Malaysian solution: always a bad idea

The High Court ruled yesterday that the Malaysian Solution was not lawful.

The majority decision turns on the nature of Australia's obligations under the Refugees Convention. They held that, if Australia sends boat people away without considering their claim for protection, it can only do so if the receiving country offers the same protection as Australia is obliged to offer. The result is entirely consistent with the spirit of the Refugees Convention, which was designed to spread the burden of refugee flows, rather than leaving them to be borne by countries adjacent to trouble spots.

Leave aside the politics of it, the Malaysian Solution was always a bad idea. We can assume that the Australian Government intended to treat the 4,000 refugees resettled from Malaysia as part of our offshore resettlement quota. It presently offsets informal boat arrivals against the offshore resettlement quota. Accordingly the Malaysian arrangement was neutral on total refugee arrival rates. So it was not going to reduce the number of refugees received in Australia each year, but it was going to cost the Australian taxpayer about $200 million. Weird economics.

Paradoxically, the arrangement may have constituted a significant pull factor, at least for a time. The reason for this is that Malaysia does not allow refugees to work. The deal with Malaysia would have notionally allowed transferees to work. Refugees currently living in Malaysia waiting for resettlement would have had a powerful incentive to try to get to Australia in order to be transferred back to Malaysia and receive work rights. For a person who faces the prospect of waiting up to 15 years before being resettled, the incentive to act this way would have been very strong. If that pull factor had in fact operated, it is likely that the quota of 800 transferees would have filled pretty quickly, and would have achieved very little for Australia apart from adding significantly to the cost of deterring boat arrivals. If, as a result, Australia and Malaysia increased the quota under the arrangement, then the cost would have increased proportionally, but so would the pull factor.

So what should be done now?

At present, Australia has a system of indefinite mandatory detention of boat people. The detention is mandatory, because the Migration Act requires that non-citizens without a visa must be detained and must remain in detention until given a visa or until removed from Australia. While the Minister has a discretion about the mode of detention, detention remains mandatory, and even "community detention" falls far short of actual freedom.

Detention is indefinite because it has no fixed end point: detention continues until the person receives a visa (which may take years) or until they are removed from Australia. Removal from Australia may not happen until after years of processing, and in some cases turns out to be impossible - for example, where a person is stateless. Where a person is refused a visa but cannot be removed from Australia, the High Court decision of al Kateb says that they may be held in detention for the rest of their life, notwithstanding that they have not committed any offence.

Changing policy in an attempt to deter boat people from seeking entry to Australia rests on several important assumptions. The first is that the fear of what Australia might do to them exceeds the fear from which they are fleeing. That proposition is quite implausible. In the past 15 years, most boat arrivals have been Afghan Hazaras fleeing the Taliban, Iraquis fleeing Saddam Hussein, Iranians fleeing the theocracy in that country, and Tamils fleeing genocide in Sri Lanka. Not surprisingly, a very high percentage (approximately 80-95 per cent) of boat people ultimately establish an entitlement to protection.

The second assumption is that asylum seekers have the wherewithal to research the treatment they are likely to receive if they seek safety in Australia. There is no evidence to suggest that people desperate enough to take the risks associated with unauthorised arrival in Australia have ever had the time or resources to investigate the many changes in Australia's policy settings concerning asylum seekers.

The third assumption, which is bound up with the second, is that people smugglers are a reliable source of information for their passengers. It is in the highest degree unlikely that people smugglers reveal candidly to their customers that they face mandatory detention, or removal to Malaysia, or any other hardship which the government of the day seeks to impose as a deterrent.

It is therefore difficult to assume that anything done by Australia will make any appreciable difference to the arrival rate of boat people.

If things are left as they are, Australia will continue to face the following problems associated with the present system: needless infliction of mental harm on detainees and damage to Australia's reputation as a nation which cares about human rights. And don't forget the huge cost: mandatory detention costs us about $1 billion a year.

There is simply no merit in the idea of detaining people indefinitely just because they have arrived in Australia by boat. Asylum seekers also arrive by air: typically they arrive on short-term visas such as business, tourist or student visas. Once in Australia, they apply for asylum. Once their initial visa expires, they are given a bridging visa pending assessment of their claim for asylum. This may take years, but they remain in the community while it happens. Most of these asylum claims fail on the merits (only about 20 per cent succeed). By contrast, about 80-90 per cent of boat arrivals ultimately succeed in their claim for asylum, but they are detained during the entire process.

The arrival rate of asylum seekers who come by air is two or three times greater than the arrival rate of boat people.

A question inevitably arises: what is the justification for detaining boat people indefinitely, at vast expense, when most of them will ultimately succeed in their claim for protection but will be damaged more or less severely by the process? To this question, it seems that the only genuine answer is an appeal to political advantage.

There was one interesting feature of the Malaysian deal. Australia negotiated an arrangement with Malaysia which involved minimal detention before the transferees were to be released into the community with work rights. What a cracking idea! If Australia capped initial detention to just a month for health and security checks, overcrowding in detention would be solved instantly; the cost of operating the detention system would reduce dramatically; and the foreseeable mental harm which is caused by indefinite detention would stop.

It is not clear why the Australian Government thinks it necessary or desirable to detain boat people indefinitely when they do not think it necessary or desirable for Malaysia to detain those same boat people (except for preliminary health and security checks), and do not think it necessary or desirable to detain asylum seekers who come to Australia by plane.

The big question is whether the Government or the Opposition can forget about populism and point scoring, and see their way clear to solving the detention problem by acting decently: they could save our reputation and our taxes.

Julian Burnside AO QC is an Australian Barrister and an advocate for human rights and fair treatment of refugees.