Wondering about how humanely to stop the boats and how best to build a regional response to the irregular movement of asylum seekers in our region, I spent last week in Malaysia discussing the 'Malaysia Solution' with the Malaysian Bar Council, UNHCR, PROHAM (the Society for the Promotion of Human Rights), various local NGOs and Church groups.
I was anxious to see if there might be any prospect of reviving the Malaysia Solution, but with appropriate safeguards set down by the Houston Expert Panel, after the Malaysian Election on 5 May 2013 and before the commencement of the Australian election campaign and caretaker period presumably commencing no later than 10 August 2013.
If the Gillard Government were to propose Malaysia as a regional processing country it would need to table the necessary documentation in parliament by 20 June 2013 at the latest. As recently as 27 March 2013, Prime Minister Gillard repeated the mantra:
But the problem we confront here with implementing the agreement with Malaysia is of course that the Opposition has taken the view that it would prefer to be negative, and it would prefer to see more boats. If we could implement the Malaysia agreement we would do it very rapidly. We have been prevented from doing that by the negative approach taken by the Opposition.
The Malaysia Solution proposed that Australia transfer 800 asylum seekers to Malaysia in return for Australia receiving 4000 refugees from Malaysia over the next four years.
When this idea was first floated in 2011, I was critical of it because I could not receive any clear answers about the plight of unaccompanied minors (UAMs). If they were to be included in the group of 800 transferees, the scheme would have been ethically very problematic; if they were not included, the scheme would have been unworkable because children would have come in increased numbers on later boats.
I have been generally supportive of the recommendations of the Expert Panel with the exception of their recommendations that Pacific Island facilities be reopened for offshore processing and that review of future offshore arrangements be moved from the High Court to Parliament (especially the Senate).
Both sides of the Chamber would have been well advised to heed the earlier warning of Andrew Metcalfe, past Secretary of the Immigration Department, that the Pacific Solution would not work again as a deterrent. The arrival figures since the panel reported have vindicated Metcalfe's assessment.
Shifting review of future arrangements, including a revised Malaysia Solution, to the Senate has meant it would be very difficult politically for the Gillard Government to succeed in putting in place any future offshore arrangements before the September election, given the 20 June cutoff date. There might have been a way through the political morass if the recommendations of the Expert Panel regarding Malaysia were achievable.
The new Minister for Immigration and Citizenship, Brendan O'Connor has rightly said:
If the Malaysian government is expected to consider any further efforts to the agreement we have in place, they need to know from the Opposition that there is some chance that they will support it ... You cannot expect the Malaysian Government to continue down this path if they're going to be completely and utterly rejected and criticised again in a most outrageous fashion by Tony Abbott and the Opposition.
The only remote possibility of winning Opposition support would be if O'Connor and Gillard were able to satisfy all parties that they were able to sign off on all additional protections recommended by the Expert Panel. This would require a rigorous test in light of the remarks by panel member Paris Aristotle on the ABC Lateline program when discussing Manus Island this month. He said:
When we established the safeguards, we didn't say, 'Here's a set of safeguards to mitigate against the risks. If you can do them great; if you can't, go and do it anyway.' We were explicit. We said, 'These safeguards need to be implemented as a part of any offshore processing arrangements.'
In light of these remarks, the Government would need to address the Malaysia concerns listed by the panel:
There are concerns that relate to the non-legally binding nature of the Arrangement, the scope of oversight and monitoring mechanisms, the adequacy of pre-transfer assessments, channels for appeal and access to independent legal advice, practical options for resettlement as well as issues of compliance with international law obligations and human rights standards (particularly in relation to non-refoulement, conditions in Malaysia, standards of treatment and UAMs).
In particular, the Government would need to make the following changes recommended by the panel:
- Provisions for UAMs and for other highly vulnerable asylum seekers need to be more explicitly detailed and agreed with Malaysia
- A written agreement between Malaysia and UNHCR on implementation of the Arrangement
- An effective monitoring system should be established involving 'senior officials and eminent persons from civil society in Australia and Malaysia'.
From my discussions last week in Malaysia, I do not think there is any possibility that any of these three changes could be effected between 5 May and 20 June. Unless all three changes were agreed to, there would be absolutely no prospect of the arrangement winning endorsement from the Expert Panel, let alone support from the Coalition parties or the Greens.
All of us seeking a breakthrough need to concede that O'Connor is not afforded the optimism expressed by his predecessor Chris Bowen in 2011 when he stated in his High Court affidavit that he had formed an 'understanding' from his conversations with the Malaysian Minister of Home Affairs and other Malaysian officials that the Malaysian Government 'was keen to improve its treatment of refugees and asylum seekers'. He swore:
I formed a clear belief from these discussions that the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons. It was also clear to me that the Malaysian government was enthusiastic about using the transfer of 800 persons under the proposed arrangement as a kind of 'pilot' for their new approach to the treatment of asylum seekers generally.
He stated that Malaysia was 'actively considering' allowing work rights for all asylum seekers. No informed person in Malaysia with whom I met last week would attest these things two years on.
The situation confronting the 102,000 persons registered with UNHCR and the more than 50,000 other persons of concern to UNHCR in Malaysia has not improved since 2011. There has been no progress on work rights. There has been no conceptual shift by the Malaysian government. With over 4 million migrant workers, half of whom are undocumented, the present Malaysian government remains content to leave processing and protection of asylum seekers to the good, but very stretched, offices of UNHCR.
I applaud all efforts by the Australian Government to engage regionally on these difficult issues seeking regional solutions to regional problems. If we are to advance the issue in Malaysia, we will need to restate our interest in addressing regional problems including the overwhelming problem confronted by Malaysia, not just seeking a regional solution to the comparatively small Australian problem.
Many of the persons with whom I met last week appreciated the opportunity afforded two years ago for constructive discussions with the Malaysian government and across sectors in Malaysia. Many NGO members thought that there was in 2011, for the first time, a useful international spotlight on Malaysia's approach to asylum issues, together with constructive inter-departmental and inter-ministerial dialogue.
For the moment, Bowen has achieved all that is possible in setting down guaranteed protections within Malaysia. Second time round, O'Connor is most unlikely to achieve any better within a six week timeframe.
He is armed with the recommendations of the Houston Expert Panel but these will count for little with Malaysian decision makers bruised by the adverse Australian publicity they received first time round, knowing that this time they must run the gauntlet of the Australian Senate before the end of June.
While acknowledging the overwhelming problems confronting asylum seekers in Malaysia, many Malaysians rightly attest that Malaysia, with its loose borders and loose systems, is a preferred destination for many asylum seekers who find natural community among their own there. If Malaysia were to assume responsibility for registering asylum seekers who were then given the right to work, real progress could be made.
Some Malaysian experts, aware that Australia is presently receiving 1–2000 boat people per month, seriously doubt that 800 transferees would provide the necessary circuit breaker as proposed two years ago when the number arriving on our shores was far less. There was a suggestion that the increase, in part, may be explained by the apprehension that Australian policy will change significantly after our September election.
A revised Malaysia Solution consistent with the recommendations of the Expert Panel is an impossibility before the Australian election, regardless of the views expressed by our Opposition and minor parties. It's dead in the water. There can be no movement in Malaysia until after both elections.
It is time for each side of politics to stop blaming each other for the increasing wave of boats and for the Gillard Government to cease invoking the unreal prospect of a revised Malaysia Solution before the election.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.
Fr Brennan travelled to Malaysia with Mark Fowler, a lawyer from CLEAR Australia, a group of Christian lawyers committed to legal education, advocacy and research.
Pictured: A Burmese child at a church learning centre for asylum seekers in Kuala Lumpur visited by Fr Brennan last week.