Humane decision as Malaysian plan springs a leak

David Marr
The Sydney Morning Herald
September 1, 2011
Opinion

‘A devastating blow for the government’
It’s about fairness. For a long time the High Court has ticked off on the remarkable difficulties Australia puts in the way of asylum seekers who come here by boat. Even mandatory detention for life has been given the nod by the court. But lately the judges have ruled boat people must at least be dealt with fairly while they are caught up in the system.

Yesterday’s emphatic six to one decision extended that principle to those men, women and children Australia had wanted to send away to Malaysia. The court could find no guarantee they would be dealt with fairly once they arrived there. So the minister Chris Bowen’s choice of Malaysia as a safe haven was declared invalid.

It was not enough, said the Chief Justice Robert French, for the minister to have a “hope or belief or expectation” that the asylum seekers would be dealt with properly by Malaysia. They needed laws to protect them now and in the years ahead. “It is an agreed fact,” French observed, “that Malaysia does not recognise the status of refugees in domestic law”.


The court was not plucking these human rights obligations out of the air. When the ”Pacific solution” was hurriedly set up in 2001, strict criteria were laid down in the Migration Act to identify the kinds of countries we might export asylum seekers to. These safe havens had to allow refugee assessment and meet “relevant human rights standards” in protecting asylum seekers before and after that assessment process.

Bowen brought to the court the arrangement he signed with Malaysia, the Malaysia order exempting the 800 we planned to send there from the harsh provisions of local laws – fines, whippings and imprisonment – and his own sense that “the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers”.

Six of the judges declared this was not enough. Justices William Gummow, Ken Hayne, Susan Crennan and Virginia Bell said in their joint judgment that access to the protections demanded by law must be provided by Malaysia “as a matter of legal obligation”.

Bowen brought to court Department of Foreign Affairs and Trade advice on the harsh reality in Malaysia for the 100,000 or so asylum seekers – mainly Burmese – already living there. The minister claimed the advice backed his declaration of Malaysia as a safe haven. But six of the judges declared, on the contrary, that the advice demonstrated Malaysia could not meet the requirements of Australian law.

Justice Dyson Heydon was the government’s only friend in court. All Malaysia had to provide, he said, was “practical access, practical protections, and a meeting of standards in practice”. He cautioned that Australia’s dealings with Malaysia “are within the province of the Executive. Intrusion by the courts into those dealings may be very damaging to international comity and good relations”.

Perhaps the best ammunition the plaintiffs had were the reiterated claims by governments through the years that every tough action taken against boat people was an expression – not a repudiation – of Australia’s obligations under the refugee conventions. The court took the politicians at their word and reached yesterday’s humane conclusion.

Nauru and Manus may survive under their ruling – with strict legal safeguards in place – but if Canberra wants to try once again to set up machinery as vindictive as the Malaysian plan, it’s going to have to come clean and admit, for the first time, that we are backing away from our international obligations. Admit that fact and almost any law is possible.

Or Canberra will now abandon these schemes to send our problems away and do what other countries do and the recent Nielsen poll showed most Australians want: simply assess these people here.