ADDITIONAL COMMENTS BY SENATOR SARAH HANSON-YOUNG

Background

1.1        On 7 May 2011, the Minister for Immigration announced that the Australian Government had reached an asylum seeker deal with Malaysia.  Despite not being a signatory to the United Nations Convention on the Status of Refugees, the Government maintained that it was satisfied that the rights of the 800 asylum seekers exported to Malaysia would be upheld.

1.2        Aside from the Australian Greens being fundamentally opposed to any agreement that would see Australia shirking its international obligations, this deal was struck with a country that is not even a signatory to the Refugee Convention, could not guarantee the human rights of any asylum seeker sent there, and dramatically undermined genuine attempts to establish a true regional protection framework. 

1.3        From all the evidence provided to this inquiry, and from the key experts and stakeholders in the community, this deal does nothing to address the real problems facing asylum seekers throughout our region, rather it punishes the vulnerable men, women and children who have fled desperate circumstances seeking our protection. 

1.4        More than 15 Australian refugee groups recently issued a joint statement condemning federal political leaders for arguing asylum seeker policy was a choice between reopening Nauru or a new detention centre in Malaysia. These groups, like the Australian Greens, condemn that policy, arguing neither is acceptable. The groups also said: "The question Australian and international policy makers should focus on is not how to stop the boats but how refugees in Asia-Pacific can receive effective protection."[1]

1.5        Despite the High Court ruling that the Malaysia deal was unlawful, on 12 September 2011, the Prime Minister, and Minister for Immigration and Citizenship, the Hon. Chris Bowen MP, announced their intention to circumvent the High Court's ruling, and introduce legislative amendments to allow offshore processing of asylum seekers.

Key concerns with the agreement

Cannot guarantee rights

1.6        In order to lawfully transfer asylum seekers to another country, Australia must ensure that its obligations under the Refugee Convention will be fulfilled in that country.  Given Malaysia is not a party to the Refugee Convention, nor has it indicated its willingness to sign; it does not contain any provisions in domestic law for the protection of refugees.  A non-legally binding document, based on good faith, is not sufficient, when the transfer country in question, has an appalling human rights record when dealing with the more than 90,000 asylum seekers and refugees currently awaiting assessment and resettlement.

1.7        The fact that this agreement would also include children, unaccompanied minors (to whom the Minister for Immigration has a legal responsibility), and pregnant women, gives cause to further concern about the ability to guarantee the rights of anyone transferred to Malaysia.

Undermines Australia's international obligations

1.8        Under international law, all asylum seekers who arrive in Australia, regardless of mode of arrival, must have their claims for protection assessed and if found to be genuine refugees, offered protection. This deal effectively undermines the fundamental human right to seek asylum.

1.9        Malaysia is not a signatory to the United Nations (UN) Refugee Convention or Protocol, nor is it party to many other human rights treaties, including the Convention Against Torture. In a submission to the inquiry, the Australian Refugee Law Academics argued that, "as a matter of international law, in order to rely on another country's refugee protection mechanisms, that country must respect the rights of refugees and asylum seekers in practice."[2]

Undermines genuine leadership towards a regional protection framework

1.10      While the Government has claimed this agreement is part of the broader regional framework to deal with asylum seekers, this deal does nothing of the sort.

1.11      This deal is nothing more than a political quick fix driven by domestic considerations, rather than a genuine commitment working collaboratively within the region. While no one wants to see asylum seekers risk their lives on the treacherous seas in the hope of reaching Australian shores, simply punishing these vulnerable people, without offering a true solution, has shown that the Government is not interested in putting in the hard yards to work towards a long-term sustainable protection framework.

1.12      This policy will not stem the boats. Asylum seekers will continue to make dangerous journeys because they are desperate.  A political quick fix will not make the issue go away.

1.13      Instead of looking for quick-fix 'solutions', what the Government should be doing is increasing the humanitarian intake, with a targeted resettlement from within our immediate region.

Recommendation 1

1.14.     The Australian Greens recommend that the deal with Malaysia, and any other third country, should be rejected.

Recommendation 2

1.15      The Australian Greens recommend that the Government heed the advice of the High Court, and return to onshore processing of asylum seekers' claims, which is simpler, cheaper, more humane and supported by the Australian public.

Recommendation 3

1.16      The Australian Greens recommend that any attempt to amend the Migration Act to circumvent the High Court's ruling that found the Minister's declaration of Malaysia under section 198A of the Migration Act to be invalid, should be rejected.

Recommendation 4

1.17      The Australian Greens recommend that the Australian Government honour the commitment to resettle an additional 4,000 UNHCR-assessed refugees directly from Malaysia.

Recommendation 5

1.18      The Australian Greens recommend that the humanitarian intake is increased from 14,750 to between 20,000 and 25,000 with a targeted resettlement from Australia's immediate region, including Malaysia and Indonesia.

Senator Sarah Hanson-Young
Australian Greens' Spokesperson for Immigration

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