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August 31, 2011

Malaysia solution sunk: What the High Court decision means

by refugeeactioncoalitionsydney

Below is an assessment by RAC of what the decision in the High Court over the Malaysia solution means. We will discuss the ramifications at RAC’s next organising meeting this Monday night, to which all are welcome: 6pm Monday Sept 5 at the NSW Teachers federation building 23-33 Mary st, Surry Hills, walking distance from Central station.

Yesterday’s High Court decision has found that the Malaysia Agreement is unlawful. Politically, it is a significant blow to the Gillard government that has invested so much in selling this Agreement as its answer to the Liberals carping on about Nauru.

However, there is no sign – as yet – that the government is now about to take refugee policy in a humanitarian direction (see some of Bowen’s comments below).

The refugee movement can take some sustenance from the decision. The refugee movement fought Howard to a standstill. We now have to do the same thing with the Gillard government.

The High Court decision is a significant obstacle to the government finding a offshore country that will satisfy the High Courts criteria for a “safe third country” to process asylum seekers.

This doesn’t mean that the government won’t try – hence Bowen’s statement that he won’t even rule out considering opening Nauru.

We will have to wait to see what the government’s actually does in response.

The Gillard government has suffered a setback. However, regardless what happens with offshore processing, the government’s offshore processing on Christmas Island and its mandatory detention regime remains intact. There are now over 6000 people in detention. The “factories of mental illness” are relentlessly taking their toll.

We said in the press release: “There is growing revolt against mandatory detention. There are cracks in the immigration bureaucracy. Detention health workers are beginning to speak out against the abuse they witness day after day. Recent polls indicate that community opinion is shifting.”

If the Gillard government can’t find the political courage to change direction, we will need to keep pushing.

What has the High Court decided?

(i)                  That High Court ruled that the “declaration” (required by the Migration Act) by Bowen that Malaysia was a “safe, third country” is invalid. The High Court says specifically that : “The country must be legally bound by international or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their refugee status; 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.”

The country must also “meet certain human rights standards in providing that protection.”

(ii)                The court also decided that an unaccompanied asylum seeker 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.

This means that Minister cannot simply expel all unaccompanied minors but would have to make a specific decision on ANY removal.

What does this mean for Manus Island?

The High Court decision does not preclude the government using Manus Island.  PNG is a signatory to the Refugee Convention (with reservations), but that alone may not be enough to satisfy the criteria established by the High Court.

The problem for the government at the moment is that Manus Island will not be ready to accommodate anyone for weeks at least. So the Australian government may not be able to make any “declaration” under the Migration Act that PNG is a “safe third country.” If the government tries to hold people on Christmas Island on the basis that it may declare Manus Island in the future – it will be open to another challenge that this is a form of arbitrary detention.

Can they get around it?

The government cannot appeal the decision.

The government can try to change the law – but this is unlikely. The Greens will not support any change and it is doubtful that the Liberals would support the government watering down the Act in the present circumstances.

More likely it will seek to make another declaration about Manus Island sometime in the future.

Interestingly, the High Court decision says in passing that the Howard government’s use of Nauru was probably unlawful and a serious doubt hangs over any future attempt (by a Labor or Liberal government) to re-open Nauru.

What is the govt response?

The government has not yet indicated a formal response to the High Court.

The High Court decision prevents the 335 (including 57 unaccompanied minors) being sent to Malaysia, but the government has not said that it will now process these people in Australia.

Some idea of the government’s response can be gleaned from the extracts from Bowen’s reported statements:

(a) “We are not going to be requesting Malaysia to change its domestic laws.”

(b) “I’m proud of the policy [Malaysia Agreement], the policy is a good one,” he said.

“I respect the High Court’s decision but it doesn’t mean I walk away from the fundamental points of the policy, which is one the government can continue to be proud of.”

(c) “He [Bowen] said Australia would still take an extra 4000 asylum-seekers from Malaysia, as agreed under the deal, but signalled the government might lower its overall refugee intake.”

(d) Nauru ? “Asked whether the government would now consider Nauru for offshore processing of asylum seekers, Mr Bowen said he would not rule anything in or out.”

(e) TPV’s ?? – from ABC Online: Immigration Minister Chris Bowen has not ruled out reviving the Nauru detention centre and temporary protection visas after the High Court scuttled his Malaysian refugee swap deal.

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