Welcome to Eureka Street

back to site

Why Malaysia is no solution


The structure of the Government's latest improvisation in asylum seeker policy is familiar.

It has agreed with Malaysia to accept 4000 refugees in exchange for sending 800 asylum seekers to Malaysia. In addition it is working with Papua New Guinea to open a regional processing centre there. Like the original proposal to open a regional processing centre in East Timor, it involves offering a posy of attractive promises that conceal the thorn of the surrender of principle.

It will appeal to those who are politically numerate and ethically illiterate.

The principle that is breached in the Malaysia deal is the Government's commitment through the Refugee Convention to provide asylum to refugees who claim protection as refugees in Australian territory. The Convention also commits Australia to prevent the return of refugees to the nations in which they faced persecution.

This principle should be non-negotiable, and buttressed by the refusal to send asylum seekers to nations that have not signed the Convention. Malaysia has not done so. No international agreements prevent it from returning refugees to death or persecution.

The Government argues that the Malaysian Government has offered guarantees that the 800 asylum seekers will be well treated, and that they will be documented and processed by the United Nations High Commissioner for Refugees.

The UNHCR judgment of refugee claims, however, is not well resourced. Nor is it a statutory process subject to the rule of law. So it is inferior even to the process available to the asylum seekers who at present claim asylum in Australian waters, unsatisfactory though that process also is.

Nor can weight be placed on the promise of the Malaysian Government to treat the exchanged asylum seekers well, unless the promise is guaranteed by legislation. Malaysia already regards the presence of asylum seekers and illegal immigrants as a problem.

The problem is addressed locally by dissuasion. Asylum seekers, even those designated as persons of interest to the United Nations or who have been found to be refugees, together with illegal immigrants and those who have overstayed their visitors are routinely stopped, searched and beaten, and are subject to extortion, jailing, caning, and often deportation.

Indeed, some asylum seekers who spent some time in Malaysia before fleeing to Australia have made a claim for protection from persecution in Malaysia as well as in their home nation.

Given the indiscriminate, and often extra-judicial, violence that illegal immigrants and asylum seekers face, it is unlikely that asylum seekers sent there by Australia will be exempt from it unless given special legal protection. If they are placed in detention centres, they will also live in impoverished and unhygienic conditions.

Of course Australians who place their trust in deterrence may well see in this account of the conditions that asylum seekers may face in Malaysia the answer to Australia's problem with boat arrivals and people smugglers.

Ethically, however, the great difficulty of the Malaysian solution is that it treats people as pawns. It assumes that Australia can be absolved from dealing with the claims of the persons who come directly to us by the fact that it chooses to accept another larger group of people. The tears of the 800 who are rejected can be ignored in the rejoicing over the 4000 who are chosen.

The acceptance of the 4000 refugees, of course, is to be welcomed. Such gestures form an essential part of any regional solution. But it cannot be a trade-off for sending away people who are Australia's responsibility without explicit guarantees that their human dignity will be respected.

Respect for the human rights of refugees to security, food, shelter and medical care and to plan their lives must be non-negotiable in any regional agreement.

Anne Frank, the Jewish girl who died in the Holocaust, described a refugee as a parcel that is stamped and sent from post office to post office. That is the case with asylum seekers in Australia, who are taken without notice from Christmas Island to Darwin, then perhaps to Melbourne, to Sydney and back to Darwin. All the things that constitute respect for humanity are lacking in their treatment.

But the Malaysian solution adds another dimension to Anne Frank's analogy. It is like solving the problem of overloaded post offices by sending incoming parcels straight to the shredder. Not really fair, even for parcels. And certainly not for human beings.

Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street

Topic tags: Andrew Hamilton, asylum seekers, malaysia solution, Christmas Island, refugees, anne frank



submit a comment

Existing comments

Rather than dancing about the words, it's a stride towards what Hitler labelled the Final Solution in which people, like the courageous Anne Frank, were simply, eventually, got rid of...erased. The further irony, in Australia's case, is that the chessboard is an island called Christmas!

Again, where are the loud, protesting angry bishops, archbishops and cardinals when they are needed to be publicly seen in all their finery and heard, knocking on the door of parliament or clamouring at the Prime Minister's home?It has been said increasingly that Australia is no longer a Christian country...now the casual observer can see that's a dismal reality nakedly exposed for all to grieve about.

Brian Haill - Melbourne | 12 May 2011  

Here we go again! At least the Government is getting closer to a good solution and the supporting mob of people smugglers cry foul as expected.

Malaysia is a sophisticated advanced country and any suggestions about “impoverished and unhygienic conditions” smells of arrogance and racism. The idea of having would be migrants temporally housed in Asia may help to reduce the incentives to pay for a journey organised by criminals which often ends in tragedy.

Human lives are too valuable to be risked in dangerous waters. Our Government could also look into establishing such facilities’ in India and Pakistan.

Malaysia is one of the best solutions found as far.

Beat Odermatt | 12 May 2011  

Here we go again ,another initiative and again it is no good. The situations that create legitimate refugees are appalling, the camps set up by UNHC are no good, the people smuglers are dispicable and the people who use them queue jumpers and the tax payers of Australia are bad people because they dont pay enough to make everything easier. When will people like Andrew and other correspondents actually tell us what they propose as a solution rather than just see there role as to criticise every action that is taken ?

john crew | 12 May 2011  

Thank you Andrew, But how can we help our government to be more compassionate? I am beginning to feel ashamed of being an Australian when we show so little concern about fulfilling our obligations to the Geneva Convention on human rights.

jean Sietzema-Dickso | 12 May 2011  

Clarity about principles and ethics and legal responsibilities. Thank you. Is this not an Australian version of rendition? Legal status of the next passengers as protected asylum seekers is obstructed.Will they even get an entry interview?
Will UNHCR and Human Rights Watch be there to provide independent witness to forced transportation, possibly handcuffed, possibly forcibly sedated?(it has happened before)

What are our politicians doing to our public servants, to require them to apply this inhumane illegal action to asylum seekers, men women and children ? We must differentiate between protecting borders and protecting asylum seekers

Frederika Steen | 12 May 2011  

Beat, just wait for the videos... Amnesty has some on its website already and the former Burmese refugees and Vietnamese and others in your community ave witness accounts.It happened to them while seeking protection. Please listen to them.

frederika steen | 12 May 2011  

Thank you for the very succinct explanation of the principle that is being breached.
"It will appeal to those who are politically numerate and ethically illiterate". In my cynical view, this sums up the motivation behind the government's move.

Mr Odermatt, in his comments, states that "Malaysia is a sophisticated advanced country", and I know this to be somewhat true. However I have my suspicions that there is a potential for the Malaysians to impart preferential treatment to the refugees on the basis of race and religion. This will now be all out of our control.

Sue | 12 May 2011  

well said Andy, 'politically numerate and ethically illiterate' sums it up.

Kerry Murphy | 12 May 2011  

Thanks, Andrew, for another of the informative and ethically probing articles for which I find ES so valuable. Having read what Amnesty's Graham Thom wrote last week of the treatment of asylum seekers held to be in breach of immigration law in Malaysia - in particular of the sadistic and terrible canings inflicted on them - I had determined to write to Julia Gillard today. Your fine article provides more material for that letter. Thank you again.

Joe Castleyj | 12 May 2011  

TWO WRONGS DON'T MAKE A RIGHT (Not to be confused with the racist version that was once used by a Labor leader!). Neither the present government nor the Coalition has any idea how to deal with one of the world's human tragedies - asylum seekers/refugees.

It is ironic that the arrival of post-WW2 European displaced persons/refugees et al to our shores, hardly raised anybody's eyebrows. At the time, our prevailing Christian charity seemed to welcome those unfortunate people with open arms. Is it because of the hue of their skin? Is it because of their ethnicity and religion?

The Malaysian 'solution' is no better than the Coalition's Nauru holding camp. As long as we maintain this policy of exclusion on the basis of skin colour and ethnicity, the problem (of asylum seekers etc.) will remain unsolvable and to the detriment of this country's reputation as a humanitarian entity.

Allex Njoo | 12 May 2011  

to FREDERIKA STEEN: Don't worry, I am well aware and I have first hand experience with the situation in some of these countries. The last thing anybody wants is for these people to survive all the horrors in their homes to die at sea to fill the pockets of a few people smugglers and "human right activists" Julia Gillard is finally moving towards a fairer solution for all.

Beat Odermatt | 12 May 2011  

Well said Brian Haill. During the recent Federal Elections it was noticeable that some of the Catholic Clergy were quite free with their public advice on various issues. Of course it is their right to speak out but with their deafening silence on issues such as this, one can be excused for being cynical at the selective use of their position of influence. So much for Christian Charity and leading by example.

VY | 12 May 2011  

Previous waves of "reffos", "boat people" and so forth have been accepted in Australia because the Chifley government, then the Menzies government and those coalition governments that followed Menzies, then the Whitlam government and then the Fraser government LED the country in this regard, stood up to the bigots, kept telling the truth in the face of the same sorts of frightened little lies which were being spread then as they are now.

Jim Jones | 12 May 2011  

Thank you again, Andrew for your clear, thoughtful article, expressing, I think what many people think, but written more succinctly. I must say that Ifeel very much like Jean. i also feel helpless to do anything about such injustice.

Maryrose Dennehy | 12 May 2011  

Let's add to the sickness of the day. Brendan O'Connor stated today that an innocent Iranian refugee has been deported back to here from Indonesia to face "smuggling charges" over the shipwreck. The talking dummies in the media tut tut about the evil man while ignoring a few small details. 1. No-one is smuggled into Australia as it is a legal right to get here. 2. we don't care about the survivors of the wreck, we locked them up and half the parliament whined about the cost of the funerals for some of the dead. WE have refused protection for a man who lost his wife and two kids. 3. The boat was watched and got here quite safely, then hit a storm so no-one is to blame. 4. The Iranian man is juat another refugee who helped other refugees. the notion that we can legally trade humans takes us all the way back to the kanakas but if we are going to trade humans can we trade those sub-human boat people Abbott and Gillard for some nice and decent Afghans.

Marilyn Shepherd | 12 May 2011  

Gotta love Beat. We will pay $216 million to the Malaysians to take 800 asylum seekers off our hands and put them to the back of some mythical queue rather than pay just a few million to assess their claims here and that will teach what to whom? That we are far better human traders than anyone else. It is highly illegal and that is the one and only thing that needs to be considered in this discussion.

Marilyn Shepherd | 12 May 2011  

I have an idea.... How about we just send a flight to Jakarta each month, fill a plane load with asylum seekers, with any documents, and bring them back to process in a timely fashion. that would deter people from using smugglers, from destroying documents, thus speeding up processing, and even stop the nest-feathering of corrupt Indonesian officials who are the ones who really profit from the desperate people who pay for a boat ride to Christmas Island. i have spoken to asylum seekers who have been detained in Malaysia, it would be cruel to send people there. When did we tell the Australian government that people trafficking was ok?

pangaraya | 12 May 2011  

Previous waves of "reffos", "boat people" and so forth have been accepted in Australia because the Chifley government, then the Menzies government and those coalition governments that followed Menzies, then the Whitlam government and then the Fraser government LED the country in this regard, stood up to the bigots, kept telling the truth in the face of the same sorts of frightened little lies which were being spread then as they are now.

Jim Jones | 12 May 2011  

to MARILYN SHEPHERD: I wonder where you get the fantastic figures from. I agree that we should look for far tougher places and I think Pakistan and India would be far better and cheaper to run than Malaysia. I am not sure if you are actually aware that we still have laws to protect our borders. You may not be aware that Australia needs to maintain a strict quarantine to protect its people, environment and agriculture. If you think it is "legal" to trespass our borders and to break quarantine and migration laws, then discuss your legal opinion with the right people.

Beat Odermatt | 12 May 2011  

Beat, my Hazara friends tell me they know annecdotally that 30% may die enroute to a safe country and it is a risk asylum seekers knowingly take simply because the alternative is worse.Some returnees tricked into going home from Nauru had to flee again because it was not safe and at least a dozen came by boat a second time. The decision is theirs , not ours. Give them viable alternatives!

Frederika Steen | 12 May 2011  

Hooray! Pangaraya's offered a solution that would certainly get rid of the prejudice about 'boat-people' and might enable Tony Abbott's vow to "stop the boats" to be more than just the simple rant of a demogogue: charter an aero flight each month for refugees. Think of it: less need for expensive coast guarding by the Navy and greater control of the arrival process, and most importantly of all, no lives lost. (After all, that's Tony and the shock-jocks' major concern, isn't it?)

Stephen Kellett | 13 May 2011  

To FREDERIKA STEEN: I don't think it is for Australia alone to solve the problems in this world. As long we have tribal and religious wars with modern weapon, we will have human tragedies all over the world. I don’t think it is “ok” to have more people dying on the way to Australia.

This is the reason we should help refugees more in countries like Pakistan and India, unless you suggest that we take all the 6.5 Million Hazara from Afghanistan. Then we have all the minorities under threat in countries such as Iran, Libya, Algeria, Burma etc. Sometimes it is up to the people in these countries to sort out their problems and to overcome racial, religious and tribal hatred.

Beat Odermatt | 13 May 2011  

Thank you Andrew for such clarity on this subject. Many of us are ashamed of the way refugees are treated by both sides of parliament.

Rosalie Toner | 13 May 2011  

because 99.99% of the world's refugees live somewhere else we can hardly say we are dealing with anything much at all.

And the figures are in the budget dear, do keep up.

Marilyn Shepherd | 13 May 2011  

Thanks Andy, on Good Shepherd Sunday it is just as well to be reminded that there are two choices, either to work for life giving solutions, or to steal life. People trafficking, which is what the Malaysian solution looks like, is life stealing. If all the resources we are pouring into keeping people away were put towards friendly, community oriented solutions as in the past, we would be politically and economically better of. And we would stand tall as ethically literate and compassionate of heart.

John Smith | 15 May 2011  

To MARILYN SHEPHERD: We know of people having waited 18 years in camps to come to Australia. Every time a boat arrived with "refugees", they were put pack in line again and again. People married and had children in camps waiting to find a country where they could go, but no, so called "do-gooders, profiteering lawyers, naive politicians and criminal people smugglers managed to make life harder for the poor and entry to Australia easier for the rich. The current answer is not ideal, but on the right track. I agree that the people smuggling industry is costing Australia over 600 Million Dollars a year. I am sure this money would do far more good in helping to improve the infrastructure in developing countries then helping to pay for second BMW of some migration lawyers.

Beat Odermatt | 16 May 2011  


Refugee lawyers in this country tend to do it for free.

Marilyn Shepherd | 16 May 2011  

Similar Articles

Good news about the Malaysia solution

  • Caz Coleman
  • 13 May 2011

Just as it should be the role of lawyers and refugee advocates to analyse the disadvantages and possible unlawful elements of this announcement, we must also consider the opportunities. The Malaysian agreement may also deliver good news for some asylum seekers and the refugee sector.