The structure of the Government's latest improvisation in asylum seeker policy is familiar.
It has agreed with Malaysia to accept 4000 refugees in exchange for sending 800 asylum seekers to Malaysia. In addition it is working with Papua New Guinea to open a regional processing centre there. Like the original proposal to open a regional processing centre in East Timor, it involves offering a posy of attractive promises that conceal the thorn of the surrender of principle.
It will appeal to those who are politically numerate and ethically illiterate.
The principle that is breached in the Malaysia deal is the Government's commitment through the Refugee Convention to provide asylum to refugees who claim protection as refugees in Australian territory. The Convention also commits Australia to prevent the return of refugees to the nations in which they faced persecution.
This principle should be non-negotiable, and buttressed by the refusal to send asylum seekers to nations that have not signed the Convention. Malaysia has not done so. No international agreements prevent it from returning refugees to death or persecution.
The Government argues that the Malaysian Government has offered guarantees that the 800 asylum seekers will be well treated, and that they will be documented and processed by the United Nations High Commissioner for Refugees.
The UNHCR judgment of refugee claims, however, is not well resourced. Nor is it a statutory process subject to the rule of law. So it is inferior even to the process available to the asylum seekers who at present claim asylum in Australian waters, unsatisfactory though that process also is.
Nor can weight be placed on the promise of the Malaysian Government to treat the exchanged asylum seekers well, unless the promise is guaranteed by legislation. Malaysia already regards the presence of asylum seekers and illegal immigrants as a problem.
The problem is addressed locally by dissuasion. Asylum seekers, even those designated as persons of interest to the United Nations or who have been found to be refugees, together with illegal immigrants and those who have overstayed their visitors are routinely stopped, searched and beaten, and are subject to extortion, jailing, caning, and often deportation.
Indeed, some asylum seekers who spent some time in Malaysia before fleeing to Australia have made a claim for protection from persecution in Malaysia as well as in their home nation.
Given the indiscriminate, and often extra-judicial, violence that illegal immigrants and asylum seekers face, it is unlikely that asylum seekers sent there