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.