The High Court and the Gillard government

The case study in Chapter 3 of the text book Australian Political Institutions 10e (pp. 88-90) discussed the High Court’s decision of 30 August 2011 that asylum seekers could not be sent offshore to Malaysia for processing and cast doubt on offshore processing of asylum seekers in other countries such as Nauru and Papua New Guinea. In October 2012 the High Court ruled a government regulation relating to the process of ASIO adverse assessments of asylum seekers and the issue of protection visas invalid.  In making these decisions did the High Court encroach on the role of the political executive (the government) to make government policy? 

The High Court decision set in train a series of responses by the government. The first was the introduction into the parliament of a bill to change the law to permit offshore processing – the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2012).  The fact that the government subsequently withdrew the bill when it became apparent it would not pass the House of Representatives was a function of the difficulties of operating as a minority government and its failure to persuade the Opposition or cross bench MPs to support the legislation. 

The relationship between the executive and the parliament remained a significant factor in the asylum seeker policy process when independent MP Rob Oakeshott introduced his private member’s bill (Migration Legislation Amendment [The Bali Process] Bill 2012 into the House of Representatives on 13 February 2012. He sought to break the policy impasse by proposing the use of the Bali regional cooperation framework involving over 50 countries (established by the Howard government in 2002) which deals with people smuggling and people trafficking.  The bill would allow the minister to nominate a third country for the processing of asylum seekers if it was in the national interest to do so and that country was part of the regional framework.  It also drew on a Coalition amendment to the 2011 bill by requiring the UN High Commissioner for Refugees and the International Office of Migration to table evidence in the parliament that ‘any bilateral agreement to transfer asylum seekers would be bound by appropriate human rights safeguards’ (Wilson, L. 2012, ‘Rob Oakeshott compromise bill doomed to defeat in the Senate’ The Australian, 28 June).  The Opposition response that it would only support the bill if any country designated an offshore processing country was a signatory of the UN refugee convention (Morrison, S. 2012, House of Representatives Debates, 19 March, p. 3376) was not agreed to by the government because it would rule out the Malaysian option.  After a tied vote the bill passed the House of Representatives because the Deputy Speaker used her casting vote to support the bill.  It did not pass the Senate because the Greens, who were opposed to offshore processing, joined with the Coalition to vote against the bill.  Rob Oakeshott described the result with this comment: ‘the colours of the two parliamentary chambers could not be more appropriate today.  The House of Representatives gave the green light to doing something to “stop the deaths” but the Senate gave it the red light’ (Oakeshott, R. 2012, ‘Senate must resolve asylum seeker policy deadlock’, Rob Oakeshott Independent, 29 June,

The government’s next move was the establishment on 28 June 2012 of an Expert Panel to make recommendations on asylum seeker policy.  The panel (The Houston Report) reported on 13 August 2012 and on 14 August the government moved amendments to the 2011 bill in the House of Representatives to implement the central recommendations of the report to facilitate the transfer of people to regional offshore processing centres.  The name of the bill was changed to the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 to reflect the intention of the legislation.  The bill removed section 198A which had been the basis for the High Court’s decision. The minister’s decision about the country of destination for offshore regional processing would have to be justified that it was in the national interest. In accordance with the Houston Report recommendations, the parliament would be provided with oversight of the minister’s decision, including an amendment related to this process agreed with the Opposition who then supported the bill. The bill passed the House of Representatives on 15 August and the Senate on 16 August 2012, paving the way for the government to establish processing centres on Nauru and Manus Island.

 Border protection policy.  On 5 October 2012 the High Court again created problems for the Gillard government when it determined invalid a regulation which prevented the grant of a protection visa to a refugee if ASIO had assessed that person to be a risk to Australia’s national security  (High Court of Australia, ‘Plaintiff M47/2012 v Director General of Security & ORS [2012] HCA 46).  The decision did not prevent ASIO from taking into account a risk to national security.  However, it did mean the minister was able to independently assess whether a visa should be issued.  The Attorney-General stated that legislative change would be needed  (Roxon, N. 2012, ‘Transcript of interview with Barrie Cassidy on ABC Insiders’, 7 October, and the Opposition indicated it was willing to work with the government to resolve the issue (Morrison, S. cited in Maher, S & Wilson, L. ‘High Court blow as judges sideline ASIO on asylum’ The Australian, 6 October 2012).  The government’s immediate policy response was the establishment of an independent review process ‘for those assessed to be a refugee but not granted a permanent visa as a result of an ASIO adverse security assessment’ (Roxon, N. ‘Independent Reviewer for Adverse Security Assessments’, Media Release, 16 October 2012, 

In a further step to strengthen its asylum seeker policy, in accordance with another Houston Report recommendation, the Gillard government introduced legislation into the House of Representatives on 31 October 2012 to excise mainland Australia from Australia’s migration zone. This would mean that boat arrivals on the Australian mainland would treated in the same manner as those arriving at other excised offshore places such as Christmas Island.  If the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 is passed, asylum seekers arriving by boat on the mainland could be sent offshore for processing.  The Opposition criticised the government for backtracking on its refusal to support a similar Howard government  initiative, but there is an indication it is likely to support the bill.

The political process in reaching these policy outcomes reflects the problems facing a minority government in getting its legislation through the parliament.  It required intensive discussions with the cross bench MPs in the House of Representatives (the Greens were never going to agree to offshore processing) and a negotiated agreement with the Opposition to secure passage of the offshore processing billl.  The government also used an independent outside advisory body to justify its policy response and established an independent review process to redress the problem associated with ASIO assessments and the issuing of protection visas. These outcomes indicate that the executive has the power to respond to High Court decisions through amendments to the law through the parliamentary process. Because of this, the High Court in these matters did not usurp the power of the executive but it was indicative of the power of the Court to adjudicate on the legitimacy of government legislation.



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