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High Court grounds Malaysia Solution

  • 01 September 2011

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