The Migration Act is underpinned by Australia's obligations under the UN Convention on Refugees to treat asylum seekers in a way that does not harm them, but this seems to have been missed by the High Court in its ruling on offshore processing, writes Greg Barns.

For those Australians who hope to see an end to the hell hole that is the Manus Island offshore processing centre, the High Court's deliberation in a case called Plaintiff S156-2013 v Minister for Immigration and Border Protection offered some hope.

But that hope was dashed this morning when the Court handed down a judgement in which all six of the Court's justices hearing the case joined; it found the designation of Manus Island as an offshore asylum seeker processing facility by Chris Bowen, Labor's former Minister for Immigration in October 2012, was constitutional.

It is a decision which could best be described as cautious and conservative in the sense that the High Court has not wanted to fix an injustice through judicial intervention.

The issue in the case was the constitutional validity of provisions in the Migration Act which allow an Immigration Minister to designate a country like Papua New Guinea as a regional processing country and the capacity of a minister to direct the removal of asylum seekers to that regional processing country. To both questions of validity the Court said yes.

The provisions providing for offshore processing were introduced by Mr Bowen, and supported by the now Abbott Government, in August 2012. The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 was, the High Court explained, "a legislative response to the decision of this Court in the Malaysian Declaration Case, which was handed down on 31 August 2011". That decision of the High Court put an end to the Gillard government's proposed Malaysian offshore processing arrangement.

Counsel acting for S156, an Iranian asylum seeker who had been sent to Manus Island from Christmas Island, argued that Mr Bowen should have taken into account "international law obligations; the need to consult with the Office of the United Nations High Commissioner for Refugees ("the UNHCR") prior to designation; PNG's international obligations and its domestic law; PNG's capacity to implement its obligations; the framework, if any, for processing refugee claims in PNG; the possibility of indefinite detention; and the conditions in which [asylum seekers] would be detained".

But the Court gave that argument short shrift: "The fundamental difficulty with the plaintiff's argument is that there is no mandatory condition for the exercise of the power of designation under [the statutory provision] apart from the formation by the Minister of an opinion that it is in the national interest to do so."

It continued: "The only matter to which the Minister is obliged to have regard, in considering the national interest, is whether or not the country" has given assurances that it will not expel or return a person to a country where they could be persecuted or threatened on account of their religion, race, nationality or membership of a particular social group or political opinion, and that the country will undertake an assessment as to whether the person is a refugee.

The Minister doesn't even have to be satisfied that those assurances will be met by the processing country: "The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to [asylum seekers]. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power."

The national interest, the High Court says, is "largely a political question". In other words, it is not for the judiciary to determine the "national interest" because that is a matter to be dealt with and determined by the legislature and the executive.

When it comes to shunting asylum seekers to Manus Island, so long as "there were facilities and services available ... and more accommodation for his class of [asylum seekers] there than in Nauru, then the decision to process that person offshore is valid".

The decision is disappointing. The High Court appears to have taken a conservative view of how it should approach this contentious policy question, which is resulting in thousands of asylum seekers living in a legal limbo on Manus Island and in Nauru in conditions that are described by observers as being well short of reasonable for humans.

The High Court could have read more into the provisions of the Migration Act in respect of offshore processing. For example, to say that so long as a minister gets assurances about not returning asylum seekers to persecution risk and to processing their claims, then the Minister has done his or her job is to allow countries such as Papua New Guinea to mistreat asylum seekers on Manus Island.

What of the fact that the Migration Act is underpinned by Australia's obligations under the UN Convention on Refugees to treat asylum seekers in a way that does not harm them and which ensures their claims are assessed fairly? A more liberal interpretation of the Migration Act provisions by the Court may well have seen a different result for those who are enduring and suffering on Manus Island. In other words, the Court could have indicated that it is inconsistent with Australia's convention obligations for it not to be satisfied that the assurances given by Papua New Guinea or any other country are in fact valid and represent reality rather than a political gesture.

While the Gillard government and the Coalition rushed to legislate to get around the High Court's ban on Malaysia as an offshore processing centre, it is an indictment of both the Coalition and the ALP that they are highly unlikely to amend the law after this High Court decision despite the fact that it means offshore processing of vulnerable asylum seekers can take place under conditions that amount to gross mistreatment of human rights.

Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance. View his full profile here.

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