Refugee deal a boatload of grief

Julia Gillard. Photo / Getty Images

Australian Prime Minister Julia Gillard is coming under increased fire over her plan to send asylum seekers - including unaccompanied children - to Malaysia in a bid to ease the political problems facing her fragile minority Government.

A copy of the draft agreement between the two countries appears likely to instead add to her difficulties, revealing Malaysia's refusal to accept human rights provisions and reserving the right to treat asylum seekers under its own laws. These include beatings by cane, a punishment that has been used against detainees in existing centres.

Gillard's proposal already flew in the face of her own fundamental requirements for a nation to host her proposed regional facility for asylum seekers, essentially a modified version of former Prime Minister John Howard's "Pacific solution" of detention camps in Nauru and Papua New Guinea.

While rejecting Opposition criticisms and maintaining that any host country must be a signatory to the United Nations refugee convention, her officials are in advanced negotiations with Malaysia, which is not party to the convention.

And while Gillard has also insisted that asylum seekers processed under the deal would be accorded full human rights protections, the draft agreement obtained by ABC television's Lateline programme shows that Malaysia rejects any such provisions.

Malaysia, which also has not ratified UN human rights or torture conventions, removed all references to human rights from the draft.

Gillard's credibility rests heavily on her ability to reach an acceptable solution to the boatloads of asylum seekers arriving from Indonesia, choked off by Howard's draconian laws but resumed since Labor's return to power in 2007.

Like Howard, Gillard has continued the policy of compulsory detention on territory legally excised from Australian immigration law and, even after easing Howard's measures, is committed to a tough line against the boats.

But while the Government denies any linkage between its more humane approach to the issue and the steadily increasing number of boats intercepted on their way to Australia, the major detention centre on Christmas Island is overcrowded.

Detainees have been sent to mainland Australia amid violent protests, self-harm and hunger strikes in the centres.

Gillard's problems have been compounding since her failed bid to establish a regional centre in East Timor - or to even raise enthusiasm for potential partners in the region - and appear likely to soar again.

Under the yet-to-be-finalised deal, Malaysia would accept 800 Australian asylum seekers in return for Australia taking 4000 of its refugees.

The documents obtained by Lateline show Malaysia is taking a tough line, including its rejection of human rights clauses and insisting on the right to both pick which asylum seekers it will accept and to subject them to Malaysian law.

Malaysian amendments to the draft agreement said it would accept only detainees of which it approved, and rejected any intervention by the UN refugee convention.

"The treatment of the transferee while in Malaysia will be in accordance with the Malaysian laws, rules, regulations and national policies," the document said.

Immigration Minister Chris Bowen's response, that the documents were just a draft and the agreement was "a work in progress", have failed to quell criticism, especially the confirmation that unaccompanied children would be among those sent to Malaysia.

"You need to send a strong message," he told the ABC.

"I don't want children getting on boats to come to Australia thinking or knowing that there is some sort of exemption in place." "I never want to go through, and I never want our nation to go through, what we went through in December and in the months following burying children as a result of a boat accident," Mr Bowen said.

"It is inevitable that will occur again unless we break the people smugglers' business model."

But Refugee and Immigration Legal centre co-ordinator David Manne told the ABC that Bowen was the legal guardian of those children under United Nations conventions, yet nine at present on Christmas Island risked being sent to the "brutality" of Malaysian detention camps.

"Malaysia is really pushing back very hard," he said.

"They are really seeking to avoid any clear or concrete commitment to meeting international human rights or refugee standards."

The UN High Commissioner for Refugees has also expressed concern at the deal, and Opposition leader Tony Abbott said Gillard had lied about the agreement.

"Yet again the Prime Minister has told fibs," Abbott told Channel Nine.

"She said Malaysia would have no say over who went as part of the 800. Plainly Malaysia will have a veto.

"She also said the human rights of these people would be respected and yet the two words that Malaysia wants to take out of the agreement, two minor little words, are 'human rights'."