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Updating the Malaysia solution

  • 26 July 2012

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