Australian High Court rules against Malaysia swap deal
![The swap deal had been in limbo since a court challenge was filed by two asylum seekers at an Australian detention centre. [Getty]](http://www.abc.net.au/reslib/201105/r768870_6525219.jpg "The swap deal had been in limbo since a court challenge was filed by two asylum seekers at an Australian detention centre. [Getty]")
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The swap deal had been in limbo since a court challenge was filed by two asylum seekers at an Australian detention centre. [Getty]
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The High Court has ruled against the Australian Government's refugee swap deal with Malaysia, throwing into doubt the future of the scheme.
The deal was put on hold following a challenge from two asylum seekers who were scheduled to be among the first to be transferred to Malaysia from Christmas Island.
Lawyers for the pair argued Australia could be in breach of its international obligations because it could not guarantee the rights of those sent to Malaysia, a view the High Court has sided with.
The court also dismissed the Government's argument the individual deal ensured the rights of asylum seekers sent to Malaysia would be protected.
While the ruling is a major setback for the Government, one international law expert says it does not necessarily close the door on the scheme.
Professor Donald Rothwell says the Government can now seek to change the migration and immigration acts.
"There certainly would be a political solution for the Government in seeking to modify and adjust the legislation so that they could circumvent some of the legal issues the High Court raised," he said.
But any such move would require cross-bench support.
Under the proposed deal Australia will take 4,000 refugees from camps in Malaysia in exchange for the Malaysian government accepting 800 asylum seekers who arrive by boat at Christmas Island.
The deal was put on hold following a challenge from two asylum seekers who were scheduled to be among the first to be transferred to Malaysia from Christmas Island.
Lawyers for the pair argued Australia could be in breach of its international obligations because it could not guarantee the rights of those sent to Malaysia, a view the High Court has sided with.
The court also dismissed the Government's argument the individual deal ensured the rights of asylum seekers sent to Malaysia would be protected.
While the ruling is a major setback for the Government, one international law expert says it does not necessarily close the door on the scheme.
Professor Donald Rothwell says the Government can now seek to change the migration and immigration acts.
"There certainly would be a political solution for the Government in seeking to modify and adjust the legislation so that they could circumvent some of the legal issues the High Court raised," he said.
But any such move would require cross-bench support.
Under the proposed deal Australia will take 4,000 refugees from camps in Malaysia in exchange for the Malaysian government accepting 800 asylum seekers who arrive by boat at Christmas Island.
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