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No asylum for government on refugee processing

High court ruling against Malaysia boat people deal is a serious blow to ministers

No asylum for government on refugee processing
Frank Brennan SJ, Canberra

September 1, 2011

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The Australian government has taken a 6-1 drubbing in the high court of Australia. Many lawyers, myself included, are surprised, and some of us delighted. Offshore processing of asylum seekers has become a legal minefield for government.  The judges have erected three obstacles for any government wanting to ship asylum seekers offshore before attending to their claims. First, from now on, government will have to process boat people onshore in Australia unless they are certain that they can line up a processing country which provides appropriate access and protections “as a matter of legal obligation” either under international law or under the domestic law of the country. Second, the government can no longer rely on the general power to remove an alien when wanting to remove from Australia someone who is seeking asylum.


The government will be able to remove asylum seekers prior to the determination of an asylum claim only to a country which is legally obliged to process the claim and to provide protection. Third, no Commonwealth official will be able to remove unaccompanied minors or other children of whom the minister is the guardian without the consent in writing of the minister. The high court has noted that the minister’s decision to grant consent to removal of each child would be a decision which might require “the giving of reasons as well as the availability of review” by a court. Though Chris Bowen and Julia Gillard will wear the political wrap, their legal problems were created for them by John Howard and Philip Ruddock who legislated with such indecent haste after the Tampa incident. It’s just that the law was never tested.


In order to send the next 800 boat people to Malaysia, Chris Bowen purported to make a declaration under section 198A(3) of the Migration Act declaring that Malaysia provided access to appropriate asylum procedures, and protection to asylum seekers and proven refugees awaiting resettlement, while meeting relevant human rights standards. The Commonwealth solicitor general, Stephen Gageler, had submitted to the court that the minister need only act in good faith, asking himself the right questions, and that there was no need for judges to trouble themselves with second-guessing the answers. After all, section198A(3) had been introduced post-Tampa for the purpose of sending people off to Nauru, which had signed hardly any international human rights treaties and which had almost no domestic law providing these protections. Gageler told the court that the statutory language of “protection” and “relevant human rights standards” was “meaningful but lacking in precise legal content”.


The judges were not impressed; they have insisted on precise legal content for these notions so that Australia might continue to comply with its obligations under the Refugee Convention.  Four judges noted: “The observations and judgments made in the DFAT advice demonstrated that none of the first three criteria stated in section 198A(3)(a) was or could be met in the circumstances of these matters.” If Ruddock’s Nauru declaration had been challenged in the high court, most lawyers thought that there would have been no dispute. On the Gleeson Court back then, Justice Kirby might have raised a cry. But judicial deference to the executive on these issues was the more likely outcome. The Commonwealth submitted that section 198A was enacted with a view to declaring Nauru as an appropriate country for offshore processing in 2001.  Four of the High Court judges conceded that this might have been the hope or intention of the legislators but this did “not bear upon the curial determination of the question of construction of the legislative text”. Perhaps pointing a way out for a government of either political persuasion in the future, these judges did observe that the 2001 arrangements with Nauru “were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection.


Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states.”  The document drawing up the Malaysia solution specified that it was not legally binding. The only dissenting judge was Justice Dyson Heydon who was appointed to the court by the Howard government a year after the Tampa legislation was passed and just a couple of months after he gave a censorious political speech at the Quadrant dinner decrying the judicial activism of the judges who participated in judgments such as Mabo. Heydon harked back to the halcyon days of Sir Owen Dixon, pointing out that Dixon would not have “found much profit in (a) source of law to which advocates of judicially changed laws increasingly look – international law or international expectations”.


In his judgment, he had a gratuitous go at Catherine Branson, a former federal court judge and now president of the Australian Human Rights Commission for describing the commission as “Australia’s National Human Rights Institution”. He now finds himself in the judicial wilderness giving undue deference to the intention of politicians when introducing and passing legislation. He says: “In the context which existed when section 198A was introduced, the language employed by those who procured its enactment had, on its true interpretation, an application to the Republic of Nauru. That was so despite the fact that the Republic of Nauru was not party to the listed treaties and despite the state of its domestic law.”  His fellow judges will have none of that. From now on, the high court will apply a very fine toothcomb to any legislation allowing ministers to ship asylum seekers offshore. Manus Island and Nauru may still be legal options under an unamended migration act (though there is no guarantee of that), but not even they will be workable options if every child arriving on a boat has the right to full-blown judicial review of any decision to remove them from Australia. Unless there were to be a bipartisan agreement in parliament or a government deal with the Greens, asylum seekers arriving by boat would now need to be processed fairly, promptly, on our terms and on our turf. And that’s the way it should have been all along.
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