The Fall of the Malaysian Solution: The High Court Decision

Activists, pro-refugee advocates and a few politicians were puzzled when the Federal Government decided to affect the ‘Malaysian Solution’, a refugee policy resembling the Howard Government’s Pacific Solution in all but name. Under the hastily cobbled terms of the policy, Australia would have accepted 4000 people certified as refugees from Malaysia for an exchange of 800 asylum seekers who had arrived in Malaysia.

In what was a remarkable bit of timing (the superstitious, take note), the High Court handed down a damning ruling on the policy on Merdeka Day, the occasion when Malaysia got its independence from Britain. By a 6-1 ruling, the court upheld the injunctions sought by counsel for asylum seekers preventing their transfer to Kuala Lumpur from Christmas Island. Counsel for the two asylums seekers had argued that the refugee swap could not be lawful as Malaysia was not a signatory to the UN refugee convention. The human rights protections, in short, were insufficient. Counsel also argued that Immigration Minister Chris Bowen would be in breach of his obligations as a guardian in sending unaccompanied minors to Malaysia.

Commonwealth Solicitor General Stephen Gageler argued that the government was entitled to find Malaysia to be a suitable destination despite having no obligations under international or domestic law to protect the asylum seekers. The government, in other words, had done its homework sloppily. In the words of Robert French CJ, the declaration regarding the transfer of the refugees by the Minister ‘was made without power and is invalid.’

The Court took the Minister to task for having exceeded the powers set out under the Migration Act 1958 (Cth). For a determination by the Minister that the declared country would be appropriate to process refugees under section 198A of the Act three conditions had to be met. The processing country had to, and here the summary is cited in full, ‘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 ending 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’ (Court Summary, Aug 31). Additionally, the another condition was tagged on: basic human rights standards had to also be met in making that protection.

The Court also insisted that unaccompanied asylum seekers under the age of 18 could only be transferred to the appropriate country with written approval from the Minister of Immigration under the Immigration (Guardianship of Children) Act 1946 (Cth).

The High Court decision can be read in a few ways. It forcibly states that Australia must be, as Australian Lawyers Alliance National President Greg Barns claims, ‘cognisant of Australia’s international human rights obligations to ensure the safety of asylum seekers’ (The New Lawyer, Aug 31). But the decision also curbs the powers of an executive enthusiastic in overstepping legislative outlines and international obligations. A more rigorous determination of the recipient country would have to be made by the Minister for it to be valid.

This saga continues an obsession shared by both major sides of politics to keep a cordon sanitaire around Australia against asylum seekers. As David Marr reminds us, ‘since the first boatload of refugees turned up under their own steam in Darwin harbour in early 1976 with five Vietnamese men on board felling the Communist regime, both Labor and the Coalition have shared the one objective: stop the boats’ (Sydney Morning Herald, Aug 22). The Malaysian solution was considered so questionable that it even convinced veteran lawyer Julian Burnside QC that the re-opening of the Nauru processing centre would be a lesser evil. Labor found itself with fewer friends than ever. Former Labor stalwart Graham Richardson is happy with an unvarnished assessment: the government was made to look like a joke.

The decision means that the entire offshore processing system might have seen its last days, though stubborn members of both the government and the opposition will think otherwise. Their sentiments mirror an electorate suspicious of the law-breaking queue jumper, a constant feature of anti-immigration rhetoric. As a Lowy Institute poll found this year, 88 percent of respondents believe that boat arrivals are mere queue jumpers, while 86 percent believe they ‘pose a potential security threat to Australia’ (Sydney Morning Herald, Aug 22).

Nauru may well remain on the cards, provided the High Court’s criteria are satisfied. Opposition leader Tony Abbott will have reason to gloat as he awaits in the wings: with each day he sees the struggling Labor government move towards the very similar waters.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

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