Malaysia 'better for refugees'

By Kirsty Needham and Michelle Grattan, The Age

JULIA Gillard has received a rare boost ahead of this week's parliamentary vote on the Malaysia people swap plan, with the United Nations refugee agency saying asylum seekers would get better protection in Malaysia under her proposal than if held in indefinite mandatory detention in Australia.

The House of Representatives will vote on Thursday on the legislation to bypass a High Court ban on sending asylum seekers to Malaysia.

Greens MP Adam Bandt and independent Andrew Wilkie have flagged they will vote against the bill on human rights grounds, leaving its lower house fate in the hands of West Australian National MP Tony Crook.

Mr Crook, who is not saying which way he is leaning, is preparing to meet the government and opposition today.

Amid speculation about a possible return of Kevin Rudd as leader, how Mr Crook's vote falls will be crucially important for the embattled Prime Minister.

If she loses the vote, it will be the first time a government has been defeated in the House of Representatives on a legislative vote since 1929, when the then government called an election - which it lost.

The opposition would argue a loss was a defacto vote of no confidence and Ms Gillard should go to the polls.

The regional office of the United Nations High Commissioner for Refugees, in response to questions from a Greens and opposition-led inquiry, has offered its strongest support yet for the Malaysia swap.

The UNHCR has scrutinised Australia's own treatment of asylum seekers, saying mandatory detention does not allow asylum seekers to work or live in the community - whereas Malaysia would. Australia also denies asylum seekers the right to lawful stay, and is punitive to people arriving by boat.

''In the context of the Malaysian arrangements, the assurances of legal stay and community-based reception for all transferees can be seen as a more positive protection environment than protracted - and in some cases indefinite - detention that many face here in Australia, provided the assurances are carefully monitored,'' wrote the UNHCR regional representative, Richard Towle.

The High Court struck down the refugee swap partly because Malaysia is not a signatory to the Refugee Convention. But Mr Towle says many Refugee Convention signatories did not meet ''the fundamental protection safeguards that were expected of Malaysia'' under the plan.

The UNHCR has also dismissed what it said was a ''misperception'' that asylum seekers could be caned, saying the document to be issued to transferees to prove their legal status would have been ''a significant safeguard''.

Mr Towle said Malaysia also planned to extend legal work rights to all refugees, not just those sent from Australia.

''All refugees in Malaysia would … 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 allow them to access insurance and health schemes.

When asked why the UNHCR hadn't endorsed or signed the Malaysia deal, Mr Towle replied that it was never envisaged the UNHCR sign or endorse it. ''No inference can reasonably be drawn from this,'' he wrote.

The manager of opposition business, Christopher Pyne, said yesterday that Ms Gillard had stated the vote on the bill was about an executive's ability to govern effectively. ''On that basis alone, you would assume that if the government fails to convince the Parliament to pass the amendment, it would follow the last precedent in 1929 and advise the Governor-General of the need for an election'', Mr Pyne said.

But Mr Crook told The Age he would not be swayed by whether the vote would be seen as a vote of confidence. ''I don't feel any pressure in that regard.''

He said the issues were border security, the welfare of people taking the risk of getting on boats, breaking the people smugglers' business model and giving the government the right to make decisions.

Ms Gillard is already under criticism from some Labor MPs for persisting with the Malaysia legislation, which faces defeat in the Senate if it is passed by the lower house.

Caucus sources continued to deny any move on Ms Gillard's leadership was likely soon.

Mr Bandt said mandatory detention was ''appalling'' and ruined lives ''but Labor's soul-destroying practices at home don't mean we should start sending fairness offshore … If some other countries are said to treat asylum seekers a little better, that should make us lift our game, not make our laws worse.''

Mr Wilkie said: ''I do not support offshore processing in any circumstances. Nor do I support mandatory detention in Australia. One is not better than the other - both are fundamentally unethical and at odds with our obligations as a signatory to the refugee convention.''

Refugee lawyer David Manne, who stopped the Malaysia deal in the High Court said: ''The fact is that the Malaysia deal was unlawful. It doesn't provide adequate protections for refugees in law.'' - Malaysia Today