Night time politics
- The High Court ruling backing offshore detention laws dominated the political agenda today. Refugee advocates called on Malcolm Turnbull act on the moral case rather than the legal case to keep 267 people, including 37 babies, in Australia rather than sending them back offshore. Turnbull has been quieter on the Abbott slogan of “stop the boats” since coming to the job. But today he said “the people smugglers will not prevail over our sovereignty. Our borders are secure. The line has to be drawn somewhere and it is drawn at our border”. Not much room for movement there. Labor called on the government to find third country solutions for people in detention. The Greens asked the government to allow the 247 to stay.
- The Turnbull governments budget forecasts have blown $9.6bn over four years according to a report by the parliamentary budget office. Scott Morrison’s budget update in December predicted an underlying cash deficit of $37.4bn this financial year, with a cumulative shortfall of $108.3bn over the four-year cycle.
- Both sides of the house invoked an opinion column by Paul Keating to bolster their case on the GST.
- Indigenous educators and members of the Australian Education Union (AEU) met a dozen members of parliament, including the education minister, Simon Birmingham, and the opposition leader, Bill Shorten. They were in Canberra to talk about the progress made under the Gonski reforms and urge the Turnbull government not to cut future funding. In question time, Turnbull avoided saying whether he supported the Gonski reforms, saying education funding was increasing.
- The lower house spent most of the day debating the bill to reinstate the Australian Building and Construction Commission.
Tomorrow, there is a report due from Goodstart and PWC on the economic impact of childcare.
Thanks so much for your company, comments and wit. I leave you with the wit of Matt Hatter, riffing off one MP calling another a potato head.
Goodnight.
@gabriellechan Perhaps it's a reference to the new penchant for facial hair, or extending the GST to fresh food. pic.twitter.com/GDTd8fx5gP
— The Matt Hatter (@MattGlassDarkly) February 3, 2016
Updated
The Turnbull government’s budget forecasts will blow out by $9.6bn over the next four years, or $44.7bn within a decade, if IT fails to clinch parliamentary approval for stalled savings measures, new figures show.
A report by the parliamentary budget office reveals the cumulative impact of unlegislated measures that are already factored into the budget bottom line.
Wednesday’s report has emboldened the government’s political opponents, who argued it showed the flimsy state of the deficit forecasts and also proved many Tony Abbott-era cuts remained on the agenda.
But the figures also illustrate the Coalition’s difficulties in the Senate, as the government considers changes to electoral laws to counter the impact of micro-parties before the next election. Malcolm Turnbull said last week the government was trying to make “prudent” savings but “one of our challenges is that so many of them are being blocked in the Senate”.
Scott Morrison’s budget update in December predicted an underlying cash deficit of $37.4bn this financial year, with a cumulative shortfall of $108.3bn over the four-year cycle. But these deficit figures would be $9.6bn worse over the four-year period if the treasurer’s mid-year economic and fiscal outlook had not assumed the passage of a raft of unlegislated savings measures.
The health minister’s office has provided the following details on the new drug listing:
Effective from 01 February 2016, the Government has listed the drug Ruxolitinib (Jakavi®) for the treatment of the rare condition of Myelofibrosis.
Myelofibrosis is a debilitating and potentially life-threatening condition that affects approximately four in every 100,000 Australians.
This is an investment of over $180 million over the next four years, allowing over 950 cancer patients to receive PBS subsidised treatment.
Without the PBS subsidy, they would face costs of up to $100,000 per year for this essential treatment.
A motion calling on the government to urgently address telephone waiting times for welfare service provider Centrelink has just passed the Senate.
Labor and the Greens joined forces to back the motion, which highlighted the massive jump in complaints made about the agency in the last 12 months.
In the 2014-15 financial year, just over 11,500 complaints were made about long waiting times and for calls not getting through to the agency.
You know that Senate motion on the failure to appoint a sex discrimination commissioner for 150 days? It passed.
The Greens’ deputy leader, Larissa Waters:
Women have been waiting on the Turnbull Liberal government for more than 150 days now to appoint a new sex discrimination Commissioner. In that 150 days, we’ve seen rampant high-profile cases of sexism, including from government ministers, which a sex discrimination commissioner could have spoken out about.
Updated
What is Mal Brough looking at?
Onya Bowers.
The insult – “potato head” – was just hurled across the chamber.
Updated
I missed this earlier. From an AAP report:
The government has moved to pressure sports organisations into recognising gender equality in travel policies for Australian athletes.
Federal sports minister Sussan Ley is demanding the policy as a condition of federal government funding and, along with Australian Sports Commission chairman John Wylie, has written to the top 30 funded organisations on the issue.
“In 2016 we can think of no defensible reason why male and female athletes should travel in different classes or stay in different standard accommodation when attending major international sporting events,” Ley said in a statement on Wednesday.
YES, minister.
Updated
Chris Bowen is prosecuting a matter of public importance that:
The Turnbull government’s failure to properly invest in education to ensure Australians are ready for the jobs of the future.
Labor to Turnbull: The Australian Financial Review reports today that McDonald’s halved its tax bill last year by funnelling payments through Singapore. Why does the prime minister have a plan to make Macca’s customers pay a 15% GST but no plan for making sure McDonald’s pays their fair share of tax?
Turnbull says he won’t go to individual companies but talks about the new laws which have passed on multinational tax avoidance.
What this law provides is that businesses with a turnover of over a billion dollars have got to report how much tax they pay in every jurisdiction so that everybody will know how much they are paying.
He said the law changed the test to so that “it makes it much, much more straight forward for the ATO to levy tax”.
Scott Morrison gets a question about the same law and, with that, question time is over.
Updated
Bill Shorten mentions MUA workers, some of whom were sacked, in the galleries. A government MP must have laughed and Tanya Plibersek gets stuck in, saying “they have families you know”.
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A Dixer to the major projects minister, Paul Fletcher: With NBN optic fibre starting to roll out in my home town of Goulburn, in the north of my electorate in the Oaks and Oakdale, in Bundanoon, Southern Highlands, around Picton, Bargo in coming weeks, could the minister outline how the NBN will bring fast, reliable internet to all homes and businesses in my electorate of Hume?
We have now 1.65m premises able to receive a service. Of course, when Labor left office, the number was a derisory 348,000...
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Tony Burke to Malcolm Turnbull: Given the Parliamentary Budget Office costings have multinational tax policy at $7bn, tobacco excise at $47bn, superannuation loopholes at $14bn, which together with the abolition of the emissions reduction fundraise more than $70bn, exactly which costing was the prime minister disagreeing with in question time yesterday?
Turnbull:
The savings that have been announced by Labor, are claimed by Labor to amount to $8bn, that’s around $2bn a year so on average their claimed savings would cover around 0.4% of spending every year. Now they would still need to find ... another $50bn over the next four years to make up for the shortfall of the savings they’re blocking .
Updated
The Greens, through Rachel Siewert, have lodged a disallowance motion in the senate to stop the Ceduna cashless welfare card trials from going ahead.
The resources minister, Josh Frydenberg, gets a Dixer about the resources sector, particularly in the electorate of Durack.
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Plibersek to Morrison: Given the Australian economy is experiencing global volatility, low wages growth, falling consumer confidence and a slow-down in China, has the government done any modelling on the impact on the economy of increasing the price of everything with a 15% GST and, if not, why not?
Morrison says he doesn’t know of a proposal for a tax on everything (given the GST is not on food etc) and says the conversation on tax reform remains open.
Updated
A health Dixer to Sussan Ley asks about new breakthrough medicines. The government has funded a new drug but I am just checking spelling and details. I will clarify after question time.
Shorten to Turnbull: The prime minister has now been in office for 141 days, he’s had 141 days to tell the Australian people about his plan to increase the GST. Will the prime minister increase the GST to 15%? Yes or no?
Turnbull says there is a “live debate” on tax and GST informed by the government, the states and others. The government is considering all options, no decision has been made and, when a decision is made, Shorten will be the first to know. He says.
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A Dixer to the health minister, Sussan Ley, on an update on the Zika virus.
Ley says people should take note of travel advice, particularly if they are pregnant or considering getting pregnant. It is a notifiable disease so the federal government is working with the states to disinfect carriers at the borders.
Updated
Bowen to Morrison: Was the minister for education correct when he stated that the figures for schools funding for 2018 in the budget are indicative only?
Morrison fudges the answer.
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A Dixer to Warren Truss from Ken O’Dowd: Will the minister update the house on how the Coalition government is delivering economic benefits to the communities across Australia?
I think O’Dowd followed that question with a bark.
Truss is going through the Stronger Regions fund and the bridges program.
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Bowen to Morrison: Yesterday the minister for education said the government’s school funding from 2018 is, and I quote, “indicative only”. But on the same day the minister for finance said, and I quote, “The formula we’ve put into the trajectory beyond 2018 is the number that’s currently reflected in the budget and that reflects the government’s policy position.” Treasurer, who is right?
Morrison quotes the figures in the budget and then says the government is assuring education spending by getting the budget under control.
Updated
Updated
Christopher Pyne gets a Dixer on the Australian Building and Construction Commission.
He might win the prize for getting “jobs and growth” more times than any other minister into one answer.
Chris Bowen to Morrison: Why did the treasurer fail to mention another Paul Keating quote from this morning, and I quote, “The GST is just a flat bang-you-over-the-head tax. It changes nothing. No behaviour other than to put the tax weight on to the wrong people”.
Morrison refers to Keating’s brief GST campaign in the Hawke government.
We all remember it was Mr Keating himself who was the proponent of option C for a consumption tax all those years ago.
After yattah yattah, Morrison says re tax:
These are the decisions governments have to make and we’re going through a very open process, we’re consulting.
Dixer to the treasurer, Scott Morrison, on “sound fiscal policy”. It involves jobs and growth.
Morrison is quoting Paul Keating. (There is something for everyone in Keating’s comments.)
I agree with Paul Keating because he said today that higher taxes for higher spending is not a plan for jobs and growth. What he said today is the big falls in commodity prices mean Australia’s income has been cut. We cannot pretend we can go on spending as though nothing has happened.
Updated
Summary
Cathy McGowan: Will the minister please outline to the house the new funding arrangements under the jobs for family childcare packages and guaranteed assistance to support the move to the new childcare funding scheme, particularly for mobile childcare services in rural locations currently funded under the budget-based funding programs?
Luke Hartsuyker:
For the first time, families using the (mobile) service will be eligible to claim the same assistance as families using other types of childcare. The subsidy will be paid directly to childcare providers and the income will be assured, which is great news, and it will also be able to be expanded as the size of the particular service increases. These providers have not previously had this opportunity.
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Labor to Turnbull: Why did the Liberal party promise to match school funding dollar for dollar before the election but after the election announced a cut which is the equivalent of $3.2 million for every school in Australia or the equivalent as sacking one in seventeachers? Isn’t this just another example of the prime minister saying one thing and doing another?
Unlike the leader of the opposition, the government will not promise money first and then seek to negotiate outcomes later.
Turnbull uses Weatherill’s comments again. He says Labor thinks money is the answer to everything. And says Labor’s school funding has not been costed.
(The point of the Gonski reforms was to rebalance funding according to need.)
Updated
A Dixer on the innovation agenda to Turnbull.
The unquestionable fact of life for us is that if we are to maintain our success as a high-wage generous social welfare net first-world economy, if we want our children and grandchildren to have high-quality jobs, well-paying jobs, then we have to be at the frontier of innovation and what we need to do in many respects is to change the culture of business and of government. We need to move to a culture that does notassume the way you did things yesterday is any longer appropriate.
Shorten to Turnbull: The national Catholic education commission has warned the government’s $30bn cuts to schools will mean, and I quote, “Fees will increase,schools could close and the quality of education will be compromised. In light of this serious warning, why is the prime minister persisting with his cuts to schools, refusing to adopt Labor’s Your Child, Our Future plan, which will give every student in every school every opportunity.
Turnbull flicks the question to the well-known frontbencher Luke Hartsuyker, the minister for vocational education.
Updated
A Dixer to Turnbull on the government’s “steadfast” commitment to border control.
Turnbull comes out stronger than he has so far on asylum seeker border policy.
Nobody should ever doubt the resolve of this government to keep our borders secure. To prevent the people smuggling racket, to break their business model and keep lives safe, to prevent drownings at sea and to protect vulnerable people from being exploited by ruthless criminal gangs. Twice in our history, Coalition governments have acted decisively to ensure that this pernicious, criminal trade of people smuggling cannot succeed. Our commitment today is simply this: The people smugglers will not prevail over our sovereignty. Our borders are secure. The line has to be drawn somewhere and it is drawn at our border.
Turnbull says Labor is creating a scare campaign on school funding.
School funding will continue to grow and schools can make those decisions with confidence.
He reminds the parliament of South Australia premier Jay Weatherill’s critical comments question the costings on Labor’s schools policy.
Updated
First question from Labor asking Malcolm Turnbull if he supports Gonski reforms.
Turnbull talks about the increases in funding but he has not referred to Gonki’s recommendations or the model.
Question time coming up at 2pm.
Thanks to News Ltd’s photographer Gary Ramage for a look at what Bowers does to get pictures to the blog. #filinginthesun
The Guardian Australia's photographer at large Mike Bowers hard at work.@guardian @mpbowers pic.twitter.com/MWGu11BfKW
— Gary Ramage (@garyramage2) February 3, 2016
Note Daniel Hurst in the background.
As I said that, the Pacific island minister, Steve Ciobo, has appeared.
What’s clear from today’s decision that the high court has effectively endorsed the government’s position, we know that we’re acting within the bounds of the constitution.
Updated
And from Richard Marles, the opposition immigration spokesman, a statement on the high court ruling:
Following today’s high court decision on offshore processing, the Turnbull government must immediately secure proper third country settlement options for refugees.
The Abbott/Turnbull government has failed abysmally in securing any meaningful resettlement plan with a viable third country, instead wasting $55 million on a botched deal with Cambodia that has resettled only three people.
Over the last 24 months, media have also reported the government has held talks to resettle refugees with the countries of Philippines and Kyrgyzstan.
All the while, people have been left to languish in processing centres without any certainty for their future.
There needs to be a credible third country option to resolve the fate of these people. If Peter Dutton is unable to negotiate such a plan, Mr Turnbull or Ms Bishop must personally intervene.
Nothing yet on the ruling from the government.
Updated
The deputy Labor leader, Tanya Plibersek, tells ABC 24 that Labor has had discussions with Australia’s neighbours over a regional solution.
Q: Would you seek to revive a deal with Malaysia?
We would be talking to all of our neighbours to ensure we have a regional approach.
Updated
This is an interesting thing to note, via the Greens senator Larissa Waters.
The Senate notes that:
a) It has been over 150 days since the term of former Sex Discrimination Commissioner Elizabeth Broderick stepped down at the end of her term.
b) During that time, there have been multiple of high-profile examples of sexism and sexual harassment
c) In October 2015 the attorney general told a Senate committee that the selection process to appoint the next Sex Discrimination Commissioner had been under way for “some months”.
d) There is no longer a full-time disability discrimination commissioner
2. The Senate calls on the federal government to appoint a female full-time sex discrimination commissioner without delay.
Updated
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Richard Di Natale is speaking on the high court ruling. He says it a moral question, rather than a legal question.
He concedes there are challenges with the movement of people around the world.
We can’t argue we don’t know what is happening now ... we are hearing from those brave medical professionals who are facing punishment ... who are speaking out about what is happening in our detention centres.
The question now is for the prime minister who promised with his election we would see a new page in Aus history ... this is happening under his watch ... this detention network is a mental illness factory.
He wants to PM to agree that children should never be detained.
Updated
Michaelia Cash would appear to be just having a swipe at Labor’s Brendan O’Connor.
Updated
Albo hanging with his crew.
The Maritime Union of Australia is in town to protest the scrapping of the MV Portland and the use of foreign crew by owner Alcoa.
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The employment minister, Michaelia Cash, is coming up at 1pm on the ABCC. Compromise?
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From Bowers at the high court.
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The other thing Dreyfus did before the high court judgment was express his horror at the time spent in detention by women and children. He called for the government to do more – notwithstanding Labor’s establishment of Manus and reinstitution of offshore detention centres. (The policy area has been ratcheted up by both Labor and the Coalition over the past four governments.)
This was the exchange between Michael Brissenden and Dreyfus this morning.
Q: So do you think the policy should be overturned?
The policy has been instrumental in bringing the flow of refugees to Australia by boat to an end.
Q: But do you believe it’s time to overturn the policy?
We did not envisage, when we introduced this policy, that two and half years on you would have more than 1,000 men, women and children languishing in indefinite detention. It is time for the government to do a great deal more to end the dreadful circumstances in which these men women and children -
Q: Is it time to end offshore detention?
I don’t think it’s necessary to say that, that it is time to end that policy. What does need to be done is that the government’s got to do a great deal more so that we don’t have people in this situation. Two and a half years is an eternity, particularly for children and this present situation can’t be allowed to continue.
Updated
Just picking up on some comments by Labor’s shadow attorney general, Mark Dreyfus, on the Senate reform. Just for background, Lenore Taylor did a story last year, which sums up the history. This is the Labor position today, enunciated by Dreyfus.
The opposition is talking with the government and we are talking among ourselves as to what is the right way to reform Senate voting processes. We are not in government, it’s a matter for the government to put forward that proposal, we are hoping that occurs soon.
Updated
Lunchtime politics
- The high court has ruled that the government’s offshore detention regime is lawful, partly based on a bill that was rushed through parliament last year after the court action began.
- There is more movement on Senate reforms behind the scenes. The government and the Greens are meeting later this week, while Labor is divided on the issue. Some in Labor feel it would further entrench the Coalition hold on the senate. Some support the changes.
- The building watchdog bill is still being debated in the house and the Greens MP Adam Bandt will try to amend the bill (with the support of the independent MP Andrew Wilkie) but it will not succeed.
-
Kelly O’Dwyer is currently addressing the press club.
Updated
While you are digesting the high court ruling, there was a bill that passed the house yesterday that Shalailah Medhora reported on here.
The bill would make it easier for Australia to return people if they were deemed eligible for “behaviour modification” to reduce the harm they might face in their home countries.
Some of the examples used include being charged in their home country for drinking alcohol. In that case, the government could argue that an asylum seeker could simply not drink and return to their country safely. Then it comes down to the definition of behaviour modification. Would a LGBTI person be told their behaviour could be modified?
Labor’s Andrew Giles spoke on the bill in the house and described the provision “a terribly Orwellian concept”.
Updated
The Nationals senator Keith Pitt is speaking for the ABCC bill, saying he has seen it all as a former member of the building industry.
He said he has seen toolboxes filled with glue, lockers welded shut and tyres let down because people didn’t agree with the union.
I have seen all of it and it is absolutely appalling.
Updated
Greens MP Adam Bandt is just moving an amendment for a national corruption body. This is what he wants to do to the building watchdog bill:
The house declines to give the bill a second reading because the objective of dealing with alleged wrongdoing in Australian society would be better achieved by establishing a broad-based national anti-corruption watchdog.
It has been seconded by the Tassie independent MP Andrew Wilkie.
Updated
Greens MP Adam Bandt:
If you really want to tackle (corruption), what we will have instead is an anti-corruption watchdog. If there is wrongdoing in the building industry, they will find it. And if there is corruption elsewhere, they will find it too.
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The lawyer responsible for the high court case, Daniel Webb, is speaking to the media. He will not foreshadow further legal steps but appeals on moral grounds to the government to allow the babies and their families to stay in Australia.
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The refugee coordinator of Amnesty International Australia, Dr Graham Thom, reacts to the high court ruling:
Despite the high court decision in this case, Amnesty International calls on Prime Minister Turnbull to do the right thing and permanently close the centre on Nauru and relocate the asylum seekers held there into our community.
Updated
Regardless of the high court’s decision, Australia is under no legal compulsion to return the 267 asylum seekers to Nauru.
The chief technical adviser of UNICEF Australia, Amy Lamoin, said Nauru was ill-equipped to assist refugees. Maintaining the offshore detention centre would “place undue stress on Nauru’s developing social and welfare systems” and take resources from Nauruan children, she said.
It’s unreasonable for the Australian government to shift this responsibility to one of its nearest neighbours. Nauru is a developing nation working to improve the education, child health and child protection outcomes for its own children. The additional pressure of Australia’s offshore detention program shifts our responsibility onto a developing country with its own existing needs.
Lamoin said the most vulnerable children and families must be allowed to stay in Australia.
We cannot disrupt children and parents’ recovery processes and we cannot return them to a situation where they may experience serious harm.
Updated
Save the Children’s Lee Gordon, who directed the charity’s child protection, welfare, education and recreation programs at Nauru for nearly two years, said the Australian government’s own inquiries into Nauru had found it was unsafe for children and vulnerable people.
I know from experience the devastating psychological and physical harm that is caused to asylum seekers and refugees living on Nauru. While families seeking asylum on Nauru now have freedom of movement their lives are in still limbo.
Gordon said the Australian government should quickly process the asylum claims on those impacted by today’s high court ruling. If found have valid protection claims, he said, they should be offered protection in Australia.
Updated
The Greens MP Adam Bandt will try to amend the ABCC bill, calling for the house to instead establish a broad-based national anti-corruption watchdog.
The Greens have tried to do this in the past three parliaments with no support from the majors. It has support amongst the crossbenchers but, without one of the major parties, it has no hope.
Updated
In the house, the ABCC bill debate continues. The assistant treasurer and small business minister, Kelly O’Dwyer, is coming up at the press club.
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Greens senator Sarah Hanson-Young has described the high court ruling as the first test for Malcolm Turnbull.
Sending these children to Nauru would be child abuse and Malcolm Turnbull needs to decide whether he is willing to authorise that. The evidence is clear and it’s undeniable that Nauru is unsafe for women and children and sending them back would be torture.
Keeping families on Nauru is untenable and we need to find a better way to protect people who are seeking asylum. We must create a fair and efficient system that will bring people here safely and integrate them into the community, so that their families can flourish.
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Individual high court asylum seeker findings
The main orders were written by justices French, Kiefel and Nettle.
Bell then agreed with the answers to the questions of law.
Gageler agreed with the substantive answers to the questions, while noting that “the plaintiff’s central claim (that the commonwealth and the minister acted beyond the executive power of the commonwealth by procuring and enforcing her detention at the regional processing centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s198AHA was inserted with retrospective effect”.
Keane also found 198AHA was a valid law of the commonwealth.
Gordon believed 198AHA was “beyond power and therefore invalid”.
(It would seem section 198AHA made the big difference to the government’s case.)
Updated
#Auspol @TurnbullMalcolm we will not support a government that does evil. #AsylumSeekers #Nauru pic.twitter.com/7wTjHcwU3c
— Fr Rod Bower (@FrBower) February 2, 2016
The judgment talks about section 198AHA, which is the part of the Migration Act that was added retrospectively in June last year with support from both major parties.
This bipartisan change was made after the case had been initiated in order to shore up Australia’s legal position. I remember at the time it was last minute rush for legislation just before the winter recess.
Here is Shalailah’s story at the time:
The Coalition and Labor are contemplating an urgent legislative solution to a high court challenge that could potentially derail all offshore detention policies.
Labor convened a special caucus meeting on Wednesday morning to work out how best to react to the case. It supports changes to the Migration Act to fortify offshore processing. The Greens do not support it, but their votes are not needed to pass the legislation since it has the support of both major parties.
This is who voted for and against:
A bill aimed at closing a loophole that leaves Australia’s offshore processing system vulnerable to high court challenges has passed the Senate.
The bill passed the Senate on Thursday night 41 votes to 15. Crossbenchers Nick Xenophon, John Madigan and Bob Day joined with the Coalition and Labor to support the bill. The Greens, Jacqui Lambie, David Leyonhjelm, Ricky Muir, Dio Wang and Glenn Lazarus voted against it.
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From the Uniting Church national assembly.
High Court declares Govt can detain on Nauru & Manus. Now the Govt must make a moral choice #LetThemStay. https://t.co/Ne9d6vAMf2
— UnitingJustice Aust (@UnitingJustice) February 2, 2016
And more.
The high court challenge has been lost. It's up 2 us 2 show pollies we will not give up on these kids #LetThemStay pic.twitter.com/niV7rXxJXh
— ChilOut Revived (@ChilOutRevived) February 2, 2016
Snap protests are beginning.
RAC will hold a snap protest if the high court rules to send asylum seekers back to Nauru. Details and updates here: https://t.co/vC0PRzcOxz
— RAC Victoria (@racvictoria) January 27, 2016
Politically, there will be no change in the policies of the major parties.
So where to now following the High Court ruling?
This from Daniel and Ben’s story.
Most directly, the court’s decision will have implications for the government’s power to remove 267 asylum seekers, including 39 children and 33 babies who were born in Australia, to Nauru.
The government has given undertakings that it will give at least 72 hours notice before removing any of the asylum seekers involved in the case from Australia.
Summary judgment
Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff’s past detention at the Nauru Regional Processing Centre (“the Centre”) was unlawful.
The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) (“the Act”) authorised the Commonwealth’s participation, to the extent that the Commonwealth did participate, in the plaintiff’s detention.
The plaintiff is a Bangladeshi national who was an “unauthorised maritime arrival” as defined by s 5AA of the Act upon entering Australia’s migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a “regional processing country” under s 198AB(1) of the Act.
On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru (“the second MOU”).
By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) (“the Administrative Arrangements”), Nauru undertook to allow transferees to remain on its territory whilst the transferees’ claims to refugee status were processed.
The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide “garrison and welfare services” (“the Transfield Contract”).
Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments.
The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth’s conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff’s liberty, including her detention, or the Commonwealth’s entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.
The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.
Updated
.@TurnbullMalcolm can STILL choose to keep 33 babies born in Australia, 54 other kids & their families from being sent to Nauru prison camp
— Refugee Council (@OzRefugeeCounc) February 2, 2016
Protestors react to the majority High Court decision which threw out the challenge @gabriellechan @GuardianAus pic.twitter.com/BE9tpucfDK
— Mikearoo (@mpbowers) February 2, 2016
BREAKING NEWS: High Court challenge to offshore detention fails
With Ben Doherty
Australia’s high court has rejected a challenge against the lawfulness of the government’s role in offshore detention in Nauru.
Lawyers for a Bangladeshi woman argued that the Australian government had “funded, authorised, procured and effectively controlled” her detention on Nauru, but this was not authorised by a valid Australian law and infringed constitutional limits on the government’s power.
In a decision announced in Canberra on Wednesday, the court found the Commonwealth’s conduct was authorised by law and by section 61 of the constitution.
A majority of the full bench found that section 198AHA of the Migration Act allowed for the commonwealth’s participation in the plaintiff’s detention in a foreign country.
“The plaintiff is not entitled to the declarations sought,” the court said in its majority decision.
Most directly, the court’s decision will have implications for the government’s power to remove 267 asylum seekers, including 39 children and 33 babies who were born in Australia, to Nauru.
The government has given undertakings that it will give at least 72 hours notice before removing any of the asylum seekers involved in the case from Australia.
The Bangladeshi woman - known as M68 in court document and the lead plaintiff in the case for the 267 asylum seekers - was on a boat intercepted by Australian officers in October 2013 and was detained on Nauru from January 2014 until August 2014, when she was brought to Australia for medical treatment and subsequently gave birth to a child.
Two significant changes were made after the case was initiated. The government pushed retrospective legislation through the parliament to shore up its offshore processing powers.
The detention facilities on Nauru also moved to an “open centre” arrangement, allowing Australia to argue the woman bringing the case would not be being returned to detention if she was sent back to the island.
During the two-day hearing in October, Australia’s solicitor general, Justin Gleeson SC, disputed assertions that Canberra was effectively responsible for the detention of people it transferred to Nauru because it paid for their temporary visas and funded the processing centre.
But Gleeson argued that even if the high court made such a finding, the actions were authorised by the retrospective changes to the Migration Act in June.
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The High Court ruling was a majority of judges. Daniel Hurst is checking the split and any dissenting.
The majority of the court found that section 198AHA of the Migration Act authorised the commonwealth’s participation in the plaintiff’s detention.
A quote from the High Court judges:
The plaintiff is not entitled to the declarations sought. The plaintiff should pay the defendant’s costs.
High Court challenge to government's offshore detention policy fails
Daniel Hurst reports:
The challenge against the government has failed. The High Court found the commonwealth’s conduct was authorised by a valid law of the commonwealth or part of the executive power of the commonwealth and authorised by section 61 of the constitution.
ABC reporting.
The High Court has thrown out a challenge to the Australian government's immigration detention on Nauru.
— elizabeth byrne (@ElizabethJByrne) February 2, 2016
Daniel is going through the summary now. Don’t want to get these things wrong.
The High Court judges are handing down their decision now. Daniel Hurst is on the spot.
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Bill Shorten is asked about the High Court decision expected right now.
I think Mr Turnbull has to do something about the inordinate delays in terms of processing people on Manus and Nauru. It’s wrong. The times have blown out under this current government. We will have to see what the High Court says and read that decision. But in the meantime, I do think that Mr Turnbull and his immigration spokesperson have got to explain why things are taking so much longer than they should.
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Bill Shorten is doing a doorstop.
He lauds Paul Keating for dumping on a 15% GST. He is more shy on Keating’s idea that a one or two percentage increase could be ok for health spending.
Q: Are there merits in a more modest increase, perhaps 12%. Does that not derail your campaign for any increase to the GST?
Shorten just keeps saying the government should not be increasing the GST to 15%.
When pressed, he says:
We will not support an increase in the GST.
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Windsor was around for the very emotional debate in 2012 over offshore detention, when Joe Hockey and others cried. He was part of a cross-party group which tried to find other solutions through the policy issue - a group which include former Liberal MPs Mal Washer and Judi Moylan, Rob Oakeshott, Labor and Greens MPs.
@TurnbullMalcolm Babies Malcolm Babies ....this is not you.
— Tony Windsor (@TonyHWindsor) February 2, 2016
The Oz has an interesting Newspoll on superannuation. It finds:
More than 60% of voters support increasing the tax on superannuation contributions for high-income earners in a Newspoll that will buttress plans by the Turnbull government to strip back the generosity of tax breaks on compulsory savings.
The government intends to make the change in either the May budget or in its tax package, believing the move could generate about $6 billion a year to fund other tax cuts and boost confidence in the fairness of the superannuation system.
Reducing the scope of existing tax breaks for superannuation by 15 or 20 percentage points is one of the options being seriously examined by the government, as the latest Newspoll shows majority support for taking action, including among Coalition voters and those living in households earning above $100,000.
Under Tony Abbott and Joe Hockey, changes to superannuation’s very generous tax concessions were always ruled out. It was always perplexing, from a fairness perspective and from a political perspective.
The tax concessions on superannuation mean that individuals can churn income through their accounts, avoiding large lumps of tax - adding up to $6bn a year.
With Labor already announcing their policy to tighten superannuation concessions, the government already has the will or “political cover” to make the change with bipartisan support.
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#Beardtalk @edhusicMP & @JoshFrydenberg discuss the merits of chin growth @gabriellechan @GuardianAus pic.twitter.com/NmKQfVjXiw
— Mikearoo (@mpbowers) February 2, 2016
No footy boots required for the Nationals party room.
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The Australian Building and Construction Commission (ABCC) bill is back in the house. Brendan O’Connor, Labor’s employment shadow, is speaking on the issue.
Peter Dutton is speaking on Sky ahead of the high court decision at 10.15am.
He is maintaining the rage about not allowing anyone who comes by boat to settle in Australia.
He says nothing will change and he is not talking about the possibility of being forced to change legislation if the high court finds Australia cannot detain people offshore.
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The house of representatives is just starting. Senate is starting at 9.30am.
Lenore Taylor sheds more light on the National party leadership. She reports:
The leader of the Nationals, Warren Truss, has privately told his colleagues he will make an announcement about his future in mid-March, with his expected retirement paving the way for Malcolm Turnbull to reshuffle his frontbench.
Truss chastised his Nationals MPs and senators at the closed-door meeting on Monday afternoon, saying he was disappointed and frustrated that the Nationals had been talking about themselves over the summer with a series of speculative stories about his resignation and possible successors.
He said he wanted the party room discussion to remain private and he did not want to read what he had revealed about the timing of his announcement in the newspapers.
Many MPs left the meeting believing Truss had said he would make an announcement at the end of next week but senior sources insisted he had said it would come at the end of the parliamentary session – in mid-March.
Remember Jamie Briggs and Mal Brough stood aside at Christmas time. A Truss announcement in mid-March potentially pushes the reshuffle back even further, potentially leaving new ministers very little time to get on top of their portfolios.
All indications are Barnaby Joyce will take the leadership while there is hot competition for deputy. Names mentioned regularly include Michael McCormack, Darren Chester, Luke Hartsuyker and perhaps more. The field would appear to to be open.
So Phil Coorey’s story in the AFR quotes sources that contend the government has approached Labor to nut out the Senate reforms. There is a qualification that Malcolm Turnbull still prefers the spring option. But Coorey reports:
On Tuesday, after question time, Mr Turnbull canvassed voting reform directly with Labor, which is split on the issue, while acting Special Minister of State Mathias Cormann has sought talks with the Greens who, along with Nick Xenophon, are supportive of change and eager to vote it through the Senate.
Sources told the Australian Financial Review that the government wants the changes through parliament before it rises on March 17 for seven weeks. This would enable it to call an early election if it wanted to. If it chose to go full term, as is its preference, it would still stop micro-parties gaming the system, although the aim of cleaning up the Senate would take longer.
We understand the Greens are due to meet with the government about Aenate reform later this week.
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Since the election of the eight crossbenchers, the major and minor parties have been pushing for Senate reform. At issue, is the very small votes that allowed candidates like Motoring Enthusiast party senator Ricky Muir to get elected after polling 17,122 first-preference votes where the quota for election was 483,076 votes.
Muir told ABC AM this morning, not surprisingly, that he did not think the system needed to be changed.
In reality, the party that I represent and many, many other micro parties that actually stood up for that election, would not have been there if they felt like they were represented by the major parties anyway. So the real question is, are the major parties living up to the expectation of the public or are they letting us down, forcing us to get political.
From a terrifying start, Muir has really grown into the job, bringing a certain everyman approach. He pointed out the irony of a government pushing legislation such as the building watchdog bill to stop bullying and thuggery in the industry while hanging the threat of Senate reform over the heads of crossbenchers.
I will vote on what I believe is the best in the interests of Australia on the available information and I won’t be threatened into a position by the threat of losing my Senate seat. If I lose my Senate seat by doing the best for what I think [for] Australia, so be it, I went down trying. But I’m not forced to go into a position by emotive campaigns.
Muir says he will enter the chamber of secrets to read the sixth volume of the trade union royal commission report and keep his options open for the bill. He voted against it the first time.
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Good morning fellow political tragics,
There are a mess of things swirling around the political agenda this morning. Some are nebulous, such as Phil Coorey’s reports that the Turnbull government is trying to win support for Senate reforms. More on that coming. Some are concrete, like the high court ruling expected at 10.15am on whether Australia can detain people in another country. We will have full coverage when that happens.
Paul Keating has entered the tax debate in striking form. He is dead against a 5% increase in the GST. At the most, he suggests 1%-2% tied to health funding. Anything else will just encourage bad behaviour in government.
I will just pull out two of many choice quotes:
When a country gets locked into such permanently high taxation, there is no way out of it. Were the public to agree to give the political system such a load of money, the political system would simply go and spend it.
The GST is just a flat, bang you over the head, tax. It changes nothing; no behaviour, other than to put the tax weight onto the wrong people.
Mike Bowers is already down at the Senate doors, so we shall have some pictures soon. Follow us on the Twits @gabriellechan and @mpbowers or join the conversation below.
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