So, it has come to this.
Less than four years ago, the Rudd government came to office promising an end to John Howard’s dismal record of denying the rights of legitimate refugees. Now Kevin Rudd is no longer the Prime Minister, and the High Court has struck down the Gillard Government’s refugee swap with Malaysia.
The High Court found the deal unlawful under the Migration Act: to quote Justice French, the Malaysia-Australia agreement "was made without power and is invalid". Just to rub salt into the wounds, the High Court also ruled against the Government in the other matter being heard, which was in relation to the Immigration Minister’s duty of care to an unaccompanied 16-year old.
The full decision of the High Court makes for riveting reading, and nearly all of it is devastatingly critical of the Government’s policy. The Court observes that "it is an agreed fact that Malaysia does not recognise the status of refugees in domestic law" and that Malaysia is not a signatory to the UN Refugee Convention.
The Government tried to explain this away with a bunch of "guarantees" for asylum seekers sent there — for instance that they would be able to access health care and education. But the text of the agreement with the Malaysian government states quite clearly that it is not legally binding, and that those sent to Malaysia will be subject to Malaysian law. Indeed, the Court observes that "there is nothing on the face of the exemption order to protect the plaintiffs from being charged and prosecuted in a Malaysian court for an offence against s 6 of the Malaysian Immigration Act." Translation? The "arrangement" with Malaysia is not worth the paper its written on.
In its conclusion, the Court rules that sending asylum seekers to Malaysia without processing them first is simply not authorised by section 198A of the Migration Act. Not only does Chris Bowen’s legal advice appear to have been mistaken, but the Government’s entire strategy of offshore processing with non-signatories to the UN convention must now be in doubt.
But the Government should have realised this beforehand — if not legally, then certainly morally. You don’t need the advice of the Solicitor-General to realise that the Malaysian swap is a convoluted and unnecessary way to cater for those arriving in Australian waters by boat. Even if the legal advice has failed in this instance, it wouldn’t have been necessary if the Government hadn’t been casting around for ways to process asylum seekers offshore.
And why was the Government so keen on offshore processing? Offshore processing — and its policy corollary, mandatory detention — is brutal, expensive and unjust. After all, the law says that those arriving by boat are legally entitled to do so. They have quite literally done nothing wrong, except seek a better future in a safer place, even at the cost of offending the sensibilities of the bigoted among us. In policy terms, offshore processing never made any sense, given Australia is the richest country in the region, and the obvious place to set up a regional processing centre.
Of course, both the Government and the Opposition have long held that this is all about "sending a message" to those handiest of political phantasms, the dreaded people smugglers. Such claims have never been supported by evidence.
In any case, the issue is not about evidence or policy fundamentals, but rather the heady brew of political emotion. The whole point of the Malaysian solution for Bowen and Gillard was to appear tough on border protection to voters, while simultaneously obeying the black letter of the Migration Act and the Refugee Convention, both of which oblige Australia to accept genuine refugees, no matter how they happen to arrive on our shores. In other words, the Malaysian deal was always a dubious bargain, constructed for political expediency, rather than in the best interests of the human beings involved.
Indeed, the Malaysian solution is merely the latest in a series of increasingly desperate measures by Labor to square the circle of asylum seeker policy. As we’ve pointed out repeatedly here at New Matilda, there is no genuine policy problem with seaborne asylum seekers. The number of asylum seekers coming by boat to Australia is tiny and decreasing. If it wasn’t for the cynical opportunism of the Coalition and many sections of the media, most of us wouldn’t even know about "the boats". After all, no-one talks about "the planes", despite the much larger numbers of refugee seekers who arrive by air.
All this we know. But because the asylum seeker issue is inherently political, it’s all the more difficult for Labor to solve. That’s because the debate is already so unhinged. Considering how shorn of factual substance this entire discussion remains, it’s not surprising that nothing that Labor does in a policy sense seems to convince voters that it is handling the issue effectively.
There’s no doubt that that unpopularity of "the boats" is real, by the way. But even if many ordinary Australians oppose letting asylum seekers seek refuge here, that doesn’t make the Government’s attempts to circumvent Australia’s international responsibilities just, or fair — or even legal, as today’s decision makes clear. It is possible to love democracy and yet to oppose policies which are popular in the electorate. It is possible to support the right of voters to make up their own minds, and yet to oppose the racism and xenophobia which remains endemic in our nation. Sometimes there is a tyranny of the majority. Sometimes the voters of western Sydney are wrong.
And that’s the tragedy — or farce — of this High Court decision, which shows a government so desperate to be seen to be toughening up its line on border protection that it has abandoned not only its principles, but the legal niceties too.
It is probably asking too much for the Gillard Government to use this decision as an opportunity to admit defeat on border protection "toughness", and simply allow seaborne asylum seekers their legal rights. It is certainly asking too much of the Opposition. And so this decision will no doubt be met with more legal manoeuvres, and perhaps even an amendment to the Migration Act, simply for the purposes of making the deal stick.
Perhaps it’s time both Labor and the Coalition simply repudiated the UN Refugee Convention altogether, and voted to amend the Migration Act accordingly. This, at least, would be the genuinely honest position of both. After all, neither major party seems to actually believe in the spirit of the treaty, or in the rights of refugees.