On Wednesday the 31st of August, the Australian high court has ruled the Gillard government planned swop of asylum seekers with Malaysia invalid.
Held before the full bench, by majority, the court made permanent injunctions to restrain the Minister for immigration and citizenship, Chris Bowen MP from removing Australian asylum seekers offshore to a country that does not meet the legal requirements under section 198A of the migration act 1958 in addition the Migration Act requires the country to meet certain human rights standards to provide that protection.
Malaysia does not recognize asylum seekers and regards them as law breakers who can be punished by public flogging for flouting their immigration laws and have not signed the 1951 Refugee convention.
The court also decided that no unaccompanied minors may be taken from Australia without the minister’s written consent, under the Immigration Guardianship of children’s act 1946 the minister has to give written consent for the deportation of children.
Chris Bowen MP and Malaysian Minister of home affairs, Dato’ Seri Hishammuddin bin Tun Hussein signed the Australia and Malaysia transfer deal on July 25 2011, albeit prematurely, it was stated by the minister that ,this is a true burden- sharing arrangement in line with the principles of collective responsibility and cooperation that underpin the regional cooperation framework.
So is Julia Gillard’s so called Malaysia solution dead? Yes it is unless the Gillard government seek to change section 198a to lower the threshold in human rights standards, so the next question to pose is, would the Gillard government seek to change the laws to get what it wants or will they accept the high court’s ruling and take the opportunity to get in line with Australia’s international obligations.
A bit embarrassing really.