Australia’s people swap plans get a ‘drubbing’

The Church in Australia said it can assist the government in the matter of asylum seekers, and welcomed the High Court’s permanent injunction against the deportation of two asylum seekers to Malaysia, the Australian Catholic Migrant and Refugee Office said in a statement.

“The Government knows our views and it also knows of the work that the Church does to assist asylum seekers both in detention and after their release.” Bishop Gerard Hanna, the Bishops’ Representative for Migrants and Refugees, said today.

On Wednesday, Australia’s High Court voted 6-1 in a decision which put and end to the Government’s people swap deal with Malaysia.

The court said the people swap solution was illegal because people’s rights were not adequately protected.

Promising to take a good look at the decision, a disappointed Australian Prime Minister, Julia Guillard said, “nothing in it is going to deminish our resolved to break the people smuggler’s business model.”

An embarrassed Australian Labor government may now have to fall back on the previous Coalition government’s agreement with Papua New Guinea and restart processing asylum seekers on Manus Island.

Professor of law at the Public Policy Institute Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University, Fr Frank Brennan SJ expressed surprise at what he called a “drubbing” for the government.

In his column “The Meddling Priest” Brennan outlines the implications of the decision

  • the government will have to process boat people onshore in Australia unless they are certain that they can line up a processing country which provides appropriate access and protections ‘as a matter of legal obligation’ either under international law or under the domestic law of the country
  • the government can no longer rely on the general power to remove an alien when wanting to remove from Australia someone who is seeking asylum
  • the government will be able to remove asylum seekers prior to the determination of an asylum claim only to a country which is legally obliged to process the claim and to provide protection
  • no Commonwealth official will be able to remove unaccompanied minors or other children of whom the Minister is the guardian without the consent in writing of the Minister.

The Australian and Malaysian governments signed their agreement on 25 July 2011, agreeing that all asylum seekers arriving in Australia 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.

Within hours of Wednesday’s decision, refugees in Malaysia and Indonesia were predicting that a new wave of boats carry asylum seekers would soon head for Australia.


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