The Solution That Won't Fix Anything

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You’ve got to hand it to Julia Gillard and Chris Bowen. When it comes to cooking up new ways to punish asylum seekers, they are nothing if not persistent.

With its preferred policy of a refugee swap struck down by the High Court, the Gillard Government has spent the last week in policy lockdown as the government’s lawyers have scrambled to draft amendments that might square the High Court ruling with the Government’s desire to persevere with the Malaysian swap deal.

It’s hard to see how pushing ahead with the Malaysian policy can work for Labor. Offshore processing of seaborne asylum seekers may well be the bipartisan position of the two major parties, but in legal and moral terms it violates the spirit of Australia’s Migration Act and the Refugee Convention to which Australia is a signatory. This was what the High Court decision was all about. But instead of rethinking the policy, Gillard and Bowen appear to want to rewrite the law and try again.

Nor is it clear that the Malaysian solution was ever particularly popular. The policy was a hasty Plan C, cooked up when the plan for a regional processing centre on East Timor fell through, even if the negotiations with the Malaysian government took months. People tend to forget that the Howard-era policies of turning around the boats and shipping asylum seekers to Nauru were well received in certain electorates — but that they also generated deeply felt opposition to the Howard government. That, presumably, was one reason why Labor promised to abandon offshore processing in its 2007 election platform.

Unfortunately, Labor’s laudable early commitment to humanising Australia’s immigration policies soon ran aground. Faced with a debilitating campaign by the tabloid newspapers that splashed nearly every boat arrival across their front pages, along with the rank opportunism of the Coalition’s slogans about "the boats", Labor soon caved. Out went Chris Evans’ "dignity of the human person". In came Chris Bowen’s "breaking the people smugglers’ business model."

What’s behind this brutal creep in asylum seeker policy? Labor’s factions, and the press of expediency. The mining tax and the CPRS backflip are often listed as the key step towards the destruction of Kevin Rudd’s leadership. But just as critical was Rudd’s opposition to toughening Labor’s line on asylum seekers, which the New South Wales Right faction believed was critical in defending marginal seats in western Sydney.

Once she took office, Julia Gillard immediately signalled that she could "understand" the hostility to asylum seekers. Her new cabinet appointed Chris Bowen to the hot seat in immigration. Bowen’s task was to find a way to send asylum seekers somewhere else, while somehow complying with the letter of the legal obligations that compel Australia to treat asylum seekers with a modicum of fairness and decency. Hence the failed East Timor proposal, followed by the equally disastrous Malaysian deal.

The result is that Labor now finds itself far to the right of its own policy platform. Chapter 7 of Labor’s 2009 National Platform states quite plainly that "Australia will adhere to its international protection obligations under the Refugees Convention and other relevant international instruments to which it is a party". It’s very difficult to square this claim with the current policy, which is in virtual agreement with the Coalition that punitive treatment of asylum seekers is the best strategy for dealing with the non-problem. To the disgust of much of its own supporter base, not to mention the despair of many on Labor’s backbench, the Government now wants the Coalition to help it pass amendments to the Migration Act that can safeguard the legal ability of the government to process asylum seekers offshore.

Whether Tony Abbott and the Coalition will agree to that is an interesting political question. On the one hand, Abbott would like nothing better than to let Labor twist in the wind on an issue that always plays to the Coalition’s advantage. On the other hand, the Coalition’s immigration policies, particularly in relation to Nauru, look to also be invalidated by the High Court decision. If Abbott blocks this chance at amending the Migration Act, he may not get another chance once in government.

Meanwhile, the ALP continues to drift haplessly away from its core principles, with only a smattering of protests from what remains of Labor’s core supporter base. A recent Kudelka cartoon draws Gillard and Bowen turning off Ben Chifley’s famous "light on the hill". "It was attracting the boats," reads the caption.

There were flickering signs of a backbench revolt yesterday, with the Left faction, led by NSW Senator Doug Cameron, openly critical of the Government’s proposal. But they have always lacked the numbers to push Gillard to a more humane solution.

It’s interesting to contrast the two major parties and their factional composition. In the Liberal Party, the faction with the numbers is generally the more conservative and right-wing section of the party.

The mirror image of this would see the Labor Left having the numbers, using their passion to pull Labor further left toward its progressive voting base. But the modern ALP is in fact dominated by its various Right factions. They control the party’s resource base, many of its safe seats, and much of its policy position in government. As a result, the ALP is out of step with its base on issues like gay marriage and asylum seekers. Labor continues to leak supporters on its left to the Greens, even as Tony Abbott steals socially conservative swing voters from the ALP right. This is one coherent explanation for why Labor’s primary vote is mired below 30 per cent.

Given this, it beggars belief that Gillard and her cabinet are pressing ahead with the Malaysian swap. Surely the High Court decision was the circuit breaker they needed to change course and return to onshore processing. This is what many observers have been pressing on the government.

Perhaps we’re seeing something of Julia Gillard’s political character here. Unlike Kevin Rudd, whose popularity she currently lacks, Gillard has shown herself to be a consistent and determined political operator, pushing ahead with unpopular policies in the teeth of considerable opposition. Just today, for instance, the Government is introducing its carbon tax legislation. It appears Gillard and her advisors are committed to the Malaysian solution — even in the face of recent setbacks — just as she is committed to the carbon tax even in the face of its unpopularity.

Ben Eltham

Ben Eltham is New Matilda's National Affairs Correspondent.

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