It is being reported that the Australian government is close to finalising its controversial asylum deal with Malaysia. Under the original proposal — which may by now have been updated during negotiations between the two governments and UNHCR — 800 asylum seekers who have arrived in Australia by boat would be exchanged with 4000 of Malaysia’s already processed refugees.

The deal has been widely criticised, but the Australian government also deserves some credit. First, it is clearly taking seriously the increase in unauthorised boat arrivals in Australia over the past two years or so. There is a separate debate to be had about whether what are still relatively small numbers of boat arrivals really merit such a dramatic response, but clearly their political significance outweighs their numerical significance, and the government had to respond. It has responded within the law, and with the cover of UNHCR.

Second, the arrival of a further 4000 refugees would increase by about 50% Australia’s 2010 resettlement quota, taking it past Canada to be the second largest refugee resettlement country in the world. Third, it needs to be remembered that the Malaysia deal is one part of a more comprehensive policy response to unauthorised boat arrivals that also includes maintaining development assistance in conflict-affected countries, capacity-building in transit countries especially in South East Asia, and a raft of anti-smuggling measures.

None of this is to underestimate the criticisms: first, and most importantly, there are serious concerns about the prospects for the 800 asylum seekers who will be exchanged. Malaysia is not a signatory of the 1951 Refugee Convention, and thus not bound to respect principles such as non-refoulement that guards against refugees being returned home against their will. Human rights activists in Australia and Malaysia have expressed concerns about the detention of asylum seekers there, and the legal system for processing their claims. It is inconceivable that UNHCR has not insisted on some safeguards, for example regarding the exchange of children, and monitoring of those who do go to Malaysia.

Second, there is no guarantee that this policy will achieve its ultimate objective, which is to stop the boats arriving in Australia. For that to happen prospective asylum seekers need to know — and care — about the possibility that they may end up in Malaysia rather than Australia. And probably more importantly the smugglers who move them, who will certainly know about the policy, also need to care. If the policy has no direct impact on their businesses they are unlikely to.

Third, and this is important for a country such as Australia that trades on its international reputation for decency, the policy risks attracting serious negative international attention. Already some commentators have observed that Australia is swapping 800 mainly Muslims for 4000 mainly non-Muslims.

What this new deal is really about is trying to win back public confidence in the government’s ability to control its borders, without which the government cannot hope to introduce some of its more forward-looking and ambitious migration policies. But I have a feeling that the government may have underestimated the Australian public, whose distress at being associated with this deal may outweigh their concerns about unauthorised boat arrivals.

For sure Australians want the boats stopped, but probably not at the risk of human rights abuse in detention centres in Malaysia.

*This article was originally published on The Interpreter.