What the Malaysian refugee High Court decision says

But that's the thing about the High Court - as the Court of final jurisdiction in our country, it can change everything you thought you knew about the law in a single judgment. Decisions of the Federal Court are not binding upon it: it has the power to overrule what the decisions of lower courts, including the Federal Court.

Before the judgment was handed down, I heard various people with far more experience in Administrative Law than I say that the plaintiffs' argument was a long shot (for example, see Ken Parish's excellent post here). Nonetheless, as Ken said then, there was always a chance that the plaintiffs would succeed, as their point was "arguable" (meaning that it had some support in law and precedent).

In fact, s 198A(3) has only been in the Migration Act for 10 years, and this is the first time it has had an opportunity to consider it. Thus it is also unfair to say that the decision 'turns on its head the understanding of the law in this country' as Gillard asserted. We simply did not have High Court authority on the section before this.

In addition, it seems to me that the way in which the majority have interpreted the Act in this case is principled, justified and fair. It would be extraordinary, in my view, if the criteria under s 198A(3) could be met without any consideration of the actual legal framework (both international and domestic) and with an apparent desire to sideline the consideration of the situation of asylum seekers and refugees en masse in Malaysia. The whole point of the section and of the Migration Act in general is to ensure people are treated fairly and in accordance with Australia's international obligations. And what is the incentive for other countries around us to deal fairly with asylum seekers and refugees when they see a country such as Australia trying to weasel out of its international obligations?

The decision does not assist us in answering the question of how Australia should fairly decide who comes to our country and who does not; it merely says that we cannot shunt off asylum seekers to a country who has no laws protecting or recognising such people. Malaysia, at least, was certainly not the "solution" to the issue of how we make those decisions. Maybe this decision will force us to come up with a more workable and fair solution which does not involve pushing our problems onto another nation.