SYDNEY (Reuters) - Australia’s highest court on Wednesday scuttled government plans for a refugee swap with Malaysia in a major policy setback for Prime Minister Julia Gillard, already trailing badly in opinion polls and facing defeat at the next election.
The two countries signed a deal in July aimed at deterring Asian asylum-seekers from sailing to Australia. Under the deal, Australia would send up to 800 newly arrived asylum seekers to Malaysia where their refugee claims would be assessed. In return, Australia would accept more refugees from Malaysia.
“It’s a slap in the face for the Gillard government, it’s a huge setback for the Malaysian solution,” said Marianne Dickie, an expert on migration law at Australian National University.
“It effectively hobbles it (the policy), if not ending it.”
Gillard’s minority Labour government, which must fight an election by late 2013, struck the Malaysian deal to fight perceptions that she was soft on asylum seekers. A tough stance on boat people has helped swing election results in recent years.
But lawyers for two asylum seekers asked the High Court to declare the people swap illegal, because Malaysia had no legal guarantee to protect the rights of asylum seekers.
The court agreed and ruled that Canberra could not ensure protection for asylum seekers sent to Malaysia.
Australia is a signatory to the U.N. convention on refugees but Malaysia is not. The convention, agreed in 1951, spells out the international legal protection and rights refugees are entitled to from states that have signed it.
Critics say Malaysia’s refusal to ratify the U.N. convention has led to mistreatment including caning and denial of basic rights for the 93,600 refugees in the country, who come from Myanmar, Sri Lanka, Somalia, Iraq and Afghanistan.
“They were actually petrified about being sent to Malaysia and they are extremely relieved,” said David Manne, a lawyer acting for the two asylum seekers, adding they were worried about being harmed in the Southeast Asian nation.
Australia already has tougher immigration rules than many developed countries, particularly in Europe, despite the relatively low number of asylum-seeker arrivals.
Most asylum seekers in Australia are held in detention centres, with those arriving by boat sent to remote locations dotted around the country and on Christmas Island, an Indian Ocean territory.
Australia accepts around 14,000 people under its refugee and humanitarian intake each year.
The government had said the Malaysia deal would discourage asylum seekers from trying to get to Australia on creaky fishing boats and Immigration Minister Chris Bowen said the court’s decision was a big blow.
“Let’s make no bones about it. Today’s decision by the High Court is a profoundly disappointing one,” he said.
But he said the government was inclined to honour its deal to accept 4,000 refugees from Malaysia, and remained committed to a regional approach to fight people smuggling.
Australia, a nation of about 23 million people, receives up to a few thousand asylum-seekers by boat each year, but the arrivals stir intense political debate over border security.
In 2001, then conservative Prime Minister John Howard won voter support for his decision to use the military to prevent entry into Australian waters of a ship which had rescued asylum seekers from a sinking boat in the Indian Ocean.
Howard’s government had appeared to be heading for electoral oblivion ahead of that incident, but he went on to win a general election three months later.
“What we have seen today in the High Court is yet another recognition of yet another policy failure by this incompetent government,” said opposition spokesman Scott Morrison.
The Labour government, which has a one-seat majority in parliament with the backing of Green and independent MPs, has also come under pressure over a scandal involving a government MP accused of using a union credit card to pay prostitutes.
Former Labour politician Graham Richardson, now a political commentator, said the government needed to look at other possible offshore locations for processing asylum seekers.
“I think Malaysia is just dead,” he said.
Australia has already begun negotiations with Papua New Guinea to re-open the mothballed Manus Island immigration detention centre, which closed down in 2004.
Wednesday’s High Court ruling means Australia might also need to re-open a detention centre on the remote Pacific islands nation of Nauru.
Both the Manus Island and Nauru detention centres were used by the former conservative government under its controversial Pacific Solution, where asylum seekers who arrived by boat were sent to other countries to have their refugee claims processed.
Rights groups welcomed the ruling.
“Amnesty International is delighted that the High Court has prevented this outrageous, politically motivated scheme from going ahead,” said refugee spokesman Dr Graham Thom.
Malaysian rights group SUARAM said Canberra should stop looking to other countries to deal with its asylum-seeker problem.
“This is outsourcing a responsibility that belongs to Australia,” said SUARAM’s Andika Abdul Wahab.
Additional reporting by Amy Pyett, James Grubel and Michael Smith in Sydney, Liau Y-Sing in Kuala Lumpur Editing by Mark Bendeich, Ed Lane and Neil Fullick