Australian Churches and the Malaysian Solution

Source from Eureka Street, 18 July 2011

'Welcome refugee' bannerThe latest attempt to stem the flow of asylum seekers arriving in Australia by boat, the so-called ‘Malaysian solution’, is causing great angst in the community and with our political leaders.

This proposal involves people trading by the government of a democratic country committed to the rule of law. People trading is wrong even when part of a broader suite of policies designed to arrest trans-border flows and to ameliorate slightly some pressures on other governments accommodating large numbers of asylum seekers. Even if it works, it is wrong.

Any proper assessment of the proposal requires a consideration of the case of the bona fide refugees sent from Australia to Malaysia. They have no right to settle in Malaysia, no rights to work, education or welfare while their claims are undetermined, and no guarantee that their claims will be determined in a timely, transparent manner.

If the transfer to Malaysia is appropriate, so too would be return to Indonesia given that Australia has arrangements in place with the International Organisation for Migration and UNHCR there for some minimal accommodation of entitlements while awaiting status determination. We would essentially be deciding that protection is now available in Indonesia or Malaysia and that all persons heading for Australia are therefore engaged in secondary movement, not direct flight.

This is not part of a regional solution to a regional problem. At most it is a bilateral attempt at solving an Australian problem. Malaysia has 200,000 people to care for. That must be part of the so-called regional problem and solution. The one-off acceptance of 1000 refugees each year for four years is no durable contribution to that part of the regional problem.

If Nauru were to sign the Refugee Convention, if people were to be detained only for the purpose of identity, health and security checks, and then housed there humanely until their claims are processed (with at least the same standard of food, clothing and accommodation as Christmas Island), and if those proved to be refugees were to be guaranteed immediate release from detention and prompt resettlement, that would be preferable to the Malaysia option.

Everyone, including the strident supporters of the Howard-Ruddock Pacific solution, knows that it was a one-off solution to stopping the boats, posited on the false claim that even proven refugees would not be resettled. Most were — and in Australia or New Zealand. And they would be again. There is no clear message you can send to people smugglers and their clients: ‘Don’t head for Australia or you will end up in Nauru before you end up in Australia or New Zealand.’

The search is still on for a replacement for the Pacific Solution achieving the same result. Any acceptable solution must fulfil the following conditions: no people trading; legally guaranteed access to food, clothing and shelter during processing; and prompt resettlement on proof of claim.

If the numbers to be resettled in Australia became too great, skewing our humanitarian intake, there could be a case for revisiting the temporary protection visa (TPV) despite its treacherous side effects including the need for more women and children to risk perilous journeys.

To stop the boats and secure the borders, one needs to engage in measures contrary to the Refugee Convention. We should: adhere to the Refugee Convention; do deals moving asylum seekers from Australia only with countries which are signatories to the Convention; foster a regional approach to the full suite of regional problems; and enter into only morally coherent bilateral arrangements regarding distinctively Australian problems.

I see no need for church groups or agencies to be ahead of the field in offering endorsement of the government’s proposal or processes in the formulation of the Malaysia Solution. On process, even Bill Farmer, former head of the Immigration Department and ambassador to Jakarta, has gone public indicating that these arrangements cannot work unless the governments do the hard negotiating with attention to detail out of the public eye, and prior to any grand announcements.

On the substance of the proposal, it is going to be unworkable (i.e. failing to have the desired universal deterrent effect) unless some children, including unaccompanied minors, are included in the transported caseload. It will be morally indefensible insofar as it permits the removal of children, including unaccompanied minors, who may well be bona fide refugees and whose needs and entitlements will not be sufficiently protected in Malaysia.

Why would a church group publicly endorse something it knew to be either unworkable or immoral?

Until the Malaysia Solution is in place, church groups should continue to advocate publicly the need for any proposal to receive the endorsement of UNHCR and to advocate privately with UNHCR on what they view as the necessary minimum conditions for endorsement.

They should continue to insist that Australia comply with its international treaty obligations (including the Convention on the Rights of the Child). Given that our key neighbours are not signatories to the Refugee Convention, church agencies should continue to urge all governments in the region to work towards a truly regional solution to the regional problems of people movement and asylum.

Once any Malaysia Solution is in place, church groups or agencies as ever should work hard and pragmatically to make it work as best it can, minimising the adverse impacts on the most vulnerable including unaccompanied minors.

Any legislative backing for the Malaysia Solution may well be subject to the legislative requirements of the forthcoming Human Rights (Parliamentary Scrutiny) Bill 2010 which is presently before the Senate and expected to pass readily now that the Greens hold the balance of power. The Executive will need to provide a statement of compatibility with all key international human rights instruments, and the joint parliamentary committee will need to be satisfied with compliance.

The committee will provide a useful forum for church groups and agencies to put a principled legal position. 

Further reading: Human rights and Christian lawyers | ‘When I appeared on Q&A with Christopher Hitchens, a young man asked whether we can ‘ever hope to live in a truly secular society’ while the religious continue to ‘affect political discourse and decision making’ on euthanasia, same-sex unions and abortion. Hitchens was simpaticao. I was dumbstruck.’ Full text from Fr Frank Brennan’s speech to the Queensland Christian Lawyers Dinner in Brisbane on 14 July 2011. 

Frank Brennanby Frank Brennan, 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.

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