An old legal maxim is 'hard cases make bad law'. Maybe complex cases compromise policy. Refugee law and policy is complex and the Malaysian agreement signed this week is another example of a compromise on human rights principles for political expedience.
In May 1992 mandatory detention was made a legal requirement by the then Labor Government. This occurred at a time of legal challenges to detention of Cambodian asylum seekers. Nearly ten years later, the Liberal Government used increasingly harsher policies, from the temporary protection visa to the misnamed 'Pacific Solution' (it was neither pacific nor a solution).
The continued politicisation of 'boat people' and calls to 'stop the boats' shows that policies regarding asylum seekers still bedevil Governments. The Malaysian Solution is the latest policy reaction.
How far will a Government go to 'stop the boats'? Rather than consider ways of ensuring protection of the human rights of refugees not just in Australia but also regionally, political responses are designed to achieve 'border security'. If we are prepared to achieve the political solution of 'stopping the boats' we have to act in a way that does not respect human dignity.
Australia has certain international obligations as a signatory to the Refugee Convention. It is not a responsible solution to move our international responsibilities offshore as was done with Nauru and is part of the Malaysia agreement. Arrivals onshore by boat or air should all have their cases assessed onshore. This approach is not politically likely because it is will not 'stop the boats'.
However, when the politics is so hostile that principles are lost in policy setting, what is the next best option for the refugees?
Assessing cases by Australian officials in Nauru did nothing to improve the protection of refugees in our region. Whereas getting non-signatory countries such as Malaysia to enter discussions with the UNHCR about improving protection for refugees is a small but positive step. Many refugees live in countries that are not full signatories to the refugee convention, such as Pakistan, India and Turkey.
The deal means the 800 asylum seekers transferred from Australia will not end up as part of the 4000 refugees to be resettled. Good if you are in that 4000, not so good if you are one of the 800.
The agreement provides that the transferees should not be detained beyond health and security checks. This is in fact better treatment than