A post-Malaysia asylum seeker policy

I simply can’t understand the strategic or even tactical thinking (if any) behind the Gillard government’s decision to pursue a legislative revival of the Malaysia Solution.  Neither the Coalition nor the Greens were ever going to support it, nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable.  Of course the same is true of his climate change “policy” but no-one seems worried about that either.

What Gillard should have done was reluctantly accept from the outset that the High Court’s decision had effectively doomed the Malaysia Solution at least in the immediate future.  Given that this is what all the experts were saying anyway, persuading people on that proposition shouldn’t have been a big ask.  Then she and Bowen could have (and still should) set about constructing a workable policy framework around onshore processing, perhaps also taking advantage of Abbott’s willingness to wave through a revival of Nauru/Manus Island offshore processing merely to be able to say “nah nah nah , told you so”.  Anyway, here’s my rough stab at a post-Malaysia Solution asylum seeker policy:

First, we should not only release families and unaccompanied minors into community-based hostel accommodation during processing and assessment as soon as they pass health security and identity clearance processes1, we should do the same with single adults.  Of course, they pose a much greater absconding risk than families and kids, but attachment of irremovable tracking devices should reduce the risk to acceptable levels.  DIAC Secretary Andrew Metcalfe has suggested that embracing onshore processing would likely increase the annual flow of boat arrivals to 7000 or so and community-based processing may increase it a bit more, but there’s no reason why those numbers aren’t readily manageable, especially given that around 50% of them will be found not to be refugees and eventually deported.  Moreover, as long as Australia maintains its longstanding policy of subtracting successful onshore asylum claimants from the offshore humanitarian quota (currently around 14,000), those number wouldn’t have any effect at all on the numbers or pace of acceptance of refugees into the Australian community.

Metcalfe’s egregious claim that those sorts of numbers would somehow result in massive civil strife and social tensions should not be taken seriously.  Gillard urged Abbott and others to accept Metcalfe’s claims as expert and authoritative, but what special expertise does an immigration bureaucrat possess in assessing such questions?  I can’t help thinking that Metcalfe’s claim is little more than a reflection of the longstanding kneejerk paranoid, punitive institutional culture of Australia’s immigration bureaucracy.  All applicants are prima facie viewed as fraudulent and dishonest until proven innocent.  The silliest but by no means only example of this mindset that I experienced in my years of legal practice was in acting for the Catholic Church when we had to make representations to the Department in relation to the visa application of a 50 year old Mother Superior of Mother Teresa’s order of nuns from the Philippines who was coming to Darwin to take over the convent here.  The Department refused to believe that she wasn’t a fraudulent “mail order” bride. The tenor of correspondence suggested that they had an automatic “flag” in their process manuals to the effect that unaccompanied female visa applicants from the Philippines should prima facie be regarded as either prostitutes or spurious spouses.  Any accompanying warnings that the policy should be applied with a modicum of intelligence were ignored.  From memory, the impasse was eventually cleared by obtaining a stat dec from Mother Teresa herself, even though she was very old and sick at the time, attesting to her Mother Superior’s bona fides.

Nevertheless, under any new onshore processing policy there will still be a core of potentially troublesome applicants who will need to be kept in immigration detention, either because their identities can’t be readily verified or security clearance obtained, or because they’ve been found not to be genuine refugees at all but are exhausting every last judicial review avenue in the hope of somehow avoiding deportation.  Generally speaking, these are the types of applicant who have been rioting and burning down detention facilities on Christmas Island and elsewhere.  It’s for dealing with the problem these people pose that Gillard might have been better advised to embrace Tony Abbott’s amendments authorising offshore processing in Nauru or PNG, and simply cop Abbott’s short-term sneering.  Just as accommodating most applicants in community-based hostels in Australia would remove any clear focus for public perceptions of a boat people “problem”, so too parking the security risks and failed applicants in offshore detention would largely deny them the oxygen of publicity for their attention-seeking riots.  That would help to reduce the continual adverse publicity that gives people the erroneous impression that Australia’s border protection policy is somehow in crisis, when in fact our system is quite well managed and much less problematic overall than just about any other advanced western country.

Despite moving to non-detention-based onshore processing, Australia should continue to develop a genuine regional approach to asylum seeker policy.  We should increase our annual humanitarian quota to around 18,000 and focus it overwhelmingly on applicants waiting in Malaysia and Indonesia for resettlement.  If we granted (say) 3000 humanitarian visas in both Malaysia and Indonesia each year and also persuaded New Zealand to do some burden -sharing (e.g. 1000 per year from each of those countries), we would make a substantial hole over time in the real and serious problems Malaysia and Indonesia both have in coping with large numbers of asylum seekers within their borders.  We should combine that with a significant increase in foreign aid for provision of basic health care and education facilities for asylum seekers waiting in Malaysia and Indonesia.

Importantly, these measures would entail a significant quid pro quo from Malaysia and Indonesia.  Our increased aid and humanitarian intake from those countries would be contingent on their making genuine and stringent efforts to apprehend and smash the people smuggler rings and destroy their businesses and boats before they leave.  That would involve not only enacting laws imposing severe penalties (which don’t currently exist to the best of my knowledge) but using expert national criminal intelligence agencies to enforce those laws rather than notoriously corrupt/inept and under-resourced local police.

Australia should also continually publicise to asylum seekers waiting in Malaysia and Indonesia the fact that our offshore humanitarian quota is reduced for every irregular boat arrival.  Moreover, we should make it clear that the number of offshore humanitarian visas will be increased still further to the extent that irregular onshore boat arrivals remain below about 8-10,000 per year. In other words, we would be creating a real and orderly queue in these countries, with many of the queuers no doubt vigilantly watching out for queue-jumpers and hopefully dobbing them in.

  1. This already supposedly occurs, and was even Howard government policy towards the end of its term of government, but the clearance and release processes were overwhelmed for some time by the sudden large increase in arrival numbers after Rudd removed other elements of Howard’s policies ~KP []

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 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 the early 1990s.
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Happytalk
Happytalk
10 years ago

“I simply can’t understand the strategic or even tactical thinking (if any) behind the Gillard government’s decision to pursue a legislative revival of the Malaysia Solution.”

Isn’t it just ideology? Isn’t this business driven by mindless globalism?

Happytalk
Happytalk
10 years ago

Kelly and Shanahan, of the horrid Australian newspaper, were gunning for the Malaysian non-solution. What do the Murdoch papers and the government have in common? Globalism. They are all quislings. So there is a certain logic in these attempts to treat Australian immigration policy, and refugees, as if they were hostages to some hidden agenda.

Alan
Alan
10 years ago

The thing with this prime minister is that policy is not about doing anything, it is about keeping up appearances. It seems to me the possible explanations,in no particular order, are:

1. The prime minister may finally have found a policy on asylum seekers that cannot be wedged by the opposition because it is too extreme for Tony Abbot to stomach.

2. The strategy on this bill is identical with the strategy on the Rudd ETS. Total failure is no reason to reject a strategy or policy in the modern ALP.

3. The bill is about the future of the member for Dobell and even this prime minister realises you cannot wait upon the governor-general with a claim that the parliament is unworkable without at least one defeated piece of legislation.

Rex
Rex
10 years ago

A good rough stab Ken. I especially like the concept in the last paragraph.

One thing that no-one has properly explained is – how does community based processing work? In whose community are they processed? Do the asylum seekers get to choose where they will go? Are they housed in hostels as you suggest, or in underutilised housing in country towns?

Are we talking about creating a single location where they can be efficiently managed (a ghetto?), are they placed within communities of their own culture (risk of absconding?), are are they deliberately dispersed across the country (less efficient, but dilutes any undesirable group activity).

aidan
aidan
10 years ago

If we granted (say) 3000 humanitarian visas in both Malaysia and Indonesia each year and also persuaded New Zealand to do some burden -sharing (e.g. 1000 per year from each of those countries), we would make a substantial hole over time in the real and serious problems Malaysia and Indonesia both have in coping with large numbers of asylum seekers within their borders.

Can I suggest some modification of those numbers.

Australia is 5x the population of NZ, is 40% wealthier (per capita GDP) and has considerably more skin in the game.

Under those circumstances your 6000/yr equates to roughly 900/yr for NZ, not taking into account the “skin in game/care factor”. I’d be surprised, therefore, if NZ were expected to take more than 500/year.

Peter Patton
Peter Patton
10 years ago

Come on this is getting ridiculous. How much oxygen does this topic starve. There is no improvement possible until we withdraw from the Refugee Convention. We just need some of those media and education gatekeepers to step up and give voice to the inevitable. Once the taboo is lifted, and folks learn about the democracy-subverting conspiracy between the HC that are these UN Conventions, it on’t take long for the politicians to man up.

Yobbo
Yobbo
10 years ago

nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable.

You’re right Ken. Only you care enough about this issue to spend all that time thinking through it to eventually end up at the surprise conclusion that Tony Abbott is bad ™.

What Gillard should have done was reluctantly accept from the outset that the High Court’s decision had effectively doomed the Malaysia Solution at least in the immediate future.

What Gillard should have done is call an election, rather than prolong the agony of having this country governed by imbeciles.

Chris Lloyd
Chris Lloyd
10 years ago

The mother superior story is hilarious Ken.

You are right that Abbott is hypocritical in suddenly embracing the need for a UN convention signature. Labor is just as hypocritical though, since until recently this was a pre-requisite for off-shore processing and their main argument against Nauru.

I find it distressing that the media let politicians get away with this. I would like to live in an alternate universe where journos would hound Abbott and Gillard on these points, relentlessly to the exclusion of any other issue. In this universe, they can just stone-wall and obfuscate until the journos get tired of it.

Yobbo
Yobbo
10 years ago

I’m not saying you’re a one-eyed ALP supporter Ken.

I’m saying that your desire for people to see you as “centrist” means that you can’t bring yourself to criticise the ALP about anything without simultaneously having a go at Abbott for no reason.

The Liberal party had this policy right 10 years ago. Labor knows that. They can’t admit it without looking like fools. None of this is Tony Abbott’s fault.

Yobbo
Yobbo
10 years ago

You can still be a centrist but admit that this is the worst government in Australia’s history, and it needs to go.

Defending the indefensible is the job of Larvatus Prodeo, you don’t need to lower yourself to that level.

Personally I think you know deep inside how much better the country would be if Gillard just called an election and lost miserably, but you enjoy the left-wing readers you have, and that your digs at Abbott are just a cynical attempt to keep them coming back here.

Alan
Alan
10 years ago

It is pure myth that the convention is a product of countries that disregard democracy or the rule of law.

The Refugee Convention was drawn up by a conference of 24 nations in 1951:

Australia
Austria
Belgium
Brazil
Canada
Colombia
Denmark
Egypt
France
Federal Republic of Germany
Greece
Holy See
Iraq
Israel
Italy
Luxembourg
Monaco
Netherlands
Norway
Sweden
Switzerland (the Swiss delegation also represented Liechtenstein)
Turkey
United Kingdom of Great Britain and Northern Ireland
United States of America
Venezuela
Yugoslavia

Except for Columbia, Egypt, the Holy See, Iraq, Venezuela and Yugoslavia all were democracies, and the vast majority are now NATO members. All but Yugoslavia had pro-Western governments in 1951. The NGOs in attendance included such dangerous leftist groups as the World Jewish Congress, the International Union of Catholic Women’s Leagues, and the World Association of Girl Guides and Girl Scouts.

Those advocating withdrawal from the convention should support the Gillard legislation. Gillard does not formally abrogate the convention, she merely legislates that we can act as if we had no obligations under the convention.

KB Keynes
KB Keynes
10 years ago

Ken,

I am led to believe the legislation applies to any offshore processing centre.

It could be Malaysia, it could be Nauru, it could be the North Pole.

Mind you I have never sen the problem of onshore processing.

Happytalk
Happytalk
10 years ago

“Those advocating withdrawal from the convention should support the Gillard legislation.”

You’ve got to be tripping? Where is the logic in that? Of course we want to withdraw from the convention, so that we are unconstrained in finding a creative solution, beneficial to all parties. Where does this idiocy to do with Malaysia fit into that?

KB Keynes
KB Keynes
10 years ago

So Abbott does not want legislation that could lead to Nauru opening up again.

how come I am not surprised at that.

Gee he has buckleys of getting it up if there is a change of government then.

Paul Frijters
Paul Frijters
10 years ago

Alan,

are you the Alan I think you are? If so, you have been right so far about the asylum issue. You are probably right again about its current rationale.

Ken,

whilst I sympathise with your wish to have outside agencies check on them, I cannot see the Malaysians or other governments accepting something as humiliating as overseas inspectors. I cant even see our diplomats dare suggest it to their counterparts. National pride is in the way: corrupt or not, you have to deal with overseas governments on the basis of pretending to believe in their competence.

Alan
Alan
10 years ago

Ken

We could have some confidence in that scheme working in Indonesia where POLRI is making large progress with human rights and effective policing and has an excellent relationship with the AFP. Malaysia, sadly, is moving in the opposite direction.

Both corruption and human rights abuses are increasing. Indeed the Najib government has been using the Malaysia scheme to dismiss criticism by Malaysian opposition groups, arguing that their human rights record must be good because Australia wants this arrangement. Najib is actually mildly reformist, if deeply incapable, and for that reason may be about to lose office. Najib’s likely successor would move the country much further along the path of repression.

Aside from the refugee issue, I do not really know that Australia should be giving aid and comfort to UMNO in the domestic affairs of Malaysia.

Peter Patton
Peter Patton
10 years ago

Alan

Gillard’s legislation has nothing to do with the Convention. It contradicted legislation passed by the Australian Parliament in 2001. A Parliament of which she herself was a member!

Also, it is now 2011, SIXTY years beyond 1951. How many Acts of the Australian Parliament remain as they were sixty years ago? You may well wish to live in the good old days of 1951. I doubt many others do.

Alan
Alan
10 years ago

Peter

Read the High Court’s judgment and the current ext of Gillard’s bill. In Australia a convention is law only to the extent that it is incorporated into our law by the parliament. The migration act reflects the provisions of the convention as discussed amply by ken parish in the last iteration of this thread. The provisions this bill is designed to nugate are based on our obligations under the convention.

Gillard’s bill would change the act so that the executive can do what it likes without reference to the parliament or the courts. Not only does it exempt offshore country declarations from the limits set down in Section 198A of the Act, it provides that violating the rules of natural justice (rules developed exclusively by our courts) and even the bill’s own notification to parliament provisions have no effect on the validity of the declaration.

Gillard could have presented a more moderate bill in 2 ways – limiting declarations to Convention countries or making declarations into disallowable instruments. She could not do the first because Malaysia is not a Convention country and the second because both houses have already opposed the Malaysia non-soklution.

Thank you for noting we are finally making progress in the understanding of the Refugee Convention. Until recently the advocates of withdrawal were denouncing the convention as the product of a gaggle of gangsters. I agree with you that the convention requires updating. I am not sure how you propose Australia can contribute to updating the convention after withdrawing, but no doubt you will be instructing us all in due course.

For the record the convention is not exactly as it was in 1951. It was amended in 1967.

observa
observa
10 years ago

The plain facts were that the previous Govt had done the hard yards with the lip sewers, detention centre burners and finally the Tampa takeover mob to stop the boats and finally empty the detention centres. The children overboard hysterics apparently knew better and opened up the people trade again until they were morally bankrupted by their ugly children on the rocks tradeoff. They and their Labor/Green flunkies have been trying to avoid that obvious guilt ever since, and hence anything but Nauru and their Malaysian clutching at straws.

Against that background Ken lets fly with-

Neither the Coalition nor the Greens were ever going to support it, nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable. Of course the same is true of his climate change “policy” but no-one seems worried about that either.

Well let’s deal with the GW distraction first because it does have some weight for politics in a democracy whereby politicians have to be mindful of a range of views out in the electorate. Essentially Abbott knows the punters want a few windmills and solar panels to feel good about the crumbling science of CAGW, so flinging a bone in that direction makes sense to address the main game of preventing a horrid thin air derivatives trading scheme. Besides, everyone knows that with a big fat deficit the windmill and solar panel handouts will naturally have to be sacrificed for that at a later date and as the ROW backs away from the IPCC nonsense.

While that is sound and sensible strategy until more people wake up to the hyping of CO2, legislative opposition to Gillard’s Malaysian attempt at face saving is not. Much better for Abbott to allow Gillard to do her worst, stating although he doesn’t believe in the Malaysian deal and the Opposition will argue long and loud against it in the Parliament, they will not stand in the Govt’s way on this, just as they’d expect the same when in Govt themselves. Simply put up the Opposition amendments and solutions but abstain from voting Gillard’s legislation down in both Houses. Let Labor own it fully against the Greens and Independents and any Labor member that want’s to make a statement by opposing it too in Parliament. There’s no way the Coalition want to vote with the Greens on it and muddy the waters as Gillard is desperate to do. Let her own it fully because the Indos were well on the way to busting that 800 critical threshold already. I’d certainly be critical of Abbott’s tactical and long term strategic planning on that score.

observa
observa
10 years ago

Or the shorter observa- Give them all plenty of your strong thick rope to hang themselves.

Tel
Tel
10 years ago

Both corruption and human rights abuses are increasing. Indeed the Najib government has been using the Malaysia scheme to dismiss criticism by Malaysian opposition groups, arguing that their human rights record must be good because Australia wants this arrangement. Najib is actually mildly reformist, if deeply incapable, and for that reason may be about to lose office. Najib’s likely successor would move the country much further along the path of repression.

Sounds like there’s an opening to incentivate Malaysia into signing the refugee convention. Surely it’s in Australia’s interests to encourage them to move away from corrupt Islamic fundamentalism, and towards corrupt Western decadence and welfare statism. There’s a host of goodies we have to offer — subsidised Internet, a new school canteen, pink batts in their ceiling. They’d jump at the chance.

If that doesn’t work, find a local union willing to err… issue some credit cards, wink wink.

Alan
Alan
10 years ago

I am not sure how helping entrench in power the same people responsible for human rights abuses and corrupt practices is going to reduce human rights abuses and corrupt practices. Neither is the Malaysian opposition. Perhaps its time to try and revive the discredited Asian values thesis?

Tel
Tel
10 years ago

Well, you know how the saying goes: people who live without sin in glass houses should avoid getting stoned. Or thereabouts.

Things of value get bought and sold precisely because they have value. Corruption is merely the free market asserting itself by stealth where it cannot assert itself in the open air. Working on an honest basis is more efficient for everyone, but deception and cunning are art forms in their own right.

If you value human rights, get ready to pay for what you value (one way or another, doesn’t necessarily have to be with money, any deal will do). You yourself said, Najib is reformist, and he is currently in a weak position because his reforms have angered the hard liners. Sounds like excellent deal-making territory to me.

Alan
Alan
10 years ago

Sinless individuals over the age of innocence are statistically rare. If sinlessness is to be a precondition of political action then all politics everywhere must cease immediately. Personally I rather enjoy sin and I would be reluctant to give it up.