Humane decision as Malaysian plan springs a leak

David Marr
The Sydney Morning Herald
September 1, 2011


‘A devastating blow for the government’

It’s about fairness. For a long time the High Court has ticked off on the remarkable difficulties Australia puts in the way of asylum seekers who come here by boat. Even mandatory detention for life has been given the nod by the court. But lately the judges have ruled boat people must at least be dealt with fairly while they are caught up in the system.

Yesterday’s emphatic six to one decision extended that principle to those men, women and children Australia had wanted to send away to Malaysia. The court could find no guarantee they would be dealt with fairly once they arrived there. So the minister Chris Bowen’s choice of Malaysia as a safe haven was declared invalid.

It was not enough, said the Chief Justice Robert French, for the minister to have a “hope or belief or expectation” that the asylum seekers would be dealt with properly by Malaysia. They needed laws to protect them now and in the years ahead. “It is an agreed fact,” French observed, “that Malaysia does not recognise the status of refugees in domestic law”.

The court was not plucking these human rights obligations out of the air. When the ”Pacific solution” was hurriedly set up in 2001, strict criteria were laid down in the Migration Act to identify the kinds of countries we might export asylum seekers to. These safe havens had to allow refugee assessment and meet “relevant human rights standards” in protecting asylum seekers before and after that assessment process.

Bowen brought to the court the arrangement he signed with Malaysia, the Malaysia order exempting the 800 we planned to send there from the harsh provisions of local laws – fines, whippings and imprisonment – and his own sense that “the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers”.

Six of the judges declared this was not enough. Justices William Gummow, Ken Hayne, Susan Crennan and Virginia Bell said in their joint judgment that access to the protections demanded by law must be provided by Malaysia “as a matter of legal obligation”.

Bowen brought to court Department of Foreign Affairs and Trade advice on the harsh reality in Malaysia for the 100,000 or so asylum seekers – mainly Burmese – already living there. The minister claimed the advice backed his declaration of Malaysia as a safe haven. But six of the judges declared, on the contrary, that the advice demonstrated Malaysia could not meet the requirements of Australian law.

Justice Dyson Heydon was the government’s only friend in court. All Malaysia had to provide, he said, was “practical access, practical protections, and a meeting of standards in practice”. He cautioned that Australia’s dealings with Malaysia “are within the province of the Executive. Intrusion by the courts into those dealings may be very damaging to international comity and good relations”.

Perhaps the best ammunition the plaintiffs had were the reiterated claims by governments through the years that every tough action taken against boat people was an expression – not a repudiation – of Australia’s obligations under the refugee conventions. The court took the politicians at their word and reached yesterday’s humane conclusion.

Nauru and Manus may survive under their ruling – with strict legal safeguards in place – but if Canberra wants to try once again to set up machinery as vindictive as the Malaysian plan, it’s going to have to come clean and admit, for the first time, that we are backing away from our international obligations. Admit that fact and almost any law is possible.

Or Canberra will now abandon these schemes to send our problems away and do what other countries do and the recent Nielsen poll showed most Australians want: simply assess these people here.

  1. #1 by k1980 on Thursday, 1 September 2011 - 12:50 pm

    The Aussie High Court would had voted differently had their PM been Mamaktiak instead of Gillard.

    Chief Justice Robert French would had been dismissed earlier on and a Mat Zaki installed in his place.

  2. #2 by boh-liao on Thursday, 1 September 2011 - 1:50 pm

    Alamak, bad news lah 4 UmnoB/BN n Perkosa, which intend 2 send boatful of asylum seekers (Si Mata Sepet n Si Kaki Botol) fr M’sia 2 Australia; si liao, what 2 do now?

  3. #3 by yhsiew on Thursday, 1 September 2011 - 3:20 pm

    A clear-cut case of non-interference in the judicial process by the Australian Executive.

  4. #4 by Jeffrey on Thursday, 1 September 2011 - 3:42 pm

    Some people think they are smart. There’s money to be made: Australia will pay the full cost of the swap deal, estimated at AUD292m (£194m). Also pride boosted – see we’re not that bad, even UNHCR endorses swap even when Malaysia is not a signatory to UN conventions and protocols on the treatment of refugees. And if one believes in what Chris Kelley wrote in Australian newspaper The Australian – its up to one whether to believe or not in his speculation- the deal works well for BN’s ethno-religious political strategies, for in engaging in processing, we could receive 800 mainly Middle Eastern refugees to be fast tracked to become registered voters for BN in exchange for recommending for resettlement in Australia 4,000 Burmese and other Christian refugees hanging around here. So its a plus plus from points of view of (i) money to be made (ii) pride and hubris (iii) political strategy.

  5. #5 by Jeffrey on Thursday, 1 September 2011 - 4:11 pm

    But are we that smart? If so how come we are twice insulted by the Australians and yet not aware of it or is it we’re too blinded by money/power in this swap deal to bother we’re insulted? First insult is the Deal itself. Little of it makes sense. The Aussie Govt wants to stem the refugee tide. It’s willing to pay good money (AUD292m) for it. How will sending them to KL’s processing/transit centres coupled with M’ysian govt’ commitment to treat them well according to the UN refugee agency’s international standards coupled with Aussie Govt’ commitment to accept 4,000 genuine refugees who have had their claims assessed in Malaysia achieve the original objective of stemming the tide of asylum seekers to Australia and their traffickers?

  6. #6 by Jeffrey on Thursday, 1 September 2011 - 4:24 pm

    This doesn’t make sense unless one makes the basic assumption (unspoken) of Aussie Govt that even asylum seekers don’t believe in KL’s fairness/objectivity in processing asylum seekers’ applications or ability to abide by UN refugee agency’s international standards, thereby making the threat of being sent to Malaysia an effective and enduring deterrent to deflect them from Australia! Second insult is delivered by the 6 Australian High Court’s judges. They simply don’t believe Australia abides by its international obligations to refugees by sending them to Malaysia – this in spite of (i) Malaysian Govt’s commitment to their “special treatment” (no doubt helped by AU$) (ii) UNHCR’s endorsement of the swap and (iii) mandatory detention of all (now in Christmas island maybe later in remote Pacific islands nation of Nauru) without Visas under Australian Migration Act! This means the Judges feel that mandatory detention in these “Alcatraz” islands may be more humane than special good treatment in Malaysia! The decision is rebuff to Australian Govt and insult to the Malaysian one!

  7. #7 by Jeffrey on Thursday, 1 September 2011 - 4:46 pm

    Maybe Australian judges feel the pulse of a more educated public opinion there which expresses two basic reservations. First they smell moral duplicity in a two tier standards. If we are not generally known for treating refugees humanely – we’re not subscribers/signatories of UNHCR international protocols on refugees- how could we be trusted in sincerity of commitment to treat refugees well without unfair discrimination in both processing & treatment? On moral issues there is but only one standard. You’re either humane or you are not. If you are humane because of some fanciful difficult to fathom swap deal underwritten by AU$ I think the reasonable man has cause to doubt!

  8. #8 by Jeffrey on Thursday, 1 September 2011 - 4:47 pm

    The second reservation has everything to do with whether our Govt, even if intending to abide by promise of special treatment, can deliver and control its rank & file enforcement/security forces. (Australians have heard of endemic systemic corruption & two improbable suicides in MACC precincts. It makes them queasy.) They’d probably heard of what happened In 2004 (true or not, I can’t say), when Malaysia provided Acehnese refugees with a special work permit, known as a “tsunami card”, but immigration officers and volunteer civilian police forces rarely recognized the validity of the card. As a result, Acehnese with the permit were regularly arrested, detained and deported. One may be issued a special M’ysia/Aussie Asylum Card, is it of any use when one of these errant authorities stop you, threaten to tear your card & all your identification papers and throw you in lockup if you don’t pay? Which is why whether as applied to a person or a country one must have good reputation and standing in the eyes of rest of the world judging you. Its credential. Too many Malaysia Boleh antics as if the rest of the world’s judgment matters not, doesn’t help in times like this. Even Australian judges take judicial notice of these antics contrary to the official position of their own government. Your deal is then scr*wed.

  9. #9 by yhsiew on Thursday, 1 September 2011 - 4:59 pm

    Maybe they want to get some money through the swap scheme to pay for election “goodies” distributed to the electorate during GE13.

  10. #10 by Jeffrey on Thursday, 1 September 2011 - 5:05 pm

    Australian judges’ verdict that its government is wrong to say that by the swap deal it could protect asylum-seekers in Malaysia in manner expected by international standards in reliance on Malaysian govt’s assurance of “special treatment” is indirectly also an insulting verdict of the Australian High court on the credibility of our govt’s assurances…..How else can one otherwise see it? In summary of postings, we have been been twice insulted, (1) by the Australian Govt in coming up with such a swap arrangement that makes little sense in stopping the tide of Asylum seekers (unless upon the implicit unspoken assumption that Malaysia as destination will (in spite of assurances of ‘special treatment’) strike fear in hearts of such seekers (who will then not pay the traffickers) and hence Malaysia’s reputation of refugees treatment is used by Aussie Govt as “deterrent” and (2) by the 6 High Court Judges’ verdict.

  11. #11 by Jong on Thursday, 1 September 2011 - 5:25 pm

    Need say more why this controversial refugee swap deal was rushed through? ….Aussie $$$ should come in handy for for them in the coming GE-13!

  12. #12 by boh-liao on Thursday, 1 September 2011 - 5:32 pm

    It’s a pity Aussie judges r not like our judges here, puppets on string
    Not, no worries, we hv lots of Iranians (Si WHAT ah, after Si Mata Sepet n Si Kaki Botol),8599,2090301,00.html?iid=pf-main-mostpop1

  13. #13 by waterfrontcoolie on Thursday, 1 September 2011 - 11:00 pm

    Did the Aussie voted against Malaysia’s sitting in the UN Human Rights Committee [ or something like that?] ? Being distrustful of our Gomen???

  14. #14 by tak tahan on Thursday, 1 September 2011 - 11:23 pm

    The current Gomen cannot sit on anything except aboard toilet bowl seat to put out garbages to be flushed away.Not only Canlanders are distrustful but the whole world at this juncture of past and present circumstances do not have any faith in our fair and just governance.Mamamiya….

  15. #15 by boh-liao on Friday, 2 September 2011 - 2:09 am

    D Australian judges just dealt UmnoB/BN-led M’sian gomen a BIG FAT VOTE of NO CONFIDENCE
    Not surprising what, most things here r going down hill
    Sg just handed over d Gunung Pulai water treatment plants back 2 Johor after 50 yrs
    Many yrs ago, MMK n UmnoB tot they could squeeze Sg n brought it down 2 its knees by not selling H2O or selling H2O at a high price 2 Sg after d 1961 agreement expired
    But, surprise surprise, Sg has moved on n happily returned d waterworks 2 Johor
    No begging n pleading fr Sg 4 H2O n mercy fr Johor n M’sia
    LKY had pushed 4 self-sufficiency in H2O by 2061 n cleaned up rivers in Sg, great legacy
    D quality of tap H2O in Sg is so much better than dat in M’sia
    Just wonder 4 how long can Johor maintain d top condition of d Gunung Pulai waterworks
    Truly majulah Singapura n MALUlah Malaysia

  16. #16 by k1980 on Friday, 2 September 2011 - 9:25 am

    Queen Elizabeth II should appoint Chief Justice Robert French as the Governor-General of Bolehsia

  17. #17 by raven77 on Saturday, 3 September 2011 - 8:36 pm

    In short the Aussie judges didnt have confidence in the Malaysian government and most importantly its justice system….they did not want to trust even refugees with Malaysia…

    Maybe we should just stop masquerading as a nation………Malaysia hlds no respect in the eyes of the developed world…..the damage done by Mahathir could be permanent….

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