Refugee law expert @madelinegleeson rejects claim MOU makes Manus asylum seekers PNG responsibility (Image via ABCNews24)

Peter Hughes, who negotiated the Transfer and Resettlement Arrangement with Malaysia, argues that as it was the lack of bipartisanship over the Malaysian solution that got us into this mess in the first place, it's time for creative bipartisanship over the Manus crisis. Now, that's "common sense"!

THE PAPUA New Guinea (PNG) Supreme Court decision and the announcement by the PNG Prime Minister that Manus will be closed only bring forward the inevitable — the Australian government has to find a way to get the current caseload of refugees and asylum seekers out of PNG and Nauru.

Realistically, the only option is Australia and New Zealand.

Think for a moment about the other possibilities.

A willing handful of refugees might just be able to stay in PNG and Nauru. But conditions are not suitable for most in PNG and there are too many to stay in Nauru relative to its population.

Those found to be refugees could possibly be resettled in a third country, but the only place that the government has found so far is Cambodia. Cambodia hasn’t worked because the refugees cannot be compelled to go there and they have chosen not to.

If there was somewhere else “acceptable”, it would have been found by now and the refugees would have moved there. Regional countries will be wary of helping out, given the propensity of Australians to drag them into our domestic disputes and make them the target of criticism for getting involved. The pressures of asylum seeker and refugee populations faced by many countries around the world mean that the price that Australia would have to pay (in whatever form) for any country taking even small numbers would be very high.

Those who have been found not to be refugees could return to their countries of origin. Some have done so, but there is no sign that any more will do that. The governments of PNG and Nauru will not compel them and some source countries will not co-operate in taking their own people back anyway. During the Howard Government’s period of use of the offshore processing centres, no one who was found not to be a refugee was returned involuntarily to their country of origin for exactly those reasons.

That only leaves Australia and New Zealand as destinations.

It was always going to be that way. Despite the rhetoric, the use of PNG and Nauru offshore processing centres was only ever a short-term option. The first time the Howard government did it, it was intended to last for only six months — events were to prove that this timeline was wildly optimistic. After voluntary returns to countries of origin had faded away and third country options became untenable except for a handful, Australia had to take the bulk of the refugees with New Zealand’s assistance.

The longer people are marooned in the centres, without any clear resolution of their future, the more risk of permanent damage to their mental health and well-being and the greater the hazard to the government and those administering the policy. The clock is now ticking very loudly.

The only question for the government now is the formula by which the people in PNG and Nauru are brought to Australia (and perhaps New Zealand). There are different ways this can be done, even if it involves only bringing people to Australia temporarily, at least initially. Creative thinking is needed within government on how this can be done and how it can be explained, given the entrenched positions taken so far. Different arrangements might be needed for those who are refugees and those who are not.

Options such as temporarily sending people to willing third countries, before bringing them to Australia, will no doubt be considered. It’s been done in the past for a handful of cases, but this would be very hard to orchestrate for such a large number of people. Keeping it simple is important.

The PNG government might be able to buy time until the Australian elections by creating an open centre and hastening slowly on its final closure. Transferring people to Nauru would at best be a messy stopgap.

Depending on the formula chosen by the Australian government, legislation might be needed. This is a case where positively applied bipartisanship is necessary.

Let’s not forget that lack of bipartisanship got Australia into this mess in the first place. The only reason that Manus and Nauru have been used for a second time is because the Coalition and the Greens conspired to defeat the Transfer and Resettlement Arrangement with Malaysia. Under that arrangement asylum seekers were not going to be in detention, but permitted to live freely in the community in Malaysia, while their refugee status was determined by UNHCR.

Whoever is in government at the end of July is going to have to fix this problem. Both parties just might have to cooperate to find a sensible way out.

Of course there are collateral rsks to the government’s broader border management strategy, but delaying the inevitable won’t make it easier to manage them.

Peter Hughes was formerly Deputy Secretary, Department of Immigration and Citizenship. He negotiated the Transfer and Resettlement Arrangement with Malaysia. He is is presently Visiting Fellow, Crawford School of Public Policy, ANU.

This article was published on John Menadue's blog 'Pearls and Irritations' on 28April 2016. It is republished with permission.

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