When Parliament resumes next month, our elected representatives will revisit the Malaysia solution for dealing with boat people seeking asylum in Australia.
Independent Rob Oakeshott has introduced to the House of Representatives his own Migration Legislation Amendment (The Bali Process) Bill 2012. If passed, this bill would amend the Migration Act, removing the peg on which the High Court was able to hang the Malaysia solution out to dry.
Under the unamended law, the Minister for Immigration is required to declare in writing that any country to be used for offshore processing provides access to effective procedures for asylum claims and protection for asylum seekers while their claims are processed, and meets relevant human rights standards.
In August last year, the High Court of Australia ruled that the Minister could not make a valid declaration in relation to Malaysia as it was not a signatory to the Refugees Convention, and the arrangement between the two governments was not legally binding.
Oakeshott's bill is so designed that Malaysia could pass muster without High Court interference. It would permit the Minister to designate Malaysia as an offshore assessment country because it is a party to the Bali Process which at its last meeting a year ago included 32 countries working on a Regional Cooperation Framework.
If Oakeshott intended meaningful public decision making by the executive government and appropriate parliamentary scrutiny, he has failed. Participation in the Bali Process could not be reckoned a sufficient precondition for a country to pass muster with human rights protection and appropriate asylum procedures. For example, Afghanistan, Iraq and Iran are all participants in the Bali process.
The only other precondition in the Oakeshott bill is that 'the Minister thinks it is in the national interest' to designate a country as an offshore assessment country. Anxious to avoid any further High Court scrutiny, his drafters have stipulated that the international obligations and domestic laws of a country are irrelevant.
In considering whether designation of another country would be in Australia's national interest, the Minister is required to have regard to the assurances offered by that country's government about the assessment of asylum claims and the non-refoulement of asylum seekers whose claims have not yet been decided. These assurances