Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search


The Fall of the Malaysian Solution: The High Court Decision

The Fall of the Malaysian Solution: The High Court Decision

Binoy Kampmark
September 1, 2011

Activists, pro-refugee advocates and a few politicians were puzzled when the Federal Government decided to affect the ‘Malaysian Solution’, a refugee policy resembling the Howard Government’s Pacific Solution in all but name. Under the hastily cobbled terms of the policy, Australia would have accepted 4000 people certified as refugees from Malaysia for an exchange of 800 asylum seekers who had arrived in Malaysia.

In what was a remarkable bit of timing (the superstitious, take note), the High Court handed down a damning ruling on the policy on Merdeka Day, the occasion when Malaysia got its independence from Britain. By a 6-1 ruling, the court upheld the injunctions sought by counsel for asylum seekers preventing their transfer to Kuala Lumpur from Christmas Island. Counsel for the two asylums seekers had argued that the refugee swap could not be lawful as Malaysia was not a signatory to the UN refugee convention. The human rights protections, in short, were insufficient. Counsel also argued that Immigration Minister Chris Bowen would be in breach of his obligations as a guardian in sending unaccompanied minors to Malaysia.

Commonwealth Solicitor General Stephen Gageler argued that the government was entitled to find Malaysia to be a suitable destination despite having no obligations under international or domestic law to protect the asylum seekers. The government, in other words, had done its homework sloppily. In the words of Robert French CJ, the declaration regarding the transfer of the refugees by the Minister ‘was made without power and is invalid.’

The Court took the Minister to task for having exceeded the powers set out under the Migration Act 1958 (Cth). For a determination by the Minister that the declared country would be appropriate to process refugees under section 198A of the Act three conditions had to be met. The processing country had to, and here the summary is cited in full, ‘be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers ending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country’ (Court Summary, Aug 31). Additionally, the another condition was tagged on: basic human rights standards had to also be met in making that protection.

The Court also insisted that unaccompanied asylum seekers under the age of 18 could only be transferred to the appropriate country with written approval from the Minister of Immigration under the Immigration (Guardianship of Children) Act 1946 (Cth).

The High Court decision can be read in a few ways. It forcibly states that Australia must be, as Australian Lawyers Alliance National President Greg Barns claims, ‘cognisant of Australia’s international human rights obligations to ensure the safety of asylum seekers’ (The New Lawyer, Aug 31). But the decision also curbs the powers of an executive enthusiastic in overstepping legislative outlines and international obligations. A more rigorous determination of the recipient country would have to be made by the Minister for it to be valid.

This saga continues an obsession shared by both major sides of politics to keep a cordon sanitaire around Australia against asylum seekers. As David Marr reminds us, ‘since the first boatload of refugees turned up under their own steam in Darwin harbour in early 1976 with five Vietnamese men on board felling the Communist regime, both Labor and the Coalition have shared the one objective: stop the boats’ (Sydney Morning Herald, Aug 22). The Malaysian solution was considered so questionable that it even convinced veteran lawyer Julian Burnside QC that the re-opening of the Nauru processing centre would be a lesser evil. Labor found itself with fewer friends than ever. Former Labor stalwart Graham Richardson is happy with an unvarnished assessment: the government was made to look like a joke.

The decision means that the entire offshore processing system might have seen its last days, though stubborn members of both the government and the opposition will think otherwise. Their sentiments mirror an electorate suspicious of the law-breaking queue jumper, a constant feature of anti-immigration rhetoric. As a Lowy Institute poll found this year, 88 percent of respondents believe that boat arrivals are mere queue jumpers, while 86 percent believe they ‘pose a potential security threat to Australia’ (Sydney Morning Herald, Aug 22).

Nauru may well remain on the cards, provided the High Court’s criteria are satisfied. Opposition leader Tony Abbott will have reason to gloat as he awaits in the wings: with each day he sees the struggling Labor government move towards the very similar waters.


Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

© Scoop Media

Top Scoops Headlines


Keith Rankin: Narrow Vision: Subsidised Cars And Street Immunity
Problems make the world go round. Many of us – maybe the majority of workers, and certainly the majority of well-paid workers – earn our living addressing problems. A problem-free world would represent a major crisis for modern social-capitalism. (Yet standard economic theory continues to present the productive economy as a mechanism for 'satisfying wants', as distinct from 'addressing problems... More>>

Biden In Tokyo: Killing Strategic Ambiguity
Could it have been just another case of bumbling poor judgment, the mind softened as the mouth opened? A question was put to US President Joe Biden, visiting Tokyo and standing beside Japan’s Prime Minister Fumio Kishida: “You didn’t want to get involved in the Ukraine conflict militarily for obvious reasons. Are you willing to get involved militarily to defend Taiwan if it comes to that?” The answer: “Yes. That’s a commitment we made.”.. More>>

Dunne Speaks: Robertson's Budget Gamble On Treasury
The popular test of the success or failure of Grant Robertson’s fifth Budget will be its impact on the soaring cost of living. In today’s climate little else matters. Because governments come and governments go – about every six to seven years on average since 1945 – getting too focused on their long-term fiscal aspirations is often pointless... More>>

Digitl: Infrastructure Commission wants digital strategy
Earlier this month Te Waihanga, New Zealand’s infrastructure commission, tabled its first Infrastructure Strategy: Rautaki Hanganga o Aotearoa. Te Waihanga describes its document as a road map for a thriving New Zealand... More>>

Binoy Kampmark: Leaking For Roe V Wade
The US Supreme Court Chief Justice was furious. For the first time in history, the raw judicial process of one of the most powerful, and opaque arms of government, had been exposed via media – at least in preliminary form. It resembled, in no negligible way, the publication by WikiLeaks of various drafts of the Trans-Pacific Partnership... More>>

The Conversation: Cheaper food comes with other costs – why cutting GST isn't the answer

As New Zealand considers the removal of the goods and services tax (GST) from food to reduce costs for low income households, advocates need to consider the impact cheap food has on the environment and whether there are better options to help struggling families... More>>