Sunday, May 22, 2011


How should Australia deal with those seeking asylum?

Prior to the election, Julia Gillard told us that she had the answer. Her current 'solution' seems to be pleasing nobody . . .


Perhaps inspired by the nuptials of the Royal Wedding, some of the more excitable amongst us have begun pretending to wait for the imminent announcement of a wedding at the Lodge. Watching Kate (and her sister) walking down the aisle boosted the House of Windsor’s popularity. It seems some strategists pondered that the sight of Julia Gillard getting hitched could cast a similar, magical charm over her own rapidly declining ratings. Or so the theory goes. But the reality – reflected in those same growing disapproval ratings – is that Gillard is presiding over a divorce. Labor’s left and right are undergoing a trial separation: unless there is some urgent action on one particular critical issue, the split will be decreed absolute at the time of the next election.

Gough Whitlam forged the original alliance between the conservative workers and the progressive intellectuals back in the early ‘70’s. Through her actions Gillard is now engaged in annulling the alliance, dissolving the unity that kept the party in power. There is no need to search particularly far to find a critical issue that demonstrates the split. The government’s desperate and flailing attempt to seek a solution to the asylum seeker problem, at any price, is also quickly becoming a litmus test for the relationship. Central to the issue is policy failure. Labor has been unable, so far, to implement any workable policy solutions to an issue that Gillard nominated as being critical to her original decision to challenge Kevin Rudd for the leadership because he had, supposedly, “lost his way”.

This issue is set to explode in the coming weeks. It is a political hand grenade and the Prime Minister herself has pulled the pin; but she did so leaving herself nowhere to seek cover if – or perhaps, when – the supposed deal unravels. Her political fortunes are now irrevocably linked to the government’s attempt to send asylum seekers to Malaysia – a non-signatory to the 1951 United Nations refugee convention. Yet there is every chance this will be struck down by the High Court before a single person has been deported from Australia’s shores.

That’s not simply because Malaysia has not yet signed a deal, although it’s worth noting that there is significant and growing opposition within that country to the Australian proposal. This is coming from both sides of the debate. Human rights lawyers in Kuala Lumpur are questioning the morality of their country acting as a dumping ground for people who may have a genuine fear of persecution. They have called on Australia to dump the deal immediately, insisting that there is “no way” of ensuring people would be treated with either dignity or respect. Meanwhile, other Malay politicians just want to push the human flotsam and jetsam away from their shores instead of accepting any new burdensome asylum seekers. It’s all a bit like Australia, really.

The regulations that purport to allow the asylum seekers to be removed to a non-signatory country have not even, as yet, been drafted, so it is far too early to talk about there being “strong grounds for them being overtured”. Nevertheless, the executive director of the Refugee and Immigration Legal Centre David Mann suggests that without credible and concrete assurances that the “dignity and fundamental human rights (of people seeking protection) will be treated properly and humanely” the so-called deal “raises profound concerns and serious legal questions”. He’s a lawyer, so he won’t assert that the government faces the likelihood of having its regulations struck down, but look at the history.

Before the High Court recently struck down the governments previously preferred method of processing asylum seekers, the then Immigration Minister Chris Evans insisted “we’ve got very strong chances of success, our legal advice is that there’s no proper basis for the challenge [and] we expect to win”. This proved to be utter tosh.

It’s difficult to see how Australia can continue meeting its international obligations under the UN treaty while at the same time deporting people who are claiming asylum to a non-signatory nation. The government’s actions pass the test of a utilitarian, someone who believes in achieving the greatest good for the greatest number. Because the overall intake of refugees will be boosted (by accepting people who have been waiting for resettlement in Malaysia), Gillard’s yet to be signed deal easily passes these objections. Ethical concerns are another matter, and that’s where the courts will come into play. Australia has accepted responsibilities under the UN Convention. A one-off deal that purports to allow the deportation of asylum seekers, people who may have genuine claims to protection, may be a practical political solution but that doesn’t mean that it is either principled or legally sound.

Malaysia insists, anyway, that it will categorically refuse to take the 107 people who have arrived since Gillard insisted they would be processed elsewhere. As far as that country is concerned it will only accept people arriving after a deal is signed. The reality is that this simply appears to be a complicated and fraught way of attempting to pretend that Labor hasn’t reverted to Howard’s Pacific Solution. Yet that is what it increasingly appears the government is being forced to do.

Neither Gillard nor Kevin Rudd have visited Papua New Guinea, our nearest neighbour, since the last election (although Rudd did recently see Prime Minister Michael Somare in hospital). It’s no wonder politicians of that country are upset about being taken for granted. Such casual treatment is unlikely to generate the goodwill that will be vital in achieving Australia’s interests. The way the “deal” with PNG was announced reeks of such callous indifference to the sensitivities of that country that it verges on stupidity. In so many cases Labor has failed to match the high expectations that were generated at the time of its election.

The extraordinary and pointed comments this week of our current (although departing) Beijing ambassador Geoff Raby seem to have articulated a feeling that is becoming widespread. He talked of the difference between mouthing words and genuine understanding. “To speak Chinese is not to know China”, the ambassador insisting to a meeting of the Australia China Chamber of Commerce. Perhaps by chance, a few minutes later a video of Rudd was played. The Foreign Minister was speaking Chinese.

When Rudd was elected many Australians hoped that our relationships with Asia more generally would improve; regrettably, they have not. Nor have things improved under Gillard. For her it appears that diplomacy revolves around finding countries that will accept asylum seekers. Whether they suitably protect these people’s rights is another issue. The progressive left won’t be happy.

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