The complex business of saving Gillard's solution

Now the Gillard Government has decided to adopt a legislative response to the High Court's August 31 judgment in the M70/M106 cases, how can amendments be adopted that will keep the proposed Malaysian solution alive?

The Government has flagged its intention to amend both the Migration Act and the Immigration (Guardianship of Children) Act so as to return the law to the 'understandings' that existed prior to August 31. These amendments will most likely be introduced into Parliament during the next sitting week. The options with respect to the Migration Act are fairly straightforward. The crux of the High Court's decision was that the Minister's declaration that Malaysia was a suitable country to which non-citizens could be sent for the assessment of their asylum claims was a 'jurisdictional fact' reviewable under law. Accordingly, the Minister could not simply make a decision based only upon a political judgment or assurances from Malaysia that it would deal with the asylum seekers in a certain way. Rather, these were legally ascertainable facts reviewable by a court.

A key provision is section 198A of the Migration Act, particularly sub-paragraph 3 that lists criteria the Minister needs to take into account when making a declaration. These could simply be removed, thereby allowing for considerable Ministerial discretion in making a declaration. The effect of such action would be to effectively make the decision a purely political one that was not subject to judicial oversight by the courts. An alternative - and one that may appease the Labour backbench - would be to make the Minister's declaration contingent on ascertainable facts. These could include factors such as whether the country in question was a party to the Refugee Convention, or whether Australia had entered into an agreement with that country in which they undertook to receive persons claiming asylum and that their claims would be processed in that country. These elements would be objective in nature and allow the Minister to refer to easily identifiable criteria in making a judgment as to the suitability of a country for offshore processing. Importantly, these types of amendments would be broad enough to encompass countries which are a party to the Refugees Convention or about to become parties, such as PNG and Nauru, or countries which have entered into agreements with Australia for offshore processing, such as Malaysia.

The much more difficult task would be making amendments to the Immigration (Guardianship of Children) Act. This is a relatively old statute; one that was introduced at the time of post-war British child migrants coming to Australia. However, the Act has been amended so that it specifically deals with the situation of the so-called 'non-citizen child' who is under the age of 18, has entered Australia as a non-citizen, and intends to become a permanent resident. All of these criteria apply to unaccompanied minors making their way to Christmas Island with the assistance of people smugglers. Importantly the Act provides that the Minister is the guardian of these non-citizen children and accordingly under section 6A of the Act they can only leave Australia with the Minister's consent. This was the pivotal provision for the High Court in the M106 case argued in parallel to M70. The High Court found that as the Minister had issued no declaration in the case of certain unaccompanied minors then they could not be sent to Malaysia. In other words, the Minister had not even turned his mind to the application of this Act to these children. At face value that would suggest this defect could be simply resolved by the Minister making a declaration with respect to unaccompanied minors, however the High Court also acknowledged, as now has the Commonwealth Solicitor-General, that any such declarations would be subject to judicial review. However, amendments to this Act are not as straightforward as those to the Migration Act. While it may be possible to make clear that declarations issued under the Migration Act prevail as between the two Acts, there are also certain common law obligations of guardianship upon the state in the case of minors whose parents are not exercising control. Australia's obligations under the Convention on the Rights of the Child are also applicable. In 1995 the High Court famously ruled in the Teoh case that there existed a legitimate expectation on the part of citizens that the Convention would be taken into account when administrative decisions were being made with respect to children. That case is silent as to the right of non-citizen children, however Article 3 of the Convention makes clear that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, comuch more difficult task would be making amendments to the Immigration (Guardianship of Children) Act.urts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Circumventing these legal hurdles would only be achieved by complex legislative amendments which more than likely would be tested by future court challenges. While all of the political attention to date has been on the Migration Act, there are real questions as to how the Immigration (Guardianship of Children) Act can be amended to achieve the Government's desired policy outcome. This poses a major dilemma for the Gillard Government as if offshore processing cannot be fireproofed from legal uncertainty, the ultimate policy objectives will fail for the simple reason that any loophole that exists with respect to unaccompanied minors will be quickly exploited by the people smugglers.(abc.net.au)

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University.