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Oakeshott's Malaysia Solution loophole


'Offshore processing' by Chris JohnstonWhen 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 need not be legally binding.

The Minister is required to place a statement of reasons before Parliament within two sitting days of making a designation. He is also required within 14 days to make a request of UNHCR and the International Organisation for Migration (IOM) seeking a formal statement of their views about the arrangements proposed in the designated country.

It would make more sense if the Minister were required to make the requests and receive the statements before making his decision to designate a country, and before tabling the decision in Parliament. That way the UNHCR and IOM positions could help to inform both the Minster's decision and Parliament's assessment of the decision.

The bill provides that 'the sole purpose of laying the documents before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation'. Parliament has no power to disallow the designation, and a failure to table the documents would not affect the validity of the designation.

So the Oakeshott bill is designed to ensure that neither Parliament nor the High Court could hang a designated country out to dry. The bill is simply a convoluted means for allowing the executive government to declare an offshore processing country without any meaningful scrutiny by Parliament or the High Court. It does nothing to advance the cause of public scrutiny of government decisions to provide offshore processing of asylum claims.

A completely toothless tiger, the bill still provides the opportunity for Parliament to agitate again the debate about Nauru, Malaysia and onshore processing.

We now know that the best advice available from the Commonwealth public service is that Nauru will not work second time around. In October last year, Andrew Metcalfe, Secretary of the Immigration Department under governments of both political persuasions, told Liberal Senator Michaelia Cash in Senate Estimates:

Our view is not simply that the Nauru option would not work but that the combination of circumstances that existed at the end of 2001 could not be repeated with success. That is a view that we held for some time — and it is of course not just a view of my department; it is the collective view of agencies involved in providing advice in this area.

Malaysia is still problematic when you consider the case of the unaccompanied child who comes to Australia fleeing persecution and who would undoubtedly be found to be a refugee.

If you send such a child to the end of a queue which is 100,000 long in Malaysia, the solution is immoral. If you leave the child in Australia, you send a signal to people smugglers that children are exempt from the Malaysia solution and thus you set up a magnet inviting other unaccompanied children to risk the dangerous voyage from Indonesia. The Malaysia solution then becomes unworkable.

While the offshore processing option has been off the table, the Gillard Government has done good work revising its onshore processing arrangements, providing an identical procedure for appeals whether an applicant came by boat without a visa or by plane with a non-protection visa, and providing bridging visas for many asylum seekers once their health, security and identity issues are resolved.

Also the Government has enacted complementary protection legislation allowing a person in Australia to contest their return home when they will face the death penalty, the threat of death or cruel and degrading treatment.

Introducing his bill, Oakeshott claimed, 'The truth is that 148 of the 150 members of parliament in the House of Representatives agree that offshore assessment should be an option for executive government.' Despite the electoral appeal of slogans in this complex policy area, it is time for these 148 members to admit that neither of the existing Malaysia and Nauru options passes muster as both moral and workable.

After all we are one of the few signatories to the Refugee Convention in this part of the world, we take our international obligations seriously, and the number of asylum seekers reaching our shores is slight compared with the numbers in Malaysia and Indonesia. 

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, refugees, asylum seekers, malaysia solution, Rob Oakeshott, offshore processing



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Existing comments

It has been said, and it is clear, that self-centered attitudes are the greatest obstacles to cooperation and peace. Individual selfishness is a bit of a problem, but by far the greatest problems arise with group or collective selfishness, when individual responsibility is swamped by the 'mob mentality' of the group using slogans such as "the National Interest." According to the Gospel, Jesus began his life as a refugee, fleeing with his family, in fear of his life, to a distant country. As a "Christian nation" we should see his face on each of the refugees seeking our help.

Robert Liddy | 16 April 2012  

For starters....I doubt there'd be a single soul in Oakeshott's electorate who'd seriously support Frank's assertion that Oakeshott's their 'elected representative'...Oakeshott does not represent the views of the vast majority of conservative votes who had invested their trust in him.That's simply fact. Frank will get to see that in huge figures at the next election if he hasn't cottoned on yet. Oakeshott's manoeuvre is simply further obnoxiousness...probably aimed at wheedling even more largesse from the Gillard government for his tiny corner of the world...as for his reference to the "national interest", everyone now reads that as code for the purely political survival interest of the Gillard government.government. nothing more, nothing less.

Brian Haill - Melbourne | 16 April 2012  

Perhaps it is irrelevant, but I would like to know who drafted the Bill for Oakshott.

Shirley McHugh | 16 April 2012  

Thank you, Professor Brennan, for such an erudite outing of Rob Oakeshott's proposed amendment as the cynical and immoral political exercise that it is. Oakeshott should use his talents developing a strategy to ensure a return to the bipartisan approach to refugees that was representative of the Australian electorate's compassion in the past. The use of refugees' suffering and of fear-mongering by politicians for political advantage is obscene. Between them, the major parties could design ethical and practical policies that protect both those seeking refuge and our borders. We have nothing to fear from such an approach and much to gain.

Patricia | 16 April 2012  

Thank you once again Fr Frank for your constant compassion on this issue. Where are the voices decrying the absolute immorality and cruelty of the Australian Government's treatment of Refugees and Asylum Seekers ( to my mind , one and the same). Why are we, as nation, just sitting back and letting this injustice, and might I say, evil occur? Why are we imprisoning frightened people who are not criminals, and hiding them away, in far flung places of Australia ''out of sight ,out of mind'' Did not some countries in Europe, during the middle of the last century,have the same policies? What example of compassion are we giving the youth of to-day . I do not want to be ashamed to be an Australian. Thank you for clarifying Rob Oakeshott's Proposed bill. It appears very devious. Let us be a country that stands up for the under dog, not a country that, kicks him when he is down.

bernie Introna | 16 April 2012  

I would like to read an article written by Father Brennan stating what he thinks is a solution to this rather vexing problem. Perhaps it has already been written.

John Morgan | 16 April 2012  

Rob Oakeshott shows a lot more charity and care towards asylum seekers then all the human trade profiteers hiding behind well meaning charities and church organisations. Something needs to be done urgently to stop more people dying on the sea. It is time for the Coalition and Labor to stop their silly sandpit fight and stop the trade in misery.

Beat Odermatt | 16 April 2012  

Few have commented on the public policy importance of the foundering of the overloaded asylum-seeker boat ‘Barokah’ on 17 December 2011 off the south coast of Eastern Java, drowning an estimated 150 to 200 people and leaving only 47 survivors, who were last heard of interned in cruel conditions in a remote Indonesian detention centre. This major tragedy shifted numbers of influential Australians towards coming out publicly in favour of a Malaysian offshore processing solution. Over the ensuing week, Robert Manne, John Menadue, Rob Oakeshott, Bishop Philip Aspinall and Cardinal George Pell all spoke out in favour of offshore processing as a means of avoiding further such tragedies. Moreover, three days before the 17 December tragedy, Australian immigration minister Chris Bowen had warned that such tragedies could happen at any time, unknown to Australia. It makes you think, does it not? Might the wish for a demonstration tragedy have in some way been father to the event? I address such disturbing questions in my forthcoming book 'Reluctant Rescuers' analysing Australia’s safety-of-life-at-sea record in surveilling, detecting and intercepting asylum-seeker boats over the past 14 years. These are murky waters indeed.

tony kevin | 16 April 2012  

Fr. Frank once again gives us the fruits of his knowledge and understanding of things theological, political, and just. I now ask again if anyone has further news of the planeload of unescorted refugee children from Darwin to points south in the middle of last year. This was reported in the Sydney Daily Telegraph on or about 10 June 2011. My inquiries through various channels have not met with any success as to the fate of these children. Can anyone out there tell us where they are?

Anne Chang | 16 April 2012  

"we are one of the few signatories to the Refugee Convention in this part of the world, we take our international obligations seriously..." if that were truly so, then off-shore processing would simply never be considered an "option", especially for "executive government"! Whilst we're at it, neither would indiscriminate, indefinite mandatory detention. I'm highly distressed by Oakeshott's claim that 148 of 150 MPs think off-shore processing is a moral, compassionate and responsible course of action, and as a constituent, I'm ashamed of them.

Michelle Goldsmith | 16 April 2012  

Oakeshott has deluded himself into thinking we can breach international and national law in our interest, he forgets entirely the interests of the refugees the law is to protect.

Marilyn Shepherd | 16 April 2012  

Tony, because some refugees drowned in Indonesia at the hands of corrupt Australian trained and paid for police and immigration officers is no reason to shove people away. The reality is we can "process" as many people overseas as we like, we just cannot push anyone from our shores. And the number drowned is minor compared to the millions of kids who die of starvation every year.

Marilyn Shepherd | 16 April 2012  

I wonder how that 148 would feel if Pakistan decided to designate Australia for 2 million Afghans, or Syria for the 1 million Iraqis from our war? What if 148 wanted public hangings in the PH court yard? How about if the 148 wanted to shoot refugees at the border?

Marilyn Shepherd | 16 April 2012  

In response to John Morgan’s query: I did set out my principles for a coherent asylum policy at http://www.eurekastreet.com.au/article.aspx?aeid=28881. I set out the criteria for a workable policy in greater detail at http://www.eurekastreet.com.au/article.aspx?aeid=21986. And there is of course my book Tampering with Asylum (University of Queensland Press, 2nd edition, 2007). I make no pretence to a moral and workable solution that results in absolutely no unvisaed asylum seekers arriving in Australia. We may be an island nation continent, but we are still part of a planet populated by human beings millions of whom are fleeing persecution on any day of the year.

Frank Brennan | 16 April 2012  

To Marilyn: your remarks:"Tony, because some refugees drowned in Indonesia at the hands of corrupt Australian trained and paid for police and immigration officers is no reason to shove people away." are just slander.

Beat Odermatt | 16 April 2012  

The problem is Frank that even though refugees don't need passports Australians think they do.

Marilyn Shepherd | 17 April 2012  

Frank, what do you say to those refugees who will surely die if or when their boat sinks, people who would not come to Australia if the Malaysian solution were in place? I prefer the Malaysian solution as the best of several sad choices, as I'd hate to see any more refugees drown!

Grant Allen | 17 April 2012  

Beat, do you even understand refugee law?

We are not responsible for anyone who dies in any place except here.

Claiming that we have to shove people from our shores because others drowned in another country is ludicrous.

Marilyn Shepherd | 17 April 2012  

Grant Allen, like many Australians (myself included), is very upset when asylum seekers drown en route from Indonesia to Australia. We should of course be equally upset when they drown or perish at any stage of their journey in flight from persecution. Some human beings will always risk life and limb for the sake of freedom. If we put the Malaysian solution successfully in place, we will take away the opportunity for people to take that risk on the last leg of the journey, as we will remove the incentive for people to take one more risky journey on their flight, seeking freedom in Australia. They will stop in Indonesia where they do not enjoy the same assurance that their refugee claims will be transparently and justly considered and where, if successful, they will have to wait a long time before a permanent solution is offered them. Grant Allen would prefer that they not have the choice to risk the voyage to Australia. Some of them would like to make that choice. So in answer to Grant’s question, “What do you say to those refugees who will surely die if or when their boat sinks, people who would not come to Australia if the Malaysian solution were in place?”, I would reformulate the question more accurately as “What do you say to those refugees who risk death by taking a perilous sea voyage to Australia?”, and answer, “Be aware that it is a very risky journey. But yes, if you make it, you will be free. If I were in your shoes I would probably not risk the journey, but I respect those of you who want to risk all for a life of freedom. We will do all we can in co-operation with the Indonesians to stop you making the journey, but if you do make the journey and if you do reach Australia, then yes we will honour our commitment to process your refugee claim and to resettle you promptly if your claim is successful.”

Frank Brennan SJ | 17 April 2012  

But why do we have to make Indonesia do the work Frank? We have one country, the nonsense about others doing our job is colonialism at it's worst. In the 13 years that 500 refugees have drowned on the way to Australia 117 million kids under 5 have died of starvation and 4,000 Australian's have drowned. WE don't care if they drown, they let them drown because it is easier.

Marilyn Shepherd | 18 April 2012  

Occasionally I gaze at politicians and wonder if they are born or are they made. They appear to be of a different species than the rest of us. They seem to delight in laws/bills that have twists and turns and hidden agendas which have omitted any feelings of humanity or empathy for their fellow humans. I grew up surrounded by migrants in the 50's and I still have migrants within my community. Welcome to Australia

Kath Garraway | 20 April 2012  

So are we going to stop everyone from sailing here? More Australian's drown every year than refugees have drowned on the way here in the last decade. And you are wrong about the stupid Malaysia thing because they would still have to get here.

Marilyn | 28 April 2012  

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