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Lawyers welcome High Court sinking of Malaysia solution

The nation's lawyers have welcomed the High Court decision on the "Malaysian Solution" case, which results in permanent injunctions preventing the removal of asylum seekers to Malaysia.

user iconThe New Lawyer 01 September 2011 The Bar
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IT'S been labelled a blow for the federal government, but the nation's lawyers have welcomed today's High Court decision on the "Malaysian Solution" case, resulting in permanent injunctions preventing the removal of asylum seekers to Malaysia. 

The action was initially brought before the High Court by refugee activist lawyer David Mann, who acted on behalf of clients who arrived by boat and faced being removed to Malaysia. 


Under the terms of the Malaysia Solution, Australia would have accepted 4000 people certified as refugees from Malaysia in return for the Asian country taking 800 asylum seekers who had already arrived on Malaysian shores. 

The Australian Lawyers Alliance, which classes itself as "lawyers for the people" today welcomed the High Court decision.  The Alliance said the decision is a victory for the human rights of asylum seekers and should lead to both the ALP and Coalition ending "their cruel commitment to offshore processing of vulnerable people".

The court upheld the injunctions sought by the counsel for the asylum seekers to prevent their transfer to Malaysia under a recently struck Commonwealth agreement with that country.

It also decided that a government cannot remove unaccompanied asylum seekers that are under 18 years of age without the Minister for Immigration’s written consent. 

ALA National President, Greg Barns, said the decision represented a victory for human rights in Australia.

“The High Court of Australia has made it clear that legislators and, in particular, governments in Canberra need to be [cognisant] of Australia’s international human rights obligations to ensure the safety of asylum seekers,” he said.

However, not all lawyers stand on that side of the fence. The federal Labor member for Fremantle, and former United Nations lawyer, previously told the ABX that if the UN did not support the government's plan, she would be unable to offer her support. 

"As a former lawyer with the UN for eight years, including working with refugees, and as the chair of the UNICEF parliamentary association, I would find it difficult to support an arrangement that was not supported by UNHCR or by UNICEF Australia," she said. 

Labor's support base on the deal crumbled as early as June, which high profile human rights lawyer Julian Burnside QC also urged Labor to reopen the Nauru processing centre, arguing asylum-seekers would likely receive better treatment in Nauru than Malaysia. He accused Labor of failure on refugees. 

"The decision also sends a clear message to government that the courts are the protectors of incursions on the rights of individuals by the executive, particularly when that incursion would result in the individual’s safety and security being threatened,” said ALA national president Barns. 

He said the ALA continued to consistently call for a more humane approach to dealing with the small number of asylum seekers that come to Australia each year.

“We urge both the Gillard government and the Coalition opposition to end their clearly inhumane policy of offshore processing of asylum seekers, and now immediately move to ensure that asylum seekers have their claims processed within Australian borders in a manner that is both expeditious and takes account of the human rights of those being processed.

In relation to the High Court’s decision concerning unaccompanied children and young people who are asylum seekers there is a clear message here to government, and that is that these vulnerable young people should have their claims processed within Australia and should not be shipped off to third countries,” Mr Barns said.

He said the decision also meant that other countries, such as Nauru and Papua New Guinea, should not be considered as processing centres for asylum seekers who reached Australia.

“The ALA remains concerned that the ALP and Coalition parties will strike a deal to weaken the obligation on the part of the Minister for Immigration to ensure that a third country meets in theory, and in practice, relevant human rights obligations," said Barns. 

The ALA said that the Government, having given hope to 4,000 asylum seekers in Malaysia that they would be able to live in Australia under the agreement with Malaysia, should meet that obligation and allow those people to come to Australia immediately.

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