In a spin over Malaysia solution reboot


Yesterday the Government announced it will change the Migration Act to enable the Malaysia solution to go ahead. The aim is to remove the legal obstacle that allowed the High Court to declare that Malaysia was not a valid destination to which 'offshore entry persons' could be sent by Australia.

The Malaysia solution and the Government's latest action perpetuate the spin about the mythical 'queue' that has become de rigueur over the past decade. Ostensibly it is about making 'unlawful' arrivals 'wait their turn'. But such rhetoric obscures the fact that Australia has international obligations to ensure people are not placed at risk of being returned to persecution. 

Over the years we have seen changes in the rhetoric used by governments to justify harsh treatment of asylum seekers. This is about spin and not about respect for human rights and dignity. Versions of reality are created to fit with message. For example, linking the onshore and offshore refugee programs enables politicians to claim there is a 'queue' which is 'jumped' by people arriving by boat.

At the time of Tampa back in 2001, and for some time thereafter, the spin was all about 'border security'. Taking asylum seekers to Nauru or Manus Island for assessment ensured our borders were secure. But another unstated motivation was to isolate the people from those who could assist them, especially lawyers. The law in this area is complex and most people would find it extremely difficult to articulate their case without professional help.

At the same time as the Tampa legislation in 2001, the 'privative clause' was introduced into the Migration Act as an attempt to stop applicants from challenging cases in the courts.

The privative clause was read back by the High Court in 2004, which held that 'jurisdictional error' did not protect a decision from review. Examples of jurisdictional error include where a decision maker asks themselves the wrong question, or fails to consider a claim. Since then, there have been no major changes to limit judicial review of the cases.

One of the attractive parts for government of offshore processing of asylum seekers arriving by boat since 2008 was the belief that such cases were not reviewable in the Courts. But the High Court stated in November 2010 that the recommendations of independent merits reviewers were in fact reviewable in the High Court, and more traditional common law grounds of administrative review applied.

Since the boat tragedy off Christmas Island in December 2010, the rhetoric of Government and Opposition has changed from 'border security' to wanting to 'protect' people from the risks of travelling by boat, or break the 'business model' of people smugglers.

But another objective of assessing cases in Nauru or elsewhere is to reduce the chances of judicial review. If the people are offshore, it will be much harder for lawyers to represent them, and decisions will be less transparent.

Even the most professional bureaucrat can make mistakes, and the Government should not be afraid to have such mistakes corrected by the courts.

The executive, parliamentary and judicial arms of the Commonwealth sit together sometimes awkwardly. Each is supposed to provide some balance in our democracy. However in the area of migration, commonly the parliamentary and executive arms have tried to limit the judicial arm. When this happens, there is little incentive for decision makers to be more scrupulous in their decisions, and the risk of refoulement of refugees to a real chance of persecution, increases.

Let us not forget that this is about protecting people from persecution in their home country, not shoring up votes.

Even the arrival of 600 people a month (which the Government has claimed is likely) is manageable provided the policy of mandatory detention is reformed. Around 20,000 student visas are granted every month, so how will 600 refugees be the cause of social unrest?

The detention system is not working because it is a flawed system designed for small numbers of arrivals. Mandatory detention creates more problems than it solves. Offshore processing is an attempt to limit the judicial oversight of these decisions. Ideally the Government should act in a way that ensures the protection of human rights and treats people with dignity.

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 

Topic tags: Kerry Murphy, asylum seekers, malaysia solution



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Existing comments

If it is accepted that Australia can only accept a limited number of refugees and immigrants ( the more the better in my view) it is legitimate to ask how applicants will be prioritised in a fair and humane way. Should people who are able to pay for a boat trip be given a priority?
Peter | 13 September 2011

No wonder Gillard's ratings have plummeted. She has stopped listening to the Australian people, 54% of whom want onshore processing of asylum seekers. Gillard and Howard's inhumane asylum seeker policies come from the same heart of darkness.
Vacy Vlazna | 13 September 2011

Given that Prime Minister Gillard is absolutely determined to shred Australia's obligations as a signatory to the international refugee convention, it would be good to have someone like Kerry Murphy publicly enquire into the ongoing validity/value ...if that exists...of Australia's convention membership.Is Australia now, for example, automatically disqualified by its pres3ent proposed actions? The role of the Governor General, Quentin Bryce, also comes under the spotlight...through her role as Patron of the Australia for UNHCR organisation, which is meant to be a support agency for the aims and ideals of UNHCR. The media has also let Foreign Minister Rudd escape scrutiny on this latest action...he was reportedly against it in the beginning and, at his ousting, said he'd have nothing to do with any "lurch to the right".He's avoiding the mess today by flying off to the US....
Brian Haill - Melbourne | 13 September 2011

The irony is that our military presence in the countries from which most of these people come is contributing to the mayhem from which they are fleeing! If there were no foreign armies in Iraq and Afghanistan surely the number of asylum seekers would drop. We need a change to our (and US) foreign policy, not our immigration policy.
Owen | 13 September 2011

If ever an issue showed what a difficult game politics in a democracy like Australia is it is this issue of "processing asylum seekers". Everything Kerry Murphy writes makes sense to me. Likewise for what Andrew Hamilton and Robert and Dave Manne have written. But when it comes to the politics of the issue I feel like I'm in an other world. Truth, Justice and Australian admiration for the battler are nowhere to be seen - except perhaps in that pilloried section of the political arena occupied by The Left of the ALP and The Greens.
Uncle Pat | 13 September 2011

Kerry Murphy has most cogently put all that needs to be said. I wonder if the Gillard plan to change legislation is more to give govt. and future govt. the option to process offshore but that the current govt. has heard the opinion of the majority of Australians to process onshore and this current action is for the benefit of the Malaysians and smugglers? i.e. that they intend to process both onshore and offshore depending on the make-up of the people on the boats? Sometime surely the bad decisions of Ruddock et al have to be seen for what they were.
jane burns | 13 September 2011

University Commerce Depts must be ecstatic at the prospect of a brand new MBA area of study: the 'People smugglers' business model'! Gillard and Bowen have been trotting out this piece of mindless spin over the last few weeks and it seems to have largely escaped critical attention.
Thanks for naming it, Kerry.

It has to be right up there with the value-free, negative affect, mantras of yesteryear Phillip Ruddock's 'outcomes' in the asylum seeker debate, aka, as far offshore and out of mind as possible!
David Timbs | 13 September 2011

Murphy describes the 'queue' as mythical. Does this mean there's not one person in an Indonesian camp waiting to migrate to Australia? All those reports about years of waiting in these camps are lies? If there's no queue, why don't these boat people just roll up to the closest Australian immigration office and hop on the next plane?
Murphy also says it's about protecting people from persecution in their own country; so, are they being persecuted in Indonesia? If the answer's no, then why are we giving them asylum, and from whom?
James Davern | 13 September 2011

Amongst the many problems with Mr Murphy's article I believe that two stand out.

First, he uses some very strange logic to support his position. The 20,000 students who come here each month come with a specific goal - to study. They have, presumably, proven to the immigration authorities that have sufficient means for their support while here and the institutions at which they are to study have acknowledged some 'duty of care' towards them. But what of the 600, or more likely considerably more, refugees each month? Where are they to be housed? For how long? Do we then just tip them out onto the street to fend for themselves when they have been processed? All sounds like a clear recipe for "social unrest" to me.

Then second, the beautiful motherhood-and-apple-pie statement at the end, "Ideally the Government should act in a way that ensures the protection of human rights and treats people with dignity". In an ideal world, yes, of course, but in this real world, Mr Murphy, what would you actually do? Let's say you are the Prime Minister. What actual, workable legislation would you propose? It is all so easy to pontificate about the high moral ground, but precisely how would you put those principles into action. What would you in fact do?
John R. Sabine | 13 September 2011

PS Spot on, James Davern, absolutely spot on.
John R. Sabine | 13 September 2011

My students are reading these articles and it seems many 14 & 15 year old boys have a far more humane view of the situation than adults. who would have thought??? Teacher
Valery | 13 September 2011

Surely Kerry Murphy is well aware that there have been piles of written applications in Aust Embassies and Consulates in many cities around the world from people anxious to migrate to Australia for many,many years.

Mr Murphy implies "queues" do not exist.

Potential migrants don't have to stand ion line in the street. they are in paper queues.

To jump in a leaky boat in Indonesia is to jump the paper queue.
Bill Barry | 13 September 2011

some brief comments, there are no queues, ask UNHCR. Even awaiting processing is not a queue, as some cases move quicker than others, awaiting various criteria. The offshore system is more of a lucky dip really. Some people apply 1 time and get the visa, some 10 times and still miss out- often very similar cases.

On student visa example, this was to show 2 points - 1 is how many cases are being assessed by Immigration in a month, so 600 refugee cases will not cause significant stress. Assuming 20 student cases take the same as 1 refugee (just a guess) even then it is a processing issue.
The major delays are not at the Immigration level, but security checks.
Kerry Murphy | 13 September 2011

Keep up your good work, Kerry. You and others "fighting the good fight" provide a much-needed balance against the embarrassing selfishness and political opportunism which typifies much of the comments of those who oppose your humane, legal and ethical approach.
Ian Fraser | 13 September 2011

And of course the lazy media play along with the rhetoric almost to a man and women because at the heart they are as racist as the parliament. We have two migrant boat people in a vile race to be the cruellest to innocent people so Bowen can have one more try after two of the biggest rebuffs ever handed out by the high court but under the constitution he cannot win so he should stop tormenting innocent people and give it up. As for the "save them from drowning', in a new book survivors of SIEVX state that our planes flew over head just before the boat sank and I have always been convinced it was our boats watching them drown, simply because no-one else has navy boats in the region. And we see that the 105 Hazara who have gone missing were reported to the authorities here and they did nothing. The fact is that only 0.4% of refugees drown on the way here but 25-37% of kids under 5 in Afghanistan die of starvation and war that we started. And Peter, it is not a matter of priority, it is a matter of who applies.
Marilyn Shepherd | 13 September 2011

And how do those carrying on about the queue determine that it exists? Seeking asylum is a day to day basis, no-one knows who will apply when or where, who can leave their country or when. Migration is not static, seeking asylum is not static - our insistence on some queue makes it sound like refugee movements are static and the same people are always on the queue. It just doesn't happen like that. For example this year alone tens of thousands of Libyans have fled when last year they stayed home, hundreds of thousands of Somalis are leaving this year but last year they stayed home, 50,000 Afghans a week are crossing into Pakistan because of the resurgence of the taliban in the last year, It's not a static thing, it is more like fluid movement.
Marilyn Shepherd | 13 September 2011

Keep up the good work Kerry.
Jim Jones | 14 September 2011

Tragically, there cannot be a more humane policy towards 'unauthorised' refugees until and unless we can achieve a bi-partisan acceptance of an onshore policy which can then be promoted actively with campaigns like the 1950's "Good Neighbour" committees. It took many, many years to overcome suspicion of new arrivals and was only achieved because of bipartisan support, and positive government programs including those to include migrant sin the nations economic life as soon as possible.
maxine barry | 16 September 2011

Now some truths are being revealed. Like since the end of May over 2400 people have been granted asylum, most of them Afghans who we were told could go home and die. The number in prison has fallen from 6729 on May 20 to just 4300 today and n-one has gone home There are now 1200 families in community housing and another 700 approved although the thousands who have been granted visas didn't need them in the end. And today we discover finally that on the boats with those "slated" for Malaysia there are 400 people with family already here and so they had the right to be here too, and 100 unaccompanied kids, mostly Afghan Hazara in Bowen's care. That is the extent of the cruelty and viciousness of this 'policy" without a friend.
Marilyn Shepherd | 16 September 2011


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