Yesterday the Government announced it will change the Migration Act to enable the Malaysia solution to go ahead. The aim is to remove the legal obstacle that allowed the High Court to declare that Malaysia was not a valid destination to which 'offshore entry persons' could be sent by Australia.
The Malaysia solution and the Government's latest action perpetuate the spin about the mythical 'queue' that has become de rigueur over the past decade. Ostensibly it is about making 'unlawful' arrivals 'wait their turn'. But such rhetoric obscures the fact that Australia has international obligations to ensure people are not placed at risk of being returned to persecution.
Over the years we have seen changes in the rhetoric used by governments to justify harsh treatment of asylum seekers. This is about spin and not about respect for human rights and dignity. Versions of reality are created to fit with message. For example, linking the onshore and offshore refugee programs enables politicians to claim there is a 'queue' which is 'jumped' by people arriving by boat.
At the time of Tampa back in 2001, and for some time thereafter, the spin was all about 'border security'. Taking asylum seekers to Nauru or Manus Island for assessment ensured our borders were secure. But another unstated motivation was to isolate the people from those who could assist them, especially lawyers. The law in this area is complex and most people would find it extremely difficult to articulate their case without professional help.
At the same time as the Tampa legislation in 2001, the 'privative clause' was introduced into the Migration Act as an attempt to stop applicants from challenging cases in the courts.
The privative clause was read back by the High Court in 2004, which held that 'jurisdictional error' did not protect a decision from review. Examples of jurisdictional error include where a decision maker asks themselves the wrong question, or fails to consider a claim. Since then, there have been no major changes to limit judicial review of the cases.
One of the attractive parts for government of offshore processing of asylum seekers arriving by boat since 2008 was the belief that such cases were not reviewable in the Courts. But the High Court stated in November 2010 that the recommendations of independent merits reviewers were in fact reviewable in the High Court, and more traditional common law grounds of administrative review