‘Malaysian Solution’ and the rule of law
Maria O'Sullivan
By Maria O’Sullivan
The High Court's recent landmark decision on the validity of the ‘Malaysian Solution’ demonstrates the importance of judicial review in a democratic society. It essentially places the entire Malaysian solution into doubt because the High Court (by a 6/1 majority) invalidated the declaration made by the Minister for Immigration that Malaysia provides sufficient protection for transferred asylum seekers. It prevents the Government conducting transfers under the agreement with Malaysia and as such, has significant repercussions for the future direction of Australia’s refugee policy.
Fundamentally, the decision illustrates the importance of one of the most fundamental principles in democratic societies – the Rule of Law. This principle provides that decisions of governments should be controlled by laws. This is particularly important in relation to government ministers, who have considerable powers under statute and need to be made accountable for their actions by an independent judiciary. The High Court’s ruling is therefore not merely significant for Australia’s refugee policy but also highlights the vital role of the High Court in reviewing decisions made by the Minister for Immigration.
The challenge before the High Court was made on behalf of two asylum seekers from Afghanistan - one adult and one minor, aged 16 years old. They are currently being detained on Christmas Island and were to be subject to transfer under an Agreement signed between Australian and Malaysia on 25 July 2011.
There were two central legal issues in the case decided by the High Court.
The first was the declaration made by the Minister for Immigration, Chris Bowen, under s198A of the Migration Act that Malaysia provides asylum seekers access to ‘effective procedures’ for processing their asylum claims, ‘protection’ for persons seeking asylum and ‘meets relevant human rights standards in providing that protection’. At issue in the case was whether those protections had to be legally enforceable or merely provided in practice. Importantly, the High Court held that the Minister cannot validly make a declaration under s198A unless the country concerned is legally bound by international law or its own domestic law to provide the access and protections set out in that provision. This raised problems for the Malaysian solution because Malaysia is not a party to the 1951 Refugee Convention and other international human rights treaties. Malaysia is also not bound to grant protection to recognised refugees under its domestic law. Further, Malaysia has no legislative or administrative framework for processing refugee applications. That is instead carried out by the UN High Commissioner for Refugees.
The second legal issue related to the guardianship duties of the Minister for Immigration in relation to unaccompanied asylum seeker children. The Government had argued that the guardianship duty was subject to other powers set out in the Migration Act and was therefore ‘trumped’ by the declaration of safety made under s198A of the Migration Act. In response, the High Court ruled that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Guardianship Act. The decision is therefore important in recognising the importance of the Minister’s guardianship duty in refugee matters and makes it very difficult for the Government to transfer unaccompanied minors to other countries.
Apart from the actual findings of the High Court in this case, the fact that the High Court has intervened in this very politically-sensitive area is also remarkable. As the Chief Justice of the Court, Justice French, stated at the opening of his judgement, "these proceedings involve legal issues which arise in a strongly contested area of public policy".
The politically sensitive nature of the issues raises the question as to what extent political beliefs and allegiances had a part to play in the decision. The majority was comprised of Chief Justice French, Justices Gummow, Hayne, Crennan and Bell, with a dissenting judgement by Justice Heydon. I would argue that this judgement is not one where political allegiances played a part. The majority judges are a mix of Keating, Howard and Rudd appointees. While the sole dissenter, Justice Heydon was appointed by to the bench by John Howard, three of the judges in the majority were also Howard appointees. Of more significance is the fact that Justice Heydon is regarded as ‘conservative’ rather than ‘activist’ in his approach to legal issues and tends to take a literal approach to interpretation of statutes.
Maria O’Sullivan is a Lecturer and Associate of the Castan Centre for Human Rights Law, Faculty of Law, Monash University.