Australia’s refugee dilemma: The Malaysian solution

Author: Andrew Herd, ANU

The issue of asylum seekers is one of the most controversial and difficult political issues Australian Prime Minister Julia Gillard and her Labor government faces.

The difficulty does not arise from the actual number of asylum seekers attempting to get to Australia by boat — the numbers approaching Italy demonstrate that comparatively few are attempting to come to Australia — but from the perception, perpetuated by politicians of both sides, that such actions represent a government failure and the need to restore sovereignty. This perception has led to a number of announcements of new government policies to stop or reduce the arrivals. One of Gillard’s first speeches as Prime Minister attempted to position herself as a moderate on the issue: a supporter of migration but understanding of those who were concerned about its effects. During this speech Gillard also announced her intention to develop a regional solution by opening a regional processing centre in East Timor.

In Australia, the opposition party questioned why the government wanted to establish a processing centre in East Timor when there was already an empty one in Nauru. The government’s response was that East Timor was a signatory to the UN refugee convention, and the rights of the refugees could therefore be protected, while Nauru was not. However, for the government there was another reason for not approaching Nauru: it was a visible reminder of regression to the Howard government’s border protection policies — particularly the Pacific Solution — heavily criticised by Labor.

While the ‘East Timor solution’ was the government’s preferred option, it soon became apparent that the East Timorese government was not going to approve a regional processing centre in its country, forcing the Australian government to look elsewhere. On 6 May 2011, the government announced discussions with Papua New Guinea (PNG) to reopen the detention centre on Manus Island. Like Nauru, Manus Island was part of the Howard government’s Pacific Solution, but its role was much less publicised. But, unlike Nauru, PNG is a signatory to the UN refugee convention. The government could claim it was maintaining its requirement that the location for a regional processing centre be a signatory country.

But the next day the government appeared to change tack. In a joint statement with the Malaysian Prime Minister Najib Razak, Gillard announced a deal to take 4,000 refugees from Malaysian camps in return for 800 asylum seekers from Australia. Importantly, Malaysia is not a signatory to the UN refugee convention. In fact, an Amnesty International report released the week after this announcement noted that ‘refugees, migrants and Malaysian nationals were subjected to judicial caning for criminal offences, including immigration violations’, and that civilian volunteer officers ‘often extorted money from migrants and refugees, and sometimes beat them’. Not only is the Australian government intending to send asylum seekers to a country that is not a signatory to the convention but to one with a long history of mistreating migrants and refugees.

Attempting to defend the government’s new position, Immigration Minister Chris Bowen argued that Australia taking an additional 4,000 refugees who were in Malaysian camps — which he admitted was a ‘difficult situation’ — was ‘a good humanitarian outcome’. While an increase in the number of refugees accepted into Australia is a positive outcome, particularly from a utilitarian perspective, one must wonder why the government feels the need to send 800 asylum seekers to Malaysia as part of the deal.

As refugee law expert Michelle Foster noted, the transfer of asylum seekers between countries is not unusual and often done in Europe; but concerning here is not necessarily the transfer of asylum seekers but their being transferred to a country with a history of mistreating refugees. Further Foster also mentions, it is difficult to reconcile how Bowen can state that ‘People are not a commodity, freedom is not something which you can trade’ when defending the deal.

While there are major concerns over the future of those transferred to Malaysia, reports have revealed that Australian custom officers now carry pistols when intercepting asylum seekers. This raises the very real possibility of violence, already a growing problem in Australian immigration detention centres. Much of this previous violence has been caused by extremely long indefinite stays in detention. One must wonder what the reaction of asylum seekers will be when informed they will be transferred to Malaysia.

Important issues are disregarded in assuming that Europe’s system of asylum seeker transfers will work in the Asia-Pacific. In particular, unlike Europe where countries are usually UN refugee convention signatories very few in the Asia-Pacific are. For such a system to operate effectively, many more countries would have to commit to protecting the rights of refugees. In addition, the Australian government needs to recognise that the protection of these rights is not something that can be bought by paying other countries to accept Australia’s responsibilities; it is something Australia should be undertaking itself.

Andrew Herd is a PhD scholar at the School of Politics and International Relations at the Australian National University.



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  • Andrew,

    This is probably the most sensible comment I’ve read on this issue, thanks. There is one real problem with refugees arriving to Australia by boat however, and that’s the safety of the voyage.

    It seems to me that the whole ‘refugee processing’ debacle ought to be done in 2 stages:
    1. Security clearance (is this person a threat)
    2. Claim legitimacy (is this person a refuge or a ‘back door migrant’)

    Do you know if there’s anything preventing Australia from doing the first of these three steps in Indonesia? My understanding is that this part only takes a few days usually. I would think we could provide affordable and safe transport for everyone who passes that stage to get to a processing centre on Australian mainland soil to go through the second stage. Surely that would put an end to life threatening leaky boat voyages. If tax payers are really concerned, this wouldn’t even need to be on a plane, just a ‘real’ ship travelling between actual ports, rather than a strapped together pile of sticks.

    As for assessing claim legitimacy, I really don’t understand why people need to be held in detention during this process. If we’re really think there’s a flight risk, can’t we offer “mandatory parole”? Even electronic tagging would be preferable to detention. We an manage to have convicted criminals on parole without concern, why can’t we do the same for people who simply have undetermined residency status?

  • Andrew Herd


    I think your point about the safety of the journey is a very good one. Any solution to the issue has to ensure that as few people as possible attempt the journey between Indonesia and Australia on rickety boats.

    The breaking down of the process into the two steps may be one solution. I don’t think there is anything preventing Australia from undertaking security checks in Indonesia apart from the political will in both countries to do so. From the Indonesian perspective there could be concerns about national sovereignty, but I would imagine they would be happy to reduce the number of irregular migrants in their country. However, given the substantial number of asylum seekers in Indonesia, it is unlikely the Australian Government would be comfortable portraying the perception that as long as an asylum seeker passes the security check they will be brought to Australia.

    I agree that detention seems to be overkill for the period of assessing a person’s claim for refugee status. Most other countries have very short periods of detention (if at all), while detention in Australia can be for months or years. Again, I think the reason that Australia continues to have mandatory detention is a lack of political will.

    Major Australian political parties seem to feel that they must be ‘tough’ on border security or else lose political support. While there is a need for Australia’s policies concerning refugees to improve, and the current Malaysian solution is not an improvement, the real need is for Australia’s political parties to start viewing it as a human rights issue, rather than one of national security.