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What now for asylum seekers in Australia?


Under the Gillard Government’s “Malaysia Solution”, 800 asylum seekers, currently housed on Christmas Island would be sent to Malaysia for processing. In return for this, Australia would accept 4000 certified refugees. There are several legal issues associated with this proposed deal. The first is that, when dealing with asylum seekers, Australia bound by international law. Australia cannot return any person to a place where they would face persecution or other forms of serious harm, including torture or cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life. The second legal issue is that Malaysia has signed none of the international treaties and agreements which so bound Australia. Last month, the High Court of Australia ruled the “Malaysia Solution” to be unlawful, and placed an injunction against the removal of any asylum seekers to Malaysia in the future. The policy made no provisions for unaccompanied minors, meaning that children could be part of the 800 asylum seekers sent to Malaysia. Also, those for whom it may be unsafe to be settled in Malaysia are not mentioned in the policy at all. Since the High Court ruling, the Gillard Government has been in negotiations with both legal professionals and political opponents in an attempt to come to an agreement on the future of Australia’s foreign policy.

What does the high court decision mean for asylum seekers in Australia and the Government’s foreign policy?

In a 6:1 majority, the High Court of Australia ruled that the “Malaysia Solution” breached Australia’s international and human rights obligations. The Court held that, under section 198A of the Migration Act 1958 (Cth), any country to which asylum seekers can be taken for processing must be legally bound to meet three criteria. The first is that host countries must provide access for asylum seekers to effective procedures for assessing their need for protection. Meaning, asylum seekers must have an appropriate avenue to prove their status as asylum seekers. The second criterion is that protection must be provided for asylum seekers pending determination of their refugee status. Lastly, host countries must provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. The High Court ruled that Malaysia does not meet these criteria, and therefore sending refugees there would be in breach of the Migration Act which incorporates those international obligations.

This means that until Malaysia changes its domestic laws, or ratifies the international treaties required, Australia cannot send any asylum seekers there for offshore processing. In addition to this, as the agreement between the two nations has already been signed, Australia is still bound to accept the 4000 certified refugees from Malaysia.

Since the High Court ruling, the Gillard government has been trying to amend the legislation to overcome the High Court’s objections. There have also been extensive negotiations between the Labor party and the Independents, the Greens and the Liberal party, however the outlook looks bleak.

What is the Opposition’s proposal?

Since the early 1990s, the Liberal party has made asylum seekers an election issue. Mr. Abbott’s proposal for border security is to reintroduce the proven measures used by the Howard Government more than 10 years ago. The Liberal’s plan entails re-opening the detention centre in Nauru, reintroducing the now infamous Temporary Protection Visas, and ensuring that all refugee host countries are signatories to the UN Refugee Convention. “If it worked in the past, there’s no reason why it can’t work again in the future.” Mr. Abbott told the ABC’s Chris Uhlmann last month.

Where to next?

In the next week, Parliament is expected to vote on the recently amended “Malaysia Solution.” The changes were made after extensive negotiations with the Liberal party, the independents and the Greens. However, Tony Abbott has vowed not to support the bill revealing that he expects more focus on human rights. The Liberal leader has been pushing the Prime Minister to consider Nauru as an option for offshore processing. Ms. Gillard has ruled out ever re-opening the Nauru Detention Centre. The Greens have maintained that they will not support the policy in any form. There have even been rumours emerging recently that some senior Labor members will not support the bill either.

The director of the International Refugee and Migration Law Project at UNSW, Professor Jane McAdam, thinks that getting the policy through parliament may not be the toughest aspect for the government. She argues that politicians need to explain to the Australian public that asylum seekers have done nothing wrong by fleeing their homelands and coming to Australia or risk the wrath of public opinion.

“The Australian government keeps trying to create more and more so-called “solutions’ that are in fact counter-productive,” she said. “Australia’s policies are not going to stop people from fleeing serious danger.”

Both of the major parties are in agreement that offshore processing of asylum seekers would be best for Australia. However, until an agreement is made, the fates of all asylum seekers housed on Christmas Island and in detention centres in Australia are unknown.

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