Phillip Coorey
September 5, 2011Opposition leader, Tony Abbott, offers to amend the Migration Act so as to allow offshore processing, as options dry up for the government.
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.
The stark contrast emerged yesterday after the government released its written legal advice, which says last week's High Court decision that ruled the Malaysia plan invalid also rules out the Pacific solution locations of Nauru and Manus Island.
Claiming the government was looking for an excuse to abandon offshore processing, Mr Abbott offered to help pass legislation amending the Migration Act to circumvent the High Court ruling and allow processing on Manus Island and Nauru.
Tough decision ... Julia Gillard and Immigration Minister Chris Bowen. Photo: Paul Harris
The government is torn over what to do and cabinet will discuss options today. One option is understood to opt for the Pacific solution but with elements to try to placate the Left, such as an increased annual refugee intake.
The developments came as the Herald obtained a memo sent to staff by the secretary of the Department of Immigration, Andrew Metcalf, the day after the High Court decision.
The three-page memo suggests the Malaysia plan would have been more effective than the Pacific solution in stopping the people smugglers because it would have sent people back to the point of departure.
Mr Metcalf said one of the theories underpinning the Malaysia plan was ''the dramatic effect of past polices involving the very quick removal of people from Australia''. He cited the Labor government's forced repatriation of ethnic Chinese and Vietnamese groups in 1994, of Chinese nationals in the mid-1990s, and the Howard government towing several boatloads of people back to Indonesian waters.
''It is indisputable that these actions sent a clear message to people smugglers that they could not guarantee what they are selling - arrival and processing of claims in Australia.''
The High Court decision raised doubts about Julia Gillard's leadership. But her senior ministers continued to defend her yesterday and the NSW Labor headquarters in Sussex St was warning there was no appetite among the rank and file for another change, warning it would be ''political suicide''.
The government's legal advice, by the Commonwealth Solicitor-General, Stephen Gageler, was released by the Immigration Minister, Chris Bowen. ''We do not have reasonable confidence on the material with which we have been briefed that the power conferred by [section 198A of the Migration Act] could currently be exercised to take asylum seekers from Australia to either Nauru or PNG,'' the advice says.
Mr Abbott, after consulting the shadow attorney-general, George Brandis, disputed the assertion, saying Nauru had signed the United Nations convention on refugees and was amending its laws to ensure they were compliant with the High Court verdict.
He said the government was trying to use the High Court decision as an excuse to avoid an internal split by abandoning offshore processing which, he said, would be pandering to the Greens and the Left.
''If the government wants to put offshore processing beyond legal doubt by amending the Migration Act, the Coalition's prepared to work with the government to bring that about,'' Mr Abbott said.
''We don't want the government to use the High Court's decision as an excuse to drop offshore processing.''
Mr Bowen conceded changing the Migration Act was an option but he cautioned Nauru would not break the people smugglers because it was just another offshore processing location, like Christmas Island. ''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.
One government source said even if it cut a deal with Mr Abbott, he would then wedge Labor further by demanding it reintroduce temporary protection visas.
The ALP Left is warning of internal warfare if offshore processing is revisited.
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