Capital Hill interview with Mark Dreyfus and Jamie Briggs

Subjects: Immigration, the economy.

LYNDAL CURTIS: Mark Dreyfus, the Minister (Chris Bowen) believed two weeks ago that the Government was on strong legal grounds. Clearly, from today's decision, his confidence was misplaced, wasn't it?

MARK DREYFUS: Well, as the Minister said, it's a profoundly disappointing decision from the Government's point of view. As the Minister's also said, and I've just listened to the start of his press conference before we've started doing this interview, this is a new legal construction that the High Court has put on the particular provisions of the Migration Act and what the High Court's done, as the Minister said, is to strike down the particular declaration that the Minister has made.

What's - what should be equally clear is that the Government is determined to go on with the policy direction which we have, which is to break the business of the people smugglers, to make sure that we never again have a repetition of the terrible events that occurred just before Christmas on Christmas Island when dozens of asylum seekers lost their lives when their boat was dashed on the rocks, and to pursue humane solutions to what is an ongoing problem.

LYNDAL CURTIS: But hasn't the High Court made pursuing those solutions, particularly in terms of offshore processing, significantly more difficult for you?

MARK DREYFUS: We'll have to look at the detail of the decision. I don't know if it's yet clear to those watching that this is, as is usual from the High Court, a multipage decision, I think it runs to some [seventy]-one pages and then there's footnotes, and the Government needs to consider in detail the individual judgments, the judgment of the High Court, the Chief Justice, the judgment of the majority of the four judges in the majority, a single judge decision of Justice Kiefel and, of course, there's a dissenting judgment from Justice Heydon.

All of those judgments will have to be considered before the Government considers what is the next step to be taken.

LYNDAL CURTIS: Jamie Briggs, this decision is likely to apply wider than just Malaysia. Do you know what it means - it would mean for the Opposition's proposed Nauru solutions, sending asylum seekers to be processed on Nauru?

JAMIE BRIGGS: Well, no, I mean obviously we need to consider, as Mark said, I mean these are complicated judgments which our legal advisors will need to consider and apply versus what we have proposed and, obviously, what operated in the past. And I'd just make the simple point that Nauru operated in the past and in that time it was never successfully challenged.

However, what we've seen today is quite an unprecedented development in that a government which we didn't think could get any worse, has just found a new depth. Their own - their own proposal to fix a problem which they created has been struck down by the High Court, the highest court in the land. It was a proposal which was morally wrong and now has been proven to be legally wrong and, in that sense, I'm very pleased the High Court has taken its - the action that it has.

Let's go back here. I mean when Kevin Rudd came to the Prime Ministership in 2007, there was no problem here. The problem was created by Labor and now any solution they come up with is worse than what was there before.

LYNDAL CURTIS: But your spokesman, the Opposition Leader, your immigration spokesman, Scott Morrison, have consistently said that the answer to this problem is Nauru.

Now, as Mark has said and as the Immigration Minister, Chris Bowen, has said, the High Court has created a new legal test, so while you say Nauru hasn't - there's been no successful legal challenge to Nauru in the past, this decision could change that, couldn't it?

JAMIE BRIGGS: Well, look, I don't know. I'm not a constitutional lawyer and, in that sense, I will doff my hat to Mark who has much more knowledge in these areas than what I do as a senior counsel prior to entering politics.

However, we will get advice and we'll look at it and we'll do what any government should, which is a judgment based on the evidence before it. What I think we've seen here was a political concoction developed by Julia Gillard and Chris Bowen which they've tried to implement, and has been shown by the High Court to fall foul of the law.

Now it is quite extraordinary just how hopeless this Government actually is. It is finding new depths to its hopelessness and, of course, the consequence here is that the boats keep coming, people keep getting on these dangerous vessels and the people smugglers, as Mark said before, they're trying to find ways to smash their businesses, are in business because of changes of the policy made by this Government.

LYNDAL CURTIS: Mark [interrupted].

JAMIE BRIGGS: And that is the fact of this issue.

LYNDAL CURTIS: Mark, on the politics of this, doesn't it amplify a perception that the Government is not so good at the implementation? Julia Gillard proposed East Timor as a solution, that didn't work; now the Malaysian solution has significant problems attached to it. If you come up with something new there's no guarantee that's going to work either, is it?

MARK DREYFUS: Well I don't accept that characterisation, and don't accept Jamie's characterisation either of what's occurred here. What's occurred here is that the High Court has come up with what is, in effect, new law, a new construction of the particular provisions of the Migration Act and as was made clear in much of the commentary leading up to this judgment, Nauru is not a signatory to the Refugee Convention either.

Nauru has none of the laws which the High Court has now said the Minister needs to look for in a receiving country and, while I don't want to rule out or rule anything in or out as the Minister's just said, I don't think that any comfort can be gained from the Opposition who seems to be, as usual, gleeful at the difficulty that's been created here by the High Court.

I don't think any comfort can be gained from this judgment about Nauru being a possible option. It is not a signatory to the Refugee Convention...

JAMIE BRIGGS: Well, it is.

MARK DREYFUS:...it is not a country that has any processing - well, it's actually not and...

JAMIE BRIGGS: It signed recently as I understand, Mark.

MARK DREYFUS: It's put in train what will be a very long process of getting to be a signatory to the Refugee Convention, but there's a larger point here which the High...

JAMIE BRIGGS: And Malaysia?

MARK DREYFUS: There's a larger point here which - no, Malaysia is not a signatory to the Refugee Convention and that's, of course, one of the criticisms that the High Court has here expressed of the declaration that's been made by the Minister.

What I do take issue with is Jamie suggesting that the world problem of refugees was somehow created by anything that this Government has done. This Government has not created the circumstances in Afghanistan, has not created the circumstances in Sri Lanka, has not created the circumstances in Iran or Iraq or in any of the countries that these people who are fleeing to Australia, seeking asylum are fleeing from.

It is nonsensical for Jamie Briggs or any other member of the Opposition to talk of the Government having created this problem. We cannot create the problem. The problem is a world one of some forty-one million displaced persons where a tiny trickle are finding their way to Australia. That's why Australia is one of the small number of countries that accepts refugees because we are a humane country.

What we're concerned with is a subset of this which is people who are arriving with - using people smugglers, paying very large amounts of money and putting their lives at risk in doing so.

As Jamie knows there is many other refugees who arrive in Australia, from camps, some of them from Malaysia, some of them from Sudan, some of them from Kenya. And I'm very proud that Australia is a country that receives refugee in that way.

JAMIE BRIGGS: So am I...

LYNDAL CURTIS: Jamie, if it does turn out that this decision has implications for Nauru as well, would you support the Government in making changes to legislation so it can pass a High Court test?

JAMIE BRIGGS: Well I'm obviously not - that's above my pay grade Lyndal, you know that. That's a matter - will be a matter, for obviously, the Shadow Cabinet if there is a proposal, but we have to set the proposal first, quite obviously. But I mean you have got to take what this Government proposes with a very large grain of salt, to make sure that it will actually pass in the law properly.

Just back on what Mark's been making the point, obviously Mark has got the old talking points there because they're back to the push-factor argument, which they dropped some time ago. Because of course, it's become clear that through recent evidence, I think, through some of the information put out by WikiLeaks that the push-factor argument was always a furphy.

The push factors are not increased compared to what they were at the end of the Howard Government, when the boats had stopped coming. Quite clearly, the change to the law - the sugar on the table for the people smugglers, is the major factor that has increased the boats.

I mean it's quite obvious what's happened here. So, you know, I appreciate Mark is in a difficult position today. He would be feeling quite awkward and I think the argument from Chris Bowen that we were robbed by the High Court isn't going to fly, because ultimately Chris Bowen is responsible as the Minister. He said this would be fine and it's not. Chris should consider his position in that respect.

LYNDAL CURTIS: If we could turn now to an issue, Jamie that is sometimes problematic for the Coalition, that's on industrial relations. Tony Abbott said this morning that he thinks what is needed is freedom, that we ought to be able to trust business and workers of Australia to come to arrangements which suits themselves.

He also wants to hear from business what problems in the system they need solved. But isn't business already saying - hasn't business already said to the Reserve Bank and presumably to the Government and the Opposition, that flexibility is the key and that's where you need to target any proposed changes?

JAMIE BRIGGS: Sure. I think they're all good points Lyndal. I think Tony's points today were spot on, as were John Howard's sage advice last night. It is obviously - very obvious - it's blindingly obvious to quote John Howard, that there is a problem in the system. To quote a former Prime Minister or to misquote a former Prime Minister, every galah in every pet shop across the country is now talking about the inflexibilities of Labor's system and the productivity challenges that is creating.

In that respect, Tony is spot on. We will have a policy at the next election which is about problem solving...

LYNDAL CURTIS: [Interrupts] But he doesn't yet seem to have taken up the suggestions from business on where the problems are, particularly, on the notion of flexibility?

JAMIE BRIGGS: Sure. Well we're not in Government and so what we're doing is going around and hearing what people have got to say about these issues. On the other hand, what you'll hear from the Labor Party and we'll play WorkChoices bingo with Mark now, I'm sure, we'll see - I reckon - my guess is, he'll get WorkChoices in maybe five times in the next couple of minutes.

Because all the Labor Party wants to do on this issue is play a scare campaign, because we know they're aren't - they're wholly owned subsidiaries of the Trade Union movement and they can't make changes here, even though everybody is saying that you have to. The Reserve Bank governor, Gary Banks from the Productivity Commission, well-respected business men like Michael Chaney, either Heather Ridout is out there saying...

LYNDAL CURTIS: [Interrupts] Is deregulation some of the changes that need to be made?

JAMIE BRIGGS: Well quite clearly there is inflexibility in the system. Quite clearly what the Labor Party did was to go too far in re-regulating after 2011 and that is making what are difficult circumstances for the retail industry, for the hospitality industry, for the tourism industry and for manufacturers far worse, in what is a very difficult environment out there.

We have a disconnected economy and part of the problem is that changes made by the Government - and they won't accept this. As I say, you'll hear WorkChoices bingo start to be played - because they don't - they just refuse to accept that they ever do anything wrong. It's always someone else's fault. Today it's the High Court.

LYNDAL CURTIS: Mark, is there room though to change some of the laws? If business is having problems, if they say there are real problems, isn't it only sensible to have a look at the laws and make changes?

MARK DREYFUS: The Fair Work Act gets the balance right and what we hear from workers, I don't know about every galah in every pet shop, but what I hear from workers in my electorate, workers in other parts of the country is that they do not want to see a return to the policies of the Coalition, whatever they might be. Because what they'll mean is strip away workers' rights and entitlements and making it easier for workers to be sacked, removing people's job security and there, Jamie should be pleased because I didn't once say WorkChoices - that's very -

LYNDAL CURTIS: [Interrupts] That's where we'll have to leave it. I'm very sorry, Jamie Briggs and Mark Dreyfus, thank you very much for your time.

JAMIE BRIGGS: Thanks Lyndal. Thanks Mark.

MARK DREYFUS: Thank you both.

LYNDAL CURTIS: Thank you for joining Capital Hill. Join us again tomorrow.