The Regional Settlement Arrangement with Papua New Guinea. John Menadue

Jul 20, 2013

With some reservations I support the general thrust of the RSA with PNG. I do that largely for the same reasons that I supported the earlier proposed agreement with Malaysia.

The RSA is in PM Rudd’s words ‘a hard line’ but I see it as the least worst option given the present intractable political impasse and the 850 souls who have been drowned at sea. Where were their human rights?

The arrangement does offer the prospect of slowing or stopping boat arrivals whereas the revamped Nauru policy did not. Nauru was never going to work a second time because even after the ‘no-advantage test’ and delays in processing, persons knew that in going to Nauru they would finally finish up in Australia or New Zealand. Now they will be resettled in PNG. Furthermore Nauru as an island state a long way to the east would never be part of a regional solution.

I supported the Malaysian agreement because it offered at that time the best prospect of building a regional arrangement. This has always been and remains for me the only sensible way forward. Furthermore UNHCR was prepared to work with Malaysia and Australia on the agreement.  I had several reservations about the agreement, including the cap on numbers, penalties and the risks to children. It seems that these concerns have been addressed in the RSA with PNG.

What is important is not where processing occurs, but is it humane, fair and efficient.

In the submission that Arja Keski-Nummi (former First Assistant Secretary, Refugee, Humanitarian and International Division of the Immigration Department) and I made to the Expert Panel on asylum seekers in July 2012, we said.

Offshore/Regional Processing

While the High Court ruled against the agreement with Malaysia there remains a place for considering the regional processing of asylum seekers….   

In 1998, UNHCR at its Executive Committee (ExCom) envisaged the possibility of transferring people from one state to another for processing and made the following conclusion:

 No.85 (XLIX) : stresses that, as regards the return to a third country of an asylum seeker whose claim has yet to be determined from the territory of the country where the claim has been submitted, including pursuant to bilateral or multilateral readmission agreements, it should be established that the third country will treat the asylum seeker(s) in accordance with accepted international standards, will ensure effective protection against refoulement, and will provide the asylum seekers with the possibility to seek and enjoy asylum.

 The High Court found the agreement with Malaysia could not be upheld because Malaysia:

 1. was not a signatory to the refugee convention,

2. did not have in place a system of refugee status determination,

3. did not have in law guarantees against non-refoulement, and

4. did not give people some legal status while on their territory. 

 In short it could not be found to provide Effective Protection. 

 If new agreements in the region were to be considered the key issue to tackle would be the question of effective protection.   For example, it could be made explicit that a person has Effective Protection if: 

  • people were given a legal status while they are in a transit country  
  • people had access to other rights such as work – supporting  livelihoods, education for children etc.
  • people could access a refugee determination process either within the legal  jurisdiction of the state or by UNHCR
  •  were not detained  and
  • the principle of non-refoulement was honoured

If a country is willing to enter into an agreement with these provisos then effective protection could be said to have been achieved. 

 However the complexities of such an agreement would need to be negotiated and would demand careful assessment of the legislation required to bring this into effect. …

 Bali ministers have endorsed the concept of states exploring such arrangements. These opportunities should be pursued, not to “stop the boats” although no doubt that is the desire of many, but if done well have the potential to start the process of building a durable protection system in the region – one in which the protection outcomes for all asylum seekers can be significant…

 New initiatives are always controversial.  The Comprehensive Plan of Action for Indo Chinese Refugees (CPA) while today seen as a model of regional cooperation at the time was not without its critics. Host governments’ commitments to providing a protection space in the region were tested, resettlement countries’ commitments were regularly questioned, UNHCR was moving into unchartered territories particularly in the way it was to engage with Vietnam and in redefining its mandate. NGOs and powerful lobby groups were not happy. 

 If we are ever to achieve a regional cooperation framework it will take a considerable time and we need to work with what is available now step by step, difficult as these may be. (The full submission can be found on my web site. See below. Click on refugees etc.)

At the press conference following the announcement of the RSA, the Australian Attorney General said ‘This arrangement will be entirely in accordance with Australia’s international and domestic law obligations. PNG is of course a signatory to the Refugee Convention and, as has been indicated by both prime ministers, PNG is going to withdraw the reservation that it had to the Refugee Convention in respect of people who are to be transferred from Australia. What that means is that all people transferred to PNG will have the full benefit of the rights that come to them under the Refugee Convention.’ (end of quote)

It is to be hoped that this serves to address the High Court’s concerns. The earlier decision by the High Court and the subsequent parliamentary impasse was in my view a major setback for regional cooperation.

The RSA is a bilateral arrangement which must become part of a framework of other regional arrangements. PM Rudd said that the RSA will be ‘part of our broader approach on regional cooperation arrangements’. We can’t ‘fix’ these problems on our own. There has to be burden-sharing as the arrangement with PNG is. This arrangement follows the announcement a few days ago that Indonesia will deny visa-free entry to Indonesia for Iranians.

The regional conference being called as a result of PM Rudd’s meeting with President Yudhoyono must urgently consider processing centres in other regional countries in association with UNHCR and on the understanding that resettlement countries such as Australia will increase their refugee intake.

Australia has already increased its humanitarian intake from 13,000 to 20,000 p.a. At his Brisbane press conference PM Rudd said that if progress is made on further regional discussions Australia would lift its intake again. The Expert Panel recommended that the intake be lifted to 27,000 over five years. I think it should be at least 30,000.

In his statement PM Rudd said that he had spoken with the UN Secretary General about the RSA with PNG. But he did not mention the UNHCR which must be a key player in the arrangement with PNG. It has the necessary experience and credibility.

There are a lot of important issues that must be addressed. What will happen in regard to family reunion of asylum seekers sent to PNG who have family in Australia? Will asylum seekers sent to PNG have appeal rights? Will they have work rights in PNG? Will they be detained in prison-like conditions similar to Christmas Island?

The Australian government must also urgently redouble its efforts to negotiate orderly departure programs with Afghanistan, Pakistan and Sri Lanka.

The Greens have called the RSA ‘a day of shame’. But the real ‘day of shame’ was when the Greens voted in the Senate with Tony Abbott’s coalition to strike down the enabling legislation which would have allowed a renegotiated Malaysian Agreement to proceed. Since that time there has been chaos and failure of refugee policy in Australia. The Greens must bear heavy responsibility for this. As Gough Whitlam said in a different context ‘Only the impotent are pure’.

The RSA has been obviously negotiated quickly. As PM Rudd said ‘many other steps lie ahead’. But this arrangement with PNG based on burden-sharing is a much more promising approach than the recent nonsense about amending the Refugee Convention and describing increasing number of refugees as really only ‘economic migrants’.

A key test for the RSA must be – does it provide effective protection?

The other key issue will be implementation.


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