On Wednesday the High Court of Australia followed up its injunction (see below) with a 6-1 judgment against the Gillard Government’s arrangement with Malaysia to swap asylum seekers for processed refugees. The Court reminded the Government (and anyone else who cared to pay attention) that the Migration Act 1958 (Cth) actually implements the 1951 Convention on the Status of Refugees and its 1967 Protocol, and was not drafted to allow the Government to do whatever it pleases with asylum seekers.

The Government argued that it could remove anyone deemed to be an “unlawful non‑citizen,” even if this meant completely ignoring its obligation to process their asylum claims. As explained below, doubts were raised as to whether this was possible in light of section 198A of the Act. In the case of minors, it was argued that this relatively obscure legislation from 1946 presented a further obstacle. With some skilful advocacy and deeply impressive preparation given the time available (this case sets a new speed record for the High Court), the team representing the asylum seekers convinced all but one Justice that such a complete abdication of responsibility was in fact impermissible under Australian law. For further information, the Court has provided a handy summary here or you could read the judgment in full. You can also read some more Castan Centre commentary on the decision here.

The arrangement with Malaysia is just the latest in a long line of Australian Government policies designed to shirk our obligations under the Refugees Convention. If anyone comes to our shores seeking protection, we are bound under international law to process their asylum claim. Our ingenious solution? Prevent them from reaching the shore. The problem didn’t end there though – it was pointed out to the Government that our territory actually extends out to sea a ways – even around small islands. No problem; we’ll just declare the northernmost parts of our territory to be excluded from our “migration zone,” and prevent those who don’t reach the zone from applying for protection. What if they go to the courts to claim that they have been denied their rights under the Convention? That’s OK, the Convention only really ties our hands to the extent it has been incorporated into Australian law via the Migration Act – and we can amend that if need be. In fact, let’s amend it to remove their right to judicial review just in case. Surely their asylum claims still have to be processed though – what if other countries aren’t willing to take this duty off our hands? You leave that to me – I happen to know a country which will be very interested, given the appropriate incentives….

Thus the “Pacific Strategy” (don’t call it a solution!) was established, and at great cost, we found a way to stop the boats for a while (well almost). So politically popular was this (remember it was not long after Pauline Hanson’s heyday) that John Howard romped in at the next election with a campaign in which he only needed to whisper the words ‘strong border security’ to have the masses fall at his feet.

Fast forward to 2011 and the Gillard Government was looking to replicate the success of this policy with what the Shadow Minister for Immigration and Citizenship has succinctly termed an “anything but Nauru strategy.” Unfortunately for the Government, the option it chose has now unravelled in spectacular fashion. It must have seemed to the Prime Minister and her advisers (legal and political) that the Migration Act would allow them to get away with anything – after all the Howard Government got away with the breathtaking shenanigans outlined above (thanks to several clever legal manoeuvres and a healthy soupcon of luck). The shock of defeat was apparent from the harsh words spoken in the aftermath, which were most undignified but not without precedent.

The Government itself concedes that Plan B (Manus Island) will probably need a lot more work now that the High Court has called for some actual standards to apply. There have been reports that Plan C is to revert to another of Ruddock and Howard’s cruel innovations – giving refugees “temporary protection visas,” which have extremely restrictive conditions (eg no right to family reunion) and arguably led directly to mental illness, due in no small part to the anxiety that the constant threat of deportation engenders.

So what now? The bottom line, as David Marr puts it so well, is that it is Australia’s responsibility to process the asylum claims of those who have recently arrived on Christmas Island, whether the Government likes it or not. The Regional Office of the UNHCR and the Administrator of Christmas Island have called for something to be done quickly.

A decent, humane Plan D is obviously required pronto, but the Government is reluctant to announce one for fear of losing the voters who so resoundingly endorsed the Howard Government’s policies a decade ago. The Government should not concern itself with this – those voters are already gone. The time is ripe to listen to what Labor’s left faction and so many others have been saying all along. The Government should admit that offshore processing is essentially dereliction of our duty to process asylum claims, and emphasise to the community that it is not the way an honourable country deals with its obligations. There is not room here to go into the push vs pull factor debate, but suffice it to say our contributions to the situations of insecurity in places like Iraq and Afghanistan only add to the weight of our responsibility to those fleeing the conflict and chaos.

The international system of refugee protection was not designed to create a permanent “queue” in horrible makeshift camps from which resettlement countries (such as Australia) could select the refugees most acceptable to the Government. It was designed to ensure the international community stepped into the breach to help refugees whenever their home countries were unable or unwilling to protect their basic human rights. The fact that they may be able to make their own way to Australia – difficult and fraught as such a trip is – in no way vitiates our responsibility in this regard. We should certainly determine whether they are genuinely fleeing persecution, but once this is established we owe them safe haven.

The Government must now accept that pandering to those who supported the Howard Government’s policies is not a winning strategy, and shift to a principled position based on adherence to our international obligations. It must have the courage to ignore the reprehensible scare campaign and fight to retain the voters won over by the more humane approach to asylum seekers it took to the 2007 election. It might even win back some who have strayed!