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

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.