This Is Not Judicial Activism

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In the hours after the High Court’s emphatic decision yesterday that the Government’s proposed "Malaysian Arrangement" is legally invalid, Immigration Minister Chris Bowen declared that the result was "profoundly disappointing" and intimated that the High Court had "applied a new test" which varied from the previous understanding of the law relating to "third country processing".

Make no mistake, though: this was not the work of a crusading High Court engaging in so-called "judicial activism". The majority judgments in the Court’s 6:1 decision are strict exercises in statutory interpretation. In other words, the High Court held that the Minister simply did not have the power under the Migration Act to declare that Malaysia is a place that was able to provide the protections to asylum seekers which are required by the legislation.

A key part of this reasoning was that Malaysia is not a signatory to the Refugees Convention or the Refugees Protocol and has no domestic legal protections for asylum seekers of the type required by section 198A of the Migration Act. Chief Justice Robert French pointed out that the Minister’s evidence to the Court indicated that he had misconstrued the Act’s requirement that these protections amount to "continuing circumstances" in Malaysia:

"It is a misconstruction of the [statutory]criteria to make a declaration of their subsistence based upon an understanding that the executive government of [Malaysia] is ‘keen to improve its treatment of refugees and asylum seekers’. Nor could a declaration rest upon a belief that the government of the specified country has ‘made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers’ or that it had ‘begun the process of improving the protection offered to such persons’."

Only Justice Dyson Heydon found in favour of the Government, reasoning that all that the Migration Act requires is that the Minister took into account the criteria in section 198A before making the decision to "declare" that they have been met by Malaysia, and that his personal assessment is beyond the reach of the Court if it is satisfied that the Minister did take them into account. This varies from the majority view that those criteria be the subject of objective legal certainty in Malaysia and, indeed, from the Government’s submission that what matters is the "practical reality" of human rights protections in Malaysia. Ultimately, however, Justice Heydon’s dissent is less likely to be remembered for his legal analysis than for his remarkable opening salvo against the President of the Australian Human Rights Commission, former Federal Court Judge, Catherine Branson.

The irony of the Government’s situation, as Professor Mary Crock has pointed out, is that section 198A of the Migration Act was passed hurriedly by the Howard government in the aftermath of the September 11 attacks a decade ago. The current Government has, to a large degree, inherited this problem. Furthermore, the section’s validity was not challenged when it was used as the legal basis to send asylum seekers to Nauru, which until recently was not a signatory to the Refugees Convention or the Refugees Protocol any more than Malaysia is now (although the joint majority judgment of Justices William Gummow, Kenneth Hayne, Susan Crennan and Virginia Bell pointed out the significance of the fact that asylum-seekers on Nauru were processed by Australia, in contrast to what was proposed in the "Malaysia Arrangement").

Commentators have noted that "rambling incompetence" on issues of immigration is scarcely the sole domain of the Gillard Government, and yet one suspects that it will pay a very high political price for yesterday’s High Court loss. It is not immediately clear what options the Government has if it seeks to continue to process "irregular maritime arrivals" offshore, given the twin blows of yesterday’s decision and the High Court’s ruling last November in Plaintiff M61/2010E that asylum seekers being processed on Christmas Island are entitled to the same procedural fairness protections as if they were on the Australian mainland.

The Government could seek to amend the Migration Act to remove the impediment to the "Malaysian Arrangement" identified by the High Court, although it is unlikely that it will find the parliamentary support it would need to do so. Removal of the protections in section 198A also risks Australia falling outside its obligations under the Refugees Convention, and it is most unlikely that any major political party would countenance that outcome.

The Government could return to using Nauru as an offshore processing facility — as the Opposition will doubtless suggest — but this would be the bitterest of political pills to swallow. Furthermore, even though Nauru has recently signed the Refugees Convention, there are doubts that its domestic legal protections for asylum seekers would satisfy the requirements of section 198A as it has now been interpreted by the High Court.

That leaves the Government in the position that it may have to return to processing asylum seekers on the Australian mainland only, which it will likely see as a hugely problematic political outcome. With so few options, we may just see a complete change in the Government’s approach — although this would be a courageous decision, it isn’t the most likely consequence of the High Court’s ruling.

New Matilda

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