Having read most of the judgment of the Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, I have prepared a short summary which I hope does enough justice to the complexity of the High Court’s lengthy judgment.
The announcement of the Malaysian Solution was according to the government made under s198A(3) of the Migration Act, which provides that:
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; and
(b) in writing, revoke a declaration made under paragraph (a).
The legal issue was whether in the circumstances, Immigration Minister Chris Bowen was authorised by s198A(3) to make such a declaration in respect of Malaysia.
Chief Justice French, in considering what was required for a declaration under s198A(3), observed that:
The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is “keen to improve its treatment of refugees and asylum seekers”. Nor could a declaration rest upon a belief that the government of the specified country has “made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers” or that it had “begun the process of improving the protection offered to such persons”. Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.
Noting facts such as that Malaysia is not a signatory to the Refugee Convention, illegal migrants are liable of up to six strokes of caning, and that credible allegations of inadequate standards in immigration centres, Chief Justice French found that Minister Bowen has acted beyond his jurisdiction.
The fact that Bowen had filed an affidavit stating that Malaysia he had reasonable grounds to believe that Malaysia would improve its treatment of asylum seekers was held to be insufficient. French CJ found that Minister Bowen had to look at the laws in existence at the time in Malaysia rather than the “practical reality”.
As a result, Minister Bowen had committed a “jurisdictional error”, and the declaration he made was therefore invalid. The 5 of the 6 other judges of the court concurred with similar reasons.
The second issue for determination concerned the second plaintiff, a “non-citizen child” and his rights pursuant to section 6A of the Immigration (Guardianship of Children) Act 1946, which states that:
(1) A non-citizen child shall not leave Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.
(3) A person shall not aid, abet, counsel or procure a non-citizen child to leave Australia contrary to the provisions of this section.
Penalty: Two hundred dollars or imprisonment for six months.
(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.
The majority judgment of Justices Gummow, Hayne, Crennan and Bell held that since plaintiff M106 was unaccompanied by any adult and no written consent had been provided by the Minister, the plaintiff M106 could not be removed from Australia. French CJ and Kiefel J concurred. The dissenting judgment was written by Justice Heydon, who argued that each of the plaintiff’s applications should be dismissed with costs.
That’s the legal position. I’m sure commenters below will discuss the many possible political implications.
The Court’s judgment in its entirety can be found here: http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html
Just reading Heydon J’s dissenting judgment, where he advances five arguments against the majority’s interpretation of s198A(3):
“First, s 198A(3)(a) does not expressly provide that the validity of the declaration depends on proof of the four conditions as a matter of fact[137]. The Minister may “declare” the four conditions: this points to the view, contrary to a submission of the plaintiffs, that while he is to assert them as matters of fact, the process by which he makes the assertion is a task for his personal assessment, taking into account the four conditions. If the courts are satisfied that they have been taken into account, it is not for the courts to examine that assessment further.
Secondly, the statutory language does not in terms refer to legal obligations or courts of law. The references to providing access, securing protections, and meeting human rights standards, are more apt to suggest practical access, practical protections, and a meeting of standards in practice. The language centres on what does happen, and not on the domestic machinery which makes this happen; indeed that domestic machinery could change over time while still securing the same practical results…
Thirdly, a decision to make a declaration under s 198A(3)(a) is a decision which pertains to the conduct of Australia’s external affairs. It concerns dealings between Australia and friendly foreign states. Those dealings are within the province of the Executive. Intrusion by the courts into those dealings may be very damaging to international comity and good relations. The Minister is accountable to Parliament for his conduct of those dealings. He may be questioned. He may be criticised. He may be condemned by Parliamentary resolutions. He may have to resign. His conduct may lead to the passing of a motion of no confidence in the Government of which he is a part, and thence to the fall of that Government. As a practical matter he is also liable to condemnation before the court of public opinion. But, unless it can be shown that he has not formed in an evaluative judgment, after asking the correct questions, that what he declared was true, he is not accountable to courts of law. Of course there are circumstances in which Australian courts are at liberty and are obliged to make pronouncements about the acts of a foreign sovereign. But as the Federal Court of Australia has said, it takes clear language to create this liberty and this obligation to embark on the potentially dangerous course of making “judgements with public effect about whether other countries meet relevant human rights standards.” “
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