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.”

Peter Fray

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