Malaysia policy sunk from start - Scott Morrison Op Ed

12/09/11

Malaysia policy sunk from start

www.theaustralian.com.au/national-affairs/opinion/malaysia-policy-sunk-from-start/story-e6frgd0x-1226134275371

The government's great failing on its Malaysia proposal is not that Immigration Minister Chris Bowen failed to have a crystal ball on the decision of the High Court. The problem is that he failed to put any meaningful protections in place in Malaysia for the people, including children, that he wanted to send there.

There is no doubt the High Court decision has changed judicial interpretation of the Minister's discretionary powers under section 198A of the Migration Act. However, that does not excuse the primary weakness of the Minister's policy, and now lack thereof, that adequate protections were not in place. These protections seemed to be of secondary importance to the government and once again Labor had failed to think its policy through.

The Coalition introduced section 198A of the Migration Act to require that protections were in place for people transferred to another country for processing. We still hold the view that prospectively these protections can be put in place in Nauru under existing law and under arrangements that can be secured in partnership with the Nauruan government.

Nauru is a signatory to the UN Convention on Refugees and this will take effect later this month. Nauru is introducing domestic laws that give effect and give support to the protections and obligations it has signed up to. Any new agreement with Nauru can be drafted to ensure that obligations have sufficient weight. Australians would also be directly involved in processing to ensure our standards are upheld. This is how the Coalition would primarily address the decision of the High Court, to ensure that implementation of our policy was designed to deliver the specific protections the court has defined as necessary. In addition we would restore temporary protection visas and not take the defeatist attitude of the government on reserving the option to turn back boats where the circumstances permit. There are many other measures we have announced, however the Coalition has never said that Nauru on its own will stop the boats. It requires our full suite of measures, as we have outlined, combined with the consistency and resolve of a government that knows what it is doing.

The government seemed to consider that the practical protections for people sent to Malaysia were not critical to the arrangement and that all it needed to do was to rely on a guarantee of non-refoulement. The fact it was even necessary to put in place a system to prevent people from being caned was a clear warning sign that the Minister should have walked away early from this proposal. After receiving a briefing in Malaysia from their officials on the topic, I still remain unconvinced of how this system will work practically on the ground.

I also remain absolutely unconvinced about other protections, as children will be denied access to public schools, there is just one clinic funded by the UNHCR to be shared with 94,000 other refugees and even more asylum-seekers, and the work rights are vague and still likely to land someone in a detention centre after a raid, for weeks and and even months, while they sort out the mess.

Bowen's desperation to grab at any deal that did not involve Nauru has undermined his judgment and responsibility to properly interrogate his own proposal and the advice given. He clearly would have said yes to anything that didn't involve Nauru.

But it is not just the protections that are deficient in this policy. The limit of just 800 transfers creates a clear use-by date that can be tactically exhausted by the people-smugglers. This has become obvious to everyone other than the government, when, after signing the agreement, more than 300 people had turned up. That figure now stands at more than 400. Since the agreement was first announced almost 1000 people have arrived. For this arrangement to have the deterrent effect the government boldly claims, it would have to be open ended, as is the case with temporary protection visas. If the transfers are conditional upon receiving additional refugees at a rate of five to one, then this presents significant problems for achieving an open-ended arrangement.

Then there is the issue of exemptions. The government's failure to put protections in place means they will not be able to send everyone who turns up to Malaysia. Every exception, no matter how worthy, and whether considered on a case by case basis, will create a selling point for people-smugglers. In addition, there is also the rank hypocrisy of the Prime Minister's pledge that she would never send asylum-seekers to a country that had not signed the refugee convention.

While the Coalition has never previously made signatory status to the convention a condition, we always worked to ensure that the same standard of protections could be delivered. For us, it was not about a document, but the actual protections on the ground.

On Nauru it is more possible to deliver and guarantee practical protections because it is a small country with a very supportive government and a people who have a very strong connection with Australia. In Malaysia, and even Papua New Guinea, the delivery of protections and changes to domestic law are far more difficult. As a result, standards such as signing the refugee convention provide a more objective assurance of necessary protections.

At our briefing last week with department officials, we raised these issues. The weaknesses were neither acknowledged nor addressed in their response. It was unsatisfactory.

This government doesn't have just a legislation problem, it has a policy problem, and is in denial. Rather than returning to the parliament this week, let alone its own caucus, with changes to how the Malaysian proposal will work to put more significant protections in place and address the design weaknesses, the government seems to be simply seeking a legislative excuse to implement a flawed policy. How the Labor Left could be twice silent on this issue, especially after the High Court decision, would be pathetic. At the caucus meeting we will find out if they are the "zombies" their spokesman, Senator Doug Cameron, once referred to, if they give the PM the green light she appears to be seeking for Malaysia.

The Coalition is prepared to work with the government on legislative change to put the issue of offshore processing beyond legal doubt.

However, this does not mean we are prepared to allow the government to walk away from its obligations to ensure protections are provided or to support flawed policy.