Oakeshott’s Malaysia Solution loophole

Author: Frank Brennan

When Parliament resumes next month, our elected representatives will revisit the Malaysia solution for dealing with boat people seeking asylum in Australia.

Independent Rob Oakeshott has introduced to the House of Representatives his own Migration Legislation Amendment (The Bali Process) Bill 2012. If passed, this bill would amend the Migration Act, removing the peg on which the High Court was able to hang the Malaysia solution out to dry.

Under the unamended law, the Minister for Immigration is required to declare in writing that any country to be used for offshore processing provides access to effective procedures for asylum claims and  protection for asylum seekers while their claims are processed, and meets relevant human rights standards.

In August last year, the High Court of Australia ruled that the Minister could not make a valid declaration in relation to Malaysia as it was not a signatory to the Refugees Convention, and the arrangement between the two governments was not legally binding.

Oakeshott’s bill is so designed that Malaysia could pass muster without High Court interference. It would permit the Minister to designate Malaysia as an offshore assessment country because it is a party to the Bali Process which at its last meeting a year ago included 32 countries working on a Regional Cooperation Framework.

If Oakeshott intended meaningful public decision making by the executive government and appropriate parliamentary scrutiny, he has failed. Participation in the Bali Process could not be reckoned a sufficient precondition for a country to pass muster with human rights protection and appropriate asylum procedures. For example, Afghanistan, Iraq and Iran are all participants in the Bali process.

The only other precondition in the Oakeshott bill is that ‘the Minister thinks it is in the national interest’ to designate a country as an offshore assessment country. Anxious to avoid any further High Court scrutiny, his drafters have stipulated that the international obligations and domestic laws of a country are irrelevant.

In considering whether designation of another country would be in Australia’s national interest, the Minister is required to have regard to the assurances offered by that country’s government about the assessment of asylum claims and the non-refoulement of asylum seekers whose claims have not yet been decided. These assurances need not be legally binding.

The Minister is required to place a statement of reasons before Parliament within two sitting days of making a designation. He is also required within 14 days to make a request of UNHCR and the International Organisation for Migration (IOM) seeking a formal statement of their views about the arrangements proposed in the designated country.

It would make more sense if the Minister were required to make the requests and receive the statements before making his decision to designate a country, and before tabling the decision in Parliament. That way the UNHCR and IOM positions could help to inform both the Minster’s decision and Parliament’s assessment of the decision.

The bill provides that ‘the sole purpose of laying the documents before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation’. Parliament has no power to disallow the designation, and a failure to table the documents would not affect the validity of the designation.

So the Oakeshott bill is designed to ensure that neither Parliament nor the High Court could hang a designated country out to dry. The bill is simply a convoluted means for allowing the executive government to declare an offshore processing country without any meaningful scrutiny by Parliament or the High Court. It does nothing to advance the cause of public scrutiny of government decisions to provide offshore processing of asylum claims.

A completely toothless tiger, the bill still provides the opportunity for Parliament to agitate again the debate about Nauru, Malaysia and onshore processing.

We now know that the best advice available from the Commonwealth public service is that Nauru will not work second time around. In October last year, Andrew Metcalfe, Secretary of the Immigration Department under governments of both political persuasions, told Liberal Senator Michaelia Cash in Senate Estimates:

Our view is not simply that the Nauru option would not work but that the combination of circumstances that existed at the end of 2001 could not be repeated with success. That is a view that we held for some time — and it is of course not just a view of my department; it is the collective view of agencies involved in providing advice in this area.

Malaysia is still problematic when you consider the case of the unaccompanied child who comes to Australia fleeing persecution and who would undoubtedly be found to be a refugee.

If you send such a child to the end of a queue which is 100,000 long in Malaysia, the solution is immoral. If you leave the child in Australia, you send a signal to people smugglers that children are exempt from the Malaysia solution and thus you set up a magnet inviting other unaccompanied children to risk the dangerous voyage from Indonesia. The Malaysia solution then becomes unworkable.

While the offshore processing option has been off the table, the Gillard Government has done good work revising its onshore processing arrangements, providing an identical procedure for appeals whether an applicant came by boat without a visa or by plane with a non-protection visa, and providing bridging visas for many asylum seekers once their health, security and identity issues are resolved.

Also the Government has enacted complementary protection legislation allowing a person in Australia to contest their return home when they will face the death penalty, the threat of death or cruel and degrading treatment.

Introducing his bill, Oakeshott claimed, ‘The truth is that 148 of the 150 members of parliament in the House of Representatives agree that offshore assessment should be an option for executive government.’ Despite the electoral appeal of slogans in this complex policy area, it is time for these 148 members to admit that neither of the existing Malaysia and Nauru options passes muster as both moral and workable.

After all we are one of the few signatories to the Refugee Convention in this part of the world, we take our international obligations seriously, and the number of asylum seekers reaching our shores is slight compared with the numbers in Malaysia and Indonesia.

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

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