The politics of a failed refugee policy: Labor's Malaysian solution

I was in Villawood detention centre on the day in 2001 when former Labor Minister Carmen Lawrence resigned from the ALP frontbench because of the ALP's deplorable policy on refugees. I was also in Canberra the day the Gillard government announced its 'Malaysian Solution'. Very little has changed in the last decade.

The deal between Australia and Malaysia proposes that Australia take 4,000 asylum seekers who have been declared refugees by the United Nations High Commissioner for Refugees (UNHCR) but have not been settled in a host country. Most of the 4,000 refugees Australia is likely to take are Burmese. The rate will be 1,000 a year over four years. The annual quota for Australia's refugee intake will increase from 13,750 to 14,750 a year. The increase in the annual quota will reportedly cost the federal government $216 million and a further $76 million to fly refugees from Malaysia to Australia. Costs of the Australian government's international advertising campaign with the slogan "Don't do it", warning people smugglers and refugees in Indonesia, Afghanistan and Pakistan to resist coming to Australia or risk ending up in Malaysia, have been undisclosed.

The Gillard government had previously announced it would not do any deals with countries that have not signed the 1951 Refugee Convention. Malaysia has not. Australia's reluctance to sign pacts with non-Convention states in the past has rested on the issue of refoulement. What this means is that because Malaysia has not signed the convention it can forcible return asylum seekers to their home states even though they may face punishment, jail, torture or execution. Australia will only have Malaysia's assurances that it will not engage in the practice.

The bigger question is why had the Gillard government has announced the Malaysian 'solution' now?

Of the 6,872 detained under Australia's mandatory detention regime in April 2011, 964 had been detained for less than three months. For those detained for much longer, their recent actions in protesting the conditions and length of detention has caught Gillard's attention.

Julia Gillard it seems has lost her patience with asylum seekers rioting inside Australian detention centres: "I can understand why people have been angry seeing those disturbances, I've been angry seeing those disturbances at detention centres," she said. "This is happening in defiance of our laws and causing destruction of government property." It is perhaps this frustration that is driving Gillard to find a 'solution'.

A 'solution' however suggests that there is a problem. The real problem is that there are about 43 million displaced persons in the world. The almost 7,000 asylum seekers in Australia are not the problem. They are however a problem for Gillard when their protests are covered nationally and internationally. The other problem that has cropped up for Gillard was the decision by East Timorese Prime Minister Xanana Gusmao and President Jose Ramos-Horta to refuse Australia's request to build a regional processing centre in East Timor.

In both of these issues - the East Timor refusal and the protests - the Gillard government looks like a government without a coherent policy. Australia's approach to the ever-increasing numbers of people who seek asylum because of a well-founded fear of persecution (as is their legal right) has been to punish asylum seekers. The Malaysian announcement maintains this approach.

Gillard's rationale for the decision is that it will break people smuggling. When asked how the Malaysian policy would achieve this Gillard's response was: "Anybody who pays a people-smuggler and risks their life on a boat is running a risk that they end up in Malaysia where there are many refugees, already processed, who have been there for a longer period of time." There seems no logic in how this stops people smugglers.

The more telling argument from the government is that asylum seekers can join the 'queue' in Malaysia. Harking back to the idea of those already in Australia as 'queue jumpers' it is not Labor's finest moment. As the Minister and Prime Minister well know, there is no queue in Malaysia. Furthermore, Gillard hasn't ruled out children being sent to Malaysia.

This 'solution' will cause more problems that it will solve. Cabinet ministers received their first brief on the Malaysia deal at a special cabinet meeting two days ago, even though the policy negotiations have been going on between Canberra and Kuala Lumper for six months. Within hours of the formal announcement of the policy Labor's left broke ranks and publically indicated their reservations. The Opposition and the Greens immediately denounced the plan. The Greens have asked the government to release legal advice on whether the arrangement breached the Migration Act. Chris Bowen has already conceded that he expects "legal challenges". Alienating the parliament, Gillard has also announced that the government does not need legislation to put the Malaysian arrangement in place.

The Malaysian announcement, as well as the Gillard government's recent announcements on the strengthening of character tests for refugees and the reintroduction of temporary protection visas (TPVs) is a distraction from Labor's failure to develop a coherent and compassionate policy on refugees specifically, and immigration and population generally.

The introduction of a character test to those that engage in "unacceptable behavior", including protesting, is designed to send a message to voters that Labor is tough on refugees. This is not a policy. Apart from pandering to xenophobic nationalism, it distracts debate from the administrative problems of mandatory detention. ASIO in 2010, for example, failed to complete security checks on 900 asylum seekers who were found to be genuine refugees, leaving them to languish in detention. It also distracts public attention and scrutiny away from those with mental illnesses, those that self-harm, and the tragedy of deaths in mandatory detention. The character tests built into Australia's 1958 Migration Act (Section 5C) are already strong. Every refugee must pass the test before they get a visa. New character tests will mean refugees have to jump more hurdles that anyone else. Even if they are granted a TPV, restrictive conditions on family reunion will force asylum seekers into perilous boat journeys to reunite families.

The 2007 Labor Government, according to Minister Chris Bowen, was elected on a platform that included a more humane treatment of those seeking protection. This included abolishing TPV's, described by the Minister as "the symbol of the former government's continued punishment of those found to be owed our protection". TPV's contravene the 1951 Refugee Convention's protection mandate. As one migration lawyer recently put it: "the only grounds on which refugee protection provisions could be revoked involved crimes against humanity" and "they're not supposed to be denied protection for criminal matters or detention centre misbehavior".

Like the Malaysian announcement, these hardline punitive approaches seek to project strength in the face of an apparent national threat. As Senator Sarah Hanson-Young correctly acknowledges, character tests and TPV's, along with the punishment of being sent to Malaysia: "won't stop people rioting in detention centres" and they "won't stop people making the treacherous voyage".

Sending refugees to Malaysia, character tests, and TPV's are not the answer to detention protests or the growing numbers being detained. According to the Refugee Council of Australia there has been a 1400 per cent increase in long-term detention in just one year. Detainees grew by 196 per cent. Those detained more than six months grew seven times faster (from 258 in March 2010 to 3901 in March this year). Regardless of the length of detention – be it two months or two years – criminalising protesting and denying humanitarian protection because of protesting or because asylum seekers arrive by boat – fails to recognise the illegality and inhumanity of mandatory detention.

The Gillard Government's plan to deny permanent visas to those caught breaking the law "even if they're a legitimate refugee" seems legally absurd and morally repugnant. It also contravenes international law which states asylum seekers "should not be refused refugee status unless they have 'committed a serious non-political crime', been involved in 'war crimes, or crimes against humanity', or are a serious security risk." It is suspected that the recent announcement on the Malaysian policy will face similar legal scrutiny.

The current problems – increasing numbers of asylum seekers in detention centres, long lengths of incarceration, and protests – is not seen as a humanitarian issue for the Gillard government. It is seen as a "perception" issue. Protests have highlighted that the Labor government doesn't have an effective policy. This leaves room for conservative commentators to recall deplorable policies such as the expensive and ineffective Pacific Solution. If Gillard and Bowen thought that the public wouldn't compare the two, they really did get the politics wrong.