The Doctrine of Separation of Powers and the Recent High Court Decision Regarding the Gillard Government’s ‘Malaysia Solution’
By Alexander Milne
The High Court decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship[1] outlines the importance of the independence of the Judiciary and the Doctrine of Separation of Powers. It is a phenomenon usually peculiar to lawyers to be able to read a lengthy and convoluted court judgement and feel inspired. However this is a decision which should make Australians of all political persuasions very proud of the system of independent Judiciary in this country.
Impact of the Decision:
This decision shows the Doctrine of Separation of Powers in action. Separation of Powers is the term which is used to define the independence of the Legislative, Executive and Judicial branches of government. Particularly important is the independence of the Judicial arm, which acts to avoid an unhealthy concentration of power in the hands of any currently elected party. The Doctrine means that the government itself is subject to the law, and decisions made by the government can be reviewed by the High Court and overturned if they are made in excess of the Executive’s power.
The alternative is the experience where the courts act in cahoots with the governing party, or where the courts simply do not have the power to restrain the governing party. These situations historically are much more conducive to authoritarian rule. In these systems citizens are not protected from arbitrary and unjustified decisions at the whim of the government.
Exploration of the ‘Malaysia Solution’ Case:
In this case, the Plaintiffs challenged the power of the Minister for Immigration to make the decision determining that Malaysia could be a specified country for the offshore processing of illegal entrants claiming refugee status. The Plaintiff’s argument was that the Minister legally must be satisfied of certain facts about the protections offered by the country being specified, and he could not have been satisfied of these facts in relation to Malaysia, and therefore did not have the power to determine that Malaysia could be specified.
Section 198A of the Migration Act 1958 confers upon the Minister the power to make this kind of determination, and says as follows:
- An officermay take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).
- The Minister may:
