The Demise of the Malaysian Solution

Savitri Taylor

[Associate Professor in the School of Law at La Trobe University]

(This article has been reproduced from La Trobe University News, posted 7 September 2011,
http://www.latrobe.edu.au/news/articles/2011/opinion/the-demise-of-the-malaysian-solution)

On 25 July 2011, Australia and Malaysia entered into a legally non-binding Arrangement, which provided for the transfer to Malaysia of up to 800 people arriving irregularly in Australia by boat after the date of signing. The Gillard government attempted to implement this arrangement by using the legal machinery which the Howard government had inserted into the Migration Act to enable execution of the Pacific Strategy. The High Court of Australia has just ruled by a six to one majority that the legal machinery does not work in the way that the Gillard government (and the Howard government before it) thought it did.

Section 198A(3) of the Migration Act gives the Minister for Immigration the power to declare in writing that a specified country provides asylum seekers with access “to effective procedures for assessing their need for protection” and protection pending determination of their refugee status; that it provides protection to refugees pending their voluntary repatriation or resettlement; and that it “meets relevant human rights standards in providing that protection.” Section 198A(1) provides that the class of persons into which most unauthorized boat arrivals fall may be taken to such a declared country. On 25 July 2011, Minister Bowen made a declaration in respect of Malaysia just as Minister Ruddock before him had made declarations in respect of Nauru and PNG. The government’s understanding of the law was that what the Minister declares does not have to be true as long as the Minister believes it to be true. The High Court found to the contrary. Moreover, according to the majority, what has to be true, at a minimum, in order for a section 198A(3) declaration to be valid is that the country in respect of which the declaration is made is bound under international law or its own national law to provide the protections specified to asylum seekers and refugees. The government conceded (as it had to) that Malaysia did not meet this minimum. It followed that the 25 July 2011 declaration was invalid.

Short of a change to Malaysian law, which the Gillard government has said it will not seek, or to Australian law, which the Gillard government is impotent to achieve on its own, the Malaysian arrangement no longer offers a solution to its border control problem. So what happens now? The government might choose to test whether the existing declaration or a new one in respect of PNG would stand up to High Court scrutiny. The outcome is by no means certain, because in the case just decided the High Court left open the answers to some key questions bearing on the matter. If the government were prepared to accept the political humiliation of a return to Nauru in order to avoid the greater political damage of continuing boat arrivals, it could perhaps convince the opposition to support passage of legislation which would put beyond doubt the domestic legal validity of transfers to that country. Depending on the moral depths to which the government is prepared to sink in its fight for political survival, the deterrence options available to it are many and varied. If implemented, they may even result in a significant reduction of boat arrivals in Australia at least until the next election. But here is what they will not do. They will not resolve the underlying problem, which is human insecurity in the countries which asylum seekers flee from and in most of the countries they flee through.

Between 2007 and 2009, Professor Sandra Gifford and I led a research project which involved, among other things, interviewing asylum seekers and refugees living in Indonesia. Indonesia is the last country of departure of most arriving here by boat. What we discovered was this. Asylum seekers and refugees do not necessarily want to make Australia their home. They just want to have a home: a place where they can live in safety, support themselves with dignity, give their children a future through education, and belong. If these basic human needs could be fulfilled in Indonesia, they would have been happy to remain there. If they knew that they had a realistic prospect of obtaining a resettlement place in another country which would fulfill these needs, the assurance of future security would have been enough to enable them to bear present insecurity. Unfortunately, neither a home in its true meaning nor the hope of one in the future is to be found in Indonesia or most other countries in our region. Australia acting alone cannot turn this situation around. Regional cooperation is needed.

In his press conference on 31 August, 2011, the Minister said he was proud of the regional cooperation framework that the government had achieved at the Bali Process Ministerial Conference in March this year. And so he should be. The regional cooperation framework was a first step towards the possibility of improved refugee protection throughout our region. The Malaysia deal, though purportedly a practical implementation of that framework, had at the heart of it a backward step which has now been undone. However, there is another element of the Arrangement which is protection enhancing and can still be implemented. That element is the promise made by Australia to resettle over 4,000 of the over 80,000 UNHCR recognized refugees living in Malaysia at the time of signing. These 4,000 resettlement places were to be made available over four years and to be additional to Australia’s regular humanitarian resettlement program. If the government follows through on this promise, it may be able to convince its regional neighbours that when it talks about regional cooperation it does not just mean that the rest of the region should cooperate to help Australia avoid its own protection obligations. Disappointingly, it appears that the government might now decide to provide the 4,000 resettlement places promised to Malaysia within the regular resettlement program. In other words, it might rob Peter to pay Paul. This would, of course, enable the government counter the opposition charge that the Malaysian solution is not just a policy failure, but a very expensive one. However, it would also reveal to the region that Australia’s protection talk is no more than talk and, if that happens, the regional cooperation framework of which the government is so proud will never become more than words on paper.