In ruling the so-called ‘Malaysia Solution’ invalid, the High Court has delivered a spectacular blow to the beleaguered Gillard government in one of its most vulnerable policy areas – asylum seekers.
After an election in which the Opposition almost knocked off a first-term government on a platform that contained a promise to “stop the boats”, the Immigration Minister Chris Bowen was tasked with devising a credible solution to the problem of unlawful arrivals by non-citizens.
The desperate need for new thinking from the government was only underscored by the tragic loss of life when a vessel carrying asylum seekers was wrecked off Christmas Island in December.
The Court’s 6:1 decision in the case of Plaintiff M70/2011 means that the Minister has comprehensively failed to deliver. Forget whether the plan to send up to 800 asylum seekers to Malaysia, in return for resettling here 4000 refugees currently residing in that country, would actually have been effective in curbing the people smuggling trade. The policy has not even passed the litmus test of legality.
The consequences of this for the government and what options it has open to it in response are interesting questions. But first, why did the High Court declare the scheme invalid?
Under section 198A of the Migration Act 1958 (Cth), the Minister is empowered to declare that a country is one which provides asylum seekers with access to effective procedures for assessing their refugee status and their protection both while that status is determined and afterward.
As the joint majority judgment in the High Court pointed out, these criteria ‘are to be understood as a reflex of Australia’s obligations’ as a signatory to the Refugees Convention and the Refugees Protocol. The Minister’s declaration also vouches that the specified country meets relevant human rights standards in the manner with which it provides the required protections.
Significantly, Malaysia is not a party to the Refugees Convention and its Protocol. It does not recognise the status of refugees in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees.
Nevertheless, the Minister issued a declaration under section 198A that Malaysia was a country satisfying the requirements of the Act and to which ‘off shore entry persons’ could be removed. He did so on the basis of an arrangement which the two countries signed on 25 July 2011 for the refugee swap. That agreement expressly states that it is not legally binding.
With Malaysia under no legal obligation to provide the necessary protections required by the Migration Act, the High Court held that the Minister did not have the authority under section 198A to declare Malaysia as a country to which asylum seekers could be taken for processing.
The Chief Justice was pointed in his criticism when he said in his judgment that the declaration cannot be one based upon ‘a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent’. The fact that Malaysia had signed an agreement with Australia that indicated it was ‘keen to improve its treatment of refugees and asylum seekers’ was quite insufficient.
In making a declaration under the section, the Minister was required to focus on the laws in effect in Malaysia, not on what the Commonwealth asserted was the ‘practical reality’ following the understanding it had reached with the government of that country.
The court also held that it was not otherwise open to the Minister to order the removal of the plaintiffs to Malaysia under section 198(2) of the Migration Act, without first assessing their claims to be refugees. The powers of removal that the Act provides do not exist independently from the ‘legislative intention evident from the Act as a whole: that its provisions are intended to facilitate Australia’s compliance with the obligations undertaken in the Refugees Convention and the Refugees Protocol’.
At its broadest level, the decision is yet another reminder from the High Court under the leadership of Chief Justice French that government is subject to the rule of law. The requirements of the Migration Act for the protection of asylum seekers dispatched elsewhere for processing are clear – the Minister must look to the actual legal protections that are in place.
Ironically, Nauru, once the cornerstone of John Howard’s ‘Pacific Solution’, has recently become a signatory to the Refugees Convention. Nauru offers a viable alternative to the government’s ill-fated flirtation with Malaysia as a destination for asylum seekers – a point the Opposition has been making loudly for some time now. It will certainly step up the pressure on the government after today’s decision.
There is the possibility that the government will attempt some amendment of the Migration Act, but this should be seen as remote. It is hard to imagine how it can pursue the Malaysia option without seriously transgressing our international obligations. It is even harder to envisage that the Opposition, Greens and independents in the Commonwealth parliament will accommodate any move to alter the law in this direction.
In short, the refugees’ win in the High Court presents the Gillard government with a further difficulty at a time when it was probably hoping its luck might change.
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