A post-Malaysia asylum seeker policy

I simply can’t understand the strategic or even tactical thinking (if any) behind the Gillard government’s decision to pursue a legislative revival of the Malaysia Solution.  Neither the Coalition nor the Greens were ever going to support it, nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable.  Of course the same is true of his climate change “policy” but no-one seems worried about that either.

What Julia Gillard should have done was reluctantly accept from the outset that the High Court’s decision had effectively doomed the Malaysia Solution at least in the immediate future.  Given that this is what all the experts were saying anyway, persuading people on that proposition shouldn’t have been a big ask.  Then she and Bowen could have (and still should) set about constructing a workable policy framework around onshore processing, perhaps also taking advantage of Abbott’s willingness to wave through a revival of Nauru/Manus Island offshore processing merely to be able to say “nah nah nah , told you so”.  Anyway, here’s my rough stab at a post-Malaysia Solution asylum seeker policy:

First, we should not only release families and unaccompanied minors into community-based hostel accommodation during processing and assessment as soon as they pass health security and identity clearance processes, we should do the same with single adults.  This already supposedly occurs, and was even Howard government policy towards the end of its term of government, but the clearance and release processes were overwhelmed for some time by the sudden large increase in arrival numbers after Rudd removed other elements of Howard’s policies. Of course, they pose a much greater absconding risk than families and kids, but attachment of irremovable tracking devices should reduce the risk to acceptable levels.  DIAC Secretary Andrew Metcalfe has suggested that embracing onshore processing would likely increase the annual flow of boat arrivals to 7000 or so and community-based processing may increase it a bit more, but there’s no reason why those numbers aren’t readily manageable, especially given that around 50% of them will be found not to be refugees and eventually deported.  Moreover, as long as Australia maintains its longstanding policy of subtracting successful onshore asylum claimants from the offshore humanitarian quota (currently around 14,000), those number wouldn’t have any effect at all on the numbers or pace of acceptance of refugees into the Australian community.

Metcalfe’s egregious claim that those sorts of numbers would somehow result in massive civil strife and social tensions should not be taken seriously.  Gillard urged Abbott and others to accept Metcalfe’s claims as expert and authoritative, but what special expertise does an immigration bureaucrat possess in assessing such questions?  I can’t help thinking that Metcalfe’s claim is little more than a reflection of the longstanding kneejerk paranoid, punitive institutional culture of Australia’s immigration bureaucracy.  All applicants are prima facie viewed as fraudulent and dishonest until proven innocent.  The silliest but by no means only example of this mindset that I experienced in my years of legal practice was in acting for the Catholic Church when we had to make representations to the Department in relation to the visa application of a 50 year old Mother Superior of Mother Teresa’s order of nuns from the Philippines who was coming to Darwin to take over the convent here.  The Department refused to believe that she wasn’t a fraudulent “mail order” bride. The tenor of correspondence suggested that they had an automatic “flag” in their process manuals to the effect that unaccompanied female visa applicants from the Philippines should prima facie be regarded as either prostitutes or spurious spouses.  Any accompanying warnings that the policy should be applied with a modicum of intelligence were ignored.  From memory, the impasse was eventually cleared by obtaining a stat dec from Mother Teresa herself, even though she was very old and sick at the time, attesting to her Mother Superior’s bona fides.

Nevertheless, under any new onshore processing policy there will still be a core of potentially troublesome applicants who will need to be kept in immigration detention, either because their identities can’t be readily verified or security clearance obtained, or because they’ve been found not to be genuine refugees at all but are exhausting every last judicial review avenue in the hope of somehow avoiding deportation.  Generally speaking, these are the types of applicant who have been rioting and burning down detention facilities on Christmas Island and elsewhere.  It’s for dealing with the problem these people pose that Gillard might have been better advised to embrace Tony Abbott’s amendments authorising offshore processing in Nauru or PNG, and simply cop Abbott’s short-term sneering.  Just as accommodating most applicants in community-based hostels in Australia would remove any clear focus for public perceptions of a boat people “problem”, so too parking the security risks and failed applicants in offshore detention would largely deny them the oxygen of publicity for their attention-seeking riots.  That would help to reduce the continual adverse publicity that gives people the erroneous impression that Australia’s border protection policy is somehow in crisis, when in fact our system is quite well managed and much less problematic overall than just about any other advanced western country.

Despite moving to non-detention-based onshore processing, Australia should continue to develop a genuine regional approach to asylum seeker policy.  We should increase our annual humanitarian quota to around 18,000 and focus it overwhelmingly on applicants waiting in Malaysia and Indonesia for resettlement.  If we granted (say) 3000 humanitarian visas in both Malaysia and Indonesia each year and also persuaded New Zealand to do some burden -sharing (e.g. 1000 per year from each of those countries), we would make a substantial hole over time in the real and serious problems Malaysia and Indonesia both have in coping with large numbers of asylum seekers within their borders.  We should combine that with a significant increase in foreign aid for provision of basic health care and education facilities for asylum seekers waiting in Malaysia and Indonesia.

Importantly, these measures would entail a significant quid pro quo from Malaysia and Indonesia.  Our increased aid and humanitarian intake from those countries would be contingent on their making genuine and stringent efforts to apprehend and smash the people smuggler rings and destroy their businesses and boats before they leave.  That would involve not only enacting laws imposing severe penalties (which don’t currently exist to the best of my knowledge) but using expert national criminal intelligence agencies to enforce those laws rather than notoriously corrupt/inept and under-resourced local police.

Australia should also continually publicise to asylum seekers waiting in Malaysia and Indonesia the fact that our offshore humanitarian quota is reduced for every irregular boat arrival.  Moreover, we should make it clear that the number of offshore humanitarian visas will be increased still further to the extent that irregular onshore boat arrivals remain below about 8-10,000 per year. In other words, we would be creating a real and orderly queue in these countries, with many of the queuers no doubt vigilantly watching out for queue-jumpers and hopefully dobbing them in.


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