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Australia's 'Malaysia Solution' hits snag

High Court steps in at 11th hour to assess legality of the repatriation plan

  • Frank Brennan SJ, Canberra
  • Australia
  • August 8, 2011
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Australia’s so-called Malaysia solution for stemming the tide of boats carrying asylum seekers from Indonesia has hit a snag called the High Court of Australia.  The Gillard government is now in very stormy waters, simply because the rule of law and the separation of powers do not readily yield to the sound bites of populist sentiment and the fear tactics of politicians.  The wheels of the law turn slowly.

The Australian and Malaysian governments signed their agreement on 25 July 2011.  The idea was that all asylum seekers arriving by boat after that date would be turned around and sent to Malaysia within 72 hours.

In return for 800 asylum seekers, Malaysia would offer Australia 4,000 proven refugees for resettlement in Australia over the next four years. Australian Federal Police and Malaysian government officials have been waiting on Christmas Island to witness the first departures.  Two boatloads of eligible asylum seekers have arrived from Indonesia. But on Sunday night, lawyers for some of the asylum seekers approached the High Court of Australia for an injunction restraining the government from removing any asylum seekers until the legality of the arrangement could be tested.

Time is of the essence for the Gillard government, in part because Parliament has been away on its winter break.  Parliament resumes on 16 August. The government is desperate to have the Malaysia solution in operation by then. The Opposition parties are adamant that the Gillard government is in disarray, unable to deliver on this and other policy issues.

This afternoon in the High Court of Australia, Justice Kenneth Hayne was very unimpressed with the Australian government’s behaviour.  The government lawyers were wanting the court to lift the injunction at 4:15pm so that the first asylum seekers could be flown out tonight. By 3:15pm, the government had still not managed to provide the Court with its affidavit setting out the facts on which it was relying.  Justice Hayne decided to extend the injunction. He has referred questions of legal interpretation to a full bench of the High Court for consideration on 22 August 2011 – a full week after the Parliament has resumed.

The Australian government has to be able to show that it has acted in accordance with the provisions of the Australian Parliament’s Migration Act.  Under section 198A(3) of the Act, the minister can declare Malaysia to be a suitable country for offshore processing. But he has to declare that Malaysia provides access to effective procedures for asylum seekers, provides adequate protection for asylum seekers and refugees, and “meets relevant human rights standards in providing that protection.”  Until today, it was assumed that the minister could make such a declaration without any scrutiny by the Parliament or by the courts. That may still end up being the situation. But for the moment, one High Court judge is satisfied that the issue is arguable. He was suggesting that there may be a need not only to look at the international covenants signed by Malaysia and the domestic laws of Malaysia. There may also be a need for the High Court of Australia to receive factual evidence about the past treatment of asylum seekers, including unaccompanied minors, in Malaysia.  That suggestion will be causing many headaches in government offices in Canberra tonight.

The Full Court of all seven High Court judges will be asked to consider the correct interpretation of 198A(3). Before the Australian immigration minister, Chris Bowen, makes a declaration that Malaysia is a suitable country for offshore processing, the Court will consider whether he is required to act bona fide and reasonably, and on what information he is required to act, when declaring that Malaysia provides access to effective procedures, provides protection and meets relevant human rights standards. The Full Court may also need to consider whether an immigration officer has the legal power to remove asylum seekers regardless of whether there is a declaration in relation to Malaysia. If a full bench of the High Court thinks 198A(3) has a contested interpretation, the ultimate decision of the Court could take a considerable period of time.

No asylum seekers will be sent to Malaysia for at least two weeks, and it could be months. Last time the High Court decided a case on the legality of asylum seeking processes, the court took 10 weeks to deliver a final judgment. In one notable immigration case, when the court split 4-3, they took eight months!

The Malaysia solution may still be found to be legal. But politically, time is now of the essence for the Gillard government wanting to send a clear message to people smugglers and an even clearer message to its political opponents and wavering voters in Australia. They say one week is a long time in politics. The next two weeks will be a very long wait for the asylum seekers on Christmas Island and the Gillard government ministers in Canberra who thought they had covered all bases – except the High Court.
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