Predictably all the media pundits are viewing the High Court decision through the prism of “politics of sport” and not taking pause to consider how the matter of continuing boat arrivals should be handled. It’s always been difficult to have any reasonable public discussion of options because the opposition and the former Howard government have been so successful in demonising boat-arriving asylum seekers and Labor, from Beazley onwards, have never had the courage to stand up to them and follow a humane rather than a punitive policy (although Rudd’s initial policy until he was panicked by Abbott wasn’t too bad).

It seems to me that there are only really two long-term options for handling asylum seekers who arrive by boat:

1. Accept that they will continue to arrive by boat and treat them pretty much like those who arrive by air, i.e. let them live in the community until their claims are finalised. The difference would be that they should probably be detained initially for health, ID and some level of security checking.

The current approach of detaining everyone until their claims are finalised is expensive, bad for the mental health of detainees and does not have any of the deterrent effect it is supposed to have.

Nauru and TPVs are no alternative, despite Scott Morrison’s constant destructive and ill-informed rabbiting on about them.

The Nauru solution may be ruled out by the High Court decision (so for those saying the Labor is incompetent in proposing the Malaysia solution should give pause for thought that this ruling may have made against the Nauru solution in the Howard era if a challenge had been mounted along these lines). Nauru was never a deterrent to boat arrivals and it had the same role in the scheme of things that Christmas Island does now. Whether it is a signatory to the UN Convention is irrelevant as the government of Nauru had no role, and would not have a role under a Coalition government in processing asylum seekers. It was/would be purely an Australian government operation, possible with the fig-leaf of IOM (International Office of Migration) administration. Nauru was never a deterrent to boat arrivals and the vast majority ended up in Australia anyway.

TPVs are not a deterrent and they are inhumane. Because they only grant a three-year stay with no certainty of being extended, they do not allow holders of the visa to get on with their lives. The Howard government TPV also denied holders access to English classes but expected them to go and get a job and “pull their weight”. They were punitive, bad for mental health but in the end no deterrent.

TPVs also do not allow family reunion and in that regard they actually lead to greater numbers coming by boat. It is common practice for one male member of a family, a person who is considered able to travel relatively safely on their own (this includes those coming as minors) to come to Australia, obtain refugee status and then sponsor their family who follow them out by air with humanitarian visas issued offshore.

When families are denied the option of safe family reunion, then they hop on boats as well. With the previous Nauru solution, there was the farcical and disgraceful situation that the families of men already living in Australia on refugee visas had to apply for refugee visas in their own right because the government was not prepared to acknowledge that they were coming to join a family member who already had the right to live in Australia.

Coming to Australia by boat will continue people smuggler activity. But if it is accepted that people will continue to come that way, then the government needs to consider whether it is a good idea to continue to prosecute the hapless Indonesian fishermen who earn some much-needed income providing the ferry service.

2. The other solution is to attempt to process refugee applications before asylum seekers get on boats. The logical place to do this is Malaysia. Malaysia is the point of entry in south-east Asia for travel to Australia. Those seeking to coming to Australia can get into Malaysia quite easily. Anecdotally (because I don’t know for sure the extent of this) many asylum seekers spend quite a long time in Malaysia and I am aware that at least some of them work, possibly illegally.

I assume that the government’s decision to return those who arrived by boat to Malaysia was an attempt to stop future boats arriving by sending the boat arrivals back whence they came and then increasing the number of refugees it takes from Malaysia.

It has been pointed out elsewhere that there are refugees in Malaysia who have been waiting many years for a country to offer them resettlement and that is the nub of the issue really, the sheer numbers, the millions, of refugees and asylum seekers waiting in other countries hoping that a wealthy country will offer them a place to live.

I assume that the rationale of the Malaysia policy was that the Australian government would work with the UNHCR in Malaysia to identify those in most in need of resettlement rather than those who, to use a Howard government term that I don’t like, “self-selected” and got on a boat.

Possibly there is a place for a combination of both solutions, as John Menadue has argued elsewhere: deal with those who arrive by boat in a humane rather than punitive fashion, but work with countries in the region to work out ways of trying to stem the numbers, including through more offshore processing.

Peter Fray

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