The High Court's decision in the 'Malaysian solution' case is not a radical one. It is not in the genre of the 1983 Tasmanian Dams case, the Mabo decision of 1992, or to reach further back, the Communist Party Dissolution case of 1951. Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship to give yesterday's decision its formal title, was a statement by a relatively conservative High Court that the executive must dot its I's and cross its t's, and this includes ensuring that Australia heeds its international refugee convention obligations, if it wants to cut deals with third countries.
But in a political sense the High Court's decision is a radical one. It makes it highly unlkely that without the two major political forces conspiring to amend the Migration Act in order to weaken human rights protections offshore processing cannot go ahead without it being subject to a legal challenge that is likely to succceed.
If an Australian government wants to shunt offshore asylum seekers to third countries like Nauru, Papua New Guinea or Malaysia it must deal with section 198A of the Migration Act which requires a decelarationn that the country in mind will protect asylum seekers' rights. It was the Howard government which introduced section 198A in 2001 so it could give effect to its so called Pacific solution, which meant terrifed and traumatised asylum seekers were sent to Nauru by that Faustian Immigration Minister Phillip Ruddock.
This is easier said than done according to the High Court. The joint majority judgment of Justices Bill Gummow, Ken Hayne, Sue Crennan and Virginia Bell spells out the essence of what is required by a government which wants to send asylum seekers to another country for processing. The justices wrote:
A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention.
In other words, unless the 'third country' allows asylum seekers to practice their religion, does not discriminate against them, allws them access to education and protects their fundamental human rights the use of section 198A by the Australian government will not be a valid use.
Given Australia's geographical position this effectively means the only country that could be certain to pass muster when it came to processing Australian asylum seekers would be New Zealand. And the New Zealanders would rightly tell Australia to take a flying leap if it were suggested that Wellington take over Australia's moral and legal obligations.
Nauru, which was bribed with buckets of money by the Howard government to accept asylum seekers who were processed by Australia, might not be as easy a fix as some would think.
The High Court made reference to Nauru in its decision but didn't formulate a fixed view about the previous arrangement there. However if the Gillard government were to try to cobble together a deal similar to that engineered by Mr Howard and Mr Ruddock it might still be challenged. This is because what guarantees can be given that asylum seekers on Nauru, even if they were being processed and dealt with by Australia, would have their human rights respected and not be discriminated against by the Nauruans. Is Australia going to intervene in Nauru to the extent that it would tell the Nauruans that they had to permit asylum seekers to go to school or be allowed to practice their religion?
But instead of studying the High Court's decision looking for ways to create another 'third country' solution the political leaders from the ALP and the Coalition parties should step back and say enough is enough. They should allow the onshore processing of asylum seekers and respect the fact that those who come here deserve support and respect. There will never be hundreds of thousands of leaky boats funded by people smugglers arriving on our coastline even if we as a nation gave a green signal to that trade. This is logisitcally impossible.
The High Court yesterday stood up for the rule of law and reminded politicians of their obligations to respect human rights. One lives in eternal hope that the decision in Plaintiff M70 will mark the end of the real evil – not people smuggling, but a developed world country's meanspiritedness and xenophobia.