The Full Bench of the High Court has ruled 5-2 in favour of the asylum seekers slated for Malaysia as part of Gillard’s deal.
The injunction prohibiting their removal from Australia is now permanent.
The High Court, expediting their decision, ruled that asylum seekers cannot be processed offshore unless the Minister for Immigration can demonstrate that human rights will be protected in accordance with section 198A of the Immigration Act. The Minister cannot simply declare a country has adequate human rights protections – he must demonstrate it.
By implication, this could rule out any country which is not a signatory to UN Conventions on Refugees – including Nauru and Manus Island. The Court did not specifically rule on this, however.
Unaccompanied minors cannot be sent offshore for processing unless an additional written consent is issued by the Minister.
No appeal is possible to this decision.
The Malaysia ‘one for five’ deal is, at this point, dead in the water.
It’s a huge win for opponents of offshore detention, and a massive blow to the government. At every turn, it has been thwarted in efforts to ship the asylum seeker’ problem’ out of sight and (presumably) out of mind. Right now, the government is in a bind – but they have a couple of options open to them.
They can attempt to amend the Migration Act in order to water down s. 198A – effectively removing clause 3(iv), which currently requires that any proposed offshore destination ‘meets relevant human rights standards in providing that protection‘. (my emphasis)
In the current political climate, this would be an uphill battle at best. The Greens will vehemently oppose any attempt to remove human rights from the legislation, and it’s a fair bet that Independents Andrew Wilkie and Rob Oakeshott would do likewise. The government’s only hope, then, would be to enlist the Coalition’s support.
It’s a possibility. This ruling hurts the Coalition as much as it does the government, since the Opposition’s own asylum seeker policy hinges entirely on re-opening the Nauru detention centre built with Australian money under the Howard administration. It might well serve their interests to throw in with the government – although it would significantly weaken them, given their frequent declarations that no good policy or legislation has ever come out of the Gillard government. With enough spin, they might succeed in convincing the public that they’ve had to step in to ‘rescue’ bad policy, but it would be a very risky move.
The government’s other option is to return to the policies espoused under the Rudd government, processing asylum seekers either onshore or on Christmas Island. The Opposition consistently attacked these ideas, blaming them for a surge in boat arrivals. The night before he was forced to resign, Prime Minister Kevin Rudd cautioned against any ‘surge to the Right’ in this area. Julia Gillard’s actions since assuming the officer of Prime Minister, however, have taken Labor closer and closer to the Coalition’s hardline stance.
There is an opportunity now for the Gillard government to abandon the offshore system altogether, using the High Court ruling as a shelter against criticisms of ‘backflip’. Minister Chris Bowen could claim that his hand was forced by the judiciary. That, however, assumes that the government does not, in fact, wholeheartedly support offshore detention and similar harsh measures.
We’ve yet to hear from the government, and have no idea when it will make an announcement. At this point, it’s all speculation as to what they might do next. If you have a recommendation for them, I urge you to email your local MP, Minister Bowen and/or Prime Minister Gillard. You can be sure that certain groups on both sides of the issue are already doing so. Don’t let them give the government the impression they speak for you.
In the meantime, this is a decision worthy of celebration. The dreadful plan to send asylum seekers to a country where they would be completely unprotected by even lip service to human rights conventions is absolutely blocked. For now, at least, Australia has regained a little compassion.
It’s shameful that we needed the Full Bench of the High Court to force us to do that.