High Court grounds Malaysia Solution


The 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 s. 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, s.198A(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 s 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 s.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 s 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 tooth comb 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 the Parliament or a government deal with the Greens, asylum seekers arriving by boat 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.

Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. 

Topic tags: Frank Brennan, Malaysia Solution, High Court, David Manne, asylum seekers, refugees, swap, chrismas island



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Any government wanting to ship asylum seekers offshore before processing their claims will now be sailing into very stormy waters. It is a necessary precondition that the receiving country have legal obligations to treat any exported asylum seekers appropriately. That’s the easy part for a court to determine. The hard part is the next step. Though a necessary precondition, legal obligation alone is not sufficient. The receiving country must in fact treat the arriving asylum seekers appropriately. That will be much more difficult for a court to decide when it needs to. In this case, the court did not need to get that far in the analysis because Malaysia fell at the first “necessary” hurdle. Manus Island or Nauru might jump the first hurdle. But do they jump the second “sufficient” hurdle? And how does a court decide? Now that will have the government’s lawyers doing a lot of hard thinking. One thing is certain: the DFAT advice will need to be much more compelling than it was in this case.

Frank Brennan | 01 September 2011  

Every now and then the rule of law and the necessary autonomy of judges comes to bite the executive on its calloused bottom. Hooray for decency, too. Typed painfully with a broken wrist. Worth it.

Moira Rayner | 01 September 2011  

Fantastic! No more despicable passing of the parcel of human lives and suffering.

Vacy Vlazna | 01 September 2011  

Frank was clearly among the 'surprised' but then he had also portrayed himself as somewhat supportive...certainly not dismissive-of this dreadful swap idea.

Happily, at the end of the day, pure and simple logic determined the outcome rather than some academic meander through the park.

Even the blindfolded figure of justice would have offered a frown to Frank's earlier contributions on this matter...and nodded vigorously in agreement of yesterday's decision. Now the government has finally arrived at the real starting point..to devise a decent,compassionate Australian solution, not reliant on a poor, hungry or law deficient geographic neighbour to prop up. Time too for the federal government to re-appraise its legal advisors..the phrase "half-baked..presentation' has returned to haunt and shame it.

Frank Brennan, to use his own phrase, is too quick...'such indecent haste'...to hark back to Howard...he's wearing his political heart on his sleeve again. He needs to move forward for Australia's future rather than linger in the past.It's not so much at all that the High Court will need any 'fine tooth comb' to examine any further proposed government legislation, but, rather, that the government has to realise that a wide bladed bulldozer in one hand and absolute abandon in the other are no longer the answers to man's inhumanity to man.

Brian Haill - Melbourne | 01 September 2011  

"It’s just that the law was never tested."

Indeed, and that shows what a disgrace are those who have had the ability,skills,time and intellectual fire-power to have challenged this national disgrace since the Howard era of 'Australian values' God directed legislation brought it in.

This must include all our political leaders who sit on our red and green seats, as well as the triumphalists from our churches, who now gloat at the apparent idiocy of the Gillard government.

Perhaps now would be a good time to reflect on how 'religion' has imposed itself into the making of legislation in more recent yeas, and decide to do away with its grubby political influence?

Now the Gillard 'Baptist' approach to 'traditional values' has been exposed as illegal humbug by the High Court, the other side are screaming for the Catholic-Hillsong approach, under Abbott and Morrison.

Frankly, the choices these three offer us, with all the assistance they get from God, leaves me reaching for my vomit bucket.

But worse, they are not alone, with nearly every member of our parliaments claiming to be guided by God and keen to support 'traditional family values'.

Time to take a 'human directed' approach?

For God's sake?

Harry Wilson | 01 September 2011  

Thanks, Frank. A great summary of a momentous judgment. Excellent news!

Justin Glyn | 01 September 2011  

How reassuring that we no longer have a compliant High Court. A future case might test whether punitive measures against asylum seekers who arrive by boat can be justified under international and Australian law, including possible reintroduction of Temporary Protection Visas which applied only to those who arrived by boat. A policy which deliberately inflicts harm on vulnerable people.

Kate | 01 September 2011  

At last decency has prevailed. Australia's response to people seeking asylum seekers has to date been shameful irrespective of the government in power. A total embarrassment.

Judy brown | 01 September 2011  

Amidst all the incessant chatter over this issue it seems to me that the obvious "solution" to the asylum-seekers/illegal-immigrants "problem" would be the Indonesian solution:
(i) the people concerned have been living in Indonesia, presumably legally, for some time (were they registered there as "asylum seekers"?);
(ii) they boarded their boats in Indonesia;
(iii) the boats are owned by Indonesians and, presumably, registered in Indonesia.
If these boats are intercepted in Australian waters they could be towed straight back to Indonesia, if deemed seaworthy, or their occupants transferred to an Australian vessel and similarly taken back.
The Indonesian Government cannot simply wash its hands of the whole affair.

John R. Sabine | 01 September 2011  

There is a significant clutch of Jesuit educated men in the leadership team of the coalition. Either the J's at Riverview / Aloysius didn't do a very good in educating Abbot, Hockey Joyce & co or theses "christians" turn off when it comes to formulating policy on the question od asylum seekers.

There is also a significent silence from the pulpit on the question of the traatment of refugees in geneeral and asylum seekers in particular.

I think it's high time that the Church made it abundently clear that a less than humanatiarian (and lawful) approach to dealing with asylum seekers is completly at odds, and not compatible with with, the Christian faith.

The trade in exporting asylunm seekers has been halted for the time being. It should be abandoned as a failed and discredited public policy.

Tom Mitchell | 01 September 2011  

"Hear, hear!" Thank God for the "Meddling Priest!"

Andrew | 01 September 2011  

A great day for Australia and the High Court. Hopefully, we can put the shame of people such as Howard, Ruddock, Reith, Beasley, Rudd, Gillard and Bowen behind us and treat refugees with humanity and charity. How much money have we wasted in Malaysia, Nauru, Baxter and other places on these shameful policies. Three cheers to people such Bob Brown, Peter Andren (dec'd), Lowitja O'Donoghue, Ian Chappell and many others including all those people involved with the Rural Rufugee's Support Groups for their leadership over last ten plus years. The refugees and asylum seekers should be encouraged because they make a valuable contribution to Australia - refer those people who appeared on the Insight program.

Mark Doyle | 01 September 2011  

Thank you, Frank. Your final lines say it all: 'fairly, promptly, on our terms and on our turf... the way it should have been all along.' Absolutely! And thank you to the High Court of Australia for a strong and unequivocal decision that respects human rights and the rule of law. Yay!!

Lydia Ralph | 01 September 2011  

AURELIUS, as I read Tom's posting, at least in part, he seems to be pointing out that there is nothing fixed when it comes to the teaching and learning of 'moral behaviour' by those who claim to be guided by God, or gods for that matter.

I had no idea our famous 'retail politician' even went to school, never mind was educated in the same place as Abbott and Hockey, but what Tom might be saying is, that the school failed to impart any solid concept of 'morality' on this bunch, given the policies they promote, to which I would have to say, 'I agree with Tom'.

That said, I do recall Hockey making something of a stand on church-state separation (ages ago) that sounded half believable, given its source.

And that could not possibly have been planted in his head by any Jesuit, so he must have 'worked it out' himself, perhaps in the manner you suggested?

So, to answer your question to Tom, schools clearly have no input into understanding solid moral behaviour (so why do we bother to fund faith schools?).

Harry Wilson | 01 September 2011  

I said on May 8 that it was unlawful to trade humans without process, I was right.

Thank heavens for David Manne and Debbie Mortimer and the team of gutsy lawyers taking them on.

The insane notion that we can trade away a legal obligation for a voluntary non-binding scheme for politics was always wrong and always will be.

Dyson was so predictable, I am only astonished that he actually made a decision on anything at all as I don't recall him ever saying anything.

Articles 31, 32 and 33 of the convention are non-derogable and that should be remembered.

What amazes me is that after Navi Pillay, the UNHCR and every other human rights commission in the world said it was illegal they continued in the rubbish belief that they were right.

And while they prattle about 47 people who drowned some 90 million kids have died of starvation in the same 10 years.

Marilyn Shepherd | 01 September 2011  

TO HARRY WILSON: Faith-based schools are funded by the government because the state system would not cope without them. Not all faith-based schools are elite private institutions. Some are humble working class schools that surprisingly produce morally upstanding citizens who become decision makes in poltics and other areas of importance to humanity. Your criticism of "faith" seems to be that religious-minded people support church/state unity. This is not biblically based - Jesus was the biggest mover and shaker when it came to political/state relations. He was murdered for it.

AURELIUS | 01 September 2011  

Relief. Worried that Nauru is still considered by many to be an option. The Government and Opposition must give close attention to the horrendous cost - human and financial - of processing claims so far from Canberra at the same standard of care and services now required in Labor's detention network. Are there any research studies on the 616 ex Nauru detainees and their settlement pathway? Do we know how many of the 420 Afghans repatriated under duress crossed our borders a second time? What happened to the 20 Unaccompanied Minors, Wards of the Minister who were persuaded to return from Nauru, without legal advice or support? There have to be better options for Nauru than to be party to the misery of Australia's vulnerable asylum seekers deprived of their liberty and imprisoned on their tiny island , many separated from family and simply terrified.

Frederika Steen | 01 September 2011  

Julia Gillard’s attack on Chief Justice French is a new low in the treatment meted out by politicians to judges when they don’t like the result. It is true, as Justice Heydon in dissent has observed, that French when on the Federal Court said things not fully consistent with the result in yesterday's High Court case. There are two earlier decisions of French to consider.

When on the Federal Court, French J went with the flow when interpreting s.198A(3) basically keeping the judges out of second guessing the Exceutive when he said in 2003: “The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review.” Federal Court judges taking the lead from the then Gleeson Court expressed this view regularly.

Also in 2000, he indicated that there was no need for a third country to have legal obligations of protection provided only that an asylum seeker was in fact assured non-refoulement. He said: “A right of residence in a third country is not a condition of its characterisation as a safe third country if it be a party to the Convention which will honour its obligations thereunder. Nor it is necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person. In Al-Sallal the Full Court expressly approved and adopted ... the approach of Emmett J in Al-Zafiry '... so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice.'"

But hang on Prime Minister, all this means is that if the Chief Justice had decided the High Court case the way he had reasoned on the Federal Court, you might have lost by only 5-2 and not 6-1. Talk about an unhelpful dummy spit.

Frank Brennan SJ | 01 September 2011  

as discussed with Frank in the 80's, the real problem issue is that HR law that the HCA is dealing with is based upon post WW2 mascent UN efforts which probably have little relevance in a 21C dialogue with our near political neighbours. no easy fix.

ozlawyer | 01 September 2011  

Only a coward blames the messenger when they don't like the answer.

Gillard is living up to my very low esteem and expectations rather well.

And the High Court do think the refugee convention matters.

Marilyn Shepherd | 01 September 2011  

Jeremy Moore is a very happy man.

Marilyn Shepherd | 01 September 2011  

Frank, I totally agree with your criticism of French CJ by the PM. The decision by the the HC was correct in law and morally right. There is no good in criticising the HC in righting the the wrongs of governments who want to play popular politics. Dyson J would have hated Mabo but in time that decision, as will this, will define Australia as as a truly great humanitrian and caring country

Patrick Nunan | 01 September 2011  

There is often a big difference between a court decision based on the opinion of a few and real justice. The court may have upheld the law according to their personal interpretation but I am sure justice has failed. The result will be that more people with enough money will pay people smugglers to come Australia. It means more people will die on their way here. It means that people proven to be refugees will remain longer in camps or remain there for many years or decades. I fail to see how anybody with any empathy can continue to support trade of misery. I am not a fan of Julia Gillard, but in this case she is showing more love and understanding towards refugees than many of the self declared do-gooders.

Beat Odermatt | 02 September 2011  

AURELIUS: "Faith-based schools are funded by the government because the state system would not cope without them."

That has to be the biggest Furphy ever, a true shibboleth, a political mantra to excuse the base politics involved when Menzies and Whitlam sold out the public education system.

You need to read some history.

And of course, the taxpayer subsidy to religion overall, granted at our collective expense, makes for a very uneven playing field when it comes to getting 'the religious' to support a truly secular state, which would not allow for government support to any religion at all.

However, we agree on this point of yours, "Some are humble working class schools that surprisingly produce morally upstanding citizens who become decision makes in poltics and other areas of importance to humanity".

Indeed, I too am 'surprised' but maybe that has more to do with the individual and their world view and interests than the so-called 'values' imparted within said schools?

After all, there are more people in Australia that achieve that same level of distinction who attended state schools, and I'm not sure that that is the result of 'the school' either.

Harry Wilson | 02 September 2011  

Hooray for the poor suffering Asylum Seekers! I am so pleased that they have justice through the High Court. The Human Rights Lawyer Stephen Manne for Prime Minister!!!! Margaret Coffey

Margaret M.Coffey | 02 September 2011  

In fairness of French CJ, I should point out that Heydon J in quoting him in the 2003 case omitted the next sentence: “That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out.” In this week’s High Court case a jurisdictional error was made out. This makes it even more unfortunate that the Prime Minister has questioned the Chief Justice’s judicial consistency.

Frank Brennan SJ | 02 September 2011  

Dear Frank Thank you for your clear explanation and evaluation of the High Court's decision. Australian ancestry has much to be proud of (and much to be ashamed of) and must remember that many of us who are non-indigenous are here because our forefathers/mother were discriminated against and sought refuge in Australia. It is high time that we stop saying we are Christians and act as if we are. The key question is: how would you feel if this was your child or your family seeking refuge?

Rosalie Toner | 02 September 2011  

Let's see, 7-0 of the high court decided in November that it was a breach of the law to deny natural justice to refugees locked up on Christmas Island so those "failed" refugees got to go to court and we found out that the DIAC criminals were wrong 86% of he time for Afghans while telling us they could go home because Afghanistan was "safe", except of course Afghanistan is worse now than 10 years ago. Then we find that the so-called reviewers broke the law for 67 of the 85 cases decided by the so-called indpendent reviewers who all turn out to be ancient Refugee review tribunal dinosaurs. Now 6-1 the High court has ruled that the notion of 'off-shore" and expulsion is flat out illegal. Why then are our media prattling about "new legal advice", there is no 'new legal advice", it's just that the person giving the old legal advice was lying and wrong. The legal advice has been handed down, there is nowhere left to go except to pull out of the conventions and join Pakistan, North Korea and other lovely places that we condemn.

Marilyn Shepherd | 02 September 2011  

And now the media are in fall back position 'stop the people smuggling", there is no people smuggling.

If an act is perfectly legal it cannot be made illegal by the stroke of a pen just on a whim.

The government and media have been told over and over again that under treaties and laws it is not people smuggling to give refugees a ride, it would be murder not to surely, yet today back to the same nonsense.

Marilyn Shepherd | 02 September 2011  

It's a great day, but let's not get carried away with presumptions of what the High Court hasn't done. All it has done has declared that the Executive must act according to law. It hasn't changed the law. It hasn't put a complete stop to the export of asylum-seekers, although its decision will make it all the more difficult in future.

We still have detention and deportation by executive fiat - something that the writ of habeas corpus was supposed to have eliminated - until it was circumvented by legislation supported by both major parties.

Until detention is made subject and conditional to a Court order, and until ALL deportation decisions are subjected to the scrutiny of the court, we will continue to have the abuse of executive power.

Ginger Meggs | 02 September 2011  

Here is the law that makes a monkey of off shore processing.

# visa application was lodged although some statutory qualifications enacted since then may also be relevant.
# Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Marilyn Shepherd | 02 September 2011  

Harry Wilson, what you said sounds pretty out of touch with reality to me. Gillard is an agnostic, why do you say "Baptist"?

Most political players now are not overly religious as far as I can tell, except for some who use the label. Claiming to be "guided by God"? Where did you get that from?

Frank Brennan here is a Jesuit priest. What does that tell you?

Despairing Dragon | 03 September 2011  

No government can engage with legal certainty in offshore processing without first having Parliament amend s.198A. If there be no amendment of the Act, government must expect a legal challenge to any proposal for offshore processing wherever the announced destination. The legal challenge would commence in the High Court but probably be referred back to the Federal Court for a trial on the factual issues of protection and adequate processing. There would then be an appeal to the Full Court of the Federal Court followed by an application for special leave to the High Court. All this would take some months.

Frank Brennan SJ | 03 September 2011  

It's amazing how the media are still prattling about this non-existent off shore processing and not noting one thing. The entire world knows that Australia was trying to break the law, there is no country that will ever try to make such dirty deals with Australia again and believe me we are the laughing stock of the world with our whining endlessly about our refugee prisons being "full" when we don't need the prisons and Dadaab has 440,000 people with 11,000 new people per week. And we have less than 6,000. they are now claiming it is because a few hundred people drowned but 450 drowned out of 25,000 is a pretty high safety rate considering over 4,800 Australians drowned in the same 16 year period.

Marilyn Shepherd | 07 September 2011  

'No government can engage with legal certainty in offshore processing without first having Parliament amend s.198A'. And there's the rub, Frank, and Marilyn too. It looks very like an unholy alliance of Labor and the coalition is about to amend s.198A, and probably the Guardianship Act too, to allow the Minister to use his discretion to form an opinion in a way that would not be subject to judicial review.

Ginger Meggs | 10 September 2011  

Each and every time a government has decided that things should be put outside the law the High Court has rightly knocked them off. Because under our constitution it is simply not legal to lock out the courts. They should just give it up, there is no point in torturing another small group of people for no reason.

Marilyn Shepherd | 12 September 2011  

I wish you were right Marilyn, but this time it will be the Parliament, not the Government, seeking to change the law so that the Minister can exercise his/her discretion in a way that is not reviewable by the Courts. Our constitution will be of no help; Parliament is sovereign.

Ginger Meggs | 12 September 2011  

Very interested to see the claim by Gillard Minister Carr in the Senate today re the "Malaysia solution": "We are seeking the assistance of the UNHCR and the UNHCR has been consulted every step of the way. The UNHCR has made it very clear on numerous occasions that it believes this arrangement is very much superior to those arrangements that were entered into when the coalition was in office. We have indicated that the UNHCR has taken the view that over time we would actually deliver a significant improvement in the protection standards."

Frank Brennan SJ | 14 September 2011  

Julia Gillard and her advisers are convinced that Nauru could never work as a deterrent for people smugglers. How did they ever think East Timor would work? If the Timorese had agreed, what would she now be saying to Tony Abbott?

Frank Brennan SJ | 20 September 2011  

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Arrogant ethics

  • Andrew Hamilton
  • 08 September 2011

When I argued that the Malaysia solution was ethically flawed, I implied that ethical arguments in favour of the solution were unsupportable, and that those who disagreed with me should change their views. That may seem arrogant, but it is the nature of any ethical argument.



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