Malaysia solution pros and cons

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Australia, a founding signatory to the Convention Relating to the Status of Refugees, and Malaysia, a long time sceptic of international human rights instruments, have now signed an agreement under which unvisaed asylum seekers heading for Australia by sea will be removed to Malaysia for processing. The agreement is legal. It has the approval of UNHCR — the world's pragmatic, resource-stretched agency charged with advocating for refugees.

The deal has some upsides, and some downsides.

First the upsides: 4000 proven refugees who have been waiting a long time in Malaysia for resettlement will find a permanent home in Australia within the next four years. And they will not displace any other persons, given that our humanitarian intake will be increased to 14,750 per annum. Those asylum seekers who had reached Australia before the signing of this agreement will now be processed in Australia, and if found to be refugees, will be offered a permanent home here.

The next 800 boat people who head for Australia will be taken to Malaysia for processing. This sends a clear message to people smugglers and their clients: 'There is no point leaving Indonesia, because you will just end up in Malaysia with no chance of preferential treatment during the processing of your claim.' The agreement states: 'No transferee should be given any preferential treatment in the order of processing their claims in Malaysia and ... they should receive no processing advantage (including access to resettlement) as a result of having undertaken irregular migration to Australia.'

Despite the repeated claims in the Australian media, advocates of John Howard's Pacific Solution could no longer be assured that they could send a clear message to Indonesian boat owners and asylum seekers waiting in Indonesia. Why? Because most of those proved to be refugees under the Pacific Solution ended up in Australia or New Zealand. Presumably those found to be refugees in Malaysia will not end up here, or at least not for a very, very long time.

While awaiting processing, those transferred to Malaysia will be held in detention for about 45 days only, then released into the community. The International Organisation for Migration (IOM) will provide them with a month's accommodation and assistance. They will have access to 'self reliance opportunities particularly through employment'. So they will be no worse off than they would have been had they remained waiting in Indonesia.

Now the downsides.

Australia, an island nation continent surrounded by neighbours most of whom are not signatories to the Refugee Convention, has spent the last ten years looking for a regional solution to unauthorised people movement in the region. This bilateral agreement, if emulated by other signatories to the Convention, would result in the complete emasculation of the Convention, with UNHCR becoming the de facto authorising officer for states contracting out their obligations to non-signatories.

Once again, Australia is not a model international citizen, but a pragmatic player content to use 800 hapless asylum seekers as a means to an end.

The next boats heading for Australia are sure to include some unaccompanied minors. If they were not eligible for transfer to Malaysia, the scheme would be unworkable. On Tuesday, Chris Bowen, the Minister for Immigration, explained that the government could not afford to have any 'blanket exemptions' as 'that would send completely the wrong signal'. He rightly said, 'I do fear we would see boatloads of children coming to Australia and all the danger that that implies.'

So unaccompanied minors fleeing places like Afghanistan and arriving in Australia will be transferred to Malaysia within 72 hours of arrival with 'special procedures to deal with the special needs of (these) vulnerable cases'. The governments are entrusting this task to IOM.

The Australian Government is hoping that the Malaysian Government will be attentive to the needs of these vulnerable children. They will have access to 'private education' provided by UNHCR, and where 'such arrangements are not available or affordable, (they) will have access to informal education arrangements organised by IOM'. Their health needs will be provided by private clinics and private hospitals under arrangements set up by UNHCR and IOM.

Though Malaysia has acceded to the International Convention on the Rights of the Child, it has maintained a number of reservations. For example it refuses to sign up to the part of the Convention banning discrimination against a child on the basis of 'race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status'.

When Malaysia first acceded to the Convention, it entered so many unprincipled reservations that many EU countries objected, claiming that such blanket reservations were 'incompatible with the object and purpose of the Convention ... undermining the basis of international treaty law'.

The agreement is legal. Back at the time of Tampa, the Australian courts had the opportunity to look at the extent of government's executive power to stop aliens entering Australia and to remove them from Australia. In the Tampa litigation, Justice French (now Chief Justice of Australia) said:

In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.

He did note however: 'The task of the Court is to decide whether the power exists and whether what was done was within that power, not whether it was exercised wisely and well.'

In the infamous Al Kateb Case, Justice Hayne on the High Court said that 'a non-citizen may be removed to any place willing to receive that person. It follows that, unless some other provision of the Act restricts the places to which a non-citizen may be removed, the duty imposed by (the legislation) requires an officer to seek to remove the non-citizen to any place that will receive the non-citizen.

Under the Migration Act, Bowen simply needs to make a declaration that Malaysia 'meets relevant human rights standards in providing protection'. His declaration would not be closely scrutinised by the Australian courts, and it seems that not even the Greens will call it into question in Parliament. Senator Sarah Hanson-Young has said there will be no 'horse-trading' on this issue in the interests of 'ensuring stability in Parliament'.

The Malaysian solution is legal and unprincipled, but it might just work — stopping the boats. If other countries try to replicate it, we will have to tear up the Refugee Convention and start again. If any of the 800 includes West Papuans fleeing Indonesia in direct flight fearing persecution, we will have undermined the whole basis of the Convention. And the plight of the unaccompanied minors transported from our shores to Malaysia will be on our conscience. 


Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. 

Topic tags: Frank Brennan, Malaysian Solution, Refugee Convention

 

 

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Existing comments

It will save lives and it will be hard on the people smuggling industry. It shows that Julia Gillard has the capacity to care and take wise decisions.
Beat Odermatt | 27 July 2011


Wrong, the UNHCR have not signed and have not agreed to this at all in any way. They are helping the media blow the whistle on the lies of education and health and why everyone in this country is so obsessed with torturing and tormenting these tormented people is beyond me. The "deal" is not legal. Human trading is never legal. In fact part of it says it must uphold each nations human rights obligations, but Malaysia has none and we know it.
Marilyn | 27 July 2011


And the UNHCR describes "direct flight" as coming from any place where there is no safe place in between and the first country principal has never existed.
Marilyn | 27 July 2011


UNHCR’s statement about the agreement is available at http://www.unhcr.org/refworld/docid/4e2e5e932.html In part it states: “UNHCR hopes that the Arrangement will in time deliver protection dividends in both countries and the broader region. It also welcomes the fact that an additional 4000 refugees from Malaysia will obtain a durable solution through resettlement to Australia. The potential to work towards safe and humane options for people other than to use dangerous sea journeys are also positive features of this Arrangement. In addition, the Malaysian Government is in discussions with UNHCR on the registration of refugees and asylum-seekers under the planned Government programme announced in June on the registration of all migrant workers. “The Arrangement and its implementing guidelines contain important protection safeguards, including respect for the principle of non-refoulement; the right to asylum; the principle of family unity and best interests of the child; humane reception conditions including protection against arbitrary detention; lawful status to remain in Malaysia until a durable solution is found; and the ability to receive education, access to health care, and a right to employment. “The critical test of this Arrangement will now be in its implementation both in Australia and Malaysia, particularly the protection and vulnerability assessment procedures under which asylum-seekers will be assessed in Australia prior to any transfer taking place.”
Frank Brennan SJ | 27 July 2011


I agree with Marilyn. Human trading is not legal. It is utterly degrading, and such arrangements with cultures like Indonesia's, can be downright inhumane. I do not believe refugees to Australia should be transported to any Third World or developing country for processing. Such processing arrangements should be between other developed nations, such as New Zealand. Also, I am grateful to be reminded of the poor people of West Papua, and what they might face if forwarded to Indonesia.
LouW | 27 July 2011


A few years ago, in the course of work, I interviewed a Burmese 'illegal immigrant' in Malaysia (refugees and asylum seekers are all 'illegals') whose kids were toddlers when the family first arrived in Malaysia. When I spoke to him in 2002, his eldest was 17 - and had never been to school, couldn't read or write.

Nothing I have seen or read since indicate much has changed for these communities.

How is it going to be any different for those among these 800? Are they going to be some special category of refugees, separate from the thousands already there?

The Malaysian govt treats its own (non-Malay, non-Muslim) citizens poorly.

I can't see it giving a hoot about refugees.
m'sian | 27 July 2011


Clearly Marilyn and Louw misunderstand the meaning of the word 'legal'. Frank Brennan has not argued that the "Malaysia solution" is either ethical or moral; he has explained why it is legal - in terms of the agreeement between the nations involved with overseeing by UNHCR.

The Prime Minister's announcement that the agreement is a win for Australia, a win for Malaysia and a loss for the people smugglers, underscored the main problem - by ignoring the loss for the asylum seekers sent to Malaysia.

Conditions for asylum seekers detained in Malaysia are already tougher than for those detained in Australia. This agreement, by creating a 2-tier process for dealing with asylum seekers in Malaysia will aggravate their plight by causing strong resentment for those people already there. Further, it will not be easy for the 800 to be accepted into the community - in housing, employment or education. Malaysian introversion will not dissipate overnight just because of a legal agreement. Consider how Australian introversion has continued, still strong, over 70 years since we locked up Jewish asylum seekers from Nazi Germany.

Australia has many legal paths, but only one legitimate path - accept asylum seekers for processing of their refugee claims in the community, on the Australian mainland.


Ian Fraser | 27 July 2011


They refuse to sign it, are not party to it. For heaven's sake Frank, it is not legal. I don't give a flying stuff if the morons think it is - it is as bad as the trade in kanakas.

I don't care what two stupid little men in two racist governments think they can do, it is not legal.
Marilyn | 27 July 2011


Thank you for such a sober, reasoned and temperate article. I find the whole dreadful situation shameful and distressing and have given up writing to the Minister or Prime Minister as the responses only reflect this sorry policy. I fear for the children caught up in this arrangement as the UNHCR representatives are generally local people who will be torn between the reality of trying to give anyone favoured treatment and continuing the status quo of their existing thousands of refugees.


I just feel that surely, we could have and can do better than this though I have no doubt this well be a generally popular solution.
Linda Shaw | 27 July 2011




Let's get one thing perfectly correct from the outset: this Australia/Malaysia people swap does NOT have the approval of the UNHCR.

"Approval" implies endorsement..and the UNHCR has made it very clear that it has not given any such support.

It is not a signatory to the agreement...which is what an approving party would not shrink from...even though it has 'appreciated" being consulted by both Australia and Malaysia.

The UNHCR describes the poeople swap....some call it trafficking...as an "Arrangement"..and that "the critical test of this arrangement' would be in its implementation.

Brian Haill - Melbourne | 27 July 2011


All I can is that I'm shocked and disappointed that Fr Brennan can find any pros in this disgusting agreement. Why can't we be 'man enough' to 'process' (such an ugly word here) the refugees on our own soil. How low to be searching for 3rd world countries to take on our responsibilities. The ALP and supporters of this 'solution' are a disgrace.
Ron | 27 July 2011


"The Malaysian solution is legal and unprincipled". If this is so, God help us! Dare not depend on the law to do so!!
John Frawley | 27 July 2011


Just heard that Afghans in Indo are being told by people smuggler that the MALAYSIA DEAL does not include Afghans and unaccompanied minors.

They are preparing a boat and lying to people, saying that Afghans wont be sent to Malaysia.

pamela | 27 July 2011


This heinous agreement is one some future politician will be apologising for like Rudd did about the Stolen Generation. When will politicians learn from past mistakes?
Colleen | 28 July 2011


In addition to the dubious morality of the 'solution', two practical points:

1 UNHCR is already strapped for funds to carry out this work. Our failure to meet our usual obligations under the Convention will make this worse, affecting other countries not involved.

2 Australia has guaranteed funding for the Malaysia-bound 'transportees' for 4 years, saying it will become a fresh budget item after that. In view of the length of time refugees have been in Malaysia, one may feel less than sanguine about their long term support.

Of course it is great that 4,000 will leave Malaysia for Australia, but Fr Frank's comment earlier that 'Even if it works, if it is immoral' it cannot happen, stays in my mind: is this arithmetic just to all? Thank you Fr Frank for your always incisive and thought provoking writing.

Julia | 28 July 2011


Some court cases for reviews are now coming through. Cut and paste documents discarded by the courts, DIAC try to argue against interpreters - court says they must have interpreters. Some of the so-called independent people were the worst of the worst RRT members who denied everyone and we have got two names of members who are being hauled over the coals for bias. Magistrates are having to tell the members that the High court stated clearly that reviews must be within the law. they are not doing that. And we think we can do worse by sending them to Malaysia.
Marilyn | 28 July 2011


I noted the response of supporters of the people smuggling industry in this forum and they are not happy. It shows that our Government may have finally found a way to reduce people smuggling. I have no doubt that this policy will save lives and hit the income stream of criminals. If their often well meaning and simple minded supporters are angry, so be it. Human lives are far too important then being traded by smugglers and profiteers.
Beat Odermatt | 29 July 2011


Some readers question whether the agreement “has the approval of UNHCR” as I have stated. After the signing of the agreement, Malaysia's Home Minister Hishammuddin Hussein, said, “At the outset we realized that UNHCR and IOM had to be on board.” ALP Left faction convenor Doug Cameron had said on 18 June: “The UNHCR has to sign off and it has to be consistent with our international obligations.” After the signing Cameron said: “The Left of the Labor Party has been public in its concerns since the announcement of the deal. I can say that the position that we set out has been met.”
Frank Brennan SJ | 29 July 2011


In reply to Beat Odermatt's 29 July comment, I hope Beat knows the difference between supporting asylum seekers and supporting "the people smuggling industry".

Reading the same comments, I see a continuing call for Australia to stop reneging on her responsibilities under the Refugee Convention, and return to accepting asylum seekers into mainland Australia where their claims to refugee status can be heard with recourse to full legal process.

The conmen who prey on asylum seekers will not be deterred by the "Malaysia solution". They will find a new sales pitch to continue fleecing vulnerable people who are able to pay large sums on the slender hope of gaining asylum.

Meanwhile Australia will continue gaoling Indonesian fishermen trying to increase their meagre income by undertaking a perilous jouney for a very small fee. We destroy their boats, on which their livelihood depends and we have gaoled their juvenile crew members in adult prisons.

With Australia yet again needing increased immigration to fill vacancies in many industries, we have an opportunity to think more creatively about how we can contribute to easing the plight of asylum seekers. While there will always be asylum seekers, we can at least respond more humanely.


Ian Fraser | 29 July 2011


Fr Brennan your work is an inspiration. I frequently cite you more recently on Twitter as skylark100AU1 from your 2003 book "Tampering with Asylum. I also cite #JulianBurnside's views and speeches.

In relation to this article I feel unable to agree with your perceptions re pros of the #Malaysian deal.

Please see UN High Commissioner for Refugees, UNHCR Statement on the Australia-Malaysia Arrangement, 25 July 2011, available at: http://www.unhcr.org/refworld/docid/4e2e5e932.html [accessed 29 July 2011]

It is clear that the UNHCR has not signed off on on the #Malaysian #refugee #asylum swap deal.

I have repeated expressed cynicism that the mere presence of the #UNHCR with his limited powers or the presence of the #IOM can possibly guarantee the safety of returnees in this unconscionable swap deal.

The UN High Commissioner #NaviPillay was scathing, saying that assurances are simply not good enough.

Confusion between #humanitarian and #asylum obligations and distortion of facts and figures based on cherry-picking practices re those seeking resettlement can lead to misconceptions about this people trafficking trade by the Australian and Malaysian Governments.

I cannot support it in any circumstances.

The failure of the #Malaysian swap deal to take account of enshrined legal obligations under international provisions reprehensible
Madeleine Kingston | 29 July 2011


Why are we sucked in by the 'people smuggling industry' crapola? Why don't we spend money and angst on eradicating the people persecution industry that causes human beings to leave their homes for fear of those who torture and kill them? Plus don't Malaysian citizens apply justifiably for refugee status in Australia? How COULD our government sign this deal? The asylum seeker children's human rights are ignored as children's rights are ignored in Family Law. Out of sight...
Ariel | 29 July 2011


There is no people smuggling industry Beat, at least not the way you mean.

There are brothel owners smuggling in sex slaves, there are corporations smuggling in workers on slave wages.

But giving refugees a ride is not people smuggling under any definition in any law or treaty.

We jail the Indonesians for not people smuggling and our lazy media are well aware of that fact but refuse to mention small things like facts because they have been so brainwashed and lazy over so many years they can't dare to change now.

What we have a is dance with racist media and racist pollies lying to everyone.
Marilyn | 29 July 2011


To IAN FRASER: NOBODY deserves to die because of the greed of the of people smugglers. The supporters are as guilty as the traders. Without their support, the trade would have never taken off and the death could have been prevented.
Beat Odermatt | 29 July 2011


Navi Pillay is the UN High Commissioner for Human Rights which is a completely different office from UNHCR (the UN High Commissioner for Refugees). I know from bitter experience in Cambodia that the UNHCR is capable of pragmatic deals and material co-operation with governments despite passionate public objections from the UN High Commissioner for Human Rights. If UNHCR does not approve of this agreement (with deep regret etc), they have been verballed by both governments and we need to hear from them, methinks.
Frank Brennan SJ | 29 July 2011


all they said is they will not sign it, are not party to it and have been consulted.

That is all. They are not party to this dirty deal and the government know it.
Marilyn | 29 July 2011


Suggest you checkout Mary Vernon article in current "www.townsvillebulletin.com.au "& consider an applauding comment to this brave lady in our Redneck Capital .
John Kersh | 31 July 2011


ALI MOORE: The UNHCR is not a signatory to this agreement, but you will be involved in its implementation on the ground in Malaysia. Does that amount to full UNHCR endorsement?

VOLKER TURK: Well it is an arrangement between two governments. It's a bilateral arrangement between the government of Malaysia and the Government of Australia, and UNHCR is, as you said, not a party to this agreement, nor is it going to sign or has signed the agreement.

Marilyn | 01 August 2011


This afternoon, Justice Hayne has referred questions of interpretation of the Migration Act to a full bench of the High Court for consideration on 22 August 2011. So the injunction restraining the Commonwealth from sending asylum seekers to Malaysia is now extended.

The Full Court will be asked to consider the correct interpretation of s 198A(3). Before Minister Bowen makes a declaration that Malaysia is a declared country, is he required to act bona fide and reasonably, and on what information is he required to act, when declaring that Malaysia provides access to effective procedures, provides protection, and meets relevant human rights standards?

The Full Court may also need to consider whether an immigration officer can remove asylum seekers under s.198(2) regardless of whether there is a declaration in relation to Malaysia?

If a full bench of the High Court thinks s. 198A(3) has a contested interpretation, the ultimate decision of the Court could take a considerable period of time.

No asylum seekers will be sent to Malaysia for at least two weeks, and it could be months.

Frank Brennan SJ | 08 August 2011


My thoughts on today's court proceedings are at: http://www.ucanews.com/2011/08/08/australias-malaysia-solution-hits-snag-at-home/
Frank Brennan SJ | 08 August 2011


My assertions about UNHCR still stand a couple of months later. See http://www.theage.com.au/victoria/malaysia-better-for-refugees-20111010-1lhlk.html
Frank Brennan SJ | 11 October 2011


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