The government’s much-hyped Malaysian Solution is in turmoil after the High Court upheld a legal challenge on behalf of asylum seekers. The challenge, led by QC David Manne on behalf of 42 recently arrived asylum seekers (including six unaccompanied minors), focuses on human rights surrounding the policy and questions what protection Malaysia will offer to asylum seekers sent by Australia. Justice Kenneth Hayne ordered a hearing with the full High Court bench on August 22.

Sixteen of the men were due to fly out to Malaysia yesterday, the first of the government’s new refugee swap deal with Malaysia, which will see 800 “boat people” swapped with 4000 refugees from Malaysia.

Immigration Minister Chris Bowen is unhappy with the delay. He will attempt to get the case heard sooner than the fortnight the court decided, reckons Phillip Hudson in the Herald Sun. “He can’t afford to send another message to people smugglers that he has yet again been foiled in his quest against them,” writes Hudson.

A decision may not be made until September, notes David Marr in The Sydney Morning Herald:

“The timetable from here is uncertain. The best the government can hope for is a decision clearing the operation in a fortnight’s time. But it could be well into September before the judges all make up their minds and, at this point, what they will decide is absolutely unknown.”

As Andrew Probyn and Andrew Tillett  report in The West Australian: “Since the Malaysian Solution was signed two weeks ago, two boats carrying 104 asylum seekers have been intercepted. At that rate it would take just four months to reach 800 asylum seekers, which under the $292 million deal with Malaysia would be swapped for 4000 genuine refugees.”

But the government remains determined its controversial policy will go ahead. Bowen declared yesterday: “To all watching, whether they be a people smuggler, whether they be an asylum seeker or an Australian citizen interested, the Australian government’s commitment to implementing this arrangement remains rock solid.”

The Malasyian deal boat is rocking, but it’s not sinking yet, writes Michelle Grattan in The Age:

“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.”

Laura Tingle in the Australian Financial Review agrees:

“None of this of itself proves the Malaysia deal ineffective in the longer term if the court eventually rules in the government’s favour. But it is certainly going to look that way until an outcome is known, and for a government with such a poor reputation with voters for getting policy right, it certainly won’t help.”

There’s not much difference between the two parties when it comes to asylum policy, says Susan Metcalfe in The Age, noting it’s just a sad race to the bottom:

“Both major parties treat the public as a prize to be won by whichever best manipulates public perception. Both have positions riddled with contradictions and untruths. Realpolitik is now the only game in town, and ethical or ideological considerations are simply a nuisance, especially when trying to deport little kiddies to Malaysia.”

Manne, the QC behind the High Court challenge, receives a lot of his funding from the government, notes Cameron Stewart in The Australian:

“It must seem ironic to the Gillard government that the man who is proving its biggest obstacle on asylum-seeker policy, Melbourne lawyer David Manne, leads a legal centre funded mostly by the Gillard government.”

The government was silly to doubt Manne’s capability, writes Chris Merritt in The Australian:

“The truly startling aspect about the legal action in the High Court is that the government appears to have been taken by surprise. To have the government’s argument denounced by the court as ‘half-baked’ indicates that someone inside the government forgot about the redoubtable, and very well resourced, David Manne.”

One expects the government’s won’t be as ‘half-baked’ in preparation for the challenge come August 22.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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