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Updating the Malaysia solution


Barbed wireThere 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 MenadueJohn 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.

Topic tags: John Menadue, Refugee Convention, Malaysia solution, mandatory detention, regional framework



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Existing comments

Thanks for this article. It clarifies aspects of the debacle which many of us haven't understood. While I'm writing this, news is coming through about another boat which has made at least two distress calls. The Indonesian authorities apparently didn't have the wherewithals to help the boat after the first call yesterday, and according to ABC news this morning, the Australian authorites can't find it. Perhaps it has sunk? What I don't understand is why the Australian Government can't make binding bilateral agreements with neighbouring countries regardless of their status as UN signatories. If we can ensure safety and human rights for asylum-seekers in Malaysia by signing an agreement with that country, what possible objection could there be? Surely such an agreement could be monitored, and many lives would be saved. It's disappointing and mystifying that the Greens are so adamant about off-shore processing. Does their policy date from the time when Christmas Island and several other Australian islands were deemed by the Howard Government not to be Australian territory for the purpose of asylum-seeker processing? If so, perhaps it's time to rethink. Or is it just that we don't want these people here, and if quite a lot of them drown, that's just so many we don't need to process at all?

Kate Ahearne | 26 July 2012  

Australia, as a signatory to the Refugee Convention, must honour its obligation and not try to offload its legal responsibilities. We already have the building blocks of the Convention for the framework of our decency. When I hear Pacific 'Solution', Malaysia 'Solution' I hear the echo of the Nazi Final Solution- the racist pragmatism of getting rid of unwanted people.

Vacy Vlazna | 26 July 2012  

A very welcome shedding of light, reason and compassion on a complex and controversial situation. If only the media could be encouraged to bring it to the attention of the fair-minded citizens of Australis, the situation of suffering refugees might take a turn for the better. Alas?

Robert Liddy | 26 July 2012  

Thank you for this article. Robert Liddy's response says it all. With the Greens' singleminded apporach, the Opposition's nasty politics and the Murdoch press bias, it is difficult to see the article being brought into a larger forum.

P Russell | 26 July 2012  

Thanks for the sane and careful explanation. It must be boring putting these points to hostile eyes and ears but please keep putting them out. At some stage the wheel will turn.

Robert Smith | 26 July 2012  

Thank you for the article. But I fear nothing will change the minds of those adamantly opposed on either end of the political spectrum, the Coalition are a lost cause but the Greens are like the dry cleaners - all care but no responsibility. And congratulations must go to Vacy Vlanza, who seemingly has set a new world record for fulfilling Godwin's law; only the second posting and Nazis get a mention.

chris g | 26 July 2012  

No, no no. The region is not our problem and we don't get to push away anyone.

When will all the bloviators get it through their thick skulls that the convention is what we pledged to uphold and we should be forced to do it not shove the problem off to elsewhere and pretend we are helping someone.

Marilyn | 26 July 2012  

Well Chris G, nazis are mentioned because the refugee convention was written because the west refused to save jews from the nazis.

Pushing away Afghans is just the same.

Marilyn | 26 July 2012  

I have come across this article while checking the source of the quote attributed here to UNHCR, as John Menadue has used it elsewhere in a blog republished today. I was curious because the quote did not reflect the view that UNHCR expressed at the time about the Australia-Malaysia arrangement. Having now found the original quote, I would warn readers that UNHCR has been seriously misquoted in this article. The original is at https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=fac798e3-5d12-4703-bbe9-baf882630f06 (see page 3). It is clearly not at all about the Australia-Malaysia arrangement but about the 6P Programme which the Malaysian Government was proposing to implement at the time (developed independently of the arrangement with Australia). Unsurprisingly, the positive changes for refugees in Malaysia did not eventuate. This, sadly, is consistent with the mistreatment and neglect refugees have experienced in Malaysia for many years. To understand UNHCR’s view of the Australia-Malaysia arrangement, I’d suggest readers look at an interview given by UNHCR’s then Regional Representative in Canberra, Richard Towle, after the High Court found the arrangement was unlawful. See http://www.abc.net.au/lateline/content/2011/s3308139.htm

Paul Power, Refugee Council of Australia | 03 July 2014  

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