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Kids key to Malaysia solution shambles


The Gillard Government's shambled attempt to legislate for offshore processing of asylum seekers arriving by boat will be debated in the House of Representatives today. On Tuesday night, the Parliament was provided with further evidence of how unprincipled and unworkable is the so-called Malaysia solution, especially when it comes to the removal of unaccompanied minors from Australia.

The Report of the Legal and Constitutional Affairs References Committee on Australia's arrangement with Malaysia in relation to asylum seekers was tabled in the Senate. Not surprisingly, the Coalition and Green senators on the committee slammed the proposed arrangement. But trying to defend it, the Government senators decided to take aim at the Commonwealth ombudsman who oversees immigration decisions made by Commonwealth public servants on Australian soil.

Labor Senator Trish Crossin told the Senate she thought the ombudsman 'performed significantly unprofessionally during the course of this inquiry'. She did 'not believe that the evidence the ombudsman gave before the Committee was at all credible or well sourced and documented'. When governments start shooting their own officials you have to be concerned.

Central to the Malaysian arrangement is the need for Commonwealth public servants to make pre-removal assessments of vulnerable individuals who ought not be removed off-shore. Government senators noted that the Department of Immigration and Citizenship 'indicated that in relation to children, a 'best interests of the child' assessment would be undertaken in the pre-removal assessment process, thus meeting Australia's obligations under the Convention on the Rights of the Child'.

The Department has drawn up pre-removal guidelines for the assessment of all boat arrivals to ensure 'the non-refoulement of a potential transferee where that person fears persecution in Malaysia; the identification of vulnerabilities and heightened risks, particularly focusing on unaccompanied children; and fitness to travel'.

But these guidelines were not included in the paperwork accompanying the arrangement between Australia and Malaysia signed on 25 July 2011. They were not available to the ombudsman before the parliamentary inquiry, despite a request for same. They were not included in the Department's submission to the parliamentary inquiry. They were not made available to the parliamentary committee until a week after its hearings concluded.

Liberal Senator Gary Humphries who chaired the Committee told the Senate, 'The Committee was deeply disturbed by the absence of that information. The question of what those guidelines say remains a very open question for the Senate as a whole.'

The guidelines state:

Unaccompanied minors are particularly vulnerable. Where it is established that a minor is unaccompanied, pre-removal assessment officers should consider:

  • the views of the child, taking into account the age and maturity of the child
  • the short, medium and longer term protection, developmental, psychosocial and other needs of the child
  • the existence of special procedures to deal with the special needs of unaccompanied minors in the proposed country of removal, including appropriate accommodation, guardianship arrangements, the availability of any tracing arrangements and the likely availability of solutions for unaccompanied minors.

The actions of the pre-removal assessment officers will be overseen by the ombudsman whose reputation has already been trashed by the government of the day.

How could any Australian public servant in good faith decide that it would be in the best interests of a child that he or she be removed to Malaysia because, to quote Crossin again when presenting the Senate committee report to Parliament on behalf of the Government, 'we want to ensure that if you get on a boat in Indonesia and make your way to Australia — that is, to Christmas Island — then not only will you not be processed in this country but you will not be resettled in this country'?

How could it ever be in the best interests of the child who is a genuine refugee to be sent to a country where they will be placed at the end of a queue which is 95,000 long? Under present Australian law, the Minister for Immigration is that child's guardian. The child cannot be removed from Australia except with the consent in writing of the Minister.

In July, the High Court made it clear that the Minister's consent would be subject to court review. So the Gillard Government now wants to amend the Immigration (Guardianship of Children) Act 1946 so that a child can be removed without the need for written consent of the Minister reviewable by a court.

It is envisaged that a child removed to Malaysia will be subject to the Malaysia Child Act 2001, and an official of the Malaysian government will become their legal guardian, once an Australian public servant has signed off that the removal of the child to Malaysia is in the child's best interests.

The Gillard Government does not want its own minister having to make that decision. It wouldn't want a court ever looking at it. And presumably, it would want to appoint a new ombudsman.

Meanwhile the Government tries to paint UNHCR as being supportive of all this. But two weeks before the Senate committee hearing, Erika Feller, Assistant High Commissioner for Protection at UNHCR, and Australia's most senior UN official, belled the cat when she told ABC Radio:

'Our position was always, and I have to repeat this again, was always predicated on there being effective pre-transfer arrangements in place to safeguard the most vulnerable from being more exposed, made more vulnerable through transfer to Malaysia.'

When would an unaccompanied minor who is a bona fide refugee ever be less exposed and less vulnerable by being removed from Australia to Malaysia which is not a signatory to the Refugee Convention and whose ratification of the Convention on the Rights of the Child is so circumscribed that the fundamental obligation not to discriminate on the basis of 'race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status' is applicable only if it is 'in conformity with the Constitution, national laws and national policies of the Government of Malaysia'?

No matter how the Gillard Government paints the canvas, it can never be in the best interests of an unaccompanied minor who is a refugee to be removed from Australia to Malaysia. And if such kids are irremovable, they will continue to arrive in Australia by boat. As Feller says, 'Proper arrangements (need to be) made for those who shouldn't be transferred because of their vulnerabilities.'

The Malaysia solution is either unworkable or unprincipled. Just look at the kids. 


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, Gillard, Labor, Malaysia solution, UNHCR, Asylum seekers, refugee policy



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Existing comments

I wish I had written that. This proposal is SO wrong that words, for once, fail me.

Moira Rayner | 13 October 2011  

A sharp and sure piece, Frank. The word that stands out is 'unprincipled'. The Gillard government began abandoning principle when it immediately started looking over its shoulder at people it feared were still attached to Howard's 'principles' and committed itself to continuing the NT Intervention. Perhaps not entirely unprincipled; after all, embracing anything that keeps the coalition out of power is a principle in a twisted sort of way. Uour 'unworkable' comes in there too. There's no way the Intervention can work as Howard, Brough, Gillard, Macklin envision it. What an agonising thing it is to feel so powerless in the face of delibrately espoused cruelty!: first towards totally vulnerable indigenous peoples and now towards totally vulnerable and innocent boat children To yell,'A plague on both their houses!' may give one momentary relief, but what chance is there of anything that will provide lasting relief?

Joe Castley | 13 October 2011  

It's not simply a matter of "the kids"The entire framework of the so-called Malaysian Solution is abhorrent.Shambolic or simply sham is a better adjective than "shambling".

Further muddying the waters was the absurd situation which had the UNHCR actually claiming that the Malaysian Solution was preferable if it was compared to indefinite mandatory detention in Australia.It should have come down hard on the Gillard government for its hollowing out of its obligations and responsibilities as a signatory to the asylum seeker convention.

The Australian newspaper this morning explains exactly why "the government senators decided to take aim at the Commonwealth Ombudsman"
Here's an extract:

"How the Ombudsman Allan Asher and Senator Sarah Hanson-Young cooked up an estimates fix by: Matthew Franklin, Chief political correspondent

COMMONWEALTH Ombudsman Allan Asher has been caught colluding with the Greens to criticise Julia Gillard's border security policy and enlist the minor party's support for his campaign for extra funding for his office.
And Greens senator Sarah Hanson-Young faces questions about why she used a Senate budget estimates committee hearing in May to ask Mr Asher questions he had scripted for her, then later used those answers as the basis to demand a funding boost.

Evidence of the collusion, released in the Senate yesterday, sparked a political uproar, with the government questioning the Ombudsman's impartiality and integrity and the Coalition insisting Mr Asher was forced into his unusual actions by frustration over government incompetence.

Mr Asher was unrepentant last night, insisting he appealed to the Greens because he had no other way to publicly raise his concerns about inadequate funding."

Today, every Australian must hope that the WA National MP, Tony Crook,on whom the government hopes to get its legislation through parliament, votes against it. Otherwise posterity will regard it as peculiarly Australian...crook.. in every sense of that word.

Brian Haill - Melbourne | 13 October 2011  

Good morning, Joe. Not quite sure what Prof Brennan's excellent analyses of the asylum seeker issue in these pages has to do with the NT Intervention in abusive indigenous communities. Such strongly held views on The Intervention must mean that you have a very good handle on this and must have a viable alternative far superior to that tried by the coalition government. Perhaps you might acquaint us with that superior solution for the betterment of our Aboriginal brothers and sisters.

john frawley | 13 October 2011  

News flash..as per ABC radio news online: West Australian Nationals MP Tony Crook has revealed he will not vote for proposed laws to resurrect the Government's so-called 'Malaysian Solution'. The bill, which is designed to secure the future of offshore processing, is due to come before the House of Representatives this morning but would be doomed to fail without Mr Crook's support. This morning Mr Crook said that although the Malaysia swap deal could dissuade asylum seekers from setting sail for Australia, he had concerns about the way prospective refugees, particularly unaccompanied children, might be treated there. Shortly afterwards, the office of Immigration Minister Chris Bowen issued a statement saying the Government "remained committed" to the Malaysia swap deal. If it goes ahead, the vote in the Lower House would be largely symbolic, as the bill would be blocked in the Senate. But defeat would make the Gillard Government the first government to lose a vote on a bill in the House in more than 80 years.

Brian Haill - Melbourne | 13 October 2011  

I do hope Tony Crook doesn't waver in his decision not to vote with the government on the Malaysian solution.

I'm reading Frank Brennan's Tampering Wtih Asylum and it provides much evidence of Rudd's desperate attempts to stop appeals to the courts by asylum seekers. Now, the Gillard government may succeed where he failed. I do hope not.

I cannot, for the life of me, understand how Cardinal Pell and other Christian leaders can remain silent on this humanitarian issue.

I admire Frank Brennan's commitment to the basic Catholic/Christian tenant 'to love one another as I have loved you'. He also has become an expert in the area and he argues very persuasively.

As Brennan points out, the asylum problem is a "universal humanitarian" one and there should be concerted efforts on an international level to assist present refugees and to stop future ones being produced.

Maureen Strazzari | 13 October 2011  

Why no words of concern for the Indonesian children being held in jails in Australia?

Crew, apparently, from the fabled 'people smuggler' boats.

It was OK for Gillard to ring the 14 year old in jail in Bali to show her 'concern' but does she ring the parents of our jailed Indonesian inmate children?

Probably as much as Rudd does I'd say.

So, how about it Frank? A short opinion piece on the plight of these unfortunates?

Harry Wilson | 13 October 2011  

For Harry Wilson....the following is the text of a letter I had published in The Age earlier this week: The Gillard government is sending out ugly and mixed messages to our geographic neighbours, making frantic diplomatic efforts to free a 14 year old Australian boy jailed in Bali for allegedly buying drugs while simultaneously pressing ahead this week with legislation to dump unaccompanied children abroad under its so-called Malaysian Solution, despite the widespread dismay of most Australians. Australia is being two faced. Indonesia’s well-known stance on drugs includes the highly publicized deterrents of jail and death by firing squad. Australia, on the other hand, to justify its inhumanity, says it needs to send “a message of deterrence” to people smugglers, otherwise they’ll “fill the boats with children”. The reality is that unaccompanied minors among asylum seekers reaching Australia by boat make up only five per cent. Are Australian children to be seen as more precious than any other? Do foreign parents separated from their young children feel less pain that Australian parents? Isn’t red the common blood colour? In addition to involving Australian consular staff in Bali, Foreign Minister Kevin Rudd personally ordered the Australian ambassador in Djakarta to the boy’s jail, while talking about the need for “sensitive” dealings with the Indonesian authorities. The Indonesian ambassador in Canberra must be feeling nonplussed! I have every sympathy for the plight of the Australian boy and his parents, and like most in Australia, I would not be surprised to see Mr Rudd also jet off to Bali. We need to get our priorities right. Children must not be used as political pawns – by anyone.

Brian Haill - Melbourne | 13 October 2011  

WEll Tony Crook scuttled it but many in the parliament still seem to think that there is some legal basis to push aways and offshore "processing" when the whole idea is not to process.

I don't think they understand that the refugee convention is legally binding and not a hand bag that can be exchanged when they feel like it.

Bowen should quit if he is not capable of the most basic understanding of that.

Except wait, in 2006 when Howard proposed something similar about West Papuans Bowen voted against it on the grounds of it being illegal and immoral under the convention Article 3.

He made many references in the speech about the rights of kids.


Coalition attempts to excise Australian mainland from migration zone
Posted August 10, 2006
Mr BOWEN (Prospect) (10.17 a.m.)?In 1951 the United Nations convention for the protection of refugees came into force. The world realised the mistakes of the 1930s, when many Western nations turned their backs on Jews fleeing persecution in Germany. Collectively, we said, ?Never again.?

Marilyn Shepherd | 13 October 2011  

Trish Crossin also said of the so-called smuggling laws passed last year "all responders claim that because the refugees have the right to come here they have the right to pay for transport, I reject that".

Now we see kids as young as 13 in adult prisons with pedophiles and the courts setting free other Indonesian crews because we kidnap them from international waters and then claim they entered Australia.

It is not now and nor has it ever been people smuggling to help refugees - Boenhoffer was a smuggler, Schindler was a smuggler.

the Indonesian crews are not smuggling anyone.

Marilyn Shepherd | 13 October 2011  

Hello John Frawley. I'm in Italy where I got in my comment before Australia was fully awake, and have only seen your request when I've woken and it's late in the day there. Firstly, my reference to the Intervention was because it involved the same sort of cruelty to vulnerable people as we see in the Malaysian solution. Secondly, all Aboriginal communities are not abusive - some are extremely functional, yet the Intervention is imposed on all prescribed communities. Thirdly, there are Aboriginal communities that have developed policies to overcome the chaos that, amongst other things, years of Government dereliction of duty have left dysfunctional. I suggest you visit http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/chap3.html where you can read an amazing piece by the Aboriginal and Torres Strait Islander Commissioner, Mick Gooda, on the way the women of the communities of the Fitzroy Valley in WA (led by two of the most remarkable women I have encountered, Maureen Carter and June Oscar) organised, first to control the flow of liquor into their communities, then set up a governance structure that gave them status to speak to governments about their needs, then appealed for the sort of help THEY knew they needed, and got it from, among other places, The University of Sydney's Medical School and the George Institute for Global Health there, and, with that support, and the very active and generous collaboration of Senior Specialists, (Professor Elizabeth Elliot and Asst Professor Jane Lattimer) have not only put in place a program to handle the devastating legacy of Foetal Alcohol Spectrum Disorders, but have achieved a move from 'community chaos to community control' that is a superb model for all attempts to rescue Aboriginal communities. That, and not the Army-like and doomed-to-fail intervention indiscriminately imposed by Brough and Howard (that took action out of very capable Aboriginal hands and violated their rights in so many ways), is the model I propose you look carefully at. You'll be surprised by its brilliance and its efficacy - and also by its respect for the rights of the people who needed help. In the NT itself, Aboriginal people themselves have come up with an Eleven Point Plan for managing their situation that is very worth looking at. Here are links to their statement on what is needed: http://rollbacktheintervention.files.wordpress.com/2011/05/rebuilding-from-the-ground-up-working-doc-14-5-11.pdf, and here is a link to the research which underpins the statement http://www.jumbunna.uts.edu.au/researchareas/alternatives.html.

Joe Castley | 13 October 2011  

Joe, with respect, the deliberate espoused cruelty towards any vulnerable and innocent child deserves the same "Plague called for upon their house". I just love these dogooders who sat on their laurels and did nothing when our own were suffering in silence under their very nose. Including the present Opposition leader, a devotee to Mr Bob Santa Maria who had family members suffering excrutiating consquences by members of his own publicly acknowledged and mouth piece affiliation.

L Newington | 14 October 2011  

Where oh where is the Julian Burnside or Frank Brennan who will stand up for kids imprisoned in the hell of inhumane and destructive family law decisions? Yesterday I met yet another such child who was removed from his loving, caring mother because the judge believed a concocted 'single expert' report to which neither Mum nor kid were allowed to respond. Result - "in the best interest of" this child no longer goes to the school they loved and were successful at, no longer can play sport or music, can't see his older brother or his mother except for 8 hours each weekend, can't communicate with them by any other means and is suffering major stress and trauma.

Doesn't anyone care about these thousands of kids HERE and NOW in Australia? Or is that I can't explain it properly so you'll get the message. Children are being destroyed emotionally, psychologically, physically - they're being abused in every conceivable way because Family Law is adversarial nonsense and the public generally can't (because of suppression orders) know and you who should know, don't seem to care. Who can help these kids? now!!! www.justiceforchildrenaustralia.org

Ariel | 16 October 2011  

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