Malaysian Solution Post Mark II

By Legal Eagle

[This is (I hope) a more polished take on the High Court’s Malaysian Solution case, with the benefit of further reflection. It also attempts to explain just why the Federal Government thought they had such a strong case.]

Also cross-posted at Online Opinion.

All of Australia is buzzing with the news that the High Court has overturned the Gillard Government’s “Malaysian Solution”. Julia Gillard has criticised the decision and Chief Justice French, saying, among other things:

The High Court’s decision, basically, turns on its head the understanding of the law in this country prior to yesterday’s decision. … A missed opportunity to send a message to asylum seekers not to risk their lives at sea and get into boats. And we tragically saw at Christmas Island around Christmas time what that can lead to, with the loss of life of men and women and children.

In this post, I shall first consider the judgment in detail. I will then give a brief analysis of the criticisms of both the government and the Court, and canvass some possibilities of what may happen now.

1. The judgment:

The decision was not based on Constitutional law principles, but on administrative law (which governs how the executive can make decisions and what their powers are under statute), as well as principles of statutory interpretation. A majority of the High Court found that the Minister had fallen into jurisdictional error, and he did not have the power to make the declaration that asylum seekers could be sent to Malaysia. Heydon J dissented.

(a) Declaration that persons could be removed to Malaysia pursuant to s 198A

In order to for the government to be empowered to remove an “offshore entry person” to another jurisdiction pursuant to s 198(1) of the Migration Act 1958 (Cth) (‘the Act’), the Minister had to make a  declaration pursuant to s 198A(3) of the Act that the country to which the detainees were being removed satisfied certain criteria. Section 198A(3)(a)(i) – (iv) outlines the following criteria:

(3) The Minister may:

(a)  declare 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 Kiefel J said in her judgment at [240], this section ‘has the effect of shifting some of the responsibilities undertaken by Australia under the Convention to another country. Its evident concern is that Australia’s obligations under the Convention are not breached in that process. Its terms contemplate that a country specified in the declaration will provide some of that which Australia would have provided had the asylum-seeker remained in its territory.’ Thus, the purpose is to ensure that, even if “offshore entry persons” are removed to another country, Australia still complies with its obligations under the Convention Relating to the Status of Refugees (the Refugee Convention) to which Australia is a party by ensuring that these people are treated in accordance with the Refugee Convention. It was in that context that s 198A of the Migration Act was interpreted, as the Migration Act generally incorporates certain aspects of the Refugee Convention into Australia domestic law.

Basically, the plaintiffs had two submissions with regard to s 198A(3):

  • That the requirements of s 198A(3) were “jurisdictional facts”. This required the Minister to determine that certain facts existed as a precondition to the exercise of his discretion under the section. If the facts were not established, then the Minister had no jurisdiction to make the determination which he did;
  • That even if the requirements of s 198A(3) were not jurisdictional facts, in exercising his discretion the Minister asked the wrong questions (among other things, he only satisfied himself in relation to the treatment of the 800 asylum seekers, not in relation to the treatment of all asylum seekers; he did not focus on the present treatment of asylum seekers and refugees in Malaysia, only on the potential future treatment; and he did not turn his mind to the lack of legal protections for such persons under Malaysian law)

The plurality (Gummow, Hayne, Crennan and Bell JJ) accepted the submission that the requirements of s 189(3) were “jurisdictional facts” which had to be present on the facts before the Minister could declare Malaysia to be a country to which officials could remove “offshore entry persons”. They said at [106] – [107]:

Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister’s forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics. The plaintiffs submitted that the criteria in sub-pars (i) to (iv) of s 198A(3)(a) are jurisdictional facts. They submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.

French CJ rejected the plaintiffs’ “jurisdictional fact” submission (as, apparentlysimilarly, did Kiefel J in a separate judgment). It is unsurprising that French CJ did so, as he had rejected a “jurisdictional fact” submission in 2003 when he was a Federal Court judge and an Afghan refugee sought to challenge removal to Nauru pursuant to s 198(1): see P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029. This perhaps explains why the Federal Government was confident that the legality of its scheme would be upheld. However, in P1, the court was not called upon to ask whether the Minister had asked the right questions when declaring Nauru to be a country to which refugees could be removed.

Both French CJ and Kiefel J found that the Minister did not ask the correct questions when determining whether Malaysia was a country to which refugees could be sent. First, the Minister was required to make a judgment as to the provision of access, protection and the meeting of human rights standards in providing protection which was more than merely transient: it had to describe a present and continuing circumstance. At [62], French CJ said:

It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is “keen to improve its treatment of refugees and asylum seekers”. Nor could a declaration rest upon a belief that the government of the specified country has “made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers” or that it had “begun the process of improving the protection offered to such persons”. Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.

Further, the Minister erred because he did not focus upon the laws in effect in Malaysia and rather looked to what Malaysian practice was. French CJ continued at [66]:

…The questions the Minister must ask himself, about whether the relevant “access” and “protection” are provided and “human rights standards” are met, are questions which cannot be answered without reference to the domestic laws of the specified country, including its Constitution and statute laws, and the international legal obligations to which it has bound itself. The use of the terms “provides access … to effective procedures”, “protection” and “relevant human rights standards” are all indicative of enduring legal frameworks. Having regard to the Minister’s concession and what appears, in any event, from the submissions upon which the Minister acted and his affidavit, it is clear that he did not look to, and did not find, any basis for his declaration in Malaysia’s international obligations or relevant domestic laws. There is no indication that the apparent legal fragility of the exemption order under the Malaysian Immigration Act and the associated risks to transferees were drawn to his attention. Important elements of his decision were the non-binding Arrangement, conversations he had undertaken with his ministerial counterpart in Malaysia, and observations by DFAT about contemporary practices with respect to asylum seekers in that country. (emphasis added)

The focus of the Minister was on the wrong issue: not the actual law in Malaysia or the way in which its domestic law operated in respect of asylum seekers and refugees. It is clear that his Honour was unimpressed with the lack of attention to the fact that Malaysia does not recognise the status of refugees in either international or domestic law.

Furthermore, as Kiefel J noted in her judgment at [242] – [244], it was not enough that an non-government agency in Malaysia assessed refugee status (namely the UNHCR). Instead, the section contemplated that the declared country itself should determine refugee status, because this would mean that the country was bound by its determination, and thereby recognised refugee status, and protected those who had such a status. She noted at [244] that it was not actually necessary for Malaysia to be a party to the Refugee Convention as long as it recognises and protects refugees under its domestic law, although naturally it was more likely that a country who was a party to the Convention would have domestic laws providing for recognition and protection if they were a party to the Convention.

Thus any country about which a declaration is made must actually have legal mechanisms which allow for provision of the various protections, not simply practices that appear to provide the various protections. The majority rejected the proposition that the Minister must merely believe in a bona fide manner that the relevant criteria were met, as this was not consonant with the purpose, words and context of the section. The essence of the judgments seem to boil down to the fact that, as Malaysia ‘does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees … is not party to the Refugees Convention or the Refugees Protocol … and … has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments…’ and therefore ‘it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii)’: (see para [135]).

Fascinatingly, the plurality also cast some doubt on the Nauru “solution”, saying at [126] – [128]:

A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. Not only did the Arrangement not oblige Malaysia to provide any of those rights, no provision was made in the Arrangement that (if carried out) would provide any of those rights.

The Minister and the Commonwealth also submitted that the circumstances in which s 198A was enacted pointed against the adoption of this construction of the section. They submitted that s 198A was enacted with a view to declaring that Nauru is a country specified for the purposes of s 198A and that it was known, before the enactment of s 198A, that Nauru was not a signatory to the Refugees Convention or the Refugees Protocol.

Two points may be made about this submission. First, it is by no means clear what use the Minister and the Commonwealth sought to make in the proper construction of the provision of what they asserted to be facts known to those who promoted the legislation. The facts asserted do not identify any mischief to which the provision was directed. Rather, it seemed that the facts were put forward as indicating what those who promoted the legislation hoped or intended might be achieved by it. But those hopes or intentions do not bear upon the curial determination of the question of construction of the legislative text. Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

(b) Reliance on general power under s 198

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 existed earlier 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 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.


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 misere”. 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.

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 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 the Court 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.

Acknowledgments: I do not usually dabble in Administrative Law and thus I am very grateful to these two posts by Ken Parish at Club Troppo and a very informative and clear presentation which I recently attended on this topic given by Kris Walker, one of the counsel for the plaintiffs, as well as a useful chat with my expert colleague Michelle Foster. Any errors in this post are entirely my own!


  1. Posted September 6, 2011 at 8:32 pm | Permalink

    I’ve always interpreted ‘judicial activism’ to mean ‘usurping the role of parliament’: ie, legislating from the bench, introducing vast changes to the law without recourse to either the people or their representatives.

    Obviously, judicial activism of this sort is more likely in countries with written constitutions, like Australia or the US. While Australia has some substantive rights written into its Constitution, the US has more, and they’re very broadly drafted (if you want your constitution to last, and you’re Thomas Jefferson and friends, then your Constitution needs to be broadly drafted).

    This calls for interpretation on the part of non-elected experts (judges), and when they run against popular feeling in making a decision, then there are going to be complaints about ‘unelected judges’.

    What you need to remember is that governments need to do lots of different things, and that some of those things call for expertise, and some of them don’t. Disclaim the importance of experts and you get the death of Socrates; disclaim the importance of the people and you get Roe v Wade (note, I’m about as pro-abortion as it’s possible to get, but Roe v Wade is a clear case of judicial legislation. EU countries with comparably liberal abortion laws do not have fights over them because, in each case, the liberalising laws were passed by parliaments, who were elected).

    It is very difficult to get the balance right, and it’s perfectly possible to argue that — on something like immigration, say — the people in various Anglophone countries + France and Germany have not been sufficiently consulted. This is why decisions like this have such power to divide, and such power to generate anger at the judiciary.

    If anyone is to be blamed, it is the politicians, who left it so late to have a debate about immigration, and (arguably) are still not listening closely enough to the people (although France and England have been much better of late).

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  1. By Skepticlawyer » The Labor Schism on February 26, 2012 at 8:33 am

    […] female Prime Minister. Again, however, I became gradually disenchanted with Gillard (see my post on the Malaysian ‘solution’ for example, or the debacle of someone from Gillard’s office inciting the Tent Embassy to […]

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