High Court challenge: Malaysia is not the solution for asylum seekers

The Gillard government's response has been that the High Court is not empowered to determine Ministerial 'declarations'. 'Declarations' are considered by the Gillard government to be outside of the High Court's purview. 'Declarations' in this sense means the Minister has made claims about human rights conditions in Malaysia that are not subjected to interpretations by the High Court because they have not been legislated nor are related to matters pertaining to the Constitution. As refugee advocate Frank Brennan has argued, until the current High Court injunction it was assumed "that the Minister could make such a declaration without any scrutiny by the Parliament or the courts."

As Manne puts it, the "declaration is about the human rights situation in Malaysia, whether it is sufficient to ensure the human rights of those refugees deported to Malaysia." In the government's response to the High Court, this is not a matter on which the Court has power to intervene or rule. The High Court, in granting the injunction, seems to think otherwise.

According to Maria O'Sullivan of Monash University it is likely that the High Court will overturn the Malaysian solution. If the High Court finds that children are exempt from the arrangement because the Minister is not fulfilling his legal obligations as guardian it will undermine the deal. The High Court is also likely to find that the Minister's 'declarations' are problematic because Malaysia is not safe for people to be deported to. More broadly, O'Sullivan questions the overall legality of the Malaysian deal saying third country processing contravenes international law because Australia is refusing to examine the asylum seekers prima facie claims for refuge.

On any of these three criteria, the Malaysian 'solution' is not a solution for anyone: especially children.