No refuge

I supported the Malaysian solution. Go ahead, laugh. Not being a journalist or a politician I'm free to admit when I'm wrong.

To inform myself on the High Court's recent decision on this matter I read both kinds of mainstream media articles about it: gloaty pieces from those who dislike everything this government does balanced with gloaty pieces from those who disapprove of inhumane treatment of asylum-seekers in particular. Hooray and whoop-de-do for balanced reportage: at least I paid for them as much as they were worth.

I supported the Malaysian solution because I thought it would form the start of some sort of regional co-operation across southeast Asia on the matter of stateless and displaced people. Nauru and Manus Island were designed to hide the problem, not as a basis to work with others to solve it. Proposals for East Timor and, yes, bloody Manus Island again show what happens when you focus your policy-making energies on announceables rather than longterm solutions.

No country in the region can or should have to deal with thousands of refugees by themselves. Countries adjacent to states like Afghanistan, Sri Lanka, Burma or Vietnam from which asylum-seekers come have to sustain populations far in excess of Australia's on a fraction of our income: they can be cruel to asylum-seekers and refuse to recognise them legally because this is the only option they have to minimise the numbers of people they have to deal with.

Countries like Australia are attractive destinations for refuge-seekers, not just because of relative economic prosperity but also because we have a strong record of actually accepting those who seek asylum. For hundreds of years this country has been a place to which the wretched of the earth come to build a good life: it is true for Afghans and Somalis today, it was true of South Vietnamese and "Balts" and Greeks of previous generations, and my Scottish crofter ancestors in the 1830s. I can't believe that aspect of our history and our national character no longer applies.

Neighbouring countries resent being somehow responsible for those who use their territory as refuge from a dispute they have not provoked, or as a way-station for people en route to Australia. Rather than have countries feeling put-upon and resenting their neighbours for making their lives harder, we should co-operate so that we can all deal with asylum-seekers better than we do.

The good thing about the Malaysian solution, while it lasted (if such an apparition can be said to have 'lasted') was that there was more scrutiny over the last three months of the way Malaysia treats asylum-seekers than there ever was. I thought/hoped that a regional solution might lead to more of this sort of thing: watch it evaporate now.

With so many unemployed journalists in this country, with readily available media platforms and such cheap airfares to Asian countries, I'm surprised that more journalists aren't doing more freelance reporting from southeast Asia. Admired journalists like John Pilger cut their teeth by doing exactly that - but none of those who are Editors/News Directors today did, so young journalists demonstrating quality journalism under tough conditions would probably be lost on those people.

People who spend their lives standing up for human rights enjoy few rewards, but one of them can be a sense of righteousness that repulses more than it attracts. Observations of how asylum-seekers are treated in Malaysia have given rise to some talk about how Australia might guide Malaysia on human rights issues. This ignores the fact that relations between Australia and Malaysia have never been so fraught as when Australia decides to set itself up as an exemplar to Malaysia. There are 93,000 asylum-seekers in Malaysia and less than a tenth that number here: we aren't going to resolve anything or help anyone by putting ourselves in a position we can't sustain.

I thought that failing to conceive of a broader solution to the refugee issue was a weakness of Julian Burnside's piece, but you don't get to be a QC by being all pie-in-the-sky and taking your eye off real legal principles like we at the Politically Homeless Institute do. I agree with his criticism of the "Weird economics ... mandatory detention costs us about $1 billion a year", but I think here he is being disingenuous:

There is simply no merit in the idea of detaining people indefinitely just because they have arrived in Australia by boat. Asylum seekers also arrive by air: typically they arrive on short-term visas such as business, tourist or student visas.

Yes, but those who arrive by air have identity issues sorted. You don't get on an aeroplane unless you have a passport containing a visa. The issuing of both documents resolves the sorts of identity and background questions that are yet to be resolved for those who turn up with nothing but the clothes on their backs.

If Australia capped initial detention to just a month for health and security checks, overcrowding in detention would be solved instantly; the cost of operating the detention system would reduce dramatically; and the foreseeable mental harm which is caused by indefinite detention would stop.

It's not clear why a month would be sufficient to resolve security questions. Equally, it isn't clear why everybody should be held in detention in order to catch a few who might be doubtful. This, and the disturbing al-Kateb principle that Burnside cites, is one of the problems with extrapolating the general to the specific in public policy. Australia has a general right to exclude non-citizens from its territory and from many of its legal protections, but in exercising this right we impede the rights of human beings to whom we owe variously binding duties of care.

For all the wonders of the Australian legal system and its British heritage, &c., &c., the issue of national sovereignty versus universal principles is a serious design flaw. Again, it is a weakness of Burnside's piece that it does not examine that.

Speaking of assumptions that may prove unsustainable, it has been a mainstay of this blog that Annabel Crabb is a fool. This has come under considerable challenge with successive articles which appear to have come from beyond Parliament House: instead of wilting in such a strange environment she seems to have developed a sense of perspective, which we at the Politically Homeless Institute had long considered impossible for her to acquire convincingly or sustainably. This is still a dollop of conventional politico-media wisdom, but one of the better examples rather than among the worst. Some allowance, but not much, should be made for the fact that Crabb had to write this and post it within hours of a long and complex court case being decided.

Today's decision from the High Court is disastrous for the Government ... because the deterrent effect that was the redeeming feature of this harsh and - in terms of Labor's history in this policy area - hypocritical solution has now evaporated. Australia remains obliged to accept 4,000 new refugees from the Malaysian queues, and must now additionally expect a new influx of boat arrivals through the usual channels.

Burnside is sceptical of the deterrent effect and I am inclined to agree with him. In a world of push-factors for refugees, the pull factors have always been overstated by the Australian media (and by those wishing to pitch stories to the Australian media, such as the Coalition, which explains why the Coalition get such a good run from the media).

Crabb mentions push and pull factors briefly, but only from the government's perspective. She does not consider it from any position of whether or not it might be objectively valid in the case of the people concerned in seeking asylum. Yes, she had limited time, but raising the issue other than as a perception problem for government would prove some consideration of policy issues as they apply in the world beyond Canberra.

But the most egregious aspect of today's decision by the High Court is that it provides a new and crushing chapter in what has become a tale of rambling incompetence. Across both Rudd and Gillard governments, this policy area has played host to a most dispiriting display of opportunism, mendacity and half-arsedness. The Rudd government repealed some of the harshest elements of the Pacific Solution, but never acknowledged the plain-as-day reality that this decision would have some effects on the rate of boat arrivals. Busy denying the bleeding obvious, the Rudd government instead occupied itself with slogans about "tough and humane" policies while desperately casting about for regional assistance.

So: anything the government does - a program to build school facilities with a 97% success rate - is incompetent. Old-fashioned journalists used to chase stories: new-fashioned ones chase memes. I still think the search for a regional solution is more baby than bathwater but it looks like the media herd will trample it.

Do you recall the election campaign, in which the western Sydney MP David Bradbury materialised beside the PM on a patrol boat in Darwin Harbour, apparently monitoring the horizon for foreign wayfarers determined enough to invade his seat by means of the Parramatta River?

The Parramatta River trickles to a creek well before you get to the fabled electorate of Lindsay, but yes, I remember how both Gillard and Bradbury looked not like Defenders of the Commonwealth, but like a couple of dorks.

The confident assurance from the Immigration Minister just weeks ago that the High Court legal challenge had been anticipated and rigorously prepared-for was hit amidships early on by High Court Justice Hayne, who growled at the [Solicitor]-General that his submission was "half-baked". And now today's decision, in which the Government's Malaysia Solution is not crippled, not winged or crimped or slightly frustrated by our nation's highest court, but clean bowled.

Set aside the mixed metaphors and see that Chris Bowen has no credibility as Immigration Minister in pursuing or spruiking a policy that has been the polar opposite of what he has said and done for over a year. He should resign, and have sufficient faith in his political skills that his chances of becoming a minister again at some point are not yet gone.

For him to stay in his current office would put him in the same position as the ministers in the last unlamented Labor government in NSW. It would put him in the same position as the so-called moderates in the Liberal Party, whose clout is demonstrated by the utter lack of any moderate policies held or advanced by "their" Party (credit to @thewetmale for putting it so pithily).

Gillard needs a new Immigration Minister. Bowen may not warrant being removed from the ministry altogether so there may be scope to swap him. Possible alternative Immigration Ministers whose current portfolios could be entrusted to Chris Bowen:

• Greg Combet;
• Tanya Plibersek (nah, her activism for Palestine over Israel would make her unacceptable);
• Brendan O'Connor (he's outside Cabinet; but Bowen can take one for the team and come back, just like Amanda Vanstone did);
• Tony Burke (keeps the state and factional equilibrium; Immigration would make Burke or break him, while bushies would more easily relate to a minister who's been through tough times himself and who'd be more decisive than Burke).

Here we could play all sorts of games about reinvigorating the government, or rearranging deckchairs on the Titanic; either way the status quo is a non-option.

Nauru is the one reversal the Government has so far not permitted itself. Perhaps it will now. It hardly matters anymore; if anyone in the Government is still wondering why voters don't believe Julia Gillard when she says she has things under control, today should provide a devastating answer.

As the court has said nuh-uh to Nauru, there are two courses of action open to the government now. First and foremost is to process asylum applications in Australia. Plenty of people and even a few polls have called for this. People suspected of being dodgy or malicious should be dealt with in the standard manner: you have the right to remain silent ...

The second is to station more DIAC staff at embassies in countries from which asylum-seekers come. Phillip Ruddock recalled the Immigration official from the Australian embassy in Islamabad; this should be reversed. Embassies across the region should have staff capable of performing assessments and processing, and I'll bet the cost of doing so beats hands down the existing costs of detention.

The Coalition's preferred options of Nauru and Manus are shot every bit as much as the government's Malaysian solution. The idea that desperate people should form an orderly queue and not attempt to come here has no basis in fact, and should not be relied upon as the basis for policy.

And yet, imagine for a minute that the government were to take the first course in particular, when all other options have so clearly failed. The very process of going against a decade of practice in immigration policy, the sheer scope of destruction of all those hoary old themes and memes and half-baked assumptions, would be more than the press gallery could cope with, let alone communicate to the citizenry. It would take the sort of sell job that Paul Keating did during the 1980s across the gamut of economic reforms in order to effect such a transition. There is no way that the Australian media would or could adapt to the mental shift required in looking at refugees in such a new way.

The Coalition have their preferred options closed to them - with the exception of Temporary Protection Visas, and while they might appear as attractive as an ice-cream in a heatwave I would be fascinated if they lasted as long in the face of a High Court challenge. It can still complain about whatever the government does, with the expectation that the media will take its statements on face value. The Coalition does not, however, have any policy options to offer Australian voters:

• Nauru and Manus Island are off the table. Any attempt to establish that human rights protections exist at those sites would look weaselly and be negated by the next example of Abbott flakiness;
• The idea of a regional solution would not occur to anyone in the Coalition and they do not have the foreign-policy clout to pull it off;
• Immigration spokesthing Scott Morrison lives from press release to press release and represents The Shire in federal parliament. In policy-development terms he is a sillyhead. If any politician is stuck in the tough-on-asylum-seekers theme, it's him.
• The Situation would not survive any transition to a post-Howard immigration policy either. His job is to make people angry. Nauru and Manus have lost credibility, so a key aspect of his whole Howard Restoration theme is finished. It would be easy to simply agree with the government and have a moderate policy, perhaps with more of an emphasis on chasing the phantom of skilled migration; but Abbott is all about sharp and cutting differences with the government. Burying this policy difference would throw out his whole business model (if not his business case).

Asylum-seeker processing that was not only onshore but community-based would be the most radical departure Gillard ever did. Like Malcolm Fraser, her appetite for reform appears exhausted by the very means by which she ascended to the Prime Ministership. Yet, for all its political scope and risk, it is the only one with a clear advantage for the government.

Prime Ministers need to have gone through the wars a bit to get some respect, and Gillard has been there. Earlier this week she was starting to get on the front foot with News Ltd and even in Question Time. For her to keep trying to play the old game after the siren has sounded isn't committed or determined, it would be pathetic. A Prime Minister must never be pathetic: this is how the NSW Labor government ended up.

With its level of popular support, community processing with an increased offshore presence and cross-national co-operation is a winner. Well, in comparison to all the other loser policies it is. It has the capacity to rewrite the rules of the political game such that the Opposition as it is currently configured cannot compete. It would show that this is a government that does the right thing, however reluctantly; governments that do the right thing can be indulged in gaming the opposition. Those who don't demonstrably make that case look like they're just mucking about in sinking to the Opposition's level.

That said, I could be wrong about all this too.