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Malaysian solution and international law

By Glenn McGowan - posted Friday, 23 September 2011

How can the government claim that the proposed amendments to the Migration Act do not breach Australia's international law obligations or the ALP platform? (The Age 21/9/11 p.3 "Faulkner challenges Gillard on offshore scheme".)

Australia's international obligations include the UN Refugee Convention 1951 (to which Australia was a foundation party in 1954). That convention contains an obligation (in Art.33) against refoulement – i.e. an obligation not to "expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The only qualification to this obligation (Art.33(2)) is if the person poses a security danger.

Supporters of the Malaysian Solution argue that boat people are not refugees but asylum seekers whose claims have not been assessed, and so do not benefit from the non-refoulement obligation. However, Art.31(1) obliges Australia not to impose penalties, on account of their illegal entry or presence in Australia. I think that jailing asylum seekers and then deporting them to a country which treats refugees in the most appalling fashion, is a penalty. A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. These are people most in need of help, yet we treat them worse than some criminals.


The whole idea of the amendments is 'to break the people smugglers' business model'. How? The method is to deter them and their clients from even attempting to seek asylum by removing all hope of being dealt with in accordance with international standards, and instead treating them with disdain and likely abuse by repatriation to a notoriously abusive country. They will not be treated with dignity and respect. In fact they won't be treated by Australia at all. Rather, they will be shipped off to other countries which the policy must promote as harsh and undesirable, otherwise it cannot work as a deterrent. If Malaysia's 'assurances' about treatment of refugees under the swap deal were believable, the deal would not have been struck because it would defeat the whole deterrent purpose of the deal.

The opposition's policy is no better. Nauru was used for the same reason as Malaysia is now – both parties hope those places are regarded as so terrible that asylum seekers will not want to even try to arrive in Australia. This is not the response of a civil society.

As to the ALP Platform, it confirms that Australia's non-refoulement obligations will be complied with (Chapter 7, paragraph 156) and also provides (para 157, second dot point):

"Protection claims made in Australia will be assessed by Australians on Australian territory."

"In Australia" obviously means within the sovereign territory of Australia. That includes Christmas Island and the territorial waters of Australia. So, unless a boat is turned back on the high seas (outside territorial waters), it is impossible to say a boat person's claim is not made 'in Australia'. Turning leaky boats back on the high seas would in any event also most likely be contrary to the Law of the Sea which requires all ships to come to the aid of vessels in distress. It would also be heartless and probably doom the occupants to drowning – the avoidance of which outcome is expressly said to be at the heart of the Malaysian Solution policy.

And the Malaysian Solution involves no Australian assessing claims, much less assessing them on Australian territory.


Para 157 of the Platform third dot point provides:

"Those not found to be owed Australia's protection under the Refugee Convention and other international instruments will be promptly returned."

The Malaysian Solution expressly avoids Australia finding anything out about asylum seekers covered by the policy, much less whether they are owed protection.

Mandatory detention of all asylum seekers is part of the deterrence, but is also contrary to the ALP platform para 165:

"Under Labor's policies, the presumption will be that persons will remain in the community while their immigration status is resolved: persons will be detained only if the need is established [as unacceptable risks] … [and will be detained only so long as is necessary] for management of health, identity and security risks to the community. … Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre … Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time. … "

What then is left of the Malaysian Solution which is legal, humane or decent? I can't think of a thing.

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About the Author

Glenn McGowan is a Melbourne lawyer, practising in commercial law, principally intellectual property.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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