On any view yesterday’s High Court decision holding the Malaysia Solution to be unlawful is a smashing blow to the Gillard government and an equally smashing win for asylum seekers and the people smugglers who capitalise on their desperation. In the slightly longer term it also poses a thorny policy question for the now inevitable Abbott Coalition government. The decision may well render any renewal of the Howard government’s Pacific Solution effectively pointless.
By a 6:1 majority (Heydon J dissenting) the Court held that the Minister lacked legal power to send the 42 asylum seekers (and by extension any future asylum seekers) to Malaysia for refugee assessment and processing. It was a decision based on administrative law and statutory interpretation grounds rather than constitutional law issues. Four Justices (Gummow, Hayne, Crennan and Bell JJ) adopted asylum seeker senior counsel Debbie Mortimer’s most audacious position, namely that:
- the question of whether Malaysia was a “safe third country” for the purpose of the Migration Act 1958 was a “jurisdictional fact” i.e. a factual situation which must exist prior to any power in the Minister to send asylum seekers there for assessment;
- this jurisdictional fact could not exist unless the country concerned was legally bound under its own domestic laws and/or international law to provide protection in a Refugee Convention sense, to provide proper assessment of refugee claims, and to protect basic human rights standards for all returned asylum seekers; and
- the existence of the jurisdictional fact of safety also requires that the actual practices and procedures of the country in question are effective in securing that safety.
Factual preconditions 1 and 2 to Ministerial power at least did not exist in Malaysia, and indeed the Minister did not even claim that they did (nor could he given that the Arrangement with Malaysia expressly stated that it was not legally binding on Malaysia).
French CJ and Kiefel J denied that the factors above could be regarded as jurisdictional facts, but held that nevertheless their absence meant that the Minister had made a “jurisdictional error of law” in concluding that Malaysia was a safe third country. He had misconceived the legal question he was required to address, namely whether Malaysia could be regarded in law as a safe third country. At least as the issues and reasoning were applied in this case, it made no real difference whether the Minister’s error was classified as one of fundamental fact or of law.
The Court also held for the asylum seekers on the guardianship issue relating to unaccompanied minors, but that was almost irrelevant given the major premise.
The big long term question is whether the Court’s decision renders any plausibly deterrent form of offshore processing effectively impossible in future. Gummow, Hayne, Crennan and Bell JJ adverted expressly to the Howard government’s Pacific Solution:
Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.
No doubt Tony Abbott will point to that passage as a vindication of the Pacific Solution and (by contrast) a judicial condemnation of Gillard government incompetence. In a short term political sense he’s right. But that begs the question of whether any version of the Pacific Solution that would be likely to deter asylum seekers could be re-instituted following yesterday’s Court decision. The practical reason why the Pacific Solution successfully deterred asylum seekers for a number of years was that it created the illusion that reaching Australia by boat would provide no assurance of a visa even if found to be a refugee. That illusion was underpinned by keeping even successful asylum seekers “garaged” on Nauru for a number of years after they’d been found to be refugees, before eventually quietly granting them visas and allowing them into Australia. In view of yesterday’s finding that both the domestic laws and actual practices of any “safe third country” must broadly honour Convention obligations and basic human rights standards, it is highly unlikely that any regime on Nauru or elsewhere that permitted persons found to be refugees to be nevertheless kept in detention for years thereafter would be held to comply with either Convention obligations or general human rights standards. Without that deterrent effect it is highly unlikely that offshore processing on Nauru or anywhere else will have any measurable effect on the number of asylum seekers arriving by boat. Who cares whether you’re detained on Christmas Island, Nauru, Manus Island or Darwin if the end result is the same in all cases? If found to be a refugee you will get an Australian protection visa.
The Gillard government should now accept the inevitability of its forthcoming election defeat and concentrate on putting in place asylum seeker processes that are as sound as possible from a policy (rather than short term populist) perspective. As I’ve argued previously, a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, is clearly preferable from a policy viewpoint. It will almost certainly result in a measurable upsurge in arrival numbers, but that is unlikely to result in total numbers that Australia will be unable effectively to absorb. It will however ensure that Abbott and shills like Alan Jones will have a lovely time driving the last few nails into the coffin containing the twitching political corpse of Julia Gillard. Alternatively it might provide the trigger for a decisive move to restore Kevin Rudd to the leadership as I suggested in a comment posted early yesterday:
I should also note that if the High Court rules against the Malaysia Solution to any significant extent later today (as is possible), that would provide added impetus for a transition to Rudd. Rudd has made it as clear as he could from the moment of his demise that he demurred on moral grounds from Gillard’s re-embrace of punitive Howardism on asylum seekers. The closing off even partially by the High Court of the Malaysia Solution (which would simultaneously render the Pacific Solution either unconstitutional or demonstrably ineffective) would provide a plausible reason of principle and policy for Labor re-embracing Rudd, just as (in a rather more cynical, negative sense) rejection of carbon tax was the policy/”principle” aspect of Abbott’s replacement of Turnbull.