DISSENTING REPORT BY GOVERNMENT SENATORS
1.1
Government Senators strongly disagree with the views presented in the committee's
majority report, and do not support the majority report's recommendation. Government
Senators believe that the Malaysian Arrangement is essential to combat the
irregular movement of asylum seekers within the Asia-Pacific region.
Fundamentally, and most importantly, the arrangement is designed to break the people
smugglers' business model and deter people from taking the dangerous voyage to
Australia by sea. The very strong message that the Malaysian Arrangement sends
is 'do not get on that boat because you will not be processed and resettled in
Australia'.
1.2
The Malaysian Arrangement delivers an innovative regional solution to what
is clearly a significant regional problem. Government Senators note that the
announcement of the arrangement had a strong deterrent effect, immediately discouraging
people from making the dangerous sea journey to Australia. The timely
implementation of the Malaysian Arrangement will further strengthen the message
that people should not risk their lives coming to Australia in this way.
Importance of regional cooperation
1.3
Australia is not alone in facing problems of irregular migration, people
smuggling and substantial increases in the number of people seeking asylum.
Accordingly, Australia cannot act in isolation to address these problems.
1.4
Against this background, the establishment of the Regional Cooperation
Framework, at the fourth Ministerial Conference of the Bali Process on People
Smuggling, Trafficking in Persons and Related Transnational Crime on
30 March 2011, is an important development. The Regional Cooperation
Framework, which has broad bipartisan and international support, is based on
the concept of responsibility-sharing and cooperation between source, transit
and destination countries. It lays the foundation for the implementation of
practical bilateral and sub-regional arrangements that will contribute to a
sustainable regional response.[1]
1.5
The Malaysian Arrangement is an important element of the Regional
Cooperation Framework: it provides a strong signal to people smugglers, and
their potential clients, that the Australian Government will determine its asylum
priorities in an orderly manner, with priority being given under its
Humanitarian Program to people in greatest need.
1.6
As the Department of Immigration and Citizenship (Department) outlined
in its submission, Asia-Pacific region countries such as Thailand, Malaysia and
Indonesia host large numbers of refugees and asylum seekers. Such countries
permit the UNHCR to access those individuals, even though the countries are not
parties to the Refugee Convention.[2]
Genuine commitment to regional cooperation requires that Australia engage with
countries who are not signatories to the Refugee Convention, but which host
most of the refugees in the region.
1.7
Australia has made clear commitments to increase its share of the 'humanitarian
burden' in the region, and the Malaysian Arrangement will facilitate those
commitments by significantly increasing Australia's refugee intake by 4,000
over the next four years.
Deterrent effect of the Malaysian Arrangement
1.8
Within the Asia-Pacific region, Australia faces a particular challenge
with respect to the secondary movement of asylum seekers – that is, people
moving irregularly from a place of initial protection to Australia in the hopes
of having their asylum claims assessed quickly in a more hospitable environment,
and ultimately attaining settlement in Australia.
1.9
The arrangement with Malaysia provides a real and substantial disincentive
to people, once they have reached a place of initial protection, from making
the dangerous onward journey by sea to Australia. As the Minister for
Immigration and Citizenship has explained:
...[S]ending people back to where they started the boat journey
does work. The best disincentive is for people considering that journey to know
that it is all for nought, that they will be out of pocket and that they will
be risking their lives, only to wind up back where they started, which is
overwhelmingly Malaysia....
The deal negotiated with Malaysia provides a genuinely
effective plan to remove the product people-smugglers are selling – a ticket to
Australia – by virtually turning back the boats, but in a safe and orderly
fashion...
The message that it sends is that if you take the boat
journey to Australia then you'll be returned by plane to Malaysia and be
processed in the mix of more than 90,000 others.[3]
1.10
The Department's submission to the inquiry also emphasised the deterrent
effect of the Malaysian Arrangement:
Early indications suggested that, prior to the decision of
the High Court of Australia on 31 August 2011, the prospect of the Arrangement
and the Arrangement itself had already acted in some part as a deterrent to
irregular movement. The second-lowest number of irregular maritime arrivals
(IMAs) since August 2009 was recorded in June 2011, the month following the
joint announcement of the proposed Arrangement by the Prime Ministers of
Australia and Malaysia. This is assessed as reflecting concern among people
smugglers and a reluctance among potential IMAs to travel, as a result of the
game changing nature of the announcement. A return to onshore processing would likely
result in increased and sustained levels of IMAs.[4]
1.11
Nauru, the Coalition's preferred location for offshore processing of
asylum seeker claims, has no such deterrent effect. People smugglers know that
if asylum seekers are sent to Nauru and are found to be refugees, they will be
resettled in Australia. As the Minister has observed:
The best advice and intelligence we have – which the
government has shared with Abbott – clearly shows that people-smugglers now
know that if asylum-seekers are sent to Nauru and are found to be refugees,
they will be resettled in Australia. That is not an effective deterrent.[5]
Protection for asylum seekers
1.12
The Joint Prime Ministerial Statement of 7 May 2011 clearly states that
Transferees to Malaysia will be treated with dignity and respect, and in
accordance with human rights standards. This commitment is also plainly
expressed in clause 8(1) of the Malaysian Arrangement.
1.13
In contrast to the Malaysian Arrangement, the Coalition has continued to
advocate a policy of towing back boats to Indonesia. The strategy to 'tow back
the boats' highlights the Coalition's policy incoherence – there has been
absolutely no indication of what, if any, protections Indonesia would extend to
asylum seekers who are towed back to that country. Despite this gaping hole in
its policy, the Coalition continues to insist that the groundbreaking protections
negotiated for Transferees under the Malaysian Arrangement are inadequate.
International law obligations
1.14
The majority report's dismissal of the commitments made by the Malaysian Government
to implement its human rights obligations under the arrangement is
disappointing. Specifically, the majority report has failed to recognise the
involvement that the UNHCR has had in the development of the arrangement.
1.15
The Malaysian Arrangement is consistent with the Australian Government's
obligations under the Refugee Convention, and other international treaties. As
an officer of the Department of Immigration and Citizenship explained to the
committee:
Successive governments have taken the view that Australia
will be acting consistently with international law and accepted practice, so
long as it is satisfied that asylum seekers removed to another country will not
be refouled, and that they will be given an opportunity to have their status
determined in that country. The Malaysian Government has undertaken to respect
the principle of non-refoulement, and to permit transferees to Malaysia to have
their asylum claims assessed by UNHCR.
...
In terms of any claim a potential transferee may have made
against Malaysia itself, this claim and any other non-refoulement obligations
were to be assessed in the pre-removal assessment of the individual's
circumstances...[6]
1.16
The Department also indicated that in relation to children, a 'best
interests of the child' assessment would also be undertaken in the preremoval
assessment process, thus meeting Australia's obligations under the Convention
on the Rights of the Child.[7]
1.17
The Department explained the following aspects of the arrangement, which
mean that Australia is complying with its international law obligations:
-
Where a person is determined not to be a refugee, Australia will
be given the opportunity to undertake an assessment against other non-refoulement
obligations before the person is removed from Malaysia.
-
With regards to article 31 (no penalty) of the Refugee
Convention, nothing in the convention prevents a different regime being in
place for offshore entry persons, providing the scheme does not involve the
imposition of a penalty on account of unauthorised entry. The Australian Government
maintains that offshore processing does not amount to a penalty within the
terms of article 31. In addition, article 31 applies to refugees coming
directly from the place of feared persecution, not to those involved in
secondary movement.
-
In relation to article 3 (non-discrimination), the discrimination
referred to is discrimination based on race, religion or country of origin. The
different treatment accorded to offshore entry persons has nothing to do with
the race, religion or country of origin of these persons.[8]
1.18
Further, Government Senators note the Department's clarification in
relation to protection obligations under the Refugee Convention:
Many commentators conflate the obligations that the refugee
convention sets out as owed to with those that are owed to asylum seekers. The
convention allocates rights or protections to refugees in categories based on
the type of immigration status a person has in the host state. The categories include
physical presence, lawful presence, lawful stay and residence. So, for example,
rights or protections concerning employment, housing and social security are
restricted to refugees lawfully staying in a state's territory not to asylum
seekers whose claims have not been assessed and whose status has not been
regularised.
The arrangement with Malaysia also provides for decent
standards of treatment for transferees, with Malaysia undertaking to treat them
with dignity and respect and in accordance with human rights standards...Australia
does not accept that it has a legal obligation that persons outside our
territory have to be accorded with the same standards of treatment in all
respects as they would have received had they remained in Australia. In the case
of transfers to countries for processing outside Australia, we have, however,
accepted a moral obligation to ensure that such people are accorded reasonable
standards of treatment.[9]
1.19
Government Senators also acknowledge the following statement by the Prime Minister,
the Hon Julia Gillard MP:
[The Australian Government is] now in a position to say
refugee convention obligations—most important of all, the obligation of
non-refoulement, of making sure that people are not returned to a place of persecution—can
be achieved in Malaysia. In addition to that we can see in Malaysia the
processing of claims and we can see people's humanitarian needs dealt with.[10]
Commitments by Malaysia
1.20
The Malaysian Government has demonstrated a strong commitment to its human
rights obligations under the Malaysian Arrangement. As the Prime Minister has explained:
[These] are the obligations that Malaysia has freely entered
into in this arrangement between us. The Malaysian government has done this
freely. The Malaysian government has done it freely because it stands ready to
implement it.[11]
1.21
The Malaysian Government's commitment to the arrangement was also
highlighted by an officer of the Department at the hearing:
...[T]he fact that the Malaysian government was willing to
sit down and negotiate with us over a number of weeks, and there were practical
arrangements that they were actually putting in place to ensure that the terms
of the arrangement were going to be met, is an indication that they had every
intention of meeting the commitments that had been made in the arrangement. The
fact that a minister of state also signed the arrangement is...a strong
commitment from the government.[12]
1.22
Government Senators are particularly concerned at the tone of hysteria surrounding
the majority report's discussion about caning in Malaysia. Since asylum seekers
transferred to Malaysia pursuant to the arrangement will not be illegal
migrants, they will be exempted under section 55 of the Malaysian Immigration
Act.[13]
This means that Transferees under the arrangement will have entered Malaysia
legally, will not have committed any immigration offence under Malaysian
domestic law, and will not be subject to caning.
1.23
Further, Malaysia's commitment to treating asylum seekers transferred
from Australia in line with human rights standards clearly means that such
persons will not be caned. As the Department advised:
The Department is satisfied with the assurances provided by
the Malaysian government [with respect to caning]. The Arrangement was
negotiated in good faith and freely entered into by Malaysia. Malaysian
Minister for Home Affairs Hishammuddin has stated publicly that Malaysia would
ensure those protections outlined in the Arrangement were upheld.[14]
Involvement of UNHCR
1.24
Government Senators believe that the majority report fails to
acknowledge the role of the UNHCR in the negotiations towards, and
implementation of, the Malaysian Arrangement. The UNHCR has been closely
consulted on the arrangement and its associated Operational Guidelines, and
provided constructive comments which helped to shape the final wording of the arrangement.[15]
1.25
In its submission to the committee, the UNHCR indicated its support for
the Malaysian Arrangement, noting that it 'responds to the particular domestic
and regional context of the asylum and migration situation in the Asia-Pacific
region'.[16]
Further:
...UNHCR is appreciative of the efforts made by the two
parties to provide fundamental protection safeguards for transferees, notably:
respect for the principle of non-refoulement, the right to asylum, the
principle of family unity and best interests of the child, humane reception
conditions, including protection against arbitrary detention, and the
realization of durable solutions.[17]
1.26
As the UNHCR informed the committee:
UNHCR was neither called upon, nor would it have been
appropriate, to 'endorse' or otherwise formally sanction the Arrangements.
There is nothing unusual about this and no inference can reasonably be drawn
from this. Under Article 8 of its founding Statute UNHCR is mandated to promote
and advocate for measures that improve the situation for refugees which, in
this instance, it has steadfastly done through its advice to both parties.[18]
1.27
Government Senators acknowledge that the UNHCR's position 'is and
remains conditioned upon proper protection and vulnerability safeguards
determining the pre-transfer/pre-removal assessment process in Australia'.[19]
The Australian Government has put these protections in place through the
procedures set out in the document 'Pre-removal Assessment Process for
Transfers to a Third Country'.[20]
1.28
Government Senators also note that under the Arrangement, the Australian
Government will provide funding to the UNHCR to undertake a range of support
activities. This funding will assist asylum seekers and refugees more generally
in Malaysia while they are processed and await a durable solution. Some of the
activities that will be funded include community capacity building, enhancement
of UNHCR identity cards, and improvements to basic health care and emergency
health support.[21]
1.29
The committee heard from many submitters with strong opinions on, but no
direct involvement with, the Malaysian Arrangement. The UNHCR has direct
involvement with, and knowledge of, the arrangement and is, in the view of
Government Senators, best able to offer a considered and expert opinion. In
contrast, the Commonwealth and Immigration Ombudsman conceded that his office
does 'not purport to have any knowledge of administration in Malaysia' and 'no
specific technical or legal knowledge of procedures in Malaysia'.[22]
Further, the Ombudsman's initial submission to the inquiry contained
substantial errors of fact, which he was subsequently required to correct.[23]
Given that the Ombudsman's role includes oversight of immigration detention and
refugee assessment, such errors are simply unacceptable. Government Senators
suggest that, in future, the Ombudsman ensure his information is correct before
making comments such as these on the public record.
Proposed amendments to the Migration Act
1.30
In conclusion, Government Senators note the importance of ensuring that
the Migration Legislation Amendment (Offshore Processing and Other Measures)
Bill 2011 passes the Parliament as a matter of urgency, in order to facilitate
the implementation of the Malaysian Arrangement. In that context, Government
Senators point out that the Coalition's proposed amendment to the Bill to allow
transfers of asylum seekers to Refugee Convention countries only would have
precluded any transfers to Nauru, if moved in 2001.
Recommendation 1
1.31
Government Senators recommend that the Migration Legislation Amendment
(Offshore Processing and Other Measures) Bill 2011 be passed by the Parliament
as a matter of urgency, in order to facilitate the implementation of the
Malaysian Arrangement.
Senator
Trish Crossin Senator
Mark Furner
Deputy Chair
Senator Alex Gallacher
Navigation: Previous Page | Contents | Next Page