Australia's so-called Malaysia solution for stemming the tide of boats carrying asylum seekers from Indonesia has hit a snag called the High Court of Australia. The Gillard Government is now in very stormy waters, simply because the rule of law and the separation of powers do not readily yield to the sound bites of populist sentiment and the fear tactics of politicians. The wheels of the law turn slowly.
The Australian and Malaysian governments signed their agreement on 25 July 2011. The idea was that all asylum seekers arriving by boat after that date would be turned around and sent to Malaysia within 72 hours. In return for 800 asylum seekers, Malaysia would offer Australia 4000 proven refugees for resettlement in Australia over the next four years.
Australian Federal Police and Malaysian government officials have been waiting on Christmas Island to witness the first departures. Two boatloads of eligible asylum seekers arrived from Indonesia. But on Sunday night, lawyers for some of the asylum seekers approached the High Court for an injunction restraining the government from removing any asylum seekers until the legality of the arrangement could be tested.
Time is of the essence for the Gillard Government, in part because Parliament has been away on its winter break. Parliament resumes on 16 August. The government is desperate to have the Malaysia solution in operation by then. The Opposition parties are adamant that the Gillard Government is in disarray, unable to deliver on this and other policy issues.
On Monday in the High Court, Justice Kenneth Hayne was unimpressed with the Australian Government's behaviour. Government lawyers were wanting the Court to lift the injunction at 4:15pm so that the first asylum seekers could be flown out Monday night. By 3:15pm, the Government had not managed to provide the court with its affidavit setting out the facts on which it was relying.
Hayne, having told the Solicitor General 'It is unsatisfactory that the matter proceed in this half-baked fashion', then pointed out: '[Y]ou have the whole of the resources of the Commonwealth behind you.'
Hayne decided to extend the injunction. He referred questions of legal interpretation to a full bench of the High Court for consideration on 22 August 2011 — a full week after Parliament has resumed.
The Australian Government has to be able to show that it has acted in accordance with the provisions of the Australian Parliament's Migration Act. Under