End of the "Malaysian deal"; end of the madness also?

It's the morning after the High Court handed down its judgment in what will probably now be known as "the Malaysian swap case". Read it here:

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32

Heads will be sore in Melbourne (where the lawyers are) and Canberra, though for very different reasons.

The High Court made the point that Australia has undertaken certain international obligations and that our laws must be interpreted in the light of those undertakings (not a new concept by any means). When applied to asylum seekers, that means that we must either properly assess their claims before sending them back (which is something I argued before in another post), or if they are to be sent somewhere else for processing the country concerned must have similar international legal obligations. As a matter of "jurisdictional fact" (that is, something that the Court can determine for itself), Malaysia has no such obligations.

Does this put Nauru back in play? That bankrupt little republic has now signed up for the Refugees Convention. Under the "Pacific Solution" devised by the Howard government, the actual processing of asylum claims there was under Australian control, so the High Court decision last year in the "Offshore Processing Case" might apply, meaning that applicants would have to be given natural justice and access to the Australian courts.

The situation now is that the Australian government can no longer have it both ways. It can explicity renounce its obligations under the Refugees Convention, or it can embrace them and end this whole farce of offshore processing and mandatory detention that has been such a stain on our national reputation for two decades.

Oh, and the Minister also has to live up to his obligations as guardian of unaccompanied minors, meaning he has to really consider whether it is in their best interests to send them somewhere else.