Asylum Deal Looks Tough But Won't Work


Julia Gillard and Chris Bowen have signed off on the Malaysia Solution.

The deal (pdf), finally inked yesterday in Kuala Lumpur with Malaysian Home Affairs Minister Hishamuddin bin Tun Hussein, formalises the plan to swap 800 asylum seekers arriving in Australian waters by boat with 4000 UN-assessed refugees from Malaysia.

The deal is all about politics. What else could it be about? Certainly not ethics — or the law.

The issue of asylum seekers has long been a moral stain on the Australian body politic — and indeed there is no way to sugarcoat the depressing reality that tough "border protection" policies to deter desperate people from seeking a new life in this country are supported by the majority of voters.

The politics of asylum seekers has posed an almost insoluble problem for a progressive party such as the ALP, which finds itself wedged between the sincere desire for generosity from its supporters on the left, and the equally firm belief in lower levels of immigration held by many working-class voters. The situation is inflamed by incessant media coverage fixated on boat arrivals, and a ruthless Opposition only too happy to exploit the issue for political gain.

Asylum seekers pose a policy bind that Labor wishes would go away. Politically, the Government can never benefit from the issue. All it can do is attempt to neutralise it, in the hope that the political battle can be shifted to more amenable terrain.

So that, in a nutshell, is why the Gillard Government is swapping thousands of refugees with a northern neighbour that has failed to sign the international Convention on the Status of Refugees. In true Labor traditions, it’s a political fix, aimed at neutralising the volatile politics of asylum seekers and allowing Julia Gillard to tick off another of the three commitments she made on taking the prime ministership.

From a policy perspective, there’s little to like. For those who believe in the moral duty of a rich country like Australia to accept refugees, it’s difficult to agree with the rhetoric of Chris Bowen’s description of the deal as a "true burden-sharing arrangement". The agreement continues the Australian government’s quixotic attempts — under both conservative and progressive administrations — to stretch our adherence to our international responsibilities under the 1951 Refugees Convention well past the limit of what even a generous observer would consider the spirit of that treaty.

It is true that the United Nations High Commissioner for Refugees has expressed a kind of qualified endorsement of the arrangement, and that Australia has negotiated some special protections for the 800 to be sent there, including legal status, an ID card, and the ability to work and access education and healthcare. This is clearly a better outcome than a long stay in an Australian detention centre such as Christmas Island. It is also true that the 4000 currently in Malaysia who will be resettled in Australia will now enjoy a genuine chance at a new life in our country, freed from the legal limbo and harsh conditions experienced by an estimated 100,000 refugees in that country.

If you are a utilitarian, you might conclude that this moral calculus is indeed a positive one, improving the lives of many and apparently leaving no-one worse off.

But, of course, there will be many who find this hard-headed equation approach to accept, involving as it does the abrogation of Australia’s legal and moral obligation to accept every genuine refugee who arrives on our shores, regardless of how they travelled here.

Many have also expressed qualms at the way in which people have been used as bargaining chips, as the international currency of migration. Others point out that this deal seems to make the Australian government a kind of people trafficker itself, moving humans across borders for reasons that appear to have more to do with political expediency than the best interests of those involved.

There is an even more odious aspect of the arrangement, which is that people who have done nothing wrong and have a legal right to claim asylum here are being punished — supposedly to create a deterrent effect that will "stop the boats". But then, the punitive treatment of seaborne asylum seekers is now bipartisan policy of both major parties. This is an outrage but it has become a depressingly familiar outrage.

Once you begin to unpick the logic of the arrangement, it makes less and less sense. If Australia can take 4000 "genuine" refugees from Malaysia, why do we need to send 800 to their shores? The net result is 3200 more people, after all. Indeed, the manifest truth is that we can obviously cope with all 4800 of the real human beings whose lives are being determined by this swap.

The deal is also unfair.

Eight hundred asylum seekers will now be sent to Malaysia because they arrived here after an arbitrary date on the calendar, rather than because they wish to go there. And, as the ABC’s Zoe Daniel reported last night on 7.30, the deal also fails to address the broader problem of the tens of thousands of refugees currently in limbo in Malaysia, with few prospects of a better life. Daniel spoke to Iraqi and Afghan refugees who still want to get on a boat to come to Australia, because they believe it gives them a chance of escaping their current legal status in Malaysia where they cannot legally work or access education — let alone become a citizen and vote.

Of course, no-one really believes the boats will stop coming. That is not what this deal is about. It is about Labor’s tortuous progress towards a policy that allows it appear "tough" on border protection, while staying within the black-letter law of the Migration Act.

As I wrote in June after the deal was first announced, it is already Plan C or D for this government. Plan A was the Rudd government’s attempt to regularise and normalise asylum seeker policy, while downplaying the seriousness of the issue. That approach failed spectacularly once boat arrivals started to climb in 2010, allowing the Opposition’s big lies about "stopping the boats" to gain traction. Plan B was the East Timor regional processing centre. That plan foundered when no-one bothered to ask the East Timorese whether they wanted one. A processing centre in Manus Island in Papua New Guinea was then mooted.

The current Malaysian solution won’t be the final plan, either. What happens when the quota of 800 seaborne arrivals fills up? Will the Australian government seek to renegotiate another deal with Malaysia? With PNG? The Prime Minister appeared to rule that out yesterday. Perhaps Labor has another option up its sleeve. But it’s more likely the government will simply scramble to cut another deal — anywhere, anyhow.

As Ross Peake writes today in the Canberra Times, "it would be much cheaper to process boat arrivals on Christmas Island and increase the humanitarian intake, but that wouldn’t be seen as tough."

And being seen to be tough is what this deal is all about.


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Ben Eltham is New Matilda's National Affairs Correspondent.