6-1 SMACKDOWN of “Malaysian Solution”. What next?

“The decision also sends a clear message to government that the courts are the protectors of incursions on the rights of individuals by the executive, particularly when that incursion would result in the individual’s safety and security being threatened”

Australian Lawyers Alliance President Greg Barns

If you watched the news yesterday and have been following the asylum seeker issue in the media, you will know that the High Court of Australia yesterday ruled 6-1 that the Federal Government’s planned ‘Malaysian Solution’ – which would have entailed sending 800 asylum seekers back to Malaysia, in exchange for 4000 processed refugees over a four year period – is, in fact, UNLAWFUL. Malaysia is not a signatory to the UN refugee convention, and The UN has documented how refugees, migrants and Malaysian nationals are subjected to judicial caning for criminal offences, including immigration violations. In addition, The High Court found that Malaysia was not legally bound to protect the asylum seekers under its own laws, nor under our Migration Act, which makes Minister Chris Bowen’s declaration of the Malaysian deal (issued under his ministerial powers) invalid. The court’s ruling has made current injunctions preventing the removal of asylum seekers to Malaysia permanent.

Unaccompanied minors that come to Australia by boat come under the legal guardianship of the Minister for Immigration. The High Court ruled that written consent from the Minister, in conjunction with international and domestic legal protections, is necessary before such a minor can be sent overseas.

Moreover, the 4000 processed refugees in Malaysia that were to be ‘swapped’ in this arrangement must still be resettled here, as per the agreement. The Labor Government is now feeling the pain of the defeat of their shambolic policy, much to the delight of the Liberal Opposition, who will make political hay out of the Government’s foolishness. And, all the while, the Greens will continue to fight against offshore processing.

Sucks to be you, Mr Bowen. And, as always, sucks to be an asylum seeker.

So is this the death of the Malaysian Solution?

Probably. The Government cannot appeal this decision. But it can try to amend the legislation in the parliament in order to get the Malaysian plan through, or by issuing a valid declaration in accordance with the terms the High Court identified (i.e. setting up a legally binding agreement with Malaysia regarding the treatment of asylum seekers).

However, a new declaration would only work if Malaysia became a signatory to the UN refugee convention and its protocols. And any attempts to amend the Migration Act (so this shit is legal) will likely be blocked by the Greens in the Senate.

What about Papua New Guinea & Nauru?

Papua New Guinea (PNG) and Nauru were both utilised in the Howard Government’s Pacific Solution– Nauru more prominently. The PNG government has agreed to reopen our processing centre on Manus Island. Some locals see this reopening as a potential boon to the local economy, and welcome it.  But detractors of a PNG detention centre (like Greens Senator Sarah Hanson-Young) argue the facility is inadequate due to water supply and health issues, and, more saliently, that off-shore processing primarily serves the purpose of providing an “out of sight, out of mind” political advantage for the Australian Government. Albeit a financially expensive once.

While the Gillard Government focused on Malaysia and PNG as potential processing locations for asylum seekers, the Opposition argued for the reopening of the Nauru facility, closed in 2008 by then Prime Minister, Kevin Rudd. Tony Abbott and Opposition Immigration Minister Scott Morrison visited Nauru in June to inspect the facilities and meet with politicians – a trip derided as a political stunt by the Government.

BUT the High Court’s ruling applies to both Nauru and PNG, too.

In fact The High Court statement said that any third-country we use for processing must be legally bound by international law OR its own domestic law to do the following:

  • provide access for asylum seekers to effective procedures for assessing their need for protection;
  • provide protection for asylum seekers pending determination of their refugee status; and
  • provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country;
  • the country [must] meet certain human rights standards in providing that protection.

Any country we use in future needs to meet these requirements. Because of this, PNG may be problematic. For example, the country of my parents, though a party to the refugee convention, has significant reservations around the right to liberty.

So… back to onshore processing/detention?

Perhaps.  After all, onshore processing is still legal under the Migration Act 1958.

We detain people because of this law, because strong border protection is a concept that enjoys widespread support from the Australian public (as the hysteria and anger surrounding the numbers of boats arriving on our shores points to).

Our law requires that unlawful non-citizens who are in Australia’s migration zone be detained. If they are not granted permission to remain in Australia, they must be removed as soon as possible. Those who are found to be genuine refugees are supposed to be released from immigration detention immediately, subject to health and character requirements.

Both the Government and the Opposition see mandatory detention as an essential component of strong border control. But, officially, the Government’s policy is to avoid the detention of children in immigration detention centres (particularly important, after the 2002 Human Rights and Equal Opportunity Commission National Inquiry into Children in Immigration Detention, which you can read HERE).

Thus, there are humane variations of detention. These include:

  • Community detention (facilitated by NGOs). Enables people in detention to reside and move about freely in the community without needing to be accompanied or restrained by an officer under the Migration Act 1958.
  • Immigration transit accommodation (Brisbane, Melbourne, and soon Adelaide). Hostel-style accommodation, with central dining areas and semi-independent living, for short-term, low flight risk people.
  • Immigration residential housing (Perth and Sydney).  For low flight and security risk people in detention, particularly families with children. These are less institutional, more domestic and independent environments. Residents are there voluntarily, subject to meeting eligibility criteria.
  • Alternative Places of Detention. For people who have been assessed as posing a minimal risk to the community.

Immigration Detention Centres are primarily for people who have:

  • overstayed their visa;
  • breached their visa conditions and had their visa cancelled; or
  • been refused entry at Australia’s entry ports.

There are 7 Immigration Detention Centres in Australia (including Christmas Island facility).

The detention of a physically and mentally healthy human being can still have detrimental impacts on that individual. Many of those detained in immigration detention centres may not be healthy – having physical or psychological injuries, after passing through troubled countries and disturbing conditions. The cultures that develop within these kinds of institutions and confined spaces can be equally unhealthy, which in turn can have a detrimental effect on detainees as well as on any staff working in such an environment. Furthermore, the cultures that develop amongst guards & staff in these kinds of facilities can be harmful too – to themselves, to detainees, and to the broader community.

I’ll explore these concerns in my next post.

What of Australia’s relationship with Malaysia?

Seemingly it’s still solid.  Malaysia says it will continue to work with the federal government in tackling the issue of people smuggling despite the High Court ruling.

Malaysian Home Affairs Minister Dato Seri Hishammuddin said:

“We continue to believe that the agreement between our government is the way to tackle the menace of people traffickers in a way that protects the interests of Australia, Malaysia, and above all, the immigrants involved.”

Immigration Minister Chris Bowen said the Government won’t be asking Malaysia to change its domestic laws. So lord knows what they will try to do next.

Whoever can devise a way by which people smuggling can be tackled without asylum seekers being “made example of”, or adversely affected by the “deterrents”, should be given a billion dollars, knighted, made a saint, and put on our currency.


One Comment on “6-1 SMACKDOWN of “Malaysian Solution”. What next?”

  1. Patricia WA says:

    Thanks for this, your last para says it all really.

    Going back to your intro, how about the pretty obvious fact that although it secures the safety and security of these two individuals, or even of the hundreds more waiting on Christmas Island, this ruling in no way ensures the safety and security of the many thousands of refugees throughout our region. Imperfect as it may be I think the Malaysian solution was a brave effort to find a way out of this people smuggling mess. It also promised the development of a regional convention on the rights of individuals and hope for many more thousands of acknowledged refugees stuck in Malaysian camps for years now.

    It will also undoubtedly encourage investment by enterprising ‘carriers’ (no longer ‘smugglers?’) in boats able to more efficiently bring increasing numbers of refugees to our shores. I’d commend that were it not for the huge resistance in our country to accepting boat people and the unhealthy xenophobia which accompanies it which is exploited by some very base politicians. These two groups, smugglers and unscrupulous politicians, are the major beneficiaries of this ruling, not refugees and asylum seekers.

    Reading about Tampa again (Can it really be ten years ago?) I still feel the shame of that week. The New Zealanders have more class than us, for sure. We certainly aren’t willing to share our boundless plains with anyone who comes here in a leaky boat.

    I look forward to your next post on this.

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