Like many Australians over the course of the last few years I have become increasingly dismayed at the methods used to process refugee claims. As someone who initially supported the idea of offshore processing and rigorous enforcement of our borders, dismay represents a silent shift in attitude. Mercutio’s ‘a plague on both your houses’ remark reverberates in my memory whenever I hear the jingoism of ‘Stop the Boats’.
The recently delivered High Court decision effectively reads the last rites to offshore processing as it currently stands and should be a circuit breaker for change. Unlike other significant High Court decisions such as Mabo and WorkChoices, Plaintiff M70/2011 can join the illustrious company of the Communist Party Case as a decision without allegations of activism or fanfare, but the accomplishment of the sound application of legal principle.
The High Court, particularly through Chief Justice Robert French’s judgment, will permit offshore processing under the Migration Act 1958 (Cth) only when:
a) The Minister makes the decision in ‘good faith’;
b) The refugees have been inside Australian jurisdiction; and
c) Where the declared country has a well-developed system of refugee protection laws encompassing both international and national laws.
This concept is radically different than the scheme in the Migration Act which permit offshore processing under s 198A(3) where the Minister:
(a) declares 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.
As the aficionados of administrative law would recognise, the mechanics of this test emerge by characterising the s 198A(3) factors as jurisdictional facts required to be present before the Minister is empowered to make a decision to process refugee claims offshore.
Also, the Teoh presumption (an interpretation of Australian law which conforms with international law) makes a comeback into Australian jurisprudence. Thanks to Justice Kiefel, the new interpretation upholds and is consistent with our obligations under the Refugee Convention, namely non-refoulement. As such, the focus shifts from the declaration made by the Minister to the country which the Minister wants to make an offshore processing site, its system of laws, and attitude to the rule of law. Simply having the laws will not be enough. The rule of law must be respected and unjust laws and loopholes will attract scrutiny.
I wonder if this also represents a greater turn to rights based jurisprudence in Australia?
The High Court is effectively now saying that mere compliance will not equal legality. Even more prescient in the new interpretation is the fact that the Court will look past the Minister’s declaration and ask for evidence of what is happening on the ground where refugees will be processed. Courts will now be entitled to lift the veil beyond the constitutional and legal safeguards as they exist in formality. If the declared country has a robust legal system and commitment to the rule of law, it is possible – although in the Antipodes, regrettably, this is hard to come by.
The ‘Malaysia Solution’ failed the test because:
- Malaysia was not a signatory of the Refugee Convention;
- Corporal punishment exists under Malaysian Immigration laws and other provisions
- Poor access to health services and education for refugees;
- A mediocre assessment of the Agreement by the UNHCR;
- Credible reports of abuse; and
- Non-signatory to the ICCPR and the ICESCR
Practically speaking, in order to successfully uphold the s 198A(3) declaration, any purported declaration would require UNHCR reports, Human Rights Council reports, DFAT briefings on local conditions, a sophisticated legal system, and a commitment to the rule of law in order to satisfy the new test. When coupled with a newfound willingness to move away from deference to the executive government, any declaration will be vulnerable to being struck down by courts as contrary to law.
Moving forward from Plaintiff M70/2011, the options become increasingly limited with either,
(1) a statutory override of the ruling;
(2) abandoning the policy altogether and processing refugee claims onshore;
(3) intercept and detain refugees before the enter Australian waters, but that would have its own set of problems; or
(4) roll the dice and take your chances…
One last point to keep in mind, any attempt to override the decision would want to be precisely worded lest the High Court becomes even less deferential and decides to go the Parliament and not just the Executive in round two.
  HCA 32 (31 August 2011).
 This principle is enshrined in Article 33(1) of the United Nations Convention Relating to the Status of Refugees- ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion’. This also represents a peremptory norm of international law and cannot be violated by any state by way of treaty, international customary law, national constitutional law or ordinary national legislation per Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002).