Labor Needs A Sea Change On Asylum Seekers

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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 back to Sydney’s leafy North Shore — I would like to express concern over Julia Gillard’s proposed reinstatement of the Malaysia Solution.

It is quite 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. Indeed, if this does happen it will 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. The poor handling of the politics and the law will just leave both camps deeply unhappy. And voters who don’t have strong views on the matter, because, like most people they have never ever encountered an asylum seeker, will be disappointed because by now they’ve realised that offshore processing is disproportionately expensive and it might not stop people coming.

All up the matter neatly illustrates Labor’s problems: poor leadership, poor management and poor policy.

The danger for Labor now is that poor leadership on the asylum seeker problem will converge with its general leadership woes.

Julia Gillard has suffered some appalling insults, such as the "Ju-liar" barb and the "ditch the witch" catchphrase, and for the most part she has responded with quiet dignity. It is difficult not to admire the way Gillard has 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. But 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 Court had missed an opportunity the Prime Minister made it look like 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 of the revised Malaysia Solution look like the Government is just reacting to recent events and trying 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 deciding policies that are best for Australia. Regrettably, Labor seems to have lost its political leadership on this issue to the Greens, Tony Abbott and talkback radio. The first Malaysia Solution, like the East Timor Solution, appears 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 Parliament.

More importantly Labor itself is divided on the issue.

There is clearly a substantial group within the ALP that believes 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 acute if you consider Labor’s asylum policies during the Rudd-Gillard Government. Taken as a whole, Labor’s message to the electorate is mixed and confusing. Under Kevin Rudd, Labor began to dismantle the harsher aspects of Howard’s asylum seeker policies. When boat arrivals spiked Labor 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 by Gillard the Government moved further to the right on asylum seekers.

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. But fleeing itself is quite risky.

Further, a refugee sitting in Malaysia or Indonesia knows that their prospects there are limited. It makes sense 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 they might as well take their chances. This is logical and rational. It is hard to begrudge that.

In this context, offshore processing and mandatory detention 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, a refugee 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 a terrible option. And every asylum seeker we accept means that another refugee must wait in limbo in a third country before, if ever, being resettled. Yet, how can we blame people for trying to circumvent a failing system?

Labor is at sea on asylum seekers. It appears oblivious to the realities facing refugees and deeply unsure of how to communicate with voters. 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 these slogans don’t mean anything. And Gillard’s win in getting the Labor Caucus to support a revised Malaysia Solution might eventually come to nothing. And so the cycle will continue.

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