The federal government’s refugee swap deal with Malaysia is in tatters after the High Court yesterday ruled the scheme unlawful.
The court ruled with a six-to-one majority that the Malaysian deal contravened protections that Australia is bound to abide by in regard to asylum seekers. It also noted that Australia could not be certain of maintaining those protections in Malaysia as it was not a signatory to international human rights laws.
Immigration minister Chris Bowen declared the court’s decision “a significant blow to our efforts to break the people smugglers’ business model”.
Australia will still accept the 4000 refugees from Malaysia as agreed to in the deal, even though no “swap” takes place, but they will not be additional to Australia’s annual refugee intake.
The only other refugee policy the government had up its sleeve was a plan to re-open a detention centre on Manus Island, Papua New Guinea. Meaning, we could also now see a return to Howard’s Pacific Solution, with Bowen refusing to rule out re-opening Nauru or re-introducing temporary protection visas. “I’m not ruling anything in or out in terms of our response,” said Bowen.
The High Court decision reads in part:
“Today the High Court held invalid the Minister for Immigration and Citizenship’s declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims …
… The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister’s written consent under the Immigration (Guardianship of Children) Act 1946 (Cth) …
The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.
The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above.”
Did the High Court get it wrong? That’s what Margaret Kelly argues in the Courier-Mail:
“Let it be clear: this is a result of six judges taking a view. This is not because the policy was wrong — the government had acted on the policy the elected representatives had passed into law. The intention of the Parliament has yet again been scorned by the court majority …
… There is no certainty any more in the Commonwealth’s laws. We do not have a rule of law here, but rather rule by lawyers. The majority of the High Court got it wrong. Justice Heydon in dissent got it right.”
Actually, the decision just proves how critical the High Court is for interpreting laws and keeping our elected representatives in check, declares law lecturer Maria O’Sullivan in The Age:
“Fundamentally, the High Court decision is significant for demonstrating the importance of judicial review in a democratic society. In particular, it illustrates the importance of one of the most fundamental principles in democratic societies — the Rule of Law. This principle provides that decisions of governments should be controlled by laws. This is particularly important in relation to government ministers, who have considerable powers under statute and need to be made accountable for their actions by an independent judiciary. The High Court’s ruling is not merely significant for Australia’s refugee policy but also highlights the vital role of the High Court in reviewing decisions made by the minister for immigration in this politically sensitive area of public policy.”
This is a kick in the guts for Gillard, but it also sends a loud message to people smugglers, writes Michelle Grattan in The Age:
“Thanks to what now has been exposed as an ill-prepared policy based on flaky legal advice, they have sent a message, all right. That is, ”Come on down”. Unless the government can produce some spectacular fall back, that message will resonate loud and clear among those running the people smuggling trade.”
The Opposition just got handed a free kick and its not going to waste it, notes Malcolm Farr at The Punch:
“It will feed into Opposition attacks on the proposed carbon pricing laws, on management of the economy, on just about everything the Government does or says it will do. The Malaysian deal collapse will join the home insulation debacle as Exhibits A and B of the Opposition’s prosecution of the Government on charges of incompetence.”
The Herald Sun carries a damning editorial on the government today:
“The High Court has done far more than just sink Julia Gillard’s Malaysia people-swap deal. It has delivered a devastating body blow to a drowning government. This is a political mess; a cluster bomb that embarrassed the Government and left it desperately searching for a miracle solution.”
How can we trust this government with a carbon price if they can’t implement refugee policy? asks Dennis Shanahan in The Australian:
“For those brave few left with faith in the Labor government, no matter their position on asylum-seekers, the simple inability to deliver or carry out policies of any kind must test their endurance when Gillard’s plan for recovery depends on the biggest economic change since federation.”
Bowen’s failed Malaysia plan will haunt him, says Mark Kenny in The Advertiser: “And like Philip Ruddock, Amanda Vanstone, and Kevin Andrews, Chris Bowen is now finding that it will tar him for his political life.”
Malaysia has been left humiliated by the High Court decision, says Greg Sheridan in The Australian: “In the plainest terms, this is an insult to Malaysia and, although Kuala Lumpur at every point has got the better of this deal, it must be ruing the day it ever agreed to help the Australian government.”
Everything the Gillard Government touches turns to a very smelly brown substance, accumulating in an ever-growing, steaming pile on the parliamentary table. For the sake of the country, if the PM had any honour left, she would call an election today. Let the nation turn a new page. Let’s flush the toilet — the bowl is full.
The High Court has given the Government and the Opposition an opportunity to put an end to the political exploitation of refugees.
The Nauru solution is no better than the Malaysia solution, and neither is a solution at all.
Australia receives a tiny proportion of people fleeing wars, famine, abuse and exploitation in their homelands. Most countries deal with the problem ina far more compassionate way than Australia.
We used to be far more compassionate: under Fraser the Coalition helped refugees without creating a climate of fear. Regretably that cahnged during the Howard years.
We now have a responsibility to restore our reputation as a compassionate country. Abandon overseas processing, and stop mandatory detention.
Time for a a private members bill from the only one in Parliament with a clue on stopping the boats… Scott Morrison.
Scott Morrison needs to put his private members bill to a vote on reopening Manus Island and Nauru and reintroducing TPV’s. It’s time we see where Labor stands on the issue after their endless bungles and stuff-ups.
Predictably all the media pundits are viewing the High Court decision through the prism of ‘politics of sport’ and not taking pause to consider for even one minute how the matter of continuing boat arrivals should be handled. It’s always been difficult to have any reasonable public discussion of options because the Opposition and the former Howard Government have been so successful in demonising boat-arriving asylum seekers and Labor, from Beazley onwards, have never had the courage to stand up to them and follow a humane rather than a punitive policy (although Rudd’s initial policy until he was panicked by Abbott wasn’t too bad).
It seems to me that there are only really two long-term options for handling asylum seekers who arrive by boat:
1. Accept that they will continue to arrive by boat and treat them pretty much like those who arrive by air, ie let them live in the community until their claims are finalised. The difference would be that they should probably be detained initially for health, ID and some level of security checking.
The current approach of detaining everyone until their claims are finalised is expensive, bad for the mental health of detainees and does not have any of the deterrent effect it is supposed to have.
Nauru and TPVs are no alternative, despite Scott Morrison’s constant destructive and ill-informed rabbiting on about them.
The Nauru solution may be ruled out by the High Court decision (so for those saying the Labor is incompetent for trying for Malaysia should give pause for thought that this ruling may have made against the Nauru solution in the Howard era if a challenge had been mounted along these lines). Nauru was never a deterrent to boat arrivals and it had the same role in the scheme of things that Christmas Island does now. Whether it is a signatory to the UN Convention is irrelevant as the Government of Nauru had no role, and would not have a role under a Coalition Government in processing asylum seekers. It was/would be purely an Australian Government operation, possible with the fig-leaf of IOM (International Office of Migration) administration. Nauru was never a deterrent to boat arrivals and the vast majority ended up in Australia anyway.
TPVs are not a deterrent and they are inhumane. Because they only grant a 3-year stay with no certainty of being extended, they do not allow holders of the visa to get on with their lives. The Howard Government TPV also denied holders access to English classes but expected them to go and get a job and ‘pull their weight’. They were punitive, bad for mental health but in the end no deterrent.
TPVs also do not allow family reunion and in that regard they actually lead to greater numbers coming by boat. It is common practice for one male member of a family, a person who is considered able to travel relatively safely on their own (this includes those coming as minors) to come to Australia, obtain refugee status and then sponsor their family who follow them out by air with humanitarian visas issued offshore.
When families are denied the option of safe family reunion, then they hop on boats as well. With the previous ‘Nauru solution’, there was the farcical and disgraceful situation that the families of men already living in Australia on refugee visas had to apply for refugee visas in their own right because the Government was not prepared to acknowledge that they were coming to join a family member who already had the right to live in Australia.
Coming to Australia by boat will continue people smuggler activity. But if it is accepted that people will continue to come that way, then the Government needs to consider whether it is a good idea to continue to prosecute the hapless Indonesian fishermen who earn some much-needed income providing the ferry service.
2. The other solution is to attempt to process refugee applications before asylum seekers get on boats. The logical place to do this is Malaysia. Malaysia is the point of entry in Southeast Asia for travel to Australia. Those seeking to coming to Australia can get into Malaysia quite easily. Anecdotally (because I don’t know for sure the extent of this) many asylum seekers spend quite a long time in Malaysia and I am aware that at least some of them work, possibly illegally.
I assume that the Government’s decision to return those who arrived by boat to Malaysia was an attempt to stop future boats arriving by sending the boat arrivals back whence they came and then increasing the number of refugees it takes from Malaysia.
It has been pointed out that there are refugees in Malaysia who have been waiting many years for a country to offer them resettlement and that is the nub of the issue really, the sheer numbers, the millions, of refugees and asylum seekers waiting in other countries hoping that a wealthy country will offer them a place to live.
I assume that the rationale of the Malaysia policy was that the Australian Government would work with the UNHCR in Malaysia to identify those in most in need of resettlement rather than those who, to use a Howard Government term that I don’t like, ‘self-selected’ and got on a boat.
Possibly there is a place for a combination of both solutions, as John Menadue has argued elsewhere: deal with those who arrive by boat in a humane rather than punitive fashion, but work with countries in the region to work out ways of trying to stem the numbers, through more offshore processing.
Now the Gov has a major problem, and that is what to do with the refugees.
The Gov has been told by the electorate to stop the boats, but this decision has just opened the doors. If Christmas Island becomes overloaded again all the Gov can do is bring them to the mainland, but where do they put them?.
At the moment the Gov has put the overload in wire enclosed motels, or remote camps etc. and those released into the community are dumped in either remote country towns, or far flung outer suburbs of the cities where there is minimal support or public transport.
What also happens to those siting in camps in Asia waiting to come to Australia?
The Gov has already stated that those waiting in camps have to be put down the list as their places are being taken by boat people.
It all goes to show, that if you have money (to purchase a seat on a boat) you can jump the queue.