Australia’s High Court has thrown a legal spanner into the works of efforts to find a Southeast Asian solution to people smuggling. The court ruled Thursday that Canberra can’t transfer asylum seekers to Malaysia for processing because the country isn’t a UN signatory on the treatment of refugees, while Australia is.
The decision throws into doubt Australia’s ability to ring fence asylum seekers while their claims are being processed on Manus Islands in Papua New Guinea, and possibly Nauru.
Other countries, including Thailand, had also expressed an interest in following the Malaysian-Australian swap deal, while Canada and New Zealand were watching carefully as both countries also face the prospect of being targeted by people smugglers.
Under the ‘Malaysian Solution,’ 800 asylum seekers who arrived in Australian waters were to be transferred to Malaysia. The deal seemed generous, with Australia prepared to spend $325 million housing and caring for them to international standards over four years.
In return, Australia was to accept 4,000 recognized refugees. Malaysia has 92,000 refugees, and possibly millions more illegal immigrants, and has been upset by the United Nations and its patchy record on handling refugees in the country for the past 30 years. Ties between Australian and Malaysia, in contrast, have vastly improved in recent years, with tens of thousands of expats living in Malaysia. Children study in each other’s country, trade is booming and Malaysia is a cornerstone of the Association of Southeast Asian Nations.
Against this backdrop, refugees in Malaysia have made the best of their situation with little complaint after fleeing places like Burma and the conflict-ridden Southern Philippines. But they’ve been denied a home despite holding all the correct papers that identify them as legitimate refugees.
In Australia, the response to the High Court ruling was as expected. Right-wing opposition politicians crowed with delight, as did left-wing refugee advocates who are less concerned with the many outside their jurisdiction as opposed to the legalities of their chosen few.
Australia’s newspaper industry, largely controlled by Rupert Murdoch, also appeared pleased by the High Court decision, and appears set to exploit the verdict in its feud with the Labor government – brawling over controversial immigration policies is seen as a proven tonic for declining newspaper circulation figures, which like the Australian government’s popularity ratings, are near historic lows.
Politics aside, many feel the key point being missed is how best to provide adequate care for asylum seekers that doesn’t encourage the lucrative business of people smuggling. Given that people smugglers do cross oceans and transit through countries like Malaysia, Indonesia and Thailand, any policy response demands regional inclusion.
Malaysia may now find it prudent to revisit its relationship with the United Nations, although the ruling is a spanner in the works. Either way, the High Court’s decision won’t prevent the transfer of asylum seekers to Malaysia or anywhere else in ASEAN from international waters, and the idea that the ruling ends the prospects of finding a regional solution to an enormous international problem is nonsense.