Greg Weeks: Attacking the High Court: a comment on the Malaysian Solution Case and its aftermath.

It is, fortunately, a rare occurrence for Australia’s government to be in conflict with its judiciary but there have been some fairly spectacular examples:

  •    In 1996, following the High Court’s decision in Wik Peoples v Queensland (1996) CLR 1 the Deputy Prime Minister and leader of the National Party, Tim Fischer, publicly called for the appointment of “capital-C conservatives” to the High Court bench.  The subsequent appointment of Justice Ian Callinan in 1998 was widely seen as a response to this call;
  •    In 2002, Justice Michael Kirby was viciously attacked by Senator Bill Heffernan, the Liberal Senator for New South Wales, under parliamentary privilege in the Australian Senate.  The Senator later withdrew his comments and Kirby J graciously accepted the offered apology.  This unedifying affair is recounted in Enid Campbell and Matthew Groves, “Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode” [2002] Public Law 626;
  • Perhaps most notorious is the involvement of Chief Justice Sir Garfield Barwick in the Constitutional crisis of 1975, during which he advised Governor-General Sir John Kerr that he had the power to dismiss the Whitlam Government (which Kerr then did).  The rancour which followed the dismissal was, as a consequence, directed at Barwick CJ almost as much as it was at the new Prime Minister, Malcolm Fraser.

Australia has recently seen another outbreak of barely contained fury on the part of the sitting Government against the High Court following the Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 known popularly as the Malaysian Solution Case.  This was litigation brought before the High Court to challenge the Gillard Government’s plan to “swap” 800 asylum-seekers who had arrived in Australia by boat as “unlawful non-citizens” for 4,000 people in Malaysia whose refugee status had already been confirmed.

In the hours after the High Court’s emphatic decision that the Government’s proposed “Malaysian Arrangement” is legally invalid, Immigration Minister Chris Bowen declared that the result was “profoundly disappointing” and intimated that the High Court had “applied a new test” which varied from the previous understanding of the law relating to “third country processing”.  Prime Minister Julia Gillard added to the Minister’s comments the following day, saying that the High Court’s decision “basically turns on its head the understanding of the law in this country” that had pertained previously.  She single out Chief Justice Robert French, stating that “his Honour … considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.”  Senior members of the Government repeated these criticisms.  The Attorney-General continued the unfortunate recent tradition of making no attempt to defend the Chief Justice or other members of the High Court.

However, the Government’s criticism was entirely misplaced.  While it is fair to say that few in the Australian legal community had expected the result in M70, it was by no means the work of a crusading High Court engaged in so-called “judicial activism”. The majority judgments in the Court’s 6:1 decision are strict exercises in statutory interpretation, as prominent legal commentators like Professor George Williams have noted.  In other words, the High Court held that the Minister simply did not have the power under the Migration Act to declare that Malaysia is a place that was able to provide the protections to asylum-seekers which are required by the legislation.

Section 198A(3), the relevant section of the Migration Act,reads as follows:

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).

It was telling, in the view of the majority judges, that the requirements of the Migration Act were not set out in terms of needing to be met in the Minister’s ‘opinion’ or to his ‘satisfaction’.  This is not an unusual form of words where the Australian parliament wishes to indicate that subjective satisfaction is all that is required and the Migration Act features many examples, such as those considered in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

A key part of this reasoning was that Malaysia is not a signatory to the Refugees Convention or the Refugees Protocol and has no domestic legal protections for asylum-seekers of the type required by section 198A.  The joint majority judgment of Justices William Gummow, Kenneth Hayne, Susan Crennan and Virginia Bell characterised the elements of section 198A(3)(a) as jurisdictional facts whose existence required that Malaysia be legally obliged to protect asylum-seekers with the listed protections.

French CJ did not characterise the elements of section 198A(3)(a) as jurisdictional facts, but pointed out that the Minister’s evidence to the Court indicated that he had misconstrued the Act’s requirement that these protections amount to “continuing circumstances” in Malaysia:

It is a misconstruction of the [statutory] criteria to make a declaration of their subsistence based upon an understanding that the executive government of [Malaysia] 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”.

Again, the Chief Justice’s reasoning was based on established principles of statutory interpretation.  Justice Susan Kiefel held in a separate judgment that “the facts necessary for the making of a declaration … did not exist”.

Only Justice Dyson Heydon found in favour of the Government, in a dissenting judgment less likely to be remembered for his legal analysis than for his remarkable opening salvo against the President of the Australian Human Rights Commission, former Federal Court Judge Catherine Branson, and numerous subtle references to cases that French CJ had decided as a judge of the Federal Court of Australia which were clearly meant to highlight a supposed inconsistency in his Honour’s reasoning.  In dealing with the substantive issues of the matter, Heydon J found that all that the Migration Act requires is that the Minister took into account the criteria in section 198A before making the decision to ‘declare’ that they have been met by Malaysia, and that the Minister’s personal assessment of those criteria is beyond the reach of the Court if it is satisfied that the Minister did take them into account.  This varies from the majority view that those criteria be the subject of objective legal certainty in Malaysia and, indeed, from the Government’s submission that what matters is the “practical reality” of human rights protections in Malaysia.

The irony of the Government’s situation, as Professor Mary Crock has pointed out, is that section 198A of the Migration Act was passed hurriedly by the Howard Government in the aftermath of the September 11 attacks a decade ago.  The current Government has, to a large degree, inherited a problem of the previous Government’s making.  Furthermore, section 198A’s validity was not challenged when it was used as the legal basis to send asylum-seekers to be processed on Nauru, which until recently was not a signatory to the Refugees Convention or the Refugees Protocol any more than Malaysia is now (although the joint judgment pointed out the significance of the fact that asylum-seekers on Nauru were processed by Australia, in contrast to what was proposed in the “Malaysia Arrangement”).

At least one respected political commentator has pointed out that “rambling incompetence” on issues of immigration is scarcely the sole domain of the Gillard Government, and yet one suspects that it will pay a very high political price for yesterday’s High Court loss.  Prime Minister Gillard’s leadership of her party became an immediate issue of conjecture in the press.

It is not immediately clear what options the Government has if it seeks to continue to process “irregular maritime arrivals” offshore, given the twin blows of the High Court’s decision in M70 and its previous ruling last November in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 that asylum-seekers being processed on Christmas Island are entitled to the same procedural fairness protections as if they were on the Australian mainland.

There would seem to be three possibilities for the Government to consider:

  • First, the Government could seek to amend the Migration Act to remove the impediment to the “Malaysian Arrangement” identified by the High Court, although it is unlikely that it will find the parliamentary support  it would need to do so.  Removal of the protections in section 198A also risks Australia falling outside its obligations under the Refugees Convention, and it is most unlikely that any major political party would countenance that outcome.
  • Secondly, the Government could return to using Nauru as an offshore processing facility – as the Opposition suggested immediately, based almost entirely on the fact that it had been the Liberal party’s policy in government and has remained so – but this would be the bitterest of political pills to swallow.  Furthermore, even though Nauru has recently signed the Refugees Convention, there are doubts that its domestic legal protections for asylum-seekers would satisfy the requirements of section 198A as it has now been interpreted by the High Court.
  • Thirdly, the Government may be left in the position that it must return to processing asylum-seekers on the Australian mainland only, which it will likely see as a hugely problematic political outcome (although it may also be an opportunity and not nearly as electorally poisonous as has always been assumed).  With so few options, we may just see a complete change in the Government’s approach – although this would be a courageous decision and isn’t the most likely consequence of the High Court’s ruling.

What is certain is that the High Court has again become the target of inappropriate political attacks.  In this case, the folly of those attacks is compounded by the fact that they are entirely undeserved.

Greg Weeks is a Lecturer in Law at the University of New South Wales