Why The High Court Said No This Time

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Oh what a tangled web we weave when asylum seekers travel to Australia by boat in search of our protection!

Leaving aside the exorbitant amounts spent detaining people in remote and inaccessible locations, the legal contortions in the "asylum space" beggar belief.

The High Court’s rejection of the Malaysia Solution is the latest twist in a fascinating saga that began 10 years ago almost to the day with Howard’s decision to blockade asylum seekers rescued at sea by the MV Tampa.

In a case replete with irony, a Labor government has now failed in its reliance on legislation created in haste by a conservative government in 2001 as the centrepiece for its offshore processing initiative which was then styled the Pacific Solution. The Coalition can be expected to resume its customary chant "Pick up the phone to Nauru, Julia, if you reall want to stop the boats". In truth, however, the High Court’s ruling should give both parties pause for thought, if only because the ruling may well do more than just put the kybosh on the deal with Malaysia.

At the centre of the dispute are two recently arrived Afghan asylum seekers who travelled through Malaysia, where at least one claims to have been mistreated, en route to Australia. One is an unaccompanied child, of whom Minister Bowen is legal guardian under a 1946 Act.

Both plaintiffs challenged Bowen’s declaration of Malaysia as a country to which Australia could refer asylum seekers for processing and resettlement. Although the Australian Human Rights Commission assumed the high moral ground with its arguments as intervenor about Malaysia’s poor human rights record, the plaintiffs’ lawyers adopted more prosaic and ultimately compelling tactics. They dissected the laws made in the wake of the Tampa Affair and in the shadow of September 11. In a case that will stand as a textbook example of statutory interpretation, the High Court ruled 6-1 (with Justice Heydon in dissent) that the 2001 laws embedded in the Migration Act a set of objective criteria that must be respected if a declaration is to be made according to the law.

The basic problem facing the Government was that Malaysia is not a party to the UN Refugee Convention, nor to any of the basic human rights treaties. Moreover, the "Arrangement" Australia has signed with Malaysia states expressly that the document is not legally binding on either party.

The plaintiffs’ lawyers did not have to descend into the details of how Malaysia actually treats the asylum seekers and refugees on its territory. They were able to succeed on their primary argument that the way the Migration Act is written requires a "declaration" country to be legally bound to observe the most important principles of refugee law as well as other key human rights norms. The High Court articulates these as duties to provide access to effective procedures, interim protection during status determination and proper treatment pending resettlement as well as an obligation to meet certain human rights standards in providing that protection.

The majority disposed of the arguments made on the part of the child, M160, in a similarly legalistic fashion. Eschewing consideration of the relationship between the Migration Act and the guardianship legislation, it ruled simply that the Minister’s decision to send the child to Malaysia was unlawful because he had not met his statutory obligation to sign an order that the child be removed and that the removal was in the child’s best interests.

One of the many ironies of this decision is that in the case of the child asylum seeker, the Government could have made an argument that Malaysia has assumed legal obligations with respect to asylum seeker and refugee children. That country has signed and ratified the Convention on the Rights of the Child. Article 22 of this convention requires states parties to afford children seeking asylum all the rights they would be presumed to have if recognised as a Convention refugee. Using the High Court’s reasoning, this is one area where Malaysia may have been found legally obligated. In the panic surrounding the litigation, no one made this simple argument.

The obvious question that arises in relation to the case as a whole is why a challenge of this nature was never made at the height of the Pacific Solution.

The short answer is that in September 2001 the High Court was in no mood to entertain an appeal from the Full Federal Court’s decision in the Tampa litigation, a case in which the lead judgment was written by the now Chief Justice of the High Court. (It may be recalled that Justice French ruled in the Tampa case that the federal government did not need the authority of legislation in order to exclude or eject non-citizens who had crossed or were attempting to breach Australia’s borders.) In fact an action was brought some years later on behalf of another unaccompanied Afghan child but it failed at first base and was not really pursued. It has taken the passage of 10 years and a marked cooling in the political environment for the legal niceties of the 2001 laws to be considered.

The implications of this latest ruling will take some time to unravel. For the moment, we make only a few observations.

The first and most obvious point is that the 2001 laws were not well conceived. The aim was to facilitate the establishment of offshore refugee processing in foreign countries. However, the legislation was drafted so as to play forward our international legal obligations to ensure the protection and proper processing of Australia’s refugees and asylum seekers. In their haste, the legislative drafters set the human rights outcomes as objective standards, opening the way for factual arguments about the record of declaration countries. In contrast, the plaintiffs in the Malaysian case would have found it harder to win if the Migration Act conferred power on the Minister to declare a country that in his opinion complied with norms of refugee and human rights law.

The ramifications of this for both the major parties is that the legislation as currently drafted will make it difficult to declare any country in the region suitable for offshore processing. Australia is surrounded by countries that are not parties to the major international refugee and human rights conventions — and in many instances this is reflected in very poor human rights records. Although Nauru and Papua New Guinea have signed the Refugee Convention, this is unlikely to be sufficient tomeet the requirements of s 198A of the Migration Act.

The Court made it clear that it is a necessary, but not sufficient condition that countries have legal obligations to provide protection. If that precondition is fulfilled, the Court may then need to see whether the legal obligations are generally in fact discharged.

While they may have ratified the Refugee Convention, neither Nauru nor Papua New Guinea have enacted domestic legislation giving effect to the Convention’s provisions. Nor do either of these countries have the resources to implement the required procedures and safeguards. Nauru can never be more than a staging post where Australian officials will be required to do all the work of processing and resettlement. Papua New Guinea is not in a strong position to take responsibility for Australia’s refugees.

The second point to take from the case is that the High Court has once again asserted its right and power to review decisions made by government. If it will review a Minister’s decision to make a declaration of the sort in question here, the odds are that it will pursue any Australian decision maker sent offshore to Nauru or Manus Island to adjudicate offshore asylum claims. Writing the courts out of this area of law and policy will continue to be a tough task for the parliamentary drafters.

New Matilda

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