36
the government‟s inadequate rescue response.
137
Gillard immediately responded to the crash by reviewing the asylum seeker policy.
On 25 July 2011, Gillard announced Australia and Malaysia were signing a bilateral agreement to swap 800 boat people for 4000 confirmed refugees waiting
in Malaysia for resettlement.
138
This bilateral proposal was called the „Malaysia Solution.‟ However the „Malaysia Solution‟ posted a serious challenge to the
Gillard government. Refugee advocates reacted by calling Malaysian Solution a „rebadging of the Pacific Solution‟,
139
as „reference‟ to the former Howard governments controversial asylum policy.
140
Meanwhile Gillard denied her Malaysian Solution was similar to the Howards Pacific Solution because it did
not adopt a „unilateral Australian approach‟.
141
She insisted this was a regional solution to resolve the regional challenge.
142
On 31 August 2011, the High Court concluded that the Malaysian Solution was illegal.
143
The High Court held that the Malaysian Solution contradicted section 198a of the Migration Act 1958 Cth,
144
because Malaysia was not party to the UN Refugee Convention 1951 and had no legal obligation to
protect asylum seekers. The High Court found that this was an essential violation
137
Ibid.
138
Gillard Announces Malaysian Solution. The Sydney Morning Herald. May 7, 2011. Available at: http:www.smh.com.aunationalgillard-announces-malaysian-solution-20110507-1ed0h.html, accessed in
the 20
th
of October 2014.
139
Report Seeks to Break Australian Impasse over Asylum Seekers. CNN World. August 13, 2012. Available at:http:www.cnn.com20120813worldasiaaustralia-asylum-houston-reportindex.html, accessed in the
20
th
of October 2014.
140
Ibid.
141
Gillard Announces Malaysian Solution. The Sydney Morning Herald. May 7, 2011. Available at: http:www.smh.com.aunationalgillard-announces-malaysian-solution-20110507-1ed0h.html, accessed in
the 20
th
of October 2014.
142
Ibid.
143
The High Court Decision on the Malaysian Solution. ABC Canberra. November 25, 2011. Available at:http:www.abc.net.aulocalstories201111233374312.htm, accessed in the 20
th
of October 2014.
144
Ibid.
37
of Migration Act principles, and as such, the Malaysian Solution was a contravention of Australian law.
145
B. The reopening of offshore processing facilities in Nauru and Manus
Island in 2012
The decline of the Malaysian Solution triggered Gillard to reopen the offshore processing facilities in Nauru and Manus Island. The proposal was
recommended by a panel of experts. Unlike the Malaysian Solution, the majority in Parliament fully backed the p
roposal to revisit Howard‟s offshore processing facility this time.
146
The Immigration Opposition spokesman, Scott Morrison said, „....the Coalition is willing to support legislation to open the offshore centers in
Nauru and Manus Island.‟
147
It drove the Gillard government to pass the proposal. These facilities were established with a Memorandum of Understanding
between the Governments of Nauru and Papua New Guinea. Asylum seekers who arrive on boats will be sent to Nauru and PNG. Family reunion rights would also
be removed.
148
Without these rights, Australian government prevented „boat people‟ from sponsoring family members to reunite with them in Australia.
149
The
145
Ibid.
146
Government to Re-Introduce Offshore Processing. ABC News. August 14, 2012. Available at: http:www.abc.net.aunews2012-08-13government-to-re-introduce-offshore processing4195900, accessed
in the 23
th
of October 2014.
147
Ibid.
148
Offshore Processing of Asylum Seekers Could Begin Within Months, PM Says. News. August 15, 2012. Available at: http:www.news.com.aunationaltent-cities-for-new-refugeesstory-fndo4eg9-1226449752006,
accessed in the 23
th
of October 2014.
149
Ibid.
38
Australian Government announced the relocation of asylum seekers to Nauru Manus Island would resume in November 2012.
150
Under the re- establishment, Gillard‟s government created a „no advantage‟
principle. The Gillard‟s Minister for Immigration, Tony Burke, underlined that every „boat person‟ who arrived to Australia after 13 August 2012, will endure „an
indefinite period‟ before and after being recognized as refugees.
151
Hence, this principle provides asylum seekers who were sent to Nauru and Manus Island a
slow and long process for the United Nations High Commissioner for Refugees UNHCR to assess their claims.
152
The Panel Experts believed that a ‟no-
advantage‟ principle should deter boat people to come to Australia since it won‟t benefit them.
153
On the other hand, the panel also recommended Australia to increase the humanitarian intake of refugees from 13,750 a year to 20,000, rising to 27,000
over five years.
154
This would be a „reward‟ given by the Australian government for those who apply for a visa through regular immigration channels.
155
These
150
The Truth about Manus Island: 2013 Report. Amnesty International. December 11, 2013. Available at: http:www.amnesty.org.aurefugeescomments33587, accessed in the 23
th
of October 2014.
151
“No Advantage” is the Maximum Disadvantage for Boat Arrivals. Refugee Council of Australia. November 21, 2012. Available at: https:refugeecouncil.org.aunmr121121_noadvantage.pdf, accessed in
the 23
th
of October 2014.
152
Australia‟s Ship Wrecked Refugee Policy. The Monthly. Available at: http:www.themonthly.com.auaustralia-s-shipwrecked-refugee-policy-tragedy-errors-guest-7637, accessed
in the 23
th
of October 2014.
153
No Advantage? Nobody Knows What that Means. Crikey. September 13, 2012. Available at: http:www.crikey.com.au20120913no-advantage-nobody-yet-knows-what-that-means, accessed in the
23
th
of October 2014.
154
Australia to Deport Boat Asylum Seekers to Pacific Islands. The Guardian. August 13, 2012. Available at: http:www.theguardian.comworld2012aug13australia-asylum-seekers-pacific-islands, accessed in the 23
th
of October 2014.
155
Ibid.
39
changes to asylum policy were an attempt to establish a „regional protection framework.‟
156
Unfortunately, the „no advantage‟ principle was ineffective in reality.
157
The policy has not been implemented for nearly a year since its publication. Scott
Morison, Opposition immigration spokesman, admitted that the Gillard government had failed to provide a clear explanation about the policy.
158
More than 20,000 refugees who have arrived in Nauru since August 2012 lived with no
clarity about how long they should wait.
159
Furthermore, the confirmed refugees are not allowed to work in the community until 2017 and will receive only 89 of
unemployment benefits.
160
The Prime Minister defended the governments „no advantage‟ principle after the Coalition‟s remark on the issue.
161
Tony Burke responded,
„....Questions around the length of time asylum seekers would wait, and how the policy would be implemented, had not yet been resolved.‟
162
The re- establishment of „offshore facilities‟ has not indicated any deterrence
effect. In fact, approximately 30.000 illegal boat arrivals came to Australia soil
156
Escaping the Politics of Australia Asylum and Border Policy: Escaping the Duelling Paradigms. University of Toronto. October 15, 2014. Available at: http:asiapacific.anu.edu.auregarding-rights20141015the-
politics-of-australian-asylum-and-border-policy-escaping-the-duelling-paradigms, accessed in the 23
th
of October 2014.
157
Red Cross Appeals to the “Better Hearts”of All Politicians Over Refugee Policy. The Guardian. June 25,
2013. Available at: http:www.theguardian.comworld2013jun25red-cross-asylum-seeker-policy, accessed in the 23
th
of October 2014.
158
Gillard Defends Asylum “No Advantage” Test. ABC News. October 19, 2012. Available at: http:www.abc.net.aunews2012-10-19gillard-defends-asylum-no-advantage-test4323616, accessed in the
23
th
of October 2014.
159
Ibid
160
Ibid.
161
Ibid.
162
„No Advantage‟ Asylum Policy Needs Explanation: Minister. The Sydney Morning Herald. July 9, 2013. Available at: http:www.smh.com.aufederal-politicspolitical-newsno-advantage-asylum-policy-needs-
explanation-minister-20130709-2pnlw.html, accessed in the 23
th
of October 2014.
40
since the re-establishment.
163
Morrison warned the government about the use of Bridging Visa.
164
Bridging Visa could not worked as deterrence. Instead it ruined the government, since it tempted more asylum seekers to try to reach Australia by
boat.
165
More likely, the Labor‟s asylum policy failed to slow asylum boats.
C. Critiques from international human rights organizations
The re-establishment of offshore processing facilities drew condemnation from human rights groups. In November 2012, Amnesty International inspected
the Nauru Offshore Processing Centre OPC and then visited Manus Island OPC in November 2013.
166
During these inspections, Amnesty International found that detention at both centers constituted „cruel, inhuman and degrading
punishment.‟
167
There were appalling conditions and a lack of adequate basic needs such as access on water and electricity. Those findings were similar with
the previous conditions of offshore processing in 2001. Apparently, the re- establishment continues to breach Austra
lia‟s international obligations on human rights.
Amnesty International also echoed huge concerns relating to the adequacy and propriety of child asylum seekers. On the offshore processing facilities, many
children were separated from their families. The separation from a parent or
163
Australia‟s Ship Wrecked Refugee Policy. The Monthly. Available at: http:www.abc.net.aunews2012- 11-21first-asylum-seekers-arrive-on-manus-island4383876, accessed in the 23
th
of October 2014.
164
Ibid.
165
Australia‟s Ship Wrecked Refugee Policy. The Monthly. Available at: http:www.abc.net.aunews2012- 11-21first-asylum-seekers-arrive-on-manus-island4383876, accessed in the 23
th
of October 2014.
166
Submission to Australian Human Rights Commission National Inquiry into Children in Immigration Detention. Amnesty International Australia. May 30, 2014. Availablet at:
https:www.humanrights.gov.ausitesdefaultfilesSubmission20No201572020Amnesty20Internati onal_Redacted.pdf. Accessed in the 7th of December 2014.
167
Ibid.
