Contending conceptions of individual rights and the separation of powers: The constitutional implications of the Gillard government’s failed Malaysia Solution

Stream: Panel 21 - Human Rights & Democracy: The Role of Courts, Parliaments and Electoral Systems in Enforcing Human Rights 
Date: Monday, 26 September 2016
Time: 2.00 pm – 3.30 pm


The paper considers the failure of the Gillard government to implement the Malaysia Solution. The discussion assesses the failure of the Malaysia Solution to understand the philosophical arguments that are employed when the Parliament and the High Court consider offshore processing policy. The paper argues that the legislative process was characterised by two different understandings of Australia’s constitutional arrangement and its operation in regards individual rights and the separation of powers. The discussion situates the Malaysia Solution in the context of Australia’s historical approach to migration policy, linking the government’s arguments to concepts of parliamentary sovereignty, ministerial accountability and utilitarian rights. This understanding of executive authority in migration matters was challenged in the High Court and repudiated in the Senate. In rejecting the government’s legislation, the High Court and the Senate adopted an understanding of executive power that more closely reflects Australia’s federal and republican traditions. The key finding of the paper is that philosophical differences regarding the separation of powers and individual rights contributed to the government having no clear or coherent asylum-seeker policy. The increased acceptance of human rights allowed the Senate and the High Court to challenge the orthodox method of executive government, providing a mechanism to overturn longstanding bi-partisanship on the Parliament’s capacity to develop migration and offshore processing policy.


Carl Olive (Presenter), Griffith University
Carl Olive has recently completed a PhD at Griffith University. Carl's research is predominantly focused on political philosophy and Australian constitutionalism.