An ethical defense of the Malaysia solution


John Rawls 'A Theory of Justice'Robust public debate over the treatment of asylum seekers who arrive unauthorised by boat is important, for the stakes are high. If the arrivals are forced home, their future prospects, freedom and very lives may be at risk. At the very least, they or their families will have wasted a lot of money, and perhaps be deeply in debt.

The stakes are less dramatic for Australians, but they are not inconsequential. Individuals and state authorities are torn by conflicting values and sentiments, ranging from compassion for the arrivals, to anger and frustration over the disruption they cause orderly and targeted migration and humanitarian programs, to anxiety over the possibility of a trickle becoming a flood.

In this environment, moral passion — a desire to do the right and the good — is common, especially among those who cast themselves as refugee advocates and proponents of value based policy, or at least policy based on respect for human dignity and human rights.

But moral passion should not be confused with moral superiority. The ethics and politics of refugee policy are complex, and the 'caring for us, caring for them' conundrum that underlies it is difficult to juggle. Any claim to occupy the moral high ground in this area of public policy is at best brave and at worst self-serving.

To illustrate we need only consider the Malaysian solution, under which unauthorised boat arrivals will be sent to Malaysia in exchange for UNHCR-recognised refugees.

The Government sees the initiative as a way to discourage people entering Australia using risky, uncontrolled and self-selective processes. Critics see it as an uncaring, politically motivated response to people whose sufferings are real, and who we have a legal and ethical obligation to assist because of their proximity.

Obligations based on proximity may seem consistent with the principle of the Good Samaritan, which suggests we should help anyone who falls within our immediate reach. They are at the heart of the non-refoulement clause in the Refugees Convention, which obliges us not to return any arriving person to a place where they have a well-founded fear of persecution for a Convention reason.

However, a refugee and humanitarian policy based on proximity has critical flaws, including from an ethical point of view.

Firstly, physical distance is no longer the barrier it once was to individuals and governments learning about and reaching out to help refugees and asylum seekers wherever they may be in the world. Convenience, economy and media coverage may be reasons for giving priority to the few who turn up on our own shores, but it is difficult to argue that these factors carry much moral weight.

Secondly, a policy centred on proximity fails to address questions of relative need. Differences exist among asylum seekers and refugees in the urgency and severity of their protection and humanitarian need. These differences can be found even among people who live in refugee camps, let alone those with the opportunity and means to move beyond them.

If we are prepared to accept this, then we have a concomitant responsibility to structure our refugee and humanitarian program in ways which preference those with the greatest need. The various ways in which this might be achieved, for example through offshore selection procedures, refugee processing and swap arrangements with other countries, or differentiation in the type of refugee and humanitarian visas we give to people, become secondary issues.

Thirdly, human dignity and human rights are important in asylum policy making, but so too is fairness, whereby we try to even out the effects of some people having more money, connections and luck than others. In considering the pros and cons of the Malaysian solution, we need to consider the interests of people who will gain from the policy, and not just those who will lose.

We might do this by listening to what refugees in Malaysia say about the policy, or by conducting the kind of thought experiment developed by justice theorist John Rawls, whereby we try to devise a set of rules to govern Australia's refugee processing and resettlement arrangements from behind a 'veil of ignorance' about the individual circumstances of the people we seek to represent (and not knowing which group we ourselves might belong to if suddenly put on the other side of the veil!).

At the very least, if we are going to debate the morality of the Malaysian solution, we should imagine defending our position not just before our peers, but before the 4000 that will miss out on being resettled in Australia if the policy is abandoned.

Finally, our capacity for hospitality in our homes and communities is linked to our ability to set at least some of the terms and conditions on which we allow others to enter and live in them.

When we feel in control of our borders, we are likely to be more accepting of new arrivals, and more relaxed about greater numbers of them, than when we are not. A high migration intake will be received best when people view it as a measured response to economic and labour market needs. A high refugee and humanitarian intake will be received best when people view it as a well-targeted expression of community compassion.

This was the paradox of the Howard Government: the tough measures it adopted in regard to unauthorised boat arrivals arguably contributed to the remarkable lack of community disquiet over its dramatic expansion of the immigration program, including an increase in the refugee and humanitarian intake and the proportion of migrants from non-European countries.

In sum, the Malaysian solution can be defended on ethical grounds to the extent that it results in our refugee and humanitarian program being based on more sophisticated assessments of need than just possession of Convention refugee status; that it can be perceived as fair by the least well off asylum seekers globally; and that it permits a larger number of people with protection and humanitarian needs to be resettled in Australia than would otherwise be the case.

It may be argued that a needs-based approach to the refugee and humanitarian program is inappropriate because 'they are all refugees'. Further, that it encourages prejudicial language such as 'deserving' and 'undeserving', and introduces too high a level of complex and subjective administrative decision making.

However, tough and difficult decisions are required whenever limited resources and opportunities face unlimited needs and entitlements. The alternative is a system of refugee protection that will remain heavily biased in favour of the few asylum seekers who can reach Australia, where they have access to a well-developed legal, welfare and advocacy system, and benefit from the Convention's exclusive concern for the treatment of in-country refugees.

 David Palmer is the former director of JRS Southern Sudan and has a PhD in the ethics of refugee policy. 

Topic tags: David Palmer, Malaysia Solution, moral passion, refugees, asylum seekers



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Existing comments

It seems to me that the terms refugee and asylum seeker have become blurred in so far as all asylum seekers may be by definition refugees but not all refugees are asylum seekers.

Is Mr Palmer suggesting that an asylum seeker with the economic means to move to another country should be treated differently from one who is impoverished?

I also have some difficulty in the trade off of the 800 asylum seekers with the 4,000 refugees. In one sense the two are unrelated. Possibly we should have taken in the 4,000 long ago.

The number of "illegals" in this country can be measured in the tens of thousands and most have arrived as full fare paying passengers on commercial flights.

The 800 are, so we are told, also full fare paying but whilst their mode of transport may be different the deal is no less "commercial" especially from the "people smugglers" perspective.

The problem is that there is more than one problem, but the one that will drive this issue is political, not humanitarian.

Tom Mitchell | 16 August 2011  

Though well argued around ethics of stakeholders, i am for the opinion that the Malaysian solution is subject to a number of other equally critical factors outside the confines of ethics.

This can be demonstrated by posing a number of question:
(1)What is in ethics to send human beings "boat refugees" to Malaysia that is not in ethics in Australia? Is Malaysia more "ethically capable" to deal with "not well classified" refugees than Australia is?

(2)Who are these boat people and why did they chose Australia and not XYZ country? For example feature this; some of the refugees come from as far as afghanistan where it is logically easier and less risky to travel over land to Europe.

(3)Are these people the most deserving refugees or the most economically capable to buy thier shipment out of thier countries? For example, it is known that these people pay more to travel dangerousily than it costs to fly from the same destination, what does this tell us in terms of our policy in terms of availability and legibility to genuine migration process.

Plainly, unless these questions and many others are first addressed, the Malaysian solution will have purely no direct correlation with solving refugee problem.

Hillan Nzioka | 16 August 2011  

An interesting bit of mental gymnastics to override the proximity argument. But the reason that we can, and should, offer shelter to those who reach our shores is not only because they are close to us. We have an ethical responsibility to care for people within our borders. Our laws apply to them, too. The Malaysia solution implies that these people don't have the same rights to a fair hearing, and fair protection from harm, as other people within our borders. That's very difficult ethical ground to maintain, as the government is finding in the High Court. The moral of the Good Samaritan story isn't to look at the person in need and ask whether they're really the best use of our resources. It's to look at the person in need that God has placed in front of you and ask, 'What can I do for them?'

Joseph Vine | 16 August 2011  

An almost convincing piece. Interesting to consider John Rawls' theoretical approach in this situation.

On reflection however, the piece lacks consideration of:
- how our obligations to asylum seekers who arrive by aeroplane can be seen as different to those by boat;
- how Australia's response to a tiny number of asylum seekers removes any moral high-ground we might hold when speaking about non-refoulement from Thailand to Burma, for example, or any number of other countries who receive vast numbers of refugees/asylum seekers but whose citizens may have legitimate concerns about competition for resouces;

On the first point, Rawls' approach would justify the rejection of aeroplane arrivals too as they are the ones lucky enough to have their paperwork (or forged paperwork - are we encouraging organised crime here too?).
On the second, Rawls' approach might consider other effects than simply the number Australia accepts, especially considering the small number this represents globally.

What is striking is how rarely anyone speaks of how well our system worked pre-Tampa when the public and media weren't looking, there were few political points to be scored and the DIAC staff were allowed to just do their jobs.

Brendan Joyce | 16 August 2011  

I don't have any real answers about refugee and asylum seekers, but I can notice an ambiguity when I see one. The Gillard government is proposing to send 800 asylum seekers to Malaysia in return for 4,000 UNHCR 'recognised' refugees.

People constantly overlook the fact that it is 4,000 OVER 4 YEARS. Do they propose to - or can they - ensure that the 800 returned are the only ones likely to arrive by boat in this period, or is it over one year? What if the boats do not stop? (They haven't.) It appears that the boat people are quite prepared to risk their lives - to DIE - in return for an end to their flight, for their freedom and status as free people. Do we call their bluff? Many languishing in detention have already demonstrated, through their self-harm, that they do not value their lives all that much after they lose hope; their hope that Australia would help, when other countries along the way did not, is their last one. We are unique, with New Zealand, as countries that care deeply about human rights - or claim to. This is the test.

Eveline Goy | 16 August 2011  

Mr Palmer creates a convenient straw man and devotes the first four paragraphs of his piece to mowing that straw man down: the running away at the mouth, emotionally motivated attacker of the so called Malaysian solution. It's easy to take a morally superior position in the face of such a opponent.

A solution to what, one might ask. Plainly a solution to the ALP's need to outdo the Howard solution.

But more to the point, to ignore the ethically most odious part of the Australian Government's "solution" - the rights of unaccompanied, or even accompanied, children - is an ethical oversight to say the least.

Michael Kelly | 16 August 2011  

I think this article is utterly wrong-headed. It suggests that a deed of simple bastardy and cowardice may be defensible if we focus in a particular way.

I taught Christian Doctrine in two different boys' catholic high schools for a total of 6 years. Each year, that is six times, we looked at the story of the Good Samaritan; six times I set a group of boys to write and present a dramatisation of that story; six times the boys put words into the mouths of the priest and of the levite, which St Luke did not do; six times those words were along the lines of "why put energy into helping this one person, just because he's here, when it may be possible to help a good many more if we organise ourselves".

After six times I came to see that the boys were right; if we don't help the unfortunate we can see, we'll end up helping nobody.
In his first letter, chapter 4, verse 20, St John says: "if you say you love God, whom you cannot see, but don't love your brother whom you can see, you are a liar". Let me use the same logic: if we say we will help 5 people in Malaysia, whom we can't see, rather than one who is disturbingly visible on Australian TV, then (I'm not as tough as St John) we are having ourselves on.
Just in case I haven't upset anybody, I have my doubts about loving the unborn but not being too fussed about the well being of those who walk the earth.

Jim Jones | 16 August 2011  

Yes, I support what you have to say.

If Australia can take all boat people, then fine. But they must not be deceived by smugglers - as we don't know how much they really have to pay to the smugglers and how many do suffer in various ways, including lose of life, in the process.

If some people are too concerned about boat people, then should go and open a camp over there - that will reduce risks and human smuggling business. I don't find any good reason to shout here and do nothing about security as much as supporting human trafficking which is a problem worldwide.

By accepting boat people here, Australia does support refugees but the ones who really benefit here are the smugglers - as though being heroic and make a lot of money.

And I don't find ethic in denying the refugees in Malaysia by favouring boat people - after they were given hope. Defeating Julia is one thing, denying these refugees is one thing. These things should not happen in support of smuggling business.

AZURE | 16 August 2011  

Perhaps the real genius of the "Malaysia solution" is that, in return for (hopefully) suppressing smuggling activity into Australia, it requires Australia to shoulder some of the burden of resettling 'genuine' ie vetted refugees from Malaysia.

Why do we distinguish between arrivals by plane and arrivals by sea-borne smuggling? Part of the answer may be that arrivals by plane are authorised.

While there is undoubtedly an ethical dimension to how asylum seekers are treated, this is not by itself sufficient reason to excuse illegal incursions into sovereign Australian territory.

David Arthur | 16 August 2011  

An interesting article. One of the acknowledged weaknesses of Rawls' theory of justice is that it does not cope very well with outsiders - those who are not members of the just society that we are attempting to conceive - so I'm not sure how helpful Rawls is in this context.

The ethical dilemmas identified by the author are very real, however the problem is surely that we have signed a binding international treaty that commits us to behave in certain ways (the Refugees Convention) and we are no longer honouring those commitments.

The 'ethics of proximity' is partly an ethics of necessity - it is those people who manage to arrive who force us to act, while we ignore the majority of displaced people around the world. If the Malaysian solution were a true attempt at concerted regional action and burden sharing it would deserve wholehearted support but it appears to be more of a political fix to get government out of a tight spot with voters.

But to suggest as Brendan does in his comments that our system worked 'well' pre-Tampa is just wrong. Woomera, Curtin, Port Hedland, lip stitching, self-harm all began pre Tampa.

Peter | 16 August 2011  

Thank you David for a thought provoking article. I have always tried to be a vocal advocate for the rights of asylum seekers, but lately, specifically following the Christmas Island boat tragedy with the appalling loss of life, and viewing the SBS program "Back to Where They Came From" which highlighted the plight of the Burmese Chin refugees in Malaysia, it is apparent to me that the refugee/aslyum seeker debate has many complexities but no easy answers.

Cara Minns | 16 August 2011  

The reality is we have very few asylum seekers and should just get on with it without wasting $772 million a year jailing them. Just imagine if Kenya and 146 other nations said "we will only help those who do not ask'. It's a sleight of hand trying to trade away the right to asylum of one group for a group that already have asylum even though it's not good. The lunacy of sending people to a place too dangerous for others we import is just that.

Marilyn Shepherd | 16 August 2011  

It is not people smuggling. It is merely crossing borders without papers and that is legal and not smuggling in any criminal sense. The alternative is death so do you really want to shut down transport. Will you people prattling about people smuggling read instead of prattling. All the Burmese in Malaysia have had to pay for transport and "smugglers" to get them through Thailand to Malaysia, they all have to do the same to get to Europe. It is simply not a crime and we are the only country that jails the ferrymen.

Marilyn Shepherd | 16 August 2011  

Does anybody know how many millions of people would have the right of entry into Australia if they were to arrive on our shores?

Peter Ryan | 16 August 2011  

It is also a matter of Australia meeting its obligations under the Refugee Convention and not worming its way out of those obligations thereby diluting international law for gutter level electoral pragmatism.

Vacy Vlazna | 16 August 2011  

'we should imagine defending our position not just before our peers, but before the 4000 that will miss out on being resettled in Australia if the policy is abandoned.' oh really? that's the nasty little softener to pit one group against each other and argue that one harmful act against one group of people is justifiable in order to create good for others. We can take an extra 1,000 per year for four years, in fact we can take a great deal more than we are now, and we don't have to link it to causing harm to others. That is the Ruddock style argument that attempts to wedge critics.

janet | 17 August 2011  

Double/Triple overseas aid (and remove much of the money that is spent in such a way as to benefit Australians while also doing good (but to a lesser extent) from the aid budget but maintain it) set up and fund camps in nations that have trouble dealing with asylum seekers, apply serious pressure to all nations to ratify and obey all relevant UN declarations. Accept 4 thousand from Malaysia, don't count them in quota and significantly increase total quota. End mandatory detention and make it so that ALL people who come here will be (after a short detention for screening) dealt with in the community (Note that they do NOT count towards the quota), make sure all have full access to legal rights and deal with smugglers caught heavily. Increase naval/air-to-sea patrols to decrease the risks taken by those who come by boat. This is the right and best thing to do and is economically sensible.

L.O'Brien | 27 August 2011  

So would Jesus Christ send them off to Malaysia becasue they had the guts to get in a boat and come to this rich stable land and ask for sanctuary. Would Jesus have said - poor little Australia feeling uncomfortable with a few thousand asylum seekers when Italy has had 40,000 land in the first six months this year. Perhaps HE might have said- get a grip Aussies-Be a good Samaritan and help the few who come your way. What is ethically disturbing is the normalisation of the dehumanisation of asylum seekers. They are now on a par with slaves- not real humans like us so we can lock them up, imprison their children and treat them in a way that we would never allow our own to be treated, ignore the acid burns, broken limbs, scars and welts of beatings and torture. Talk ethics and morality and tell me how we justify this.

Pamela | 28 August 2011  

I cannot believe it. This is a clear & original piece or writing. It doesn't pretend to answer everything in a short article, & doesn't play common games of who is right & wrong. Thus I feel great despair because it's like almost no one here actually tried to understand where he was coming from. He is not dealing in fantasy-he's talking about an actual, yes, an actual solution-one of many.

Who here actually has the honesty to talk about the ethics or anything else of actual solutions? Not all here but the majority.

A lot of comments make it clear they did not even listen. Reading with an agenda is not listening.

Go on, lets argue so we don't reveal our blind spots! sigh......

I feel despair at how manipulative & disrespectful we are to one another in public discourse. =^( =^(
Thank you David Palmer, for insight instead of scorn & negativity. I loved it, not because I know which solution is best, but because it genuinely added something. I wish the drum chose non-campaigning like this.

Despairing Dragon | 02 September 2011  

Sorry, in fairness, I did not read all the comments, maybe 8 or 10 that all seemed to talk about other things & missed Palmer's point as far as I can tell.

Despairing Dragon | 02 September 2011  

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