Legal challenge to the Malaysian solution

by Jo Coghlan

The Malaysian Solution is not a solution for anyone: especially children. High Court Justice Kenneth Hayne has granted a temporary injunction against the Gillard governments from processing recently arrive asylum seekers to Malaysia under the agreement referred to as the ‘Malaysian solution’.

The Malaysian Solution is an agreement between the governments of Australia and Malaysia that expels from Australia to Malaysia 800 asylum seekers who have arrived in Australia by boat in return for 4000 refugees from Malaysia over the next four years. The arrangement is part of the Regional Cooperation Framework established at the Bali Process Ministerial Conference in 2011. The Gillard government’s rational is that the arrangement: “demonstrates the resolve of Australia and Malaysia to break the people smugglers’ business model, stop them profiting from human misery, and stop people risking their lives at sea.” The cost, to be paid by Australia, is estimated at $216 million plus $76 million to fly the asylum seekers to Malaysia.

The full bench of the High Court will consider the lawfulness of the government’s policy, most probably at a special sitting in the week beginning August 22, a week after parliament returns from the winter recess. It is expected the Opposition will use the injunction to attack the Government on its failure to ‘stop the boats’. The Gillard government announced its’ ‘Malaysian solution’ on 7 May 2011. At every opportunity, and with each boat that arrives, Tony Abbott has continued with the mantra that the ALP can’t ‘stop the boats’.

Abbott is likely correct, the Malaysian solution will probably have little effect on stopping asylum seekers from seeking refuge. However, the High Court injunction rests on two legal matters: the role of the Minister for Immigration and Citizenship Chris Bowen to make “declarations” about the likely protection of asylum seekers expelled from Australia to Malaysia and the Minister’s legal obligations of “guardianship” of unaccompanied children likely to be expelled to Malaysia.

Unaccompanied children

According the QC David Manne of the Refugee and Immigration Legal Centre who is acting on behalf of some of the recently arrived asylum seekers, the Minister for Immigration and Citizenship Chris Bowen is the legal guardian of all unaccompanied minors who arrive in Australia seeking asylum. As a signatory to the UN Convention on the Rights of the Child, as ratified in Australian law in the Immigration Guardianship of Children Act (1946), minors “who arrive in Australian territory unaccompanied, and with the intention of settling in Australia permanently, have the Minister for Immigration and Citizenship as their legal guardian.” Government documents make it very clear that “unaccompanied minors seeking asylum in Australia” come under the Immigration Guardianship of Children Act.

Under these obligations the Minister, at all times, must act in the best interests of the child. Manne argues that expelling unaccompanied minors is not in their best interests. QC Julian Burnside concurs with Manne’s claim saying: “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Further, as a signatory to the Convention on the Rights of the Child, Australia has inter