What the Malaysian refugee High Court decision says

The Commonwealth's fall-back position, if it was not entitled to remove "offshore entry persons" from Australia pursuant to s 198A, was that it could alternatively rely on s 198(2) of the Act, which provides that an officer must remove an offshore entry person. However, the plaintiffs submitted that s 198 only applied to those "offshore entry persons" whose claims for asylums were assessed in Australia. Section 198A provided a separate and distinct set of provisions with respect to "offshore entry persons" whose claims for asylum were not to be assessed in Australia. Once an officer has decided that he or she will exercise the power given by s 198A(1) to take an offshore entry person from Australia, the conditions for the exercise of power under s 198(2) are no longer fulfilled. The conditions for the exercise of power under s 198(2) are not fulfilled because the offshore entry person (an unlawful non-citizen) is no longer covered by s 193(1)(c) because he or she is no longer detained under s 189(2), (3) or (4). In particular, the detention under s 189(3) that would have earlier existed has been brought to an end by operation of s 198A(4). Second, they submitted that whether s 198(2) and s 198A(1) should be construed as providing what can cumulative powers of removal was to be determined according to whether "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, [59]). Shortly, the specific rule in s 198A trumped the general rule in s 198. The plurality explained at [95]:

When it is observed that s 198A is directed to taking persons to a country which provides the access and protections identified in s 198A(3), including "access, for persons seeking asylum, to effective procedures for assessing their need for protection", it becomes evident that s 198 should not be construed as requiring or permitting the removal from Australia of those described in s 198A as "persons seeking asylum" before there has been what the same section calls a "determination of their refugee status". Such persons can be taken to another country only in accordance with s 198A. The Act confers only one power to take that action: the power given by s 198A. Section 198A deals with a subset of those to whom it is said s 198 applies. The generality of the power apparently conferred by s 198 must be confined by reference to the restrictions set out in s 198A.

(c) The status of minor offshore entry persons

Finally, in relation to the second plaintiff, who was 16 years old, it was held that if the Minister proposed to remove a minor, he would be required to make a declaration consenting to the removal of the plaintiff pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) as was required by s 6A, as he was effectively the guardian of minor "offshore entry persons".

(d) Heydon J's dissent

Heydon J dissented. His opinion was that the Minister did not need to be satisfied that the four requirements of s 198A(3)(a) were present as a matter of fact, or that Malaysian law actually provided those protections. Thus the power under s 198A(1) was validly exercised. In addition, he found that the requirements of s 6A did not apply to the second plaintiff.

The other notable matter in Heydon J's judgment was that in the first paragraph, he appeared to criticise Catherine Branson, the President of the Australian Human Rights Commission. The AHRC intervened in the proceedings on behalf of the second plaintiff. Heydon J noted acidly, 'In her affidavit she described the Commission as "Australia's National Human Rights Institution" – an expression not appearing in the Australian Human Rights Commission Act 1986 (Cth),' and then proceeded to reproduce certain judgments she had handed down when she was a Federal Court judge where she had said words to the effect that Australia is free to decide, as a matter of executive discretion, what non-citizens it allows to remain in Australia. As I have said before, I do not think judgments are appropriate vehicles for venting personal spleen, if that is what was occurring here.

2. The ramifications: what happens next?

It is generally agreed that, particularly in the present precarious situation where the minority government is balanced on a knife's edge, the government cannot easily legislate to remove the requirements of s 198A(3). The government has other possible places to which it could send asylum seekers, namely Nauru (the Howard Government's 'Pacific Solution' revamped) or Manus Island. However, it has to be queried whether either venue would meet the criteria suggested by the High Court in M70.

There has been a fair amount of criticism of the government for 'not knowing the law'. An example is Michelle Grattan in The Age the morning after the decision:

"The Commonwealth government is on very strong legal grounds," Immigration Minister Chris Bowen insisted last month.

Really?

Clearly, he didn't know what he was talking about. The government was too gung-ho and, if the advice was convincing, it was also bad. If the Commonwealth's legal experts can't anticipate the High Court, they might need a refresher course in the law. While its impression initially was that the case would be won, later on the government became increasingly worried.

I would love to see the legal advice they were given (which is impossible, of course, because of the doctrine of legal professional privilege). To be fair to the government, the plaintiffs were arguing the "jurisdictional fact" point which had been rejected three times by the Federal Court, and on one of those occasions it was rejected by a judge who was now sitting in front on them as the Chief Justice of the High Court. They probably thought that they had a "lay-down mazere". This provides a context for why Julia Gillard lashed out at French CJ yesterday, saying, 'His Honour Mr Justice French 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.' This is unfair to French CJ, whose decision is entirely consistent with his previous decision (in that it continues to reject a "jurisdictional fact" analysis); his Honour made his decision on a basis which was not raised in P1 -- namely, whether or not the Minister asked the right questions. It was pointed out to me that in P1, the question was not raised as to whether or not the Minister asked the right questions, perhaps because the Minister's reasons for decision were not available for scrutiny. The Government was also disappointed because it felt pretty confident that s 198(2) would prove to be an adequate fall-back power for the removal if the s 198A argument failed.