cooperation would work in practice, in the immediate and longer term, is less travelled territory but critically important.'
While waiting to open up that virgin territory, let's hope the bluff works and the boats do stop coming. If people come in any numbers, we are going to find ourselves in a dreadful imbroglio in Nauru for years to come. In five years time, it might not just be the Greens in Parliament who look back and say that it would have been decent for Ruddock and his colleagues in 2012 to retain the minimum human rights protections which he negotiated with Kim Beazley back in 2001.
We have reached a fork in the road between decency and deterrence. As a nation we have taken the low road, inviting the newest signatory to the Refugees Convention to emulate our indecent behaviour.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.
Fr Brennan will appear tonight as part of Eureka Street's A Discerning Conversation With Kevin Rudd, held to celebrate the magazine's 21st birthday. Watch the live stream here