To follow is the three page memo sent to staff by the secretary of the Department of Immigration, Andrew Metcalfe, the day after the High Court decision:

Colleagues

Yesterday’s High Court decision (M70/2011 and M106/2011) has significant implications for aspects of government policy and the department’s work. I am sure that many of you have seen the extensive media reporting about the judgment. I thought that I should write to you to discuss the judgment and what is happening as a result.

The High Court’s decision involved analysis of a number of sections of the Migration Act 1958 and the Immigration Guardianship of Children Act 1946 and of course related primarily to the government’s announced policy to transfer irregular maritime arrivals (IMAs) to Malaysia.

The policy framework

The Malaysia Arrangement was the first example of an arrangement made under the Regional Cooperation Framework agreed to by the Bali Process Ministerial meeting in March this year. It was intended to remove the ability of people smugglers to market and sell Australia as a destination for people travelling without visas – the vast majority of whom seek asylum when they arrive here. The policy was framed with a mind to lessons of the past and in the context of:

  • Australia’s universal visa requirements and our very successful migration, humanitarian and visa programs
  • our obligations under the Refugee Convention and a number of other international treaties
  • the large numbers of IMAs in recent years
  • the government’s determination to stop people attempting perilous voyages which can result in tragedy (such as SIEV X which sank in October 2001 with the loss of over 350 lives; SIEV 36 which exploded near Ashmore Reef in April 2009 and resulted in the loss of 5 lives and with many other people badly injured; and SIEV 221 which sank off Christmas Island last December with the loss of many lives)
  • the dramatic effect of past policies involving the very quick removal of people from Australia such as occurred in 1994 with the ethnic Chinese/Vietnamese groups; in the mid 1990s with a number of groups of Chinese nationals; and in late 2001 with the tow back of several boat loads of people to waters adjacent to Indonesia – in other words, to the place from which they had departed
  • it is indisputable that these actions sent a clear message to people smugglers that they could not guarantee what they are selling ‑ arrival and processing of claims in Australia
  • several other past policy and operational approaches, which have had mixed success over time
  • the preparedness of people smugglers to actively seek to counter Australia’s actions
  • our excellent working relationship on these issues with our regional partners
  • it being understood that Australia could give effect to its obligations under the Refugee Convention by virtue of arrangements made with other countries declared by the Minister to offer protection and access to asylum procedures
  • an arrangement with Malaysia that provided such protection and processing for persons transferred from Australia
  • our being advised that our legal case was sound, and
  • an expansion of our offshore refugee and humanitarian program.

The proposed arrangements with Malaysia and Papua New Guinea, as well as the establishment of the Regional Cooperation Framework, have involved countless hours of work undertaken by the Minister, his advisers, and many officers from our department and other departments.

We have seen these arrangements as a positive, creative way of addressing some of the most complex policy, human and legal issues our country faces. We have been focusing on all aspects of these issues – global and regional policy, international humanitarian law, Australian law, operational logistics, and our responsibility for people we detain under Australian law and whose immigration status we decide. As I often say, we have to operate in the real world, a world that is often complex.
I said in my recent statement to a Parliamentary Committee:

“The driving factors of people movement are often positive – such as through economic and skill relocation factors, or family reunion programs. Sadly though, people movement is also driven by other factors such as war, conflict, and crisis. There are tens of millions of such displaced people globally. It is these often vulnerable people who sometimes are preyed upon by people smugglers and traffickers. But many people who travel in an irregular way to Australia are very determined. They have, or acquire, the thousands of dollars charged by people smugglers. They want to live in a developed country. They want a better life for themselves and for their children. Some of the travellers themselves are unaccompanied children. They are prepared to, or are forced to, take risks such as relying on shady middlemen and travelling on false documents and sometimes in dangerous vessels. Tragedies sometimes result.”

The Minister stated in his media comments yesterday:

“I’m proud of the policy. I’m proud of the fact that we were able to achieve a regional agreement which many people said we wouldn’t be able to do. I’m proud of the fact that this government is determined to break the people smugglers’ business model. I’m proud of the fact that those 4000 people in Malaysia, who would never have the money or the inclination to risk their life on a boat, will no longer need to do so. I’m proud of that. I think it’s an elegant policy, which achieved those objectives.”

The High Court decision

I will leave it to lawyers and others to comment in detail on yesterday’s decision. Suffice to say the Court (with the exception of Justice Heydon) has taken a view of the relevant provisions that was not anticipated in earlier judgments by courts in this area.

The statement released by the Court explaining the majority judgment indicated, among other things, that:

‘The Court held that, under s198A 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 s198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of ‘unlawful non-citizens’ given by the Migration Act (in particular s198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet’.

The minister has indicated that the government is seeking urgent legal advice from the Solicitor General on the implications of the judgment. The government will doubtless make further announcements as to its approach to this most complex issue. I will keep you informed of these developments.

The wider work of the department

I know that many people are understandably disappointed given the substantial work that has been undertaken on this issue. As I have said, this does not however, diminish the substantial work of the department each and every day by our staff globally. I am very conscious of the fact that the issue of the management of irregular maritime arrivals is one part of our very large and diverse program of services. Our department makes a very substantial contribution to Australia and to nation building. For this you should be proud and be aware that the senior executive and I are very appreciative.

Andrew Metcalfe
Secretary — 31 August 2011

Peter Fray

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