Churches and the Malaysian Solution


'Welcome refugee' bannerThe latest attempt to stem the flow of asylum seekers arriving in Australia by boat, the so-called 'Malaysian solution', is causing great angst in the community and with our political leaders.

This proposal involves people trading by the government of a democratic country committed to the rule of law. People trading is wrong even when part of a broader suite of policies designed to arrest trans-border flows and to ameliorate slightly some pressures on other governments accommodating large numbers of asylum seekers. Even if it works, it is wrong.

Any proper assessment of the proposal requires a consideration of the case of the bona fide refugees sent from Australia to Malaysia. They have no right to settle in Malaysia, no rights to work, education or welfare while their claims are undetermined, and no guarantee that their claims will be determined in a timely, transparent manner.

If the transfer to Malaysia is appropriate, so too would be return to Indonesia given that Australia has arrangements in place with the International Organisation for Migration and UNHCR there for some minimal accommodation of entitlements while awaiting status determination. We would essentially be deciding that protection is now available in Indonesia or Malaysia and that all persons heading for Australia are therefore engaged in secondary movement, not direct flight.

This is not part of a regional solution to a regional problem. At most it is a bilateral attempt at solving an Australian problem. Malaysia has 200,000 people to care for. That must be part of the so-called regional problem and solution. The one-off acceptance of 1000 refugees each year for four years is no durable contribution to that part of the regional problem.

If Nauru were to sign the Refugee Convention, if people were to be detained only for the purpose of identity, health and security checks, and then housed there humanely until their claims are processed (with at least the same standard of food, clothing and accommodation as Christmas Island), and if those proved to be refugees were to be guaranteed immediate release from detention and prompt resettlement, that would be preferable to the Malaysia option.

Everyone, including the strident supporters of the Howard-Ruddock Pacific solution, knows that it was a one-off solution to stopping the boats, posited on the false claim that even proven refugees would not be resettled. Most were — and in Australia or New Zealand. And they would be again. There is no clear message you can send to people smugglers and their clients: 'Don't head for Australia or you will end up in Nauru before you end up in Australia or New Zealand.'

The search is still on for a replacement for the Pacific Solution achieving the same result. Any acceptable solution must fulfil the following conditions: no people trading; legally guaranteed access to food, clothing and shelter during processing; and prompt resettlement on proof of claim.

If the numbers to be resettled in Australia became too great, skewing our humanitarian intake, there could be a case for revisiting the temporary protection visa (TPV) despite its treacherous side effects including the need for more women and children to risk perilous journeys.

To stop the boats and secure the borders, one needs to engage in measures contrary to the Refugee Convention. We should: adhere to the Refugee Convention; do deals moving asylum seekers from Australia only with countries which are signatories to the Convention; foster a regional approach to the full suite of regional problems; and enter into only morally coherent bilateral arrangements regarding distinctively Australian problems.

I see no need for church groups or agencies to be ahead of the field in offering endorsement of the government's proposal or processes in the formulation of the Malaysia Solution. On process, even Bill Farmer, former head of the Immigration Department and ambassador to Jakarta, has gone public indicating that these arrangements cannot work unless the governments do the hard negotiating with attention to detail out of the public eye, and prior to any grand announcements.

On the substance of the proposal, it is going to be unworkable (i.e. failing to have the desired universal deterrent effect) unless some children, including unaccompanied minors, are included in the transported caseload. It will be morally indefensible insofar as it permits the removal of children, including unaccompanied minors, who may well be bona fide refugees and whose needs and entitlements will not be sufficiently protected in Malaysia.

Why would a church group publicly endorse something it knew to be either unworkable or immoral?

Until the Malaysia Solution is in place, church groups should continue to advocate publicly the need for any proposal to receive the endorsement of UNHCR and to advocate privately with UNHCR on what they view as the necessary minimum conditions for endorsement.

They should continue to insist that Australia comply with its international treaty obligations (including the Convention on the Rights of the Child). Given that our key neighbours are not signatories to the Refugee Convention, church agencies should continue to urge all governments in the region to work towards a truly regional solution to the regional problems of people movement and asylum.

Once any Malaysia Solution is in place, church groups or agencies as ever should work hard and pragmatically to make it work as best it can, minimising the adverse impacts on the most vulnerable including unaccompanied minors.

Any legislative backing for the Malaysia Solution may well be subject to the legislative requirements of the forthcoming Human Rights (Parliamentary Scrutiny) Bill 2010 which is presently before the Senate and expected to pass readily now that the Greens hold the balance of power. The Executive will need to provide a statement of compatibility with all key international human rights instruments, and the joint parliamentary committee will need to be satisfied with compliance.

The committee will provide a useful forum for church groups and agencies to put a principled legal position. 

Further reading: Human rights and Christian lawyers | 'When I appeared on Q&A with Christopher Hitchens, a young man asked whether we can 'ever hope to live in a truly secular society' while the religious continue to 'affect political discourse and decision making' on euthanasia, same-sex unions and abortion. Hitchens was simpaticao. I was dumbstruck.' Full text from Fr Frank Brennan's speech to the Queensland Christian Lawyers Dinner in Brisbane on 14 July 2011.

Frank BrennanFrank Brennan 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, Malaysia Solution, Nauru, Christmas Island, UNHCR, refugees, asylum seekers, TPV



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Existing comments

That both our main parties are trying to solve a moral problem politically is evidence that neither has much in the way of an objective set of values on which their decision making is based. Both are motivated by short term pragmatism which is apparent even in the government's carbon policy with its financial sweeteners. The just handling of these refugees is a confronting challenge to which, so far, we seem unwilling to respond appropriately. Father Brennan's article provides some acceptable guidelines which, up to now , have been conspicuously ignored by the government and the opposition.
grebo | 19 July 2011

Oddly, Fr Brennan gives the decided impression that he's only just become aware of the so-called malaysian solution. It's not at all a question of the church (or churches...and their congregations) offering " to be ahead of the field in offering endorsement of the government's proposal or processes in the formulation of the Malaysia Solution"..but, rather, a need for all of Australia's church leaders (and their congregations) to publicly stand up and roundly condemn the whole idea of it. This government has shown that it's more than ready to dump its stances if it's confronted with sufficient anger, as witnessed by the recent outcry over live cattle exportrs to Indonesia. As for "If Nauru were to sign the Refugee Convention, if people were to be detained only for the purpose of identity, health and security checks, and then housed there humanely until their claims are processed (with at least the same standard of food, clothing and accommodation as Christmas Island)...etc", Nauru has already done that. Did it on June 17 and is a matter of public record. Google Nauru signs refugee convention.
Brian Haill - Melbourne | 19 July 2011

A very good article, as usual, from Frank Brennan; but in all the heated discussion in all this "stop the boats" subject no-one on either side of the argument ever mentions the fact that war is motivating these refugees, war that involves Australian armed forces. Surely reason would suggest that we in Australia must take some responsibility for accommodating these defenceless people
Alan Slatyer | 19 July 2011

Thanks, Frank - a solid piece.

"At best it is a bilateral attempt to solve an Australian problem". We've got to keep insisting that it is merely a problem for Australian political parties. Given the manageable numbers of boat people involved it's not a problem for Australia - only for politicians who fear the attitudes of Australians still conditioned by the white Australia policy.
Joe Castley | 19 July 2011

A much more valuable contribution by Fr Brennan...given his expertise... on this issue would have been his exploration of the government's claim to be on solid grounds legally in terms of its proposed legislation.

This would not only update the issue but would also garner a greater focus on what the government proposes to do terms of legalities or illegalities.
Brian Haill - Melbourne | 19 July 2011

If and when the government produces any "proposed legislation" I will happily comment in terms of its "legality or illegality". Until the detail is provided, I think it proper to comment on what little is in the public eye - namely a proposal which is either unworkable (because it will exempt children) or unprincipled (because it will include children) - unworkable because it will set up a magnet for the sending of children including unaccompanied minors who will not be transported to Malaysia, or unprincipled because it will insist that children, including some unaccompanied minors, be transported to Malaysia without guarantees of their protection and well being. I will leave it to others to prophesy about the legality of unwritten legislation.
Frank Brennan SJ | 19 July 2011

The treatment of asylum seekers/refugees who have travelled by boat to Australia in the past ten years has been a disgrace. Most of our politicians, including Howard, Rudduck, Beasley, Crean, Rudd and Gillard have all lacked compassion and charity for these people, who have had to endure civil war and discrimination in their home country. The only politicians who have shown any compassion and charity were Peter Andren and Bob Brown at the time of the Tampa fiasco. It is a dispicable policy to house these people in prison type situations in Nauru, Malaysia and remote parts of Australia. I believe these refugees should be given a temporary visa, some centrelink income and housing until their health and refugee status is confirmed. We should be very sympathatic to their refugee status and provide permanent residency status.
Mark Doyle | 19 July 2011

Fr Brennan says he'll "leave it to others to prophesy about the legality of unwritten legislation.." But there's no needs to await a the following from the OzPolitic website of June 17: Legal challenge begins on Malaysian Solution Jun 17th, 2011, 7:42am
Brian Haill - Melbourne | 19 July 2011

we have a next-door neighbour we don't get on with. If s/he could be spirited off to Malaysia we would be happy to welcome a family of four (or even six) refugees to be brought from there to move into s/his house. No unaccompanied minors, of course. I suppose I should contact our local MP in the first instance.
Gavan | 19 July 2011

More people are fleeing Somalia every week than have arrived here by sea in the last 5 years.

Why Australia thinks they can break their own laws just to pander to the racist morons is beyond me but if the UNHCR ever endorsed such a proposal they might as well tear up the convention and tell all of the world's refugees to suck it up.

WE are the spoilt brat country of nasty racists trying to keep out those who have fled wars we started.

The media are in on it as they refuse to stop whining about "people smuggling" when they know very well it is not people smuggling - Australia would have jailed the man who sold Mary and Joseph their donkey.

So we jail and torture young kids in adult prisons, we don't tell their parents where they are, we don't find out their ages and they are terrorised by us.

We jail children in breach of Australian law and Bowen's latest scam is to tell solo children in writing that he will deny them family reunion as a deterrent to others.

I believe that is illegal and in breach of the rule of law.
Marilyn | 19 July 2011

For a long t6ime now I have been stressed and disillusioned about the response to refugees. Surely a basically christian country should have clear principles upon which decisions are made where care of any people is concerned. More so for those in need of protection.
The only two people i can trust to act in a way that would make me proud would be Frank Brennan and Malcolm Frazer. How possible is it for the 2 of them to advise governments which seem to be at a loss to provide a response tto whiuch we might be proud?
judy Brown | 19 July 2011

As we in Western society progressively abandon the Judeo-Christian ethic in those principles that guide our thinking and politial determinations we inevitably abandon human virtues such as compassion and love for our fellow men. Our determinations become those of contrived argument which serves only our personal beliefs and comfort.Its all a great bloody waste of time and space.

It's time the churches returned to prayer and humility in the image of Christ and led by easily identified example rather than sticking a pious nose into affairs of state. Perhaps if just for a change the pious practised what they dare to preach, the churches might regain some credibility.

As Fr Brennan affirms, people trading is despicable in any human society, but with the loss of ethics the present political parties espouse, theoretical eruditities will remain irrelevant and ineffectual. Our society must return to God, something which Christianity seems to find embarassing.If ever Western society needed its God, it needs Him (not Her!) now.
john frawley | 19 July 2011


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