It's hard not to feel an element of Schadenfreude for the contortions of Opposition Spokesman Scott Morrison. The Coalition's most zealous pursuer of the Government's asylum seeker policies has long argued that Labor can't “stop the boats”, but that the Coalition can.
Central to the Coalition's plans to do this is a controversial tactic of “towing back boats” to Indonesian waters. The policy is said to have been critical in deterring people smugglers during John Howard's reign, and Morrison and other key Coalition figures such as Tony Abbott and Julie Bishop continue to argue that the Coalition can and will stop the flow of seaborne asylum seekers with the aid of the Royal Australian Navy.
Morrison's media strategy is simple, but effective. Every time a boat arrives, he issues a press release and makes himself available for media comment. The line is always the same: we'll tow them back. On 5 July, for instance, he wrote that “if elected, the Coalition will implement a full suite of proven border protection policies including turning boats around where it is safe to do so”. On 9 July he wrote that “there is a clear choice for Australians at the upcoming election – a Coalition which will act to stop the boats and won’t give up or a Labor Party that started the boats and has given in to people smugglers”. On Sunday: “Labor don't believe in stopping the boats and have given up on our borders. The Coalition will not give up.”
So what exactly is “towing back the boats”? Can it be done, and will it work?
The answer depends on who you ask, but most informed opinion seems to support the Government's view that the policy is dangerous and potentially illegal. In terms of safety, the risks of taking overcrowded and unseaworthy vessels under tow by a large warship are obvious. Such an operation is tricky enough with a friendly vessel in calm seas. But the Indian Ocean is often stormy, and asylum seekers have repeatedly shown they are prepared to sabotage their own vessels to prevent tow-backs, placing lives at risk.
The current Chief of the Navy, Vice-Admiral Ray Griggs, has said as much in Senate Estimates. “There have been fires lit, there have been attempts to storm the engine compartment of these boats,” he said in 2011. “There have been people jumping in the water, that sort of thing. Again, I am going back to 2001.”
As Griggs noted, the record of the tow-back policy under John Howard was far from spotless. According to Savitri Taylor, an Associate Professor in La Trobe University's Law School, the Howard-era tow backs resulted in a number of self-sabotage incidents and three drownings. “In at least three of these cases the navy had to contend with incidents such as asylum seekers jumping overboard, threatening self-harm, and/or attempting to sabotage the vessel,” Taylor writes. “SIEV 7, which had 230 people aboard including women and children, ended up running aground in Indonesian waters a few hours after being abandoned by the navy.” According to a report at the time by the ABC's Four Corners, three people on the SIEV 7 died.
The legality of tow-backs is dubious. Towing back boats seems like a pretty clear case of refoulement, the legal term for the repatriation or return of asylum seekers without adequate assessment of their claims. That said, a cynic might claim that the whole thrust of recent asylum seeker policy by both major parties is in contravention of the spirit of international law – and they'd be right.
Even so, tow-backs are clearly vulnerable to the sort of legal challenge that so humiliated the current government on the issue of the so-called “Malaysian solution”. As Monash University's Azadeh Dastyari recently argued in an article for Fairfax, “under international law, a state that has exercised power over individuals at sea by actions such as stopping vessels and boarding vessels is not permitted to return refugees to persecution or individuals to torture.”
Then there's the tricky question of what Indonesia thinks of all this. Australia's largest neighbour is the most important country in our region and unquestionably our key bilateral relationship. A multi-national archipelago composed of dozens of ethnicities and thousands of islands, Indonesia places rather less emphasis on the sanctity of Australia's borders than Morrison and Bishop. Despite plenty of suggestions and elisions from the Coalition, Indonesia has never publicly agreed to accept boats turned back by the Australian Navy.
That's a critical issue, because the tow-back policy depends on Indonesian cooperation, without which it is difficult to see how turning back boats can possibly be safe. The Coalition understands this, which is why Bishop in particular has continued to argue that, once in government, some kind of agreement between Canberra and Jakarta would be reached.
Last night, Indonesia's Foreign Minister, Marty Natalegawa, reiterated Indonesia's opposition to the tow-back policy. “Such a policy would constitute a unilateral type of measure that we do not support,” he told Network Ten. “We are not ecstatic about it for sure, but in terms of in the spirit of wanting to hear the various policy options countries are proposing, parties are proposing, it's good to have this dialogue.”
If you thought that left egg on Scott Morrison's face, you didn't count on the well-known ability of the Opposition's Immigration spokesman to bluster. “At the end of the day we're not going to have a situation where effectively Australia's national policy is decided in another place,” he told ABC Radio this morning. As one reader of the Sydney Morning Herald wrote in, “perhaps the Liberal Party could adopt the Jolly Roger as its flag.”
Immigration policy is only a part of Australia's political environment, albeit an increasingly important one. But it's a fine example of the superficiality of the Coalition's well-turned sound-bites, particularly under close examination. We saw another example of that yesterday, when Tony Abbott's scripted grab about the carbon tax as a “so-called market” in an “invisible substance” exposed the Opposition Leader to ridicule. The Australia Institute's Richard Denniss had perhaps the best bon mot when he pointed out that “if Tony Abbott is concerned about people paying for invisible things, then anyone who owns intellectual property should be very concerned, likewise people in the futures and financial derivatives market.”
The ridicule highlights a broader problem for the Coalition as the election nears. For years now, the Opposition has escaped serious scrutiny on some of its more outlandish policy positions. As the campaign develops, that's starting to change.