Gillard's Malaysia solution stumble


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 4000 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 arrived from Indonesia. But on Sunday night, lawyers for some of the asylum seekers approached the High Court 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.

On Monday in the High Court, Justice Kenneth Hayne was unimpressed with the Australian Government's behaviour. Government lawyers were wanting the Court to lift the injunction at 4:15pm so that the first asylum seekers could be flown out Monday night. By 3:15pm, the Government had not managed to provide the court with its affidavit setting out the facts on which it was relying.

Hayne, having told the Solicitor General 'It is unsatisfactory that the matter proceed in this half-baked fashion', then pointed out: '[Y]ou have the whole of the resources of the Commonwealth behind you.'

Hayne decided to extend the injunction. He referred questions of legal interpretation to a full bench of the High Court for consideration on 22 August 2011 — a full week after 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 Monday, it was assumed that the minister could make such a declaration without any scrutiny by the Parliament or 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 to receive factual evidence about past treatment of asylum seekers, including unaccompanied minors, in Malaysia. That suggestion will be causing many headaches in government offices in Canberra.

The Full Court of all seven High Court judges will be asked to consider the correct interpretation of 198A(3). Before 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. Last time the High Court decided a case on the legality of asylum seeking processes, it took 10 weeks to deliver a final judgment. In one notable immigration case, when the court split four-three, 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. 

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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Existing comments

We learnt from the Commonwealth Solicitor General in the High Court yesterday that “the Minister in making the declaration under section 198A(3) in fact formed a state of satisfaction as to the criteria set out in that section and in doing so took into account not only the agreement with Malaysia but also more wide-ranging advice of the Department of Foreign Affairs and Trade and the results of consultation with the United Nations High Commission on Refugees.” The Court was told that “the UNHCR had assessed the final draft of the arrangement and operational guidelines as workable”. The Commonwealth further informed the Court: “Malaysian authorities generally cooperate with the UNHCR and according to the UNHCR, ‘there were credible indications that forcible deportations of asylum seekers and refugees had ceased in mid-2009.’” The Solicitor General submitted that “the assessment of the UNHCR was that what had occurred in the agreement that had been reached, including the detailed procedures, was workable.”

Frank Brennan | 09 August 2011  

This is really helpful to an understanding of the legal arguments.

pamela | 09 August 2011  

This absurd notion that any country can simply declare that another country can do our work for us in this context is ludicrous and always was.

What if all 148 nations who ratified the convention decided to declare some other country in this lazy, evil manner?

We would have refugees being passed around the world like parcels until we ran out of countries and not one would be protected.

Kirby stated at the end of the NAGV and NAGW case that "if we accepted that refugees who applied here could be denied refuge because they could have gone to another country not one refugee would ever be protected.

Everyone needs to read that very informative case.

And another in the High court recently where the RRT decided that a Malaysian hindu could move within Malaysia and be safe yet had not discovered where the woman was from or which part he deemed was safe.

WE have to stop playing these absurdly expensive games with human lives, it is making me ill as all I can see are my beloved family being deported and I don't know if they are dead or alive.

It's also TAMPA day soon.

Marilyn Shepherd | 09 August 2011  

We should also stop using the word "solution", there has not been a problem

Marilyn Shepherd | 09 August 2011  

And why do we need to rent part of some other country when we have this rather large one.

I wonder what would have happened if the government had tried to trade away the young pilgrims who stayed to claim asylum.

And no use appealing to the ALP left, they wrote the white Australia policy and detention and Al Kateb.

Marilyn Shepherd | 10 August 2011  

And an even longer wait for those men , women and children seeking safety in Australia.

The following maybe a 'populist sentiment' but please fellow Australians take a look ay your families, sons and daughters, grandchildren and picture them held indefinitely in detention for having the temerity to ask us for refuge.

And I won't even suggest what our Christian response should be.

Anna C North Avoca | 10 August 2011  

The wheels of the law do indeed turn slowly...but before they can turn at all they need men and women of goodwill to put their shoulders to the wheels to set them in motion and, thankfully, here such men and women have come forward. Never mind about time being of the essence for the Gillard government and being mnournful about its motivation that is anything but humanitarian....this time the refugees are to get their day in court..and that's what should be applauded.

David Manne heads up the legal team thatrepresents the refugees in this case....his injunction victory is indeed, at this stage, a small step for Manne but it is a significant stride forward for those who would do more than stand and stare and pontificate.

Brian Haill - Melbourne | 10 August 2011  

Why do you write so much about illegal immigrants. Why aren't you championing the stopping of brutally killing babies in their mothers' wombs.

Some 100,000 babies are murdered each year in Australia. Surely there could not be a more urgent issue in Australia than that of murdering of babies? How many will die today because of those who can help bring this situation to an absolute close are using their talents towards issues that pale before the heinous act of capital punishment of the most helpless innocent children through a thoroughly despicable vile law that allows this practice to continue?

Trent | 10 August 2011  

The treatment of refugees/asylum seekers by Australian governments, which includes parliamentary members and leaders and lawyers, as well as media commentators and some members of the public is a DISGRACE. Why can't we show a bit of charity to these people? My experience of some small contact with refugees and the rural refugees group is that refugees make excellent citizens. Marilyn and Anna - hear hear to your comments! Where are the celebrities in support of people such as Lowitja O'Donoghue and Ian Chappell who provided great support to refugees a few years ago? Are we becoming a country of narcissists?

Mark Doyle | 10 August 2011  

let us take the politics out of the situation.The real problem is the people smugglers who exploit vulnerable people. It seems that countries in south east Asia are coming to terms with the problem of refugees inside their borders. The answer is to increase the numbers of refugees accepted which is happening now. Countries like New Zealand should increase their share. There should be a system where genuine refugees can apply for asylum before they they get into the clutches of the people smugglers.

john ozanne | 10 August 2011  

John Ozanne, how can you say the real problem is the people smugglers. The real problem is the poverty and the persecution and the war that make people desperate to escape from their homelands.

And Trent, yes, abortion is awful. The acceptance of abortion is probably part of the reason why many people have less respect for human life and so less concern for refugees. But why do people who care about the unborn not care equally about the persecuted?

Gavan | 10 August 2011  

Unless Chris Bowen can find the personal nerve to quit this appalling so-called Malaysian solution he could find himself ultimately dubbed the Monster for Immigration.

Brian Haill - Melbourne | 10 August 2011  

There are no people smugglers doing anything at all, there are no asylum seekers being smuggled into Australia and the government needs to stop shoving people off to other countries.

When the law of this country says they must have their claims heard here what is Bowen on about.

Marilyn Shepherd | 10 August 2011  

It's said that the four qualities required for leadership are empathy, creativity, realism and resilience. The PM certainly scores well on resilience. I guess Labor and Green voters must think that one out of four is good enough.

Claude Rigney | 10 August 2011  

Have we noticed that the now so keen on stopping People Smugglers, that the term Assylum Seekers is rarely used.
This is a very subtle shift in the original 'so called' problem of sharing our country.
Whose world is it anyway?

This is such a shameful episode in our history.

I am completely disgusted with both Parties, and grateful I was not born in a country from which I needed to escape.

bernadette introna | 10 August 2011  

I've just read Trent's plea for Frank to use his spectacular talents to support protection of the unborn. Congratulations Trent, I think that that is a wonderful suggestion. I attended a public forum recently where Frank spoke brilliantly in defence of the rights of women, observing how pivotal are those rights in bringing justice and equality to countries wherein they are not currently upheld.

Claude Rigney | 11 August 2011  

To Fr Frank Brennan: I fail to understand how a priest can give moral support to an inhuman people smuggling trade which will lead to more death and misery.

Beat Odermatt | 11 August 2011  

Because Beat, it is not people smuggling. Giving refugees a ride from danger to safety is the right and decent thing to do. While you pretend to believe that so many have died in this manner 156 kids have drowned in 10 years while 500 Australian kids have drowned in the same 10 years and 90 million kids starved to death. Force trading humans to a place they are in danger is precisely the legal definition of people smuggling/trafficking and always has been. As Australia can't even bother to care today for a 96 year old great grandmother - Bowen says "she won't get any special consideration" (his favourite catchcry for orphans of war, ship wreck survivors and old ladies it seems) - it was the threatened deportation of an 104 year old Chinese lady that did Vanstone's job. How about someone getting rid of Bowen, he is clueless of the law and utterly incompetent.

Marilyn Shepherd | 11 August 2011  

To Marilyn Shepherd:According to you, people smugglers are not people smugglers. It seems that some statistics satisfy your tolerance of death. You may forget that most of these people killed at sea have loving families.
Julia Gillard is calling herself an atheist. With her action in trying to stop the trade in death and misery, she is far closer to the humanitarian views of Christianity than those who support the people smugglers.

Beat Odermatt | 12 August 2011  

Beat. there are many people smugglers, they smuggle sex slaves and labour across borders every day of the year for ongoing exploitation.

People who give refugees a one way ride are not smuggles because the refugee convention and Australian law allows people to enter without prior permission.

If you are allowed it is not smuggling ergo there are no smugglers.

Marilyn Shepherd | 13 August 2011  

Trent, You ask why Frank writes so much about 'illegal immigrants' ; may I ask why you write so little about them? We've heard you before 'championing the stopping of brutally killing babies in their mothers' wombs', and your criticism of Benedict and his hierarchy. How about telling us what you really think about 'illegal immigrants' and the way successive Australian governments have dealt with 'the problem'.

Ginger Meggs | 28 August 2011  

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