Facts about the Malaysia solution

Does the Gillard government's proposed "Malaysian solution" for asylum seekers place us at risk of violating our international obligations?

Under the agreement, Australia will send 800 asylum seekers who arrive by boat to Malaysia and in return will accept 4000 refugees certified by the United Nations High Commissioner for Refugees (UNHCR). Refugee law expert Professor Jane McAdam, Director of UNSW Law's International Refugee and Migration Law Project, explains Australia's international refugee obligations to The Conversation.

"Australia has obligations primarily not to return anybody to a place where they would face persecution or other forms of serious harm such as torture or cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life.

"This requires, at a bare minimum, the assessment of individuals' international protection needs.

"In other words, before sending an asylum seeker anywhere else, States must ensure that this will not result in them being subjected to these forms of serious harm.

"The problem with the proposed Malaysian Solution is that we seem to have a blanket designation of Malaysia as a safe country to which people can be sent. Putting aside for one moment the question of whether we should be engaging in a regional framework of this nature at all, my primary concern is that we ought to be conducting a case by case determination of whether Malaysia is a safe place to send particular individuals. That's what our non-return obligations oblige us to do.

"What I would say is that Australia's non-return (non-refoulement) obligations under human rights law - the duty not send people back to torture or cruel, inhuman or degrading treatment or punishment, or to arbitrary deprivation of life -has not yet been implemented into domestic law.

"Australia is therefore at risk of breaching its obligations precisely because it does not systematically examine on a case by case basis whether people have a risk of such treatment if they are removed from Australia. This needs to be assessed not only with respect to their removal to their home country, but also to Malaysia (or any other country to which their removal might be proposed)."

Read Professor McAdam's full explanation at The Conversation.