There is a lot of political point-scoring over whether particular countries have signed the Refugee Convention. The High Court said the Malaysian Agreement could not be upheld because, among other things, Malaysia had not signed the Convention. Tony Abbott agrees — even though he would return boat people to Indonesia, which has also not signed the Convention.
If we are to develop a regional framework it will have to be with countries that have not signed the Convention. Nauru has signed it, but is not a transit country and can never be a building block to a regional framework.
A fact of life that is so often conveniently ignored is that there is not a signatory country to the Convention in the arc from Yemen to Australia, the route used by almost all asylum seekers fleeing to Australia. Pakistan, India, Sri Lanka, Bangladesh, Thailand, Malaysia and Indonesia are not signatories.
China has signed the Convention, but regularly refouls North Koreans back across the Tumen River. PNG, a signatory, refouls Irian Jayans back into Indonesia. Nauru signed the convention in June last year to attract financial aid. Cambodia is a signatory but its human rights record leaves a lot to be desired.
By any reasonable interpretation Australia's mandatory detention is also a breach of the Convention. As the Regional Representative of UNHCR in Australia put it before a Joint Parliamentary Committee on Australia's Immigration Network in August 2011, 'Australia's mandatory detention policy ... is arguably in contravention of Article 31 of the Refugee Convention'.
Malaysia has made considerable progress in human rights. Together with ASEAN, Malaysia has embarked on the development of a human rights instrument, something that we have refused to do.
The much criticised agreement with Malaysia was a major breakthrough in an agreement between a signatory country and a non-signatory country. It was described by the regional director of UNHCR in Australia to the Legal and Constitutional Committee of the Australian Parliament on 30 September 2011 in the following terms:
Many persons of concern to UNHCR stand to benefit from this program by having their status regularised. It would mean all refugees in Malaysia would, in addition to their registration and ID documents from UNHCR, be registered within the government's immigration database and thus protected from arbitrary arrest and detention.
It would also mean that all refugees in Malaysia would have the right to work on a par with legal migrants in the country. This would also entitle them to some insurance and health schemes as documented for legal migrant workers.
For Malaysia, this agreement was quite remarkable progress, given that Malaysia has about 200,000 persons of concern to the UNHCR, is much poorer than we are and has a history of communal tensions.
But the arrangement was not enshrined in law and so was discounted by our High Court and critics.
With so few signatories in our region, any regional cooperation framework will have to be constructed with non-signatory countries — particularly Thailand, Malaysia and Indonesia. A regional framework cannot be conjured out of thin air. It must be built on the building blocks available, such as the Malaysian agreement, which should be updated and the caps on numbers removed.
If this agreement offered anything, it offered the chance of accelerating the process of developing sensible, practical and robust asylum policies in the region. If this agreement is viewed through a regional lens it can become the catalyst, together with Bali, to start the process of building a durable protection system and delivering protection dividends for all asylum seekers.
In our region, the critical way forward is the active participation and partnership with UNHCR which should be better funded and resourced by Australia. That approach will be more fruitful than a sterile debate and point scoring about who has signed the Refugee Convention and who hasn't.
John Menadue is a founder and Board Director of the Centre for Policy Development. He was formerly Secretary of the Department of Immigration in the Fraser Government 1980–1983. The above and other related issues are canvassed more fully in his submission with Arja Keski-Nummi to the Expert Panel on Asylum Seekers.