I’ve long been puzzled why Michelle Grattan is seen as an eminence grise of the Parliamentary Press Gallery. Unlike her corpulent male counterpart Laurie Oakes, who still occasionally produces major scoops and penetrating political analyses, I can’t remember the last time Grattan produced anything other than bland, predictable group-think. Her latest piece on yesterday’s High Court interlocutory injunction restraining implementation of the Gillard government’s Malaysia Solution until a full hearing in a couple of weeks is a case in point.
Grattan begins with a perfectly reasonable observation:
The High Court has agreed the case against it should be heard – but it has not pronounced on the issues.
But she then instantly segues without even a semblance of analysis into regurgitating the current Press Gallery spin on anything the Gillard government does:
It’s a shambles. When, with the Commonwealth Solicitor-General floundering over his paperwork yesterday, Justice Hayne said that it was ”unsatisfactory that this matter proceed in this half-baked manner”, he could have been summing up the Gillard asylum seeker policy.
What does Grattan mean by this? That Hayne J was somehow passing judgment on the Gillard government’s competence? In fact his remark is the sort of theatrical “grumpy judge” schtick that judges inflict on counsel on a daily basis in our courts, as any experienced journalist well knows.
That the mere fact that refugee advocates have launched a High Court challenge of itself somehow proves that the government’s Malaysia Solution is a “shambles”? In fact, just about every policy initiative relating to asylum seekers over the last 20 years, under the Hawke, Keating, Howard, Rudd and now Gillard governments has been challenged through the courts. You wouldn’t expect anything else. These are desperate people with little to lose and everything to gain from a successful challenge, and with refugee advocates ever willing to provide free representation. Some challenges succeed but most lose. This latest challenge will probably fail, although it isn’t completely hopeless (as I discuss below).
Is Grattan instead suggesting that the government should be taking some other policy approach? If so, what might it be? Abandoning mandatory detention of asylum seekers and adopting an open door policy, as most refugee advocates seem to assert? That might make sense in an abstract policy sense, but in the real world it would be a recipe for certain political suicide. Reverting to the Howard government’s Pacific Solution, as Tony Abbott mindlessly repeats as the sure-fire solution to “stop the boats”? In fact, as I’ve pointed out previously, the Pacific Solution has had its day. The people smugglers and their clientele now know very well that Australia ultimately had (and will have in the future if the policy is reinstated) no practical choice but to grant protection visas to most of the genuine asylum seekers sent to Nauru.
Moreover, the judicial review grounds now being advanced against Gillard’s Malaysia Solution will, if successful, almost certainly invalidate any attempt at revival of the Nauru Pacific Solution as well. This is a point that doesn’t seem so far to have dawned on any of our Press Gallery luminaries (although a commenter to Grattan’s article pointed it out). Exactly like Howard’s Pacific Solution, the legislative basis for the Malaysia Solution lies in the “safe third country” provisions found in s 198A of the Migration Act 1958 (Cth).
Section 198A empowers a Commonwealth officer to “take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)”, which provides:
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection …
The arguments being deployed in the current challenge (as outlined in yesterday’s injunction application before Hayne J) mostly also apply to the Pacific Solution. The key arguments by Debbie Mortimer SC for the asylum seekers are:
That the Minister’s declaration under s 198A(3) is a legislative instrument within the meaning of the Legislative Instruments Act 2003 (Cth)
If the declaration is a legislative instrument (like regulations, rules, general orders, by-laws, ordinances etc) then it would have to be tabled in Parliament within 6 sitting days and would then be subject to Parliamentary disallowance. With the Greens opposed to Gillard’s policy on principle and Abbott opposing anything at all that Labor proposes, the declaration would almost certainly be disallowed if it had to be tabled in Parliament. This argument was never mounted against the Pacific Solution as far as I know, probably for the pragmatic reason that the Labor Opposition up until 2004 would have voted with the Howard government to support it anyway, while Howard had a majority in both Houses between 2004 and 2007. However, if the High Court were now to rule that a s 198A declaration is a legislative instrument, then any attempt by a future Abbott government to revive the Pacific Solution would almost certainly be blocked “tit for tat” by the combination of Greens and an embittered Labor Opposition in the Senate.
However I don’t think this review ground has much chance of success. The general definition of a “legislative instrument” is found in s 5:
(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:
(a) that is of a legislative character; and
(b) that is or was made in the exercise of a power delegated by the Parliament.
(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:
(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and
(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. …
A s 198A declaration does not of itself determine or alter the content of the law, it merely effects a factual determination which empowers a discretionary exercise of power which may then affect a privilege or interest etc. I doubt that such an instrument would be held of itself to have the ”indirect effect” of affecting a privilege or interest etc., although it’s an arguable point (and no doubt one reason why Hayne J decided that there was a sufficiently serious question to be tried to justify the grant of an interlocutory injunction).
The listed subjects of the Minister’s s 198A(3) declaration are “jurisdictional facts” (or at least facts of whose existence the Minister must be “satisfied”)
As the High Court explained in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135:
The term ” jurisdictional fact ” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.
Judicial review is usually concerned only with errors of law committed by the executive government. Factual determinations are generally matters to be determined solely by the administrator in whom a discretionary power is reposed. However, the “jurisdictional fact” doctrine is an exception to that general principle, justified by the proposition that Parliament has conferred the power only if the factual preconditions for its exercise exist, and Parliament is unlikely to have intended that the administrator have an unreviewable ability to determine the existence or otherwise of his own power. There is a plausible but by no means compelling argument that the factors listed in s 198A(3) are jurisdictional facts. The practical significance of the “jurisdictional fact” doctrine is that a court on judicial review is not obliged to accept the Minister’s factual determination as to the existence or otherwise of a jurisdictional fact. The court is free to determine the question for itself and might well disagree with aspects of the Minister’s conclusion that Malaysia (or Nauru) is a safe third country, in which case the statutory pre-condition for exercise of the power of removal to Malaysia (or Nauru) would not exist. Even if the facts are expressed as ones of which the Minister must merely be subjectively satisfied, the court may still reject the Minister’s determination if it holds that “satisfaction” as to the required state of affairs was not reasonably open on the evidence.
However, French J (as he then was – he’s now the Chief Justice of the High Court) rejected the argument that the s 198A(3) factors could be regarded as jurisdictional facts in a 2007 challenge to the Pacific Solution:
So far as the ministerial declaration under s 198A(3) is concerned, the form of that subsection does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter. The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review. That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out. In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.
Hayne J appears to be slightly less dismissive of Mortimer’s jurisdictional fact argument, and even appeared to flirt with her most audacious version of it, namely that on a proper construction s 198A(3) should only be regarded as satisfied where the “safe” third country was legally rather than just politically and practically obliged to provide protection to returned asylum seekers. If that argument were accepted it would be fatal to the Malaysia Solution, because clause 16 of the agreement/arrangement expressly states:
This Arrangement represents a record of the Participants’ intentions and political commitments but is not legally binding on the Participants.
The following is the key exchange betweeen Hayne J and Solicitor-General Stephen Gageler SC:
HIS HONOUR: Is that, to adopt a reading of 198A(3), that would leave the Minister at large in determining the questions apparently presented by paragraphs (i) to(iv)?
MR GAGELER: No, not at all. The only jurisdictional addition that is read into the provision is that the Minister act bona fide or in good faith but the Minister – – –
HIS HONOUR: Not even reasonably? That, I think, was Liversidge v Anderson, is it not?
MR GAGELER: The Minister would be required, your Honour to understand and correctly apply the criteria, error of law, clearly would vitiate a decision of the Minister but there is no element of a jurisdictional fact in the sense of reasonable satisfaction that is required of the Minister under that provision, contrast, for example, the language used elsewhere in the Act of which your Honour is familiar. Where the Act requires satisfaction, it says satisfaction. That construction that struck his Honour the Chief Justice as clear, your Honour, really flows from the nature of the power being vested in the Minister.
The object of the power, that is, the specified country the Minister is required to evaluate, to some extent, circumstances in another country, and it is consistent with the purpose of the provision as identified in the second reading speech which your Honour will no doubt have seen in the past, it was said in that second reading speech by the then Minister for Immigration, this Bill, dealing specifically with section 198A, provides strength and powers to deal with people who arrive unlawfully at one of the territories beyond the migration zone. These include powers to move the person to another country where their claims, if any, for refugee status may be dealt with.
Your Honour, in relation to the point of construction we say this, that to read the criteria in section 198A(3)(a) as confined to what is provided or required by international law or by domestic law is a construction not required by the language. It is a construction which, in our submission, is indeed inconsistent with the language. The language naturally is read as looking to what the country does or perhaps is likely to do during the life of the declaration, not what is required as a matter of law within the country or as a matter of international law and the reality is, your Honour, that they may be two quite different things.
It would not be consistent – and this is our third point – it would not be consistent with the purpose of section 198A which is really to allow the Minister to designate a safe third country, for the Minister to be confined to looking only to the legal regime applicable in and to that country. There are many countries that have pristine laws that are not necessarily applied in practice.
HIS HONOUR: But is it necessary to look at all to the legal regime, be it international obligation or domestic obligation? I understand why you say that looking at the letter of the law may not suffice, but is it necessary to look at whether, when this Act speaks of “provides protection”, it is referring to protection that is obliged to be provided as distinct from protection which either in the past has been or by some exercise in prognostication is assumed may be, will be, probably will be, possibly will be in the future.
MR GAGELER: It is looking at what occurs in practice and it is not a matter of prognostication, it is a matter of the taking into account the available information, which will include the applicable international and domestic legal standards. That is not ruled out, your Honour. The point is simply that it is not only not required by the language but inconsistent with the purpose of section 198A(3) to confine those criteria to questions of international and domestic law. That is the point.
HIS HONOUR: The question is provoked because the arrangement which has been struck with Malaysia is expressly said not to be legally binding but to be a record of the participants’ intentions and political commitments, is that right? See clause 16 of the arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement.
MR GAGELER: That is correct.
HIS HONOUR: What inference, if any, may be drawn from the fact that this intergovernmental arrangement contains that clause?
MR GAGELER: No inference adverse to the judgment made by the Minister that the political assurances contained in that arrangement read against the background of the assessment made by the UNHCR and the Department of Foreign Affairs and Trade was sufficient to give a level of satisfaction that the criteria set out in section 198A(3)(a) would be likely to be met in practice. There is simply no doubt, your Honour, simply no doubt.
HIS HONOUR: So you say sufficient that it would be likely to be provided in practice? Do I understand the proposition right or have I misheard it or misunderstood it?
MR GAGELER: No, your Honour heard it correctly.
HIS HONOUR: So when the Act speaks of “provides protection”, “provides access”, that is speaking of something that is likely to occur, is it?
MR GAGELER: Your Honour, clearly enough a declaration under section 198A(3) is a declaration that will remain in force until revoked. It is not a one-off moment in time.
HIS HONOUR: I understand that.
MR GAGELER: In speaking in the present tense, it is clearly speaking continuously in the present tense during the life of the declaration. So when the Minister makes the declaration, the Minister is necessarily looking prospectively, not just at a moment in time and not simply historically. I am being repetitive, your Honour, but to confine the criteria to legal constraints is really to undermine its purpose.
My best guess is that French CJ’s view of the nature of s 198A(3) will probably prevail and therefore the Gillard government will win, but the asylum seekers at least have a reasonably arguable point. Moreover, as I noted above, it’s an argument which if successful would probably prove
equally fatal to any attempt at reviving the Pacific Solution. It’s a nerve-racking time for both the Gillard government and the affected asylum seekers, but heaven on a stick for academic public lawyers like me.
PS I should note for completeness that Mortimer also advances a natural justice argument. However it’s impossible to evaluate its chances of success without access to the affidavit material detailing exactly what opportunities the asylum seekers were afforded to advance submissions on why they should not be deported to Malaysia for refugee assessment.