Can Oakeshott’s Bill end the asylum impasse?

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Can Oakeshott’s Bill end the asylum impasse?

Posted 16/03/2012 by Elibritt Karlsen

On 13 February 2012 Independent MP, Rob Oakeshott introduced his Migration Legislation Amendment (The Bali Process) Bill 2012 into the House of Representatives. As he explained, the purpose of the Bill ‘is to try to get agreement between the Labor Party and the Liberal Party on the issue of offshore and onshore assessment of asylum seekers and to end their impasse’. Though both the major political parties are committed to processing asylum seekers intercepted en route to Australia in other countries, it appears they are unable to reach agreement on which countries should do so. A look at the development of their policies in this area will help ascertain whether the impasse is likely to be resolved.

In the lead up to the 2007 federal election, Labor pledged to end the Pacific Solution. Two months after forming Government, the newly appointed Immigration Minister announced the arrival in Australia of the last refugees from Nauru. However, by July 2010, in the context of increasing numbers of boat arrivals, newly appointed Prime Minister Julia Gillard announced in her first major policy speech that the Government had begun having discussions with regional neighbours about the possibility of establishing a regional processing centre for the purpose of receiving and processing irregular entrants to the region. Though at the time the Prime Minister told the media that she ‘would rule out anywhere that is not a signatory to the Refugee Convention’, over the next year the Government held discussions with a number of countries including East Timor, Papua New Guinea, and Malaysia. These negotiations culminated in the signing in July 2011 of an Arrangement between the Malaysian and Australian Governments on the transfer and resettlement of asylum seekers intercepted en route to Australia (a bilateral swap arrangement). It also resulted in the signing of a Memorandum of Understanding with Papua New Guinea on the transfer and assessment of certain asylum seekers (involving the establishment of an assessment or ‘relocation centre’ in Manus Province).

However, the Government’s plans were unexpectedly shelved on 31 August 2011 when the High Court found that the Immigration Minister’s declaration of Malaysia as a country to which asylum seekers could be taken for processing was invalid under the Migration Act because (amongst other things) Malaysia did not process asylum seekers, was not a party to the 1951 Refugees Convention and had not entered into a legally binding arrangement with Australia obliging it to accord the protections required by that Convention. The Government subsequently received legal advice indicating that not only did the High Court’s judgment thus render Malaysia off limits—the ability to use Papua New Guinea and Nauru had also been thrown into significant doubt. Accordingly, less than a month after the High Court delivered its judgment, the Government introduced the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 into the House of Representatives. The primary purpose of the Bill was to replace the existing legislative framework for taking boat people to another country and in doing so, overcome the High Court’s ruling. Under the Bill the only condition for the exercise of the Minister’s power was that the Minister must think it to be in the national interest to designate a country to be an offshore processing country. Despite intensive negotiations, the Bill failed to gain the support of sufficient independents and the Opposition.

The Coalition began processing asylum seekers on Nauru and in Papua New Guinea in 2001. Though processing in Papua New Guinea was only of a short duration, the processing of asylum seekers on Nauru continued until 2008 when the Pacific Solution was formally dismantled by the newly formed Labor Government. Since that time, the Coalition has consistently advocated for the return of processing boat people in Nauru. They argue that processing on Nauru was a powerful deterrent in ‘stopping the boats’ then and it can be a powerful deterrent again. The primary reason the Coalition did not support the Government’s Bill was because the Government did not agree to their proposed amendment that offshore processing should only take place in another country if that country is a signatory to the 1951 Refugee Convention. They argued that the statutory framework which they introduced in 2001 ensured that the countries to which Australia sent asylum seekers had to observe relevant human rights standards and if this requirement was to be repealed, then other protections would have to be inserted back into the legislation. Though Nauru only acceded to the 1951 Refugee Convention in the middle of last year, the Coalition believes that even under the existing statutory framework (as restrictively interpreted by the High Court), offshore processing on Nauru is still possible. However, legal opinion on this point remains divided. For the Government’s part, it has rejected Nauru as a viable alternative on the basis that it will cost too much and not be a deterrent to asylum seekers intent on travelling to Australia by boat as most will inevitably end up being resettled to Australia—as was the case under the Pacific Solution.

It appears that neither major political party is prepared to abandon their respective plans to re-enliven offshore processing in a foreign country, nor their country or countries of preferred choice. However, Mr Oakeshott’s Bill is arguably unlikely to succeed because it essentially simply proposes to expand the Government’s criterion (that it be in the national interest) to include only countries that are party to the Bali Process. This includes both Malaysia and Nauru but also includes countries like Iran, Iraq, China, Syria, and Afghanistan, to name a few.

To this end, it is perhaps relevant to note that though Ministers attending the Bali Process in March 2011 agreed to a ‘Regional Cooperation Framework’ or RCF to reduce irregular movement through the region, this framework simply consists of five broad ‘core principles’ and not too unexpectedly, is non-binding in nature. Similarly, States that choose to implement the framework through practical arrangements (such as Australia proposed to do with Malaysia) need only be ‘guided’ by certain considerations such as ‘arrangements should promote human life and dignity’. If the Opposition had doubts about the way in which the Government’s non-binding Malaysian Arrangement would operate, then it is doubtful their concerns for the treatment of transferees is likely to be abated by enabling transfers to any and all of the 44 or so countries that are party to the Bali process—even if doing so fits within the broad aspirations of the RCF.

But that is not to understate the importance of the Bali Process, the RCF or regional cooperation on addressing the problem of irregular movement more broadly. For example, one of the most significant developments to arise since agreement to the framework was reached is the possibility that a Regional Support Office (RSO) might be established in South East Asia. An RSO is being promoted by the United Nations Refugee Agency (UNHCR) to ‘promote responsibility sharing through information and ‘good practices’ exchanges, capacity building and training, pooling of common technical resources and, if required, actual support with managing particular situations’. If this idea gets approval from Australia and Indonesia, the office is likely to be funded by Steering Group Member States (Australia, Indonesia, New Zealand and Thailand) and others. However, it remains to be seen whether the RSO will get off the ground and whether the operationalisation of the RCF at the sub-regional level will succeed in supporting and strengthening practical cooperation on refugee protection and international migration in the Asia Pacific region.

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