Australian High Court: Federal Government has "no power" to remove asylum seekers to Malaysia [excerpts & link to full transcript]

On 25 July 2011 the Gillard Government announced an agreement with Malaysia to transfer asylum seekers arriving by boat in Australia waters to Malaysian territory, after the agreement was legally in effect. This decision was challenged by application to the High Court of Australia.

Here are excerpts from Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011).  
FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ presiding.

FRENCH CJ.:

Conclusion

68.         The ministerial declaration of 25 July 2011 was affected by jurisdictional error. It was not a declaration authorised by s 198A of the Migration Act. The plaintiffs cannot therefore be taken to Malaysia pursuant to the power conferred by s 198A(1). Nor is it open to any officer of the Commonwealth to remove the plaintiffs to Malaysia pursuant to s 198(2) of the Migration Act without first assessing their claims to be persons to whom Australia owes protection obligations.

69.         In relation to M106, I agree for the reasons explained in the joint judgment[72] that he cannot be removed from Australia without the prior consent in writing of the Minister under the IGOC Act. I agree with the orders proposed in the joint judgment.

GUMMOW, HAYNE, CRENNAN AND BELL JJ.:

Conclusion and orders

148.      For the reasons that have been given, the Minister's declaration that Malaysia is a specified country for the purposes of s 198A of the Act was made without power. There should be a declaration to that effect. The Minister may not lawfully take either plaintiff from Australia to Malaysia and the Minister should be restrained accordingly. In addition, in the case of the second plaintiff, the Minister should be further restrained from taking the second plaintiff from Australia without there being a consent in writing of the Minister given under s 6A(1) of the IGOC Act. The defendants should pay the plaintiffs' costs of the proceedings to date before Hayne J and the Full Court.

KIEFEL J.:

Conclusion and orders

258.      There was no power to make the declaration of 25 July 2011. Because the declaration is invalid, there is no power to remove the plaintiffs to Malaysia. Any attempt to do so would be unlawful. In the case of Plaintiff M106, his removal from Australia to any country is also unlawful absent the consent of the Minister in his capacity as guardian of Plaintiff M106.

259.      I agree with the orders proposed in the joint judgment.

HEYDON J.:

Conclusion

199.       It is not necessary to deal with an alternative argument advanced by the defendants which relied on s 198 of the Act.
200.      Each Amended Application should be dismissed with costs.

Full judgment transcript here.

Judgement summary here.

* This post was emended for name error and dissenting judgment included