Sydney Law School
Legal Studies Research Paper
No. 13/53
July 2013

Implications for Offshore Processing in
Australia: The Case of Plaintiff M70/2011
Stephanie Constand
This paper can be downloaded without charge from the
Social Science Research Network Electronic Library at: http://ssrn.com/abstract=2294823.

Stephanie Constand

1

ABSTRACT
In August 2012, the Migration Legislation Amendment (Regional Processing and
Other Measures) Act 2012 (Cth) (‘Migration Amendment Act 2012’) was passed by
Parliament to enable the regional processing of the protection claims of offshore entry persons. A significant catalyst for these amendments was the High Court’s decision in
Plaintiff M70/2011 v Minister for Immigration and Citizenship, which removed the legal basis for the Malaysian Solution, the government’s former offshore processing arrangement that would have facilitated the transfer of irregular maritime arrivals to
Malaysia for the determination of their claims.
This article analyses the implications of the Migration Amendment Act 2012 for offshore processing and considers possible challenges to this legislation. It also examines the decision of the High Court in Plaintiff M70 to explore why the amendments were considered necessary in order to enable the government to pursue its revised offshore processing regime.
KEYWORDS
Immigration, refugees, asylum seekers, offshore processing, Pacific Solution,
Migration Act 1958 (Cth), human rights, jurisdictional facts

Stephanie Constand

2

IMPLICATIONS FOR OFFSHORE PROCESSING IN AUSTRALIA: THE CASE OF
PLAINTIFF M70/2011
Stephanie Constand *
I BACKGROUND TO THE MIGRATION AMENDMENT ACT 2012
Although the majority of asylum seekers arrive in Australia by air and hold valid visas, it is the small proportion of irregular maritime arrivals that provokes
Australians’ fears over threats to sovereignty and national security. Yet by international standards, the number of such arrivals to Australia is relatively low. In
2011, 4565 asylum seekers arrived on 69 boats, while 8296 people on 126 boats arrived as of August 2012. 1 These figures constitute merely four per cent of
Australia’s permanent migration and humanitarian intake. 2 Nevertheless, the significant negative sentiments that irregular maritime arrivals create within the public have led to the implementation of several political measures that are intended to secure greater border control. 3
One such measure was the Malaysian Agreement. This legally non-binding arrangement provided that the first 800 asylum seekers to arrive unlawfully in
Australia following the signing of the Agreement would be transferred to Malaysia in exchange for the resettlement of 4000 refugees recognised by the United Nations
High Commissioner for Refugees as being most in need of resettlement. 4 This arrangement was facilitated through a declaration by the Minister for Immigration and
Citizenship under the now-repealed s 198A of the Migration Act 1958 (Cth) stating that he was satisfied that Malaysia would provide asylum seekers and refugees with effective assessment procedures and protection. The decision in Plaintiff M70/2011 v
Minister for Immigration and Citizenship 5 invalidated the Minister’s declaration in regards to Malaysia and concomitantly undermined the legal basis of the Malaysian
*

BA, LLB (Hons I) (The University of Sydney); PhD candidate at The University of Sydney. I wish to thank Professor Mary Crock for her guidance and assistance with this paper.
1
Chris Merritt and Lauren Wilson, ‘New Offshore Processing Regime Bars Appeal on Asylum’, The
Australian (online), 18 August 2012 <http://www.theaustralian.com.au/national-affairs/new-offshoreprocessing-regime-bars-appeal-on-asylum/story-fn59niix-1226452971340>; Department of
Immigration and Citizenship, Asylum Trends: Australia, 2010-11 (2011) Australian Government 3
<http://www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-trends-aus-annual-201011.pdf>; Janet Phillips and Harriet