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Labor is all at sea on asylum seeker policy

By Dilan Thampapillai - posted Friday, 16 September 2011


At the risk of being told (yet again) to go back where I came from – it has been quite a while since I’ve been to Sydney’s leafy North Shore – I would like to express concern over Prime Minister Gillard’s proposed reinstatement of the Malaysia Solution. It is of course, very proper for a government to amend a piece of legislation to allow it to do something that it wishes to do after a court has pointed out that the legislation in its present form will not support its policies.

However, it would be naïve to think that the Opposition is simply going to fall into line with the Gillard Government. Why would Tony Abbott surrender his present political advantage by acceding to the Gillard amendments to the Migration Act? The most likely outcome will be the Greens and the Coalition blocking the amendments in the Senate. The Coalition and the Greens will express concerns about human rights in Malaysia and at least one of them will really mean it.

If this does happen it will offend a key ally in the region and just worsen the quagmire that Labor has found itself in on asylum seekers. The Malaysia Solution is really a muddled policy. It tips its hat to the voters who want the Government to be ‘tough’ on border protection by sending boat people to Malaysia. Yet it also tips its hat to people who want the Government to be more compassionate by taking in 4000 refugees.

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Unfortunately, the poor handling (again) of the politics and the law will just leave both camps deeply unhappy. The reverse of the policy in the High Court will, not have impressed the voters that wanted the Government to be tough. Nor will voters be happy if their concern is really with migration as a whole, with many more refugees coming in under the Malaysia Solution. The compassionate voters, who suffer the misfortune of not having a critical mass in a marginal electorate, will be disappointed at the sight of vulnerable people being shipped off overseas just because they came by boat rather than by plane. Many more voters, who don’t have strong views on the matter, because like most people they have never ever encountered a refugee, will be disappointed because by now they’ve realised that off shore processing is disproportionately expensive and it might not stop people coming.

All up the matter just neatly illustrates Labors problems: poor leadership, poor management and poor policy.The danger for Labor now is that its poor leadership on the asylum seeker problem will fuse with its general leadership woes.

Prime Minister Gillard has suffered some appalling insults, namely the “Ju-liar” barb and the “ditch the witch” catchphrase, and for the most part she has responded with a quiet dignity to them. It was difficult not to admire the way in which Gillard had kept on going through all the insults and the reverses. Some of those problems, such as the Craig Thomson affair, were not of her making. Yet, Gillard abandoned that dignity the moment that the High Court ruled against the Malaysia Solution.

The High Court’s majority judgments were based on solid principles of statutory interpretation. There was no ‘judicial activism’ at play. By suggesting that the High Court had missed an ‘opportunity’ the Prime Minister made it appear as if she did not grasp the separation of powers doctrine or the constitutional role of the High Court. Similarly, her criticism of Chief Justice French for apparently being inconsistent did not stack up.

The real problem for Labor now is that the details and circumstances surrounding the revised Malaysia Solution will just look like the Government is reacting to recent events and the perceived need to appease different groups of voters. This might be democracy in action but it doesn’t come across as good leadership.

Leadership is about more than just being in charge. It involves actually guiding the debate and carefully deciding on policies that are best for Australia. Regrettably, Labor seems to have lost its political leadership on this issue to the Greens, Tony Abbot and talkback radio.

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The first Malaysia Solution, like the East Timor Solution, appeared to have been drafted on the run. The East Timor Solution fell apart because East Timor had not been properly consulted and the first Malaysia Solution fell apart because the domestic legalities had not been properly considered. The second Malaysia Solution might still flounder in federal parliament.

More importantly Labor itself appears divided on the issue. There is clearly a substantial group within Labor who believe that offshore processing is wrong. Yet, if Gillard decides to continue to pursue offshore processing these people will need to toe the line. Which raises the question: how can we believe in you and vote for you if you don’t believe in what you are doing?

That question gets more pertinent if you consider Labor’s asylum policies during the Rudd-Gillard Government. Taken as a whole, Labor’s message to the electorate was very mixed and confusing. Under Kevin Rudd, Labor began to dismantle the harsher aspects of Howard’s asylum seeker policies. When boat arrivals spiked Labor then put a temporary freeze on processing arrivals. Labor completely failed to make the point that the spike was due to the end of the Sri Lankan Civil War and the surge in Afghanistan.

In other words the push factors were just as compelling as any ‘pull’ factors. When Rudd’s polls dropped and he was replaced with Gillard, the Government seemed to move further to the right on asylum seekers. This brought in the failed East Timor Solution and then the Malaysia Solution.

This all just shows Labor to be poll-driven on this issue. It suggests that Labor wants to be softer on asylum seekers but due to the attitudes of voters in key marginal electorates it needs to be seen as stronger.

Labor will of course defend its offshore policy on the grounds that the deterrent is needed to stop people making the risky boat journey into Australia’s territorial waters. There is some truth in this argument. Yet, just fleeing itself is quite risky.

Further, an asylum seeker sitting in Malaysia or Indonesia knows that their prospects there are limited. It makes sense then to seek asylum in a country that might accept them as a refugee and grant them citizenship. Moreover, if the Australian Government’s policies change every few months then they might as well take their chances. This is logical and rational. It is hard to begrudge that.

In this context, offshore processing, and detention itself, only makes sense if the cost of detaining asylum seekers here or overseas is outweighed by the deterrent effect. If the Malaysia Solution is not permanent then it is hard to see what deterrent effect it will have in the long run.

In reality people are fleeing because the refugee queue is a broken system. For example, an asylum seeker in Sri Lanka might not wish to make a refugee application from there because that Government has an interest in concealing its crimes and might carry out reprisals. Other intermediate destinations might not provide a long term home.

Spending many years as a recognised refugee before being resettled is obviously terrible. There is a strong argument that for every asylum seeker that we accept another refugee must wait in limbo in a third country before, if ever, being resettled. This is true. Yet, how can we blame people for trying to circumvent a failing system? It is not as if they chose to be born into war-torn countries. Nor is there a sound reason to ask them to accept a life that we ourselves would not accept.

Perhaps most crucially, people are fleeing because the people that they are fleeing from do not see any consequences for their actions.In that regard, a regional framework on war crimes might be just as useful as a regional framework for dealing with asylum seekers.

At the end of the day Labor is all at sea on asylum seekers. It seems naïve to the realities facing refugees and deeply unsure of how to communicate with a certain group of voters. Its messages to the entire electorate, and to the marginal electorates in particular, are very jumbled. The different policy fixes and turns are confusing. It is like trying to make sense of Gillard’s “moving forward” slogan, or Latham’s “ladder of opportunity” or Rudd’s “here to help”. In the end it doesn’t mean anything. And Gillard’s ‘win’ in getting Labor’s Caucus to support a revised Malaysia Solution might eventually come to nothing and so the cycle will continue.

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Article edited by Jo Coghlan.
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About the Author

Dilan Thampapillai is a lecturer with the College of Law at the Australian National University. These are his personal views.

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