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What the Malaysian refugee High Court decision says

By Katy Barnett - posted Friday, 2 September 2011

All of Australia is buzzing with the news that the High Court has overturned the Gillard Government's "Malaysian Solution". Julia Gillard has criticised the decision and Chief Justice French, saying, among other things:

The High Court's decision, basically, turns on its head the understanding of the law in this country prior to yesterday's decision. ... A missed opportunity to send a message to asylum seekers not to risk their lives at sea and get into boats. And we tragically saw at Christmas Island around Christmas time what that can lead to, with the loss of life of men and women and children.

In this post, I shall first consider the judgment in detail. I will then give a brief analysis of the criticisms of both the government and the Court, and canvass some possibilities of what may happen now.


1. The judgment:

The decision was not based on Constitutional law principles, but on administrative law (which governs how the excutive can make decisions and what their powers are under statute), as well as principles of statutory interpretation. A majority of the High Court found that the Minister had fallen into jurisdictional error, and he did not have the power to make the declaration that asylum seekers could be sent to Malaysia. Heydon J dissented.

(a) Declaration that persons could be removed to Malaysia pursuant to s 198A

In order to for the government to be empowered to remove an "offshore entry person" to another jurisdiction pursuant to s 198(1) of the Migration Act 1958 (Cth) ('the Act'), the Minister had to make a declaration pursuant to s 198A(3) of the Act that the country to which the detainees were being removed satisfied certain criteria. Section 198A(3)(a)(i) – (iv) outlines the following criteria:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; …

As Kiefel J said in her judgment at [240], this section 'has the effect of shifting some of the responsibilities undertaken by Australia under the Convention to another country. Its evident concern is that Australia's obligations under the Convention are not breached in that process. Its terms contemplate that a country specified in the declaration will provide some of that which Australia would have provided had the asylum-seeker remained in its territory.' Thus, the purpose is to ensure that, even if "offshore entry persons" are removed to another country, Australia still complies with its obligations under the Convention Relating to the Status of Refugees (the Refugee Convention) to which Australia is a party by ensuring that these people are treated in accordance with the Refugee Convention. It was in that context that s 198A of the Migration Act was interpreted, as the Migration Act generally incorporates certain aspects of the Refugee Convention into Australia domestic law.


Basically, the plaintiffs had two submissions with regard to s 198A(3):

  • That the requirements of s 198A(3) were "jurisdictional facts". This required the Minister to determine that certain facts existed as a precondition to the exercise of his discretion under the section. If the facts were not established, then the Minister had no jurisdiction to make the determination which he did;
  • That even if the requirements of s 198A(3) were not jurisdictional facts, in exercising his discretion the Minister asked the wrong questions (among other things, he only satisfied himself in relation to the treatment of the 800 asylum seekers, not in relation to the treatment of all asylum seekers; he did not focus on the present treatment of asylum seekers and refugees in Malaysia, only on the potential future treatment; and he did not turn his mind to the lack of legal protections for such persons under Malaysian law)

The plurality (Gummow, Hayne, Crennan and Bell JJ) accepted the submission that the requirements of s 189(3) were "jurisdictional facts" which had to be present on the facts before the Minister could declare Malaysia to be a country to which officials could remove "offshore entry persons". They said at [106] – [107]:

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Acknowledgments: I do not usually dabble in Administrative Law and thus I am very grateful to these two posts by Ken Parish at Club Troppo and a very informative and clear presentation which I recently attended on this topic given by Kris Walker, one of the counsel for the plaintiffs, as well as a useful chat with my expert colleague Michelle Foster. Any errors in this post are entirely my own! Additionally, the views expressed in this piece are entirely my own, and should not be taken to reflect the views of my colleagues or employer.

This article has been cross-posted at Skeptic Lawyer

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About the Author

Dr Katy Barnett is a lawyer, blogger and lecturer at the University of Melbourne. She lives in Melbourne, Australia and blogs at Skepticlawyer.

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