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Ill-fated futures?

30 Sep 2011
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Much uncertainty obscures the future of offshore processing in Australia, following the recent High Court ruling on the unlawfulness of the Malaysia Solution in Plaintiff M70/2011 v Minister for Immigration and Citizenship, and the tumultuous political response which has ensued.

First of all, it is useful to clarify the basis for the High Court’s 6:1 decision, which turned on the interpretation of section 198A(3) of the Migration Act 1958 (Cth). That legislative provision was held to constitute the sole source of power for the Minister to transfer asylum seekers from Australia to another country for determination of their refugee status. Under that section, the Minister is to ‘declare’ that the recipient country provides access for asylum seekers to effective procedures for refugee status determination, and furthermore, that it provides protection for asylum seekers and refugees.

In a categorical rejection of the Commonwealth Government’s submission that the validity of such a declaration depended ‘on the existence of the Minister’s declaration itself, not the truth of the content of that declaration’, the majority of the court held that the criteria in section 198A(3) needed to be satisfied as a matter of objective fact to the satisfaction of the court. As the joint majority judgment emphasised, the legislation confers a power to ‘declare that a specified country has the relevant characteristics’, not to declare that the Minister ‘thinks or believes or is satisfied that the country has those characteristics’.

In interpreting this section, the joint judgment recognised that it amounted to ‘a reflex of Australia’s obligations’ under the Refugee Convention and Protocol. Significantly, states that are a party to these international instruments are not only bound by the fundamental obligation of non-refoulement (which protects refugees from being returned to places where their lives or freedom would be threatened), but also by the requirement to provide refugees with important additional protections, including rights to freedom of religion, access to the courts, employment and education, and moreover, access to these rights without discrimination as to race, religion or country of origin. The court recognised that such rights could only be meaningfully guaranteed to refugees if a legal framework was in place to provide for those rights.

This conclusion was fatal to the validity of the Minister’s declaration under section 198A(3) in respect of Malaysia – a country which is not bound by international law to provide these rights (not being a party to the Refugee Convention or Protocol), which does not recognise refugee status (let alone afford rights to refugees) in its domestic legislation, and which was not legally bound to adhere to its arrangement governing the refugee swap with Australia.

Unsurprisingly, the aftermath of the High Court decision has seen a clamour from the federal opposition that the Gillard government should resume processing of asylum seekers on Nauru, which recently acceded to the Refugee Convention and Protocol. Yet, the government rejects that a valid declaration may be made in respect of that country. What is the basis of this claim?

Essentially, while a legal obligation to provide the procedures and protections referred to in section 198A(3) is necessary, it is unlikely to be sufficient, to ground a valid declaration under that provision of the Migration Act without further evidence that those procedures and protections are actually accorded to asylum seekers and refugees. Although a finding on this issue was left open by the joint judgment in Plaintiff M70, French CJ took an affirmative position on this question, and it is likely – as the Solicitor-General recognised in his advice to the Government – that this position would be adopted by the High Court if the issue arose for determination.

The Solicitor-General has therefore concluded in his advice that what is likely to be necessary for a valid declaration in relation to Nauru is proof that Nauru has arrangements in place to ensure practical compliance with its obligations under the Refugee Convention and that its treatment of asylum seekers and refugees complies in practice with human rights standards acceptable to at least the United Nations High Commissioner for Refugees. Such evidence is at the present time wholly lacking in relation to Nauru.

So the High Court decision places in real doubt the offshore processing plans of both major political parties.

However, rather than to recognise the soundness of the High Court’s judgment on the importance of securing protection for asylum seekers and refugees, the Gillard Government is now attempting to circumvent the decision by amending the Migration Act: a proposed new section 198AB that gives the Minister the power to designate a country as an ‘offshore processing country’, where the only condition on the exercise of that power is that ‘the Minister thinks it is in the public interest to designate the country to be an offshore processing country’. Section 198AA would state that ‘it is a matter for the Minister to decide which countries should be designated as offshore processing countries’ and ‘the designation of a country … need not be determined by reference to the international obligations or domestic law of that country’.

In a move of political brinkmanship, the Coalition has indicated that despite its support for offshore processing, it will not vote for the Bill without a requirement that the ‘offshore processing country’ be a party to the Refugee Convention. (Of course, this gives Nauru, but not Malaysia, the tick of approval.)

Yet, the whole idea of a Bill which evades judicial recognition of the entitlements of asylum seekers and refugees is an ill-fated move. Australia, as a party to the Refugee Convention and Protocol, has undertaken to respect the rights recognised in these instruments – rights which vitally respond to the protection needs of individuals who, fleeing from persecution in their country of origin, are in need of assistance from the international community. It is well-established at international law that Australia cannot ‘contract out’ of these obligations to asylum seekers and refugees merely by transferring them to another country. If such a transfer takes place, and the recipient country is not bound to provide those individuals with protection, and indeed, does not provide them with effective protection – as is envisaged by the Bill – Australia will be in serious breach of its international obligations.

It is most disconcerting that neither Julia Gillard nor Tony Abbott are troubled by this. As the political stalemate on offshore processing deepens, the fragile future of those individuals seeking asylum in Australia hangs in the balance.

This contribution to APO's High Court Watch series is by Fiona Chong, Social Justice Intern, Gilbert + Tobin Centre of Public Law, UNSW.

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2011
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