It was Philip Ruddock's 2001 Tampa amendment to the Migration Act that opened the way for the High Court's decision on the Malaysia refugee swap deal ... Ironic isn't it? ... Gillard unfairly shafts French CJ ... The former Liberal Immigration Minister can now wear his Amnesty badge with pride ... Marcus Priest reports
If Prime Minister Julia Gillard wants to blame someone for her current predicament it should be former Immigration Minister Philip Ruddock, not High Court chief justice Robert French.
This week Gillard was keen to highlight previous decisions by French, apparently contradicting the reasons he applied this week to stymie her Malaysia Swap deal.
Gillard found an uncommon bedfellow in the form of Justice Dyson Heydon, who decried his colleagues' incursion into the powers of the executive.
However, a close reading of one of French's decisions and the history of the legislation which brought the deal undone reveal the delicious irony that it is Ruddock, not the chief justice, who has been the asylum seekers' best friend.
It was Ruddock not the High Court who brought the executive arm of government undone on Wednesday.
At stake in this week's High Court decision was the validity of Immigration Minister Chris Bowen's decision under s198A of the Migration Act to declare Malaysia a place to which asylum seekers could be removed.
The section requires the minister may declare in writing that a specified country provides effective procedures to assess claims, protection to asylum seekers and refugees and "meets relevant human rights standards in providing that protection".
The section was rushed into parliament by Ruddock on September 11, 2001.
It was part of a package of amendments the day after Federal Court judge Tony North ordered the minister to bring asylum seekers aboard the MV Tampa to Australia to process their claims.
The same day the Federal Court made its orders, the Howard Government signed a deal with Nauru to enable the asylum seekers to be taken to the island state to assess their claims.
Introducing the amendments Ruddock said they confirmed, "recent actions taken in relation to vessels carrying unauthorised arrivals, including the MV Tampa, are valid".
However, he stressed they should not be misinterpreted as "fortress Australia" legislation. The minister told parliament:
"Australia will continue to honour our international protection obligations."
The Bill was subsequently passed with Labor's support. Then shadow attorney general, Robert McClellend, said:
"We are prepared to support and indeed we acknowledge that, if persons who are in distress can be taken out of the sea and brought to dry land for processing, it may actually facilitate more humane treatment of those persons, rather than putting them on board a naval craft such as the Manoora and transporting them to other locations.
Even if they are to be transported via Cocos Island, Christmas Island or another location as designated, clearly it is easier to give them health checks and the like if they are on dry land before so transporting them.
We are also prepared to acknowledge the legitimacy of giving a different class of visa status so that these people who arrive via people smugglers do not have the opportunity of jumping the queue."
Tampa: brought on the Pacific Solution and s.198A of the Migration Act
As it turned out the legislation was not needed.
On September 18, 2001 - the same day Ruddock gave his Bill a second reading - the full bench of the Federal Court overturned North's decision, saying it was within the executive's common law prerogative power to remove the asylum seekers to Nauru.
This power was in addition to provisions of Migration Act.
On a full bench split 2-1, Justice French delivered the majority decision authorising the removal to Nauru.
"The executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion ...
The steps taken in relation to the MV Tampa, which had the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure from Australian territorial waters, were within the scope of executive power
Nothing done by the executive on the face of it amounts to a breach of Australia's obligations in respect of non-refoulement under the Refugee Convention."
It was upon those words that Commonwealth lawyers latched in their defence of the Malaysia deal.
Solicitor General Stephen Gageler argued s.198A was limited to the principle of non-refoulement - the protection from being returned to a place where a person's life or freedom could be threatened.
But counsel for the asylum seekers had a deadly counter-blow: the express terms of s.198A and the statements by Ruddock when introducing it to parliament.
The section made redundant any discussion about executive power and confined the question of the lawfulness of the minister's decision to the terms of the section.
French and five other judges of the court agreed, finding the protections given by the amendment gave more protections to asylum seekers than necessarily required. French found:
"The criteria for a declaration set out in s.198A(3)(a) are not limited to those things necessary to characterise the declared country as a safe third country.
The question is one of statutory construction. The minister is empowered under s 198A(3) to make a declaration, the content of which is defined by that subsection."
It is no wonder Ruddock was sounding smug this week when asked on radio about the High Court decision.
"They're the words in the Act. And I would never walk away from those because what we put in place was a regime that ensured that people were able to access protection if there was a need."
Ruddock can wear his Amnesty badge with pride.
Marcus Priest