The 3 things that Bill Shorten must do if he wants to turn back the boats.

At least doubling our refugee intake is just the start.

By Alex Reilly

Given its poor handling of refugee policy when it came to power in 2007, the Labor Party will need to tread very carefully when it formulates a new policy at its upcoming national conference. It has little to gain politically from deviating from the Coalition’s harsh asylum seeker policy, and yet there is urgent need for reform.

Australia’s current policy on asylum seekers has lost all sense of proportion. Stopping the boats is the only policy goal – it is an end for which almost any means are justified. The cost to asylum seekers has been unspeakable. There has been little regard for their humanity, and no concern for establishing durable solutions to their plight.

And there has been a range of other costs – to relations with Indonesia and other neighbouring countries, and to our democratic processes.

There can be no doubting the manifest benefits of stopping the boats. These include undermining the “people smuggling” industry that developed around securing unauthorised entry to Australia by boat; preventing loss of life at sea; and preventing an uncontrollable flow of asylum seekers reaching our shores.

Having stopped the boats, at great cost, it is inconceivable that Australia would allow the movement of people by this means to start again. Its capacity to control movement across its borders is the envy of the world. All nations, no matter their level of generosity to asylum seekers, wish to be able to control the movement of people across their borders.

Obvious reforms

There are obvious reforms that Labor should have no hesitation in adopting.

First, as is already contained in its draft national platform, Labor should significantly increase Australia’s annual refugee intake. Given the scale of Australia’s current migration program and its relative international contribution, the number of 13,500 should at least be doubled.

Second, the raft of amendments to the Migration Act that the Coalition introduced in November 2014 with the support of crossbench senators should be repealed. Those amendments focused on processing asylum seekers who arrived in Australia up to 2013 and are now either living in the community or in immigration detention. The amendments replaced permanent with temporary protection, restricted review rights in the Refugee Review Tribunal and incorporated more onerous requirements for satisfying the definition of a refugee.

These changes created a greater chance of genuine refugees being returned to their country of origin where they face the risk of death or persecution.

The regional processing problem

Regional processing is a central plank in the Coalition’s policy platform. However, it has been an abject failure. Thousands of asylum seekers on Nauru and Manus Island reside in sub-standard living conditions with growing mental health problems under the supervision of private centre operators with broad and unreviewable powers to use force against them to maintain order.

Refugee processing has been painfully slow. For those asylum seekers found to be refugees, the resettlement options of Papua New Guinea and Cambodia are inappropriate on any number of levels. The most common way off Nauru and Manus Island for asylum seekers is to “voluntarily return” to the country they fled in the first place out of desperation to escape detention.

It is time to accept that the only countries in the region with the capacity to resettle refugees are Australia and New Zealand. Asylum seekers on Manus Island and Nauru should be brought to Australia and processed by the Immigration Department. This should be an immediate priority if Labor won government, and would be a way to distance itself from existing policy.

The problem is that transferring people to Nauru and Manus Island is the safety valve for the turnback policy. If a boat is not successfully returned to Indonesia, the asylum seekers are transferred to Manus Island and Nauru for “regional processing”. The government is thus able to maintain its hard line that no asylum seeker arriving by boat will be resettled in Australia. It is this hard line that has stopped the boats.

Working with the region

The problem with regional processing is that it has been conducted as a unilateral exercise with Australia calling the shots. No genuine attempt has been made to engage the countries in the region for whom asylum seeker movement is an issue.

The solution is to retain regional processing but redefine the region. Apart from a few boats arriving from Sri Lanka, asylum seekers arriving by boat in Australia all depart from Indonesia and most of those on board have travelled to Indonesia from Malaysia. The focus of policy needs to be to engage the Malaysian and Indonesian governments in preventing the onward movement of asylum seekers to Australia.

There is little downside for Indonesia and Malaysia in assisting Australia to prevent movements between Java and Christmas Island. In return, Australia can offer generous financial assistance to manage the asylum seeker populations in each country.

The previous Labor government made small steps in this direction with its Malaysia arrangement. The deal was a simple one. In exchange for the transfer to Malaysia of 800 asylum seekers who arrived in Australia by boat, Australia would provide financial assistance to Malaysia and resettle 4000 UNHCR-recognised refugees on top of existing commitments to resettle refugees from the region.

An important part of the arrangement was that those asylum seekers returned to Malaysia would not be penalised and would be provided with housing, the right to work and access to education for children. The arrangement would act as an effective deterrent to people taking a boat to Australia to seek asylum because their expensive and dangerous journey from Java to Christmas Island would just result in their return to Malaysia.

The arrangement was never implemented. The High Court ruled that the immigration minister had not lawfully exercised their discretion to declare Malaysia a “specified country” for the transfer of asylum seekers. The Greens would not support amendments to the Migration Act to fix the problem.

The Migration Act has since been amended. It now confers much broader powers on the minister to send asylum seekers to third countries. There are now no legal impediments to a deal with Malaysia.

There were serious doubts whether the Malaysia arrangement would work in 2011. Boats were arriving in large numbers, and it was possible that the quota of 800 asylum seekers would be reached before it worked as a circuit-breaker on arrivals.

With boats having largely ceased thanks to the Coalition’s turnback policy, a similar arrangement with Malaysia would now work effectively as a deterrent to boats leaving Indonesia.

There is every reason to think that Malaysia would be willing to negotiate a new deal with Australia. Australia could afford to be much more generous in offering resettlement places to UNHCR refugees in Malaysia under an increased quota of 27,000 resettlement places.

Australia could afford generous financial assistance to the UNHCR and the Malaysian government to assist with processing and accommodating asylum seekers located in Malaysia by diverting only a portion of the money currently spent on maintaining the detention centres on Nauru and Manus Island.

A humane refugee policy that maintains a strict line on asylum seekers arriving by boat is possible with the right amount of political will.

Editor’s note: The article misrepresented the Malaysia arrangement by suggesting that the agreement was for the transfer of “Burmese Rohingya refugees”. The agreement did not specify the ethnicity or country of origin of refugees to be part of the transfer agreement. It has been amended since publication to correct this.

Alex Reilly is Director of the Public Law and Policy Research Unit, Adelaide Law School at University of Adelaide.

This article was originally published on The Conversation.
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