In Praise of Gillard’s Malaysia Solution

It’s hard to deny that the Gillard government’s emerging new asylum seeker policy represents a thinly disguised reversion to Howard’s Pacific Solution, although both Gillard and Stephen Smith are giving denial a good shot.  The thing is that I suspect most “punters” will neither know nor care as long as it looks tough and stops the boats (as I’m pretty sure it will after a lag as those already in the people smuggler pipeline arrive).  With the noteworthy addition of the Malaysia element, Gillard’s solution looks (and is) sufficiently different from Howard’s recipe as to avoid an appearance of craven political capitulation.

The Malaysia element adds a critical dimension to the visaless asylum seeker issue that Howard’s policy conspicuously lacked.  As I’ve observed previously, Howard ultimately had no choice but to grant visas to asylum seekers on Nauru who were assessed as genuine refugees, because other countries simply weren’t prepared to take them (apart from a one-off initial deal with New Zealand).  Howard’s “we will decide who comes here …” statement was a hollow, meaningless threat.  Indeed so desperate was Howard to disguise this fatal flaw in his policy towards the end of his term of office that he entered negotiations with the US to swap Australian refugees on Nauru for American ones interned at Guantanamo Bay.  Had that deal been finalised it would have borne a close similarity with the deal Gillard has now done in principle with Malaysia, a point Tony Abbott has so far managed to avoid mentioning.  However Gillard’s gambit is manifestly superior at least from a border security viewpoint.  Giving US residency visas instead of Australian ones to asylum seekers found to be refugees would hardly have sent a powerful deterrent message to those contemplating signing up with the people smugglers whereas sending them to the back of the “queue” in Malaysia most certainly does.  If Tony Abbott were to experience one of his increasingly infrequent moments of disarming honesty, he would admit that Gillard’s Malaysia gambit is a policy masterstroke which a Coalition government would have adopted like a shot and proudly claimed credit for had it been currently in office.

The Malaysia element is predictably being assailed from both Right and Left.  Abbott is trying to gain mileage and negate any kudos for Gillard by painting the deal as a negotiating loss for Australia because we are to take 5 UNHCR-approved refugees from Malaysia for every unprocessed boat person we return to them.  However the reality is that Australia will almost certainly gain a huge border security win by stopping the boats, which is what Abbott has until now professed was his aim, while taking in return just 1000 extra approved refugees from offshore each year in a total migration program of around 170,000 is just a drop in the ocean and hardly a concession at all, especially if it eventually allows Christmas Island and other onshore detention centres to be closed.

The Malaysia element is also being criticised as a desperate and expedient “one-off” solution.  But that was equally true of the Pacific Solution when first propounded.  By definition all such policies are expedient reactions to immediate border security crises.  Moreover, one would suspect that it will prove possible in due course to negotiate an extension of the deal with Malaysia, as long as it doesn’t result in significant adverse domestic political blowback for its government or serve as an attractant for an increased flow of hopeful asylum seekers into Malaysia.  No doubt those concerns account for the initial limited scope of the deal.  It may even prove feasible to negotiate similar deals with countries like India and Indonesia.

Criticism from the Left has focused on the fact that Malaysia is not a signatory to the Refugee Convention and has a poor record of treatment of the 90,000 or so asylum seekers within its borders (note the contrast with the tiny numbers Australians are whinging about having to cope with).  However UNHCR is cautiously welcoming of the deal and apparently regards the undertakings of “non-refouler” and humane treatment  that Australia has extracted from Malaysia as appropriate.  The Refugee Convention does not forbid return of asylum seekers to non-signatory nations, it forbids “refouler” of refugees to their homeland or another place where they may face persecution.  What will be required here is a credible regime of oversight of Malaysia’s treatment of returnees by UNHCR and Australian authorities.  As long as that occurs, objecting to returning people from whence they transited in Malaysia in favour of taking a greater number of assessed genuine refugees from there just doesn’t make much sense except perhaps to woolly-minded Greens voters.  However much the asylum seeker lobby may shrilly assert to the contrary, there IS a queue in Malaysia and Indonesia, albeit a very long and uncertain one.  Asylum seekers can be assessed for refugee status by UNHCR and are able to apply offshore for an Australian humanitarian visa.  Why should we not choose to assist both ourselves and our poorer regional neighbours by taking more of those who choose to remain in that long, uncertain queue and less of those who take the law into their own hands to gain visa priority by subjecting their families to an extraordinarily dangerous boat voyage, and in the process place serious (if disproportionate) pressures of community resentment on Australia’s extraordinarily successful non-discriminatory migration program?

PS Incidentally, the Gillard government’s emerging policy, if successful, might even provide a plausible basis for a sustainable reshaped international burden-sharing approach to refugee policy advocated by leading refugee law experts like James Hathaway and others.  In return for being relieved of the obligation to accept ad hoc visaless boat people who arrive on their shores, countries with a significant migration program like Australia would agree to accept a greater number of refugees objectively assessed to be in need of permanent protection outside their homeland, while a much wider range of wealthy nations would shoulder the financial burden of assisting poorer countries of “first asylum” to accommodate those needing only temporary protection until conditions in their homelands improved.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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11 Responses to In Praise of Gillard’s Malaysia Solution

  1. Mark Thomson says:

    Thank you for this article. It is a well balanced analysis of the realities confronting the Gillard Govt. I have lately quoted Susan Metcalfe’s article in The Age, which cites me as a source for a critique of the Pacific Solution into which I became embroiled as an AusAID official. I put a similar take on the Malaysia development to Susan, which she rejected. It is by no means a solution but it is a significant advance on the scenario projected by Abbott, which will be a return to a policy that has rights violations at its centerpiece. It is vital that people smuggling is disrupted, and it is equally vital that countries within the Bali process cooperate to address smuggling and refugee processing within a regional framework. The Pacific Solution did not provide a basis for a regional approach, but was characterized by a series of fairly tacky bilateral deals.

  2. conrad says:

    I like the soluton as well — in addition, if the problem is taking in an extra 1000 refugees a year, then the simple solution is to reduce the overall intake by 1000 which means you end up with the same amount. I also think that getting a bunch of Burmese refugees is going to go down better with the general public than getting people from Afghanistan and places like that.

  3. Tel says:

    Sorry I can’t resist noticing Andrew Bolt giving Abbott an incredibly mild roasting on the Liberal website:

    http://www.liberal.org.au/Latest-News/2011/05/08/Tony-Abbott-interview-with-Andrew-Bolt.aspx

    TONY ABBOTT: Well, it’s a lousy deal for Australia, Andrew. I mean, it’s probably a terrific deal for Malaysia but it’s a hopeless deal for Australia.

    ANDREW BOLT: But it might work. It might just work. If you are a boat person in Indonesia you might think twice about coming if you are going to end up back in Malaysia.

    TONY ABBOTT: What works is Nauru.

  4. Ken Parish says:

    At least it’s to Bolt’s credit that he is prepared to acknowledge, however sotto voce, that Gillard’s plan has some merit. That other Tory mouthpiece Greg Sheridan can’t even do that:

    But the people-smugglers, and their clients, realise that this is almost all bluff. The government has no bottle.

    It would be much more effective, and much more humane, to take the incentive of permanent residency completely off the table for anyone who arrives here by boat.

    That is patent nonsense. Howard introduced temporary protection visas in 1999, and that was followed by 3 years of record boat arrivals (as high as at present) until the Pacific Solution was introduced. Temporary visas don’t deter in themselves because (a) human nature is such that people will still focus on getting a visa, and worry about how to engineer permanent residence later; (b) for many countries (e.g. Afghanistan, Iraq, Iran) the danger of persecution refugees face is semi-permanent – certainly unlikely to disappear within the time span of a temporary visa. Thus they KNOW that Australia will have no choice but to successively renew the visa and eventually make it permanent.

    The reason the Pacific Solution was successful for a while was that it created the impresssion that coming to Australia by boat would not confer any “queue-jumping” visa priority over the hundreds of thousands of offshore asylum seekers. And that is precisely the impression Gillard’s plan now creates. The difference is that the impression has substance. Boat people really will be turned around and sent to the back of the offshore queue.

    The one point of substance Sheridan’s propaganda piece has is the suggestion (parrotting Coalition spokeman Greg Hunt):

    For a start, people removed to Malaysia will not be kept in detention and can simply travel to Indonesia again and board another boat for Australia. People-smugglers, keen to keep their business going, may well give them a repeat business discount.

    I made a somewhat similar critique of Andrew Bolt’s asylum seeker management suggestions (which, as Tel points out, bear a degree of similarity with Gillard’s plan, which is no doubt why he feels forced to suggest albeit very diffidently that they might just work). It should be clearly noted that Gillard’s plan cannot work unless Australia gets agreement from Malaysia that multiple returnees will only be counted once towards the initial 800 person cap. That will send a message that you will stay at the back of the queue no matter how many times you jump on a boat to Australia.

  5. Tel says:

    If Gillard can deliver a system where she can be seen to be helping genuine refugees and at the same time blocking the “queue jumpers”, and not having the embarrassment of boat people tangled around rocks… if she can deliver that then she gets a massive political trump card.

    I’d agree with Bolt on this one, “it just might work.”

    It should be clearly noted that Gillard’s plan cannot work unless Australia gets agreement from Malaysia that multiple returnees will only be counted once towards the initial 800 person cap. That will send a message that you will stay at the back of the queue no matter how many times you jump on a boat to Australia.

    Well I mentioned before that modern biometrics can easily detect repeat visitors. The question is, once you detect it, what do you do about it? I suspect that on day one, both sides have agreed that it won’t happen, but we all know that sooner or later it will happen.

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  7. Tel says:

    Comment from Amnesty International:

    MARK COLVIN: You know, of course, that the Australian Government is taking 4,000 refugees from Malaysian refugee camps; is that not a fair exchange?

    SALIL SHETTY: I started by saying that we welcome the fact and I think that is what triggered the conversation, that many of them are Burmese. I think that’s a great arrangement. But we are not in favour of sending 800 people out. And so they are two different things as far as we are concerned.

    Seems to show some difficulty understanding the basic principle of trade. I dunno if I’m the only one but I’ve found AI increasingly disappointing as they gravitate away from their original focus and try to become generic “lefties”.

    source reference is http://www.abc.net.au/pm/content/2011/s3216577.htm

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  9. howard Lee says:

    I think the Malaysia refugee swap deal is a brilliant idea. I believe it will stop illegal boat arrivals to Australia from mainland Asia and Indonesia. Let’s say I am an Afghan in Indonesia trying to buy a passage to Australia by paying a considerable amount of money (let’s say 5000 dollars) to a people smuggler. If I know that Australia will send me to the back of the queue for processing in Malaysia, there is no way for me to make the dangerous and expensive trip to Australia. The essence of the direct passage to Australia is queue jumping, and this Malaysia refugee swap plan nullifies it.
    Refugee advocates seem to dislike this plan intensely because it will stop boat arrivals. They say that Malaysia mistreats refugees, but they do not need to worry about this, because there won’t be many asylum seekers sent to Malaysia. Initially, there might be some arrivals, but they will trickle down to almost nothing or negligent numbers.
    As for Burmese refugees, I welcome them. I think they are Burmese minority peoples like Shan people, persecuted by the Burmese military. As far as I know, the Burmese are Buddhist worshipping, peace loving people, and won’t hate other religions, or commit terrorist bombings killing innocent people.
    Tony Abbott seems to dislike this Malaysia swap plan, because he knows it will work: it will stop boats (not by him, but by Gillard).

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