The Government’s choice now is to bring asylum seekers onto the mainland – maybe even into the suburbs – or find a fresh way to park them somewhere off-shore.

That choice is simple, but the politics and legalities are wretchedly complex as Julia Gillard and Tony Abbott deal with last week’s High Court ruling.
And it now seems increasingly likely that the ultimate decision, and in fact Government and Coalition policy, will have to be made by the High Court.
Also, it could be that the Full Bench of the court, in rubbing out overseas options, is more attuned to the priorities of voters than the politicians.
The political apprehension roused by both sides over a relatively small number of boat people means voters are looking for a firmly implemented response, but there isn’t overwhelming support for fobbing them off onto another country.
A May 16 report by pollsters Essential Media found a neat 40-40 split among voters over proposals to shift them to PNG’s Manus Island or Malaysia. By August 1 the split was of the same proportions.
Maybe voters are questioning whether our most controversial export should be people. But whatever that view, voters want the number of boat arrivals reduced or eliminated, and that will dominate government decision-making.
The Government said the Commonwealth Solicitor-General in writing yesterday advised he did not believe the court’s judgment allowed for boat people to be sent anywhere but to Australian territory.
That judgment drove a sledgehammer through a decade of policy aimed at diverting them to places which as little as possible resembled Australia – Nauru, Manus Island and, under this Government, Malaysia.
As Immigration Minister Chris Bowen put it yesterday, the Solicitor-General and two Senior Counsel “can have no confidence that any arrangement with PNG or Nauru is possible under existing law”.
The Opposition disagrees with that interpretation of the advice and argues that Nauru is still a viable destination – legally and administratively – for those wanting refugee applications to be processed.
That would be because Australia would have a direct involvement in the management of the facility and the protection of the rights of those detained.
However, Chris Bowen believes that “these new tests’’ established by the High Court invalidate the option.
One approach would be to change the Migration Act to accommodate those “new tests”, but that would require a great deal of political co-operation which recently has been in short supply.
The Greens want asylum seekers processed on the mainland and would oppose changes to the law to fit the High Court’s provisions as seen by the Solicitor-General.
That means these changes would not get through the Senate unless the Coalition supported them, and that would seem hugely unlikely.
The Opposition still believes Nauru is a goer and would co-operate with the Government in re-opening that detention centre, but not to make its Malaysian Solution viable.
Opposition Leader Tony Abbott set the tone quickly yesterday when he accused the Government of using the High Court decision as “an excuse to drop off-shore processing altogether and this of course is a huge cave-in to the Greens and to the left of the Labor Party”.
“The Solicitor-General’s opinion does not rule out Nauru at all,” said Abbott.
See you back in court.
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