Malaysia solution is not there yet

Next week Parliament reconvenes for a fortnight, and meanwhile the boats keep coming. Minister Chris Bowen will be armed with a report from the expert panel which has been travelling the country hearing from a broad cross section of the Australian community.

Even John Menadue, a strong refugee advocate and previous secretary for the Department of Immigration, thinks it is time to give the Malaysia solution a go. I remain opposed, favouring onshore processing only. If Parliament's preconditions for offshore processing are to be relaxed, the Malaysia solution will need to be improved and it will need to be augmented with a Nauru-type solution.

All Australian political parties say they remain committed to the key obligations of the Refugee Convention. Since 2001, the Parliament has provided governments with additional latitude in discharging these obligations. Instead of processing claims in Australia and providing residence for successful applicants who have arrived in Australia or on our Indian Ocean possessions, Parliament has authorised government to engage in offshore processing in the hope that some of the successful applicants will be resettled in countries other than Australia.

This first happened with Nauru in 2001. The Howard-Ruddock package of measures did deter people from getting in leaky boats and heading for Australia. However most successful applicants taken to Nauru ended up here or New Zealand. Having relaxed the policy, the Labor Government has seen a need to tighten things again.

One of the 2001 measures (s.198A Migration Act) allowed the Minister for Immigration to declare that another country could be used for offshore processing. The Minister was required to declare that the specified country:

1. provides access, for persons seeking asylum, to effective procedures for assessing their need for protection;
2. provides protection for persons seeking asylum, pending determination of their refugee status;
3. provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
4. meets relevant human rights standards in providing that protection.

Rightly convinced that Nauru would no longer work as a deterrent, Bowen declared Malaysia to be a suitable offshore processing country. This time, Australia would not retain responsibility for accommodating and processing the asylum seekers, and successful claimants would not be guaranteed resettlement in Australia or New Zealand. Rather, the persons taken to Malaysia would be placed at the end of a queue 100,000 long.

Eventually they might be processed. Eventually they might find a country prepared to accept them as refugees. Then again, they might not. And why would you pay a people smuggler $20,000 for such an uncertain outcome?

Nauru was offshore processing; Malaysia would be offshore dumping, with no guarantee of humane accommodation (including health care and child education), transparent, timely processing and prompt resettlement.

A year ago the High Court stymied the Gillard government's attempt to institute the Malaysia solution. The Court performed a routine judicial task, interpreting s.198A Migration Act, and determining that Bowen did not have the legal power to declare Malaysia a suitable offshore processing country.

Many lawyers, myself included, thought the High Court would not want to travel far down the path of scrutinising the protections provided by foreign governments to asylum seekers. But the court had no trouble in finding that the issue was one of mixed law and fact. The court would always be happy to look at the law, though it might defer to government when assessing facts.

The court needed first to determine if the Malaysia solution provided a legal framework for protection. If so, there would then be a need to determine whether in fact such protection was provided. Without some legal framework, there could in fact be no guaranteed protection. With a legal framework, there would be a need to ensure that it was in fact workable, and not just a sham.

Four of the High Court judges compared Nauru in 2001 and Malaysia in 2011 and said, 'The arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question.'

Last September, Erika Feller, Australia's most senior person in UNHCR in Geneva said the Malaysia deal was workable provided certain preconditions were fulfilled. She told ABC Radio that the deal 'was predicated on very, very careful pre-transfer arrangements, so that particular vulnerabilities of individuals who might be subject to the deal were assessed prior to transfer and that proper arrangements were made for those who shouldn't be transferred because of their vulnerabilities'. Unaccompanied children come to mind.

In June 2012, she told The Age, 'We said we could work with it and we stand by that — subject to certain things happening, and they haven't yet happened.' She said that UNHCR would require a detailed explanation of 'pre-transfer arrangements' before it would be satisfied with the arrangement. Almost a year on, nothing has changed. We are still awaiting an answer about the kids. Until an answer is provided, no one in good conscience could give Malaysia the tick. If you send unaccompanied minors to Malaysia, the arrangement is immoral; if you keep them in Australia, it is unworkable, because the next boat will be full of kids.

Feller says UNHCR wants more detail on the resettlement prospects of those sent to Malaysia and proved to be refugees: 'There is no point in having an arrangement predicated on refugee status determination which has no solutions at the end of it.' Vulnerable people like unaccompanied children, if removed from Australia before determination of their claims, should be processed in a place where Australia maintains supervision and responsibility. That could be Nauru. Others should be taken to Malaysia only if they are to be guaranteed transparent processing and prompt resettlement.

Regardless of legal niceties about which countries are signatories to the Refugee Convention or the Bali process, our Parliament should not authorise government to remove asylum seekers offshore unless the removal arrangement guarantees processing rather than dumping. Parliament remains the custodian of our obligations under the Refugee Convention. 

---

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He will appear next week as part of Eureka Street's A Discerning Conversation With Kevin Rudd, held to celebrate the magazine's 21st birthday.