Malaysian Solution

10.06.2012 - Sydney

Farid Farhangfar 

   Introduction

In the extracts presented, Leaders of the Labor and Liberal parties present different arguments as to the effect of the Malaysian solution. The Labor government argues that the effect of Malaysian solution is to stop people smuggling and help genuine refugees.  The Liberal party argues that the Malaysian solution would lead to human rights abuses. This essay will do five things. First, it will provide a summary of key arguments. Second, it will provide an analysis of the key factual claims. Third, it will consider the political, economic and social claims made by each party. Fourth, it will analyse the legal claims and assumptions. Finally, this essay will outline my own views about the extracts and possible alternative solution will be presented. 

Summary of Key Arguments and Identification of Fallacies

The Labor government argues that the “Malaysian solution is a ground breaking arrangement to combat people smuggling and provide protection to an additional 4,000 genuine refugees.”  They further state that the arrangement between Australian and Malaysia will stop the people smuggling business and protect people who risk their life at sea.

The Labor argument does not provide any evidence in support of their claim to say that the Malaysian solution can stop people smugglers. Labor also relies on a formal fallacy. In Labor’s argument the premise is that “The Australian and Malaysian government today signed a groundbreaking arrangement.”  Here the premises might provide some weak support for the conclusion that the arrangement will “combat people smuggling.” However, the conclusion is not particularly true as there is no evidence.

Moreover, the Labor government in order to justify their arguments use emotive language such as “human misery.” This can be identified as an appeal to pity. The Labor government is appealing to the people of Australia to feel pity for genuine refugees hence supporting the conclusion that signing the Malaysian solution will end people smuggling.

The argument put forward by the Liberal party is that “the Malaysian solution is another betrayal by the Prime Minister.”They make this argument because that the Labor government had previously denounced similar polices put in place by the Howard government and this solution is more brutal then that and is a broken promise.  Furthermore, the Liberal argument is that Malaysia is not a signatory country to the Refugee Convention; therefore sending asylum – seekers to Malaysia may lead to human rights violation.

The Liberal Party argument is also formal fallacy. In the extract given by Liberal party the argument is that Malaysia hasn't signed the Refugee Convention and, as a result refugee may face human rights abuses. The Liberal extract seems to be presenting their argument as a valid deductive argument, the conclusion that the refugees will face caning, follows necessarily from the premises that this will happen because Malaysia has not signed the Convention. One can claim that this argument is not supported by evidence to make it a valid deductive argument; therefore this is a formal fallacy.

Additionally, the Liberal Party uses Ad hominem argument. In the extract the Liberal Party states that “Malaysian solution is another betrayal by the Prime Minister and it’s a broken promise.”  The Liberal extract gives the impression that by attacking the bad character of the Prime Minister they are able to attack the substance of the Labor party position in relation to the Malaysian solution. It demonstrates that the Liberal party is using a political trick to distract the people from the real issue and by making them emotional, gain their support. 

Analysis of Factual Claims and Assumptions

On 25 July 2011, the Australian and Malaysian governments signed an arrangement on the transfer and resettlement of certain persons seeking international protection for refugee status determination. This Arrangement was first introduced by the Prime Ministers of Australia and Malaysia in a joint statement presented on 7 May 2011.

It was acknowledged that the aim of the Arrangement could not be reached by countries alone and this required countries forming cooperative arrangements under the guide of regional and international frameworks. However, there are criticisms of this arrangement not being entered into in the spirit of international or regional cooperation, but rather as a deterrent to asylum seekers who are exercising their legitimate rights under International Law to the freedom of movement in order to seek asylum.

The Liberal extract is critical of this arrangement on the basis that Malaysia has not signed the Refugee Convention and that they have no intention of signing the Refugee Convention. The Liberal extract also makes an assumption that as Malaysia has not signed the Refugee Convention that this may lead to human rights abuses.

In my opinion there is some basis for the Liberal argument that there may be issues of concern if Malaysia is not a signatory country to the refugee convention. The Monash University Castan Centre for Human Rights Law made submissions to an Inquiry into the arrangement and they found that there are a significant number of persons of concerns to UNHCR who remain unregistered. According to refugee communities’ estimation the number of unregistered refugee and asylum seekers amount to about 10,000 persons. If this is the situation then there is a risk that if more asylum seekers are sent to Malaysia, they will not be processed correctly in line with UNHCR requirements and fall into the large pool of unregistered asylum seekers.

Consideration of Ethical, Political or Economic Ideas

The Labor government can be seen to be utilising the utilitarianism idea. Labor’s intention in introducing the arrangement has the effect of maximising the wellbeing of all those affected by the arrangement. First of all by combating people smugglers, secondly deterring asylum seekers from risking the journey of travelling by sea and finally by allowing Australia to have a formal process of managing Asylum seeker claims. However, this can be seen to be at the expense of genuine refugees who are desperate to seek asylum from their country of origin. The arrangement would be more ideal under the utilitarianism model, if Australia elected a country that will protect asylum seeker rights. However, as Malaysia is not a signatory to the Refugee Convention this creates concerns.

Despite this, the Labor government is spending quite a lot of money, time and resources to implement the Malaysia solution to respond to the concerns of the public and the opposition parties. But by looking at the empirical facts, and the reality of the Malaysia solution, one can see that Labor has not really considered the moral judgment of their decision.

Furthermore, it would be more effective if Labor considers the moral aptitude of any country that they send asylum seekers to. If Labor applies the principles of universalisability then they should consider agreements with countries that have the same moral ground as Australia.

In considering the political situation, it appears that recent governments, including Labor are focusing more on blocking access to asylum seekers. This situation can be observed throughout the history of Australia through such policies as the White Australia Policy and more recently the Tampa affair of August 2001 where Australia militarily barred entry of refugees into Australia. It is clear that Labor is seeking to restrict access due to the increase of the business of people smuggling and unwanted arrivals. But by taking this approach they have forgotten their ethical and legal obligations at the national and international level.

Although Australia is blocking access to asylum seekers they are supporting the globalization of the economical life by seeking to bring in wealthy international investors. This can be seen as a form of discrimination where wealthy people are granted easier access; however people who are poor face more challenges and restrictions to movement. This is an injustice to those who truly require asylum but are denied in the face of wealth.

Analysis of Legal Claims or Assumptions

On 31 August 2011 the High Court of Australia ruled the Labor government Malaysian solution invalid, restraining the government authority to send refugees to Malaysia. The legislation considered by the High Court was the Migration Act, Particularly Section 198.

Section 198 of the Migration Act was enacted shortly after what is known as the “Pacific Solution”.  On 26 August 2001 the Australian government deployed SAS troop to remove asylum seekers from a container ship to HMAS Manoora for transportation to Nauru. The intention of the government was to remove asylum seekers from Australia’s shores and to have them processed in another country. The government of Australia thereafter formally agreed with the Nauru government that for payment of $10 Million from Canberra, Nauru will detain up to 1200 people at a time. In order to bring legal support to the “Pacific Solution” section 198 of Migration Act came in to force on 27 September 2001.

On the second of October 2001, Nauru was declared as a specified country under section 198 of the Migration Act. It is relevant to consider that at the time Nauru was not a party to the refugee convention and nor did its domestic law make any reference to refugees or asylum seeker under International Law. This is also the situation with Malaysia as a country. Chief Justice French of the High Court made a judgement that “The invocation, in 2001 of s 198A to support a declaration in relation to the Republic of Nauru shortly after an agreement had been entered into between Australia and Nauru, cannot determine the construction of the section.” This is a positive step by legal justice system in learning and growing forward from previous experiences. 

The High Court of Australia has now determined the proper construction of section 198 of the Migration Act. The court has found that a specified country must be one that provides access to certain procedures and also provides protection in line with the kind of access and protection that Australia undertook when it signed the Refugee Convention and Refugee Protocol.These procedures and protection should either be found in the domestic law of the specified country or the specified country should be bound by international obligations to ensure certain procedures and provide protection.

In respect of the position of Malaysia being a specified country under section 198, the High Court has found that Malaysia does not provide the access or protection required by the section and as such it was not open to the Minister of Migration to declare Malaysia as a specified country. The High Court found that the following issues with Malaysia’s ability to provide effective procedures and protection:

1.      Malaysia does not recognise the status of refugees or have a process for determination of the asylum seekers;

2.      They have not signed the Refugee Convention or the Refugee protocol;

3.      There is no legally binding arrangement with Australia obliging Malaysia to provide protection.

With respect to the High Court decision the Court ordered that it was not open to the Minister to declare Malaysia as specified country for the propose of the section 198, hence making the arrangement Australia and Malaysia invalid.  This is a positive step for Australia in managing and meeting the international obligations in relation to asylum seekers. Even if in the future the Australian government want to send asylum seekers to another country this decision at least ensures that such country will have proper access and protection of rights for asylum seekers.

 Considered Thoughts and Proposals

It seems that the Labor party is trying to find any possible way to stop asylum seekers entering Australia’s shore, by introducing such measures as the Malaysian solution. However, they have faced opposition from all angles. Political pressure from the Liberal party, legal pressure through the recent High Court Decision and ethical pressures arising from Australia’s international obligations.

Labor and Liberal parties have been debating over the controversial issue of asylum seekers for many years, yet neither party has been able to present a workable solution to the issue of asylum seekers. Prior to Labor introducing the Malaysia Solution, the Liberal government also had introduced ineffective arrangements, such as the “Pacific Solution”. If the political parties are truly concerned about the national interest, territorial integrity of Australia and the plight of asylum seekers, they need to work together to bring a positive reform for a permanent solution.

There is a need for a new perspective and a renewed approach to dealing with asylum seeker issue. By learning from history, appreciating the principles of the Refugee Convention and considering the social sphere that we live in, we need to move beyond borders which create discriminations between the rich and the poor. By removing borders we create a global backyard where we are all global citizen who have the right to move where we wish around the world. It has been said that “Without the right to live securely with full political and social rights, democracy itself is meaningless.”In order to reach a permanent solution for asylum seekers issue, following suggestions are made: 

Labor and Liberal party to show tolerance and togetherness to bring about positive reform through sharing ideas and not negatively criticising each other for political gain. By learning from the experiences of other countries that have successful processes in place for processing of asylum seeker claims and have effective protection measures for asylum seekers.

Conclusion

Both Labor and Liberal rely on fallacies in the extracts and use a play on words to progress their key arguments. The parties make a number of factual and legal claims and assumptions in the extracts. However, these are not supported by any solid evidence in support of their argument. This essay has looked beyond the extract to provide a critical analysis of the factual and legal claims and has referred to the history of asylum seeker policies, and recent High Court decision. Ethical, political and economic issues have been considered. The essay end with proposals for the future of asylum seeker claims in Australia and globally.

References:

 Chris Bowen MP Minister for Immigration and Citizenship, Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement (25 July 2011)

Michael Head and Scott Mann, Law in Perspective: Ethics, Society and Critical Thinking (UNSW Press, 2nd ed, 2009)

Monash University Castan Centre for Human Rights Law, Submission to Inquiry into the agreement between Australia and Malaysia on the transfer of asylum seekers to Malaysia, Monash University (15 September 2011)

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011)

Prime Minister of Australia the Hon Julia Gillard MP, Australia and Malaysia sign transfer deal (25 July 2011)

Tony Abbot Federal Member for Warringah Leader of the Opposition, Joint Doorstop Interview, Shute Harbour, QLD (25 July 2011)