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If you want to stop asylum seekers coming to Australia, get them to tune into Senate debates

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COMMENTS

29 June 2012 16:27

Dr Khalid Koser is Head of the New Issues in Security Program at the Geneva Centre for Security Policy, and a non-resident Fellow at the Lowy Institute.

Yesterday's Senate debate on the Migration Legislation Amendment Bill 2012, passed the day before by the House of Representatives, was an embarrassment to democracy. We saw a government without the imagination to propose anything other than a discredited bill, a stupendously misjudged intervention by a senior member of the Government, crocodile tears, political point-scoring, and an outcome that was inevitable from the start of the day and left people wondering why they had wasted seven-and-a-half hours.

Make no mistake that smugglers in Tehran, Kabul, and Colombo will be calling their middlemen in Indonesia and giving them the go-ahead. The message will be that this is the time to swamp the system; the Government is in paralysis and Australia's borders are effectively open.

Picking through the debate, three contradictions stand out, and resolving these contradictions holds the key to developing a policy that will work. First, do unauthorised boat arrivals comprise a political problem or a humanitarian problem? The reason the bill was re-introduced was humanitarian; the reason it failed was political. Second, tensions between the executive and the judiciary are sharpening. Third, the government is trapped between the past and the future; a fundamental mistake made by Kevin Rudd will condemn Julia Gillard to defeat next year.

The resolution to the first contradiction is that unauthorised boat arrivals are neither a humanitarian nor a political problem, they are a migration problem. Emotion and political one-upmanship are clouding level-headed decision-making. As boring as it may sound, and to repeat a point I made in a Lowy Analysis paper in 2010, what the Government needs to do is persist with a comprehensive migration policy that combines deterrence with anti-smuggling legislation, a sound information campaign, development assistance in origin countries, and capacity-building in transit countries. It has worked everywhere else in the world so the Government should be finding out why it hasn't worked so far in Australia, not turning to gimmicks like the Malaysia solution.

Senator Bob Carr's criticism of the High Court during yesterday's debate was inaccurate and constitutionally inappropriate. To blame the High Court's August 2011 decision to overturn the Malaysia Solution for the increase in unauthorised boat arrivals was frankly ridiculous: the Government's policies had not been working for years prior to that decision.

Of more concern, criticism of the judiciary by ministers is the thin edge of the wedge – privative clauses that remove the ability of a court to review decisions by an administrative tribunal will be next. Similar efforts to side-step the judiciary were made during the height of the asylum crisis in the UK in the late 1990s. They failed, but a legacy of mistrust endured. The independence of the judiciary is guaranteed in the Constitution and should be defended by the Government. The best way to resolve the growing tension between the executive and the judiciary is to propose policies that are legally defensible.

In retrospect, Kevin Rudd's mistake was to adopt a principled approach towards unauthorised boat arrivals without being willing to pay the price for his principles. His decision to dismantle the Pacific Solution and abandon temporary protection visas was admirable, but it was bound to result in more boats arriving. Deterrence is a critical plank of any migration policy, and this plank was removed and not replaced.

At the heart of the Gillard Government's travails is how to find a new deterrent without returning to the Pacific Solution. There are two ways to resolve this contradiction. One is to insist that the arrival of a few thousand people by boat is a price worth paying for a principled asylum policy. But it's too late for that. The second is to find an effective deterrent, and accept that this may mean returning to the Pacific Solution. As I argued during a Lowy lunchtime lecture last year, all options need to be considered, however politically unpalatable some of them may be. But deterrents take time to work, and it may be too late for that as well if Gillard wants to win an election next year.

Asylum seekers like Hussein, the young Afghan asylum seekers whose story reduced Senator Sarah Hanson-Young to tears yesterday, often say that the reason they head to places like Australia is because of its respect for democracy. I wonder what he made of the Senate debate yesterday.

Photo by Flickr user DMahendra.

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