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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.


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.


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.

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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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