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High Court rules on Malaysia asylum deal « Previous | |Next »
August 31, 2011

Under the Malaysia refugee swap Australia would send 800 asylum seekers to Malaysia and in return, receive 4000 people already assessed to be refugees over the next four years. The Minister for Immigration had declared that Malaysia provides sufficient protection for transferred asylum seekers.

The High Court's decision on the Malaysia refugee swap ruled 6-1 against the Gillard Government's Malaysia solution. The Court has also cast doubt over the legality of Nauru, the opposition’s preferred option, and even Manus Island, the government’s plan B.


One issue was: did Malaysia provide asylum seekers access to ''effective procedures'' for processing their asylum claims, ''protection'' for persons seeking asylum and did it ''meet relevant human rights standards in providing that protection''?

The second issue related to the minister's guardianship duties for unaccompanied asylum-seeker children. Was the government's argument, that the guardianship duty was subject to other powers set out in the Migration Act and was therefore ''trumped'' by the declaration of safety made under s198A of the Migration Act, a reasonable one in a legal sense?

The decision states:

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above.

The High Court adds:

The Court emphasised that, in deciding whether the Minister's declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court's decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

My understanding is that the Gillard Government thought that the government had a legally sound case and that it would beat the legal challenge to its Malaysian plan.The federal government's entire Malaysian solution is now in doubt.

What the High Court decision affirms is that governments are bound by the rule of law in liberal democratic society. Governments tend to forget this core constitutional principle from time to time; a principle that has two main functions: it seeks to provide a stable and secure basis for the exercise of government power, and also seeks to limit that power.

| Posted by Gary Sauer-Thompson at 4:32 PM | | Comments (16)


With 300 aprox ready to go the 800 quota would of been reached fairly quickly and a real sloution would still have needed to be met. But it did move the issue to the side for a while which was a solution in terms of this goverments thinking. Now they have someone to blame too.

Perhaps putting the whole front bench in a leaky boat to China is the real solution.

Why stop at the front bench. Let's pack the whole of both houses up. I am not convinced that anarchy would be a great deal worse than what we have at the moment

I'm quite happy with the constitutional rule of law principle--governments must act within the law. They are not above the law.

The government deserves to find itself in this mess. The whole boat people issue has been beyond stupid for so long.

How much has it cost successive governments to pander to the opinions of a dozen voters in Lindsay? it would have been cheaper, more honest, and less morally hazardous to just give a billion dollars each to scared, misinformed, white people in western sydney and do the decent thing by boat arrivals.

Australian constitutional law is particularly focused on imposing limits on government. Our constitution offers limited protection against excessive and arbitrary government power.

They cant be sent in boats if they cant get boats.

The Malaysia Solution had been conceived by the Gillard Government as the ultimate quick and clever fix to a political problem---stopping the boats to appease the xenophobic battlers in Western Sydney, who want TPVs and mandatory detention offshore for boatpeople.

The Gillard Government were desperate once the East Timor "solution " was exposed as a farce.

Nauru and Manus may survive under the High Court's ruling - with strict legal safeguards in place. Why cannot the government simply assess the asylum seekers here?

I just cannot see Malaysia moving to introduce new laws protecting asylum-seekers and signing up to the UN Refugee Convention.

According to the Gillard government Malaysia was meant to be part of a regional solution, involving all the nations of the region adopting common practices and exchanging people as necessary.

It looks to be pie in the sky.

It's being suggested that the Manus Island and Nauru options might be off the table now as well. Or at least the tactics that were used to make them look effective.

It would be so nice to see the garbage from both sides of politics shot to pieces. Can't see it happening, unfortunately. The past decade of scaring a small number of white people have been way too effective.

The Coalition is looking smug:---Gillard and Co are seen to be incompetent (yet again) and they will be eventually forced to embrace the Coalition's Pacific Solution policy on asylum seekers--eg., pick the phone to Nauru + reintroduce TPV's.

One assumption of the Coalition's policy is that the fear of what Australia might do to asylum seekers exceeds the fear from which they are fleeing. The Coalition, in other words, reckons that the asylum seekers fear of Nauru + TPV's outweighs the fear that Afghan Hazaras have of the Taliban; the fear that Iraqis had of Saddam Hussein; Iranians fearing their repression of their theocratic government; and Tamils fearing genocide in Sri Lanka.

That assumption is just not plausible. Yet a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, would allow the conservative noise machine to pound the Gillard Government so that it remains on its knees.

I think that Ken Parish is right about the reasons for the success of the Coalition's Pacific solution in the past:

The practical reason why the Pacific Solution successfully deterred asylum seekers for a number of years was that it created the illusion that reaching Australia by boat would provide no assurance of a visa even if found to be a refugee. That illusion was underpinned by keeping even successful asylum seekers “garaged” on Nauru for a number of years after they’d been found to be refugees, before eventually quietly granting them visas and allowing them into Australia.

In view of yesterday’s finding that both the domestic laws and actual practices of any “safe third country” must broadly honour Convention obligations and basic human rights standards, it is highly unlikely that any regime on Nauru or elsewhere that permitted persons found to be refugees to be nevertheless kept in detention for years thereafter would be held to comply with either Convention obligations or general human rights standards. Without that deterrent effect it is highly unlikely that offshore processing on Nauru or anywhere else will have any measurable effect on the number of asylum seekers arriving by boat.

Who cares whether you’re detained on Christmas Island, Nauru, Manus Island or Darwin if the end result is the same in all cases? If found to be a refugee you will get an Australian protection visa.

That smoke and mirror trick cannot be pulled again. So the asylum seekers on the boats will keep coming--just like they do on the planes--and that creates an opportunity for the conservatives and their shrills to bash the Gillard Government.

As is well known that creates a political problem the Gillard Government amongst the conservative battlers who defend a white Australia; and want Australia to withdraw from any international agreement or treaty that takes away from the sovereign, elected government of Australia, the means to decide who comes to Australia and circumstances of their arrival.

In Why The High Court Said No This Time at New Matilda Daniel Ghezelbash and Mary Crock say that:

The ramifications of this for both the major parties is that the legislation as currently drafted will make it difficult to declare any country in the region suitable for offshore processing. Australia is surrounded by countries that are not parties to the major international refugee and human rights conventions — and in many instances this is reflected in very poor human rights records. Although Nauru and Papua New Guinea have signed the Refugee Convention, this is unlikely to be sufficient tomeet the requirements of s 198A of the Migration Act.

They add that while they may have ratified the Refugee Convention, neither Nauru nor Papua New Guinea have enacted domestic legislation giving effect to the Convention’s provisions.

Nor do either of these countries have the resources to implement the required procedures and safeguards. Nauru can never be more than a staging post where Australian officials will be required to do all the work of processing and resettlement. Papua New Guinea is not in a strong position to take responsibility for Australia’s refugees.

The attack on the Gillard Government by the conservative battlers over border protection assumes that asylum seekers are some kind of threat to our national security or our 'borders'. So we need a wall around our borders.

Why? Because the asylum seekers are nonwhite and from the Middle East. Why are they are a treat to our way of life? They are terrorists. So the boats must be pushed back to Indonesia.

The conservative battlers don't want a multicultural Australia. The see their homogenous, Anglo-Celtic identity being threatened by waves of non-white immigrants.

facts don't enter into it. Nor logical argument. Its the conservative political imaginary that is being expressed.

the rational policy is to abolish indefinite detention. The asylum seekers should be held for health and security checks, but after initial detention they should be allowed to live in the community pending the rest of the process.

Both the Gillard Government and Coalition thinks that it is a good policy to jail innocent people for years---to punish them with indefinite detention and incarceration.