It should do the heart good to be proved right. Kevin Rudd warned against moving further to the right in dealing with boat people than he had gone as Prime Minister. His advice on departing from office was ignored. So too was the advice he proffered to Cabinet from his department when the terrible decision was made to adopt the Malaysian solution.
As yesterday’s High Court judgment made clear the Department of Foreign Affairs got it right and Immigration (and presumably Attorney Generals) got it wrong:
- … the DFAT advice that was placed before the Minister reflected what the parties to these proceedings agreed is the position. First, the Government of Malaysia is not bound to and does not itself recognise the status of refugee in its domestic law. Second, the Government of Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Third, the Government of Malaysia generally permits UNHCR to undertake those tasks within the territory of Malaysia and allows asylum seekers to remain in Malaysia while UNHCR undertakes those activities.
- The role played by UNHCR in performing these tasks was amplified in the documents emanating from that organisation that were annexed to the briefing paper that went to the Minister. Nothing turns for present purposes on the particular content of those papers or the role that UNHCR has played or would play under the Arrangement.
- The observations and judgments made in the DFAT advice demonstrated, and the facts that have been agreed for the purposes of these proceedings demonstrate, that none of the first three criteria stated in s 198A(3)(a) was or could be met in the circumstances of these matters.
- As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii). The Minister’s conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration. The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.
- The Minister’s declaration was made beyond power. It follows that s 198A(1) cannot be engaged to take either plaintiff from Australia to Malaysia. And as earlier demonstrated, s 198 does not supply any power to remove either plaintiff from Australia to Malaysia.
How long will it be before Labor MPs start saying “Come back Kevin, all is forgiven”?
One thing is for certain: he could not do worse than this current Prime Minister.