Albanese promised a better way. On borders, he’s doing it Howard’s way

Labor deserved to lose its inflammatory attempt to ram a new law through parliament so it could look tough on borders by turning asylum seekers into criminals.

The party dared the Senate to back its draft law and lost. It looked utterly isolated when everyone else in the Senate joined forces to send the bill to an inquiry rather than submit to the government’s arrogant move to put a sudden deadline on the vote.

This was a humiliation for a government that wants to project a sense of command and control over the legal turmoil that flows from High Court decisions to release immigration detainees into the community.

After losing in the courts, the government now loses in parliament.

Anthony Albanese ran the risk of this defeat as soon as he and the cabinet chose to flout the usual approach to new law. The prime minister promised a government of good process after mocking the mishaps under Scott Morrison, the prime minister with five portfolios. Facing political pressure on borders, however, the Labor leader threw good process overboard.

Labor supporters will find ways to defend the government for trying its best to deal with the chaotic consequences of the High Court rulings, but they will be defending a total contempt for parliament.

The Greens and crossbench – including One Nation – all sided with the Coalition to delay the bill. A rare sight.Credit: Alex Ellinghausen

Imagine the reaction if Morrison had made the same move. How would Labor respond to a Coalition demand to pass a law on Wednesday afternoon after seeing it for the first time on Tuesday morning?

We can guess the answer because Labor stole its tactics from John Howard, the Liberal prime minister who expected hasty approval from Labor leader Kim Beazley when the MV Tampa entered Australian waters in August 2001 with hundreds of asylum seekers on board. Labor has fumed over Howard’s wedge ever since.

There will be weeks of argument in the Senate hearings about the draft law. This means the immediate outcome is to bruise Albanese while dragging out the dispute.

Prime Minister Anthony Albanese promised a better way when his government was elected in 2022.Credit: Alex Ellinghausen

Opposition Leader Peter Dutton will complain about the bill for weeks, but his track record suggests he will vote with Labor in the end. That is what he did in the clash over detainee laws last November and the rematch in December.

Who will win? Dutton will want to extract a victory by hardening this bill in some way; Albanese gave ground last November but may not want to do that again.

The fundamental question is whether authorities should have the power to lay criminal charges against asylum seekers who refuse to co-operate in their removal to their home countries.

A related question is whether the government should stop people from some countries – such as Iran, Iraq and South Sudan – from entering Australia because those countries do not accept the asylum seekers Australia seeks to return home.

Immigration Minister Andrew Giles prepared the ground for this dispute when he said on March 18 that detainees had to co-operate with their removal. Now there is a draft law to add a hard edge to that argument.

The next test is a High Court hearing in a case that will shape the law on detainees who do not co-operate. The case relates to an Iranian man, known as ASF17, who has been refused asylum but will not co-operate in returning to his home country. He is not a criminal. He could be charged, however, if the government gets the law it wants. The government submission on ASF17 is due on Thursday. The case goes to a hearing on April 17.

There may be a reason for urgency with the draft law, but the government totally fumbled the argument. At no point did it issue a clear statement about why it needed the law passed within days. There was not even a press release. The bill was drafted last Friday but the changes were sprung on everyone on Tuesday morning.

There is a moral dimension to this bill, not just a tactical question, so there are good grounds for a Senate inquiry. Labor wants to criminalise people who are seeking asylum and are refusing to help Australian authorities return them to countries where they fear for their freedom or their lives. It is no longer enough to detain asylum seekers. Now they will be branded as criminals if they do not co-operate.

Labor will do whatever it takes to counter Coalition claims that it is soft on borders. The debates of the 2015 party conference, when Albanese voted against turning back asylum seeker boats, belong to a different era.

Immigration Minister Andrew Giles and Home Affairs Minister Clare O’Neil answer questions at a fiery press conference on Wednesday.Credit: Alex Ellinghausen

Many of the people being forced to co-operate have already been refused asylum, so Labor can argue they are not refugees. Some might be refugees who committed crimes in Australia and are being deported because of their previous convictions. It would be wrong, however, to consider all these people to be criminals. For some, their only crime would be refusing to co-operate in their removal.

It is an unforgiving regime for people who seek Australian help.

Home Affairs Minister Clare O’Neil missed a chance to make a stronger case for these changes. In a truly strange decision on Wednesday morning, she refused to take a few questions from the media in the Parliament House press gallery. Later, she cut short a press conference after the government lost the Senate vote.

Giles and O’Neil insist the laws are common sense. They say the government must have the power to compel people to co-operate in decisions on asylum. Many people would agree with this basic proposition: if you do not help the authorities, you face a penalty.

What the ministers do not explain, however, is why this needs instant approval in parliament. If this is so important, where was the draft law at the start of this year? Why wasn’t the bill put to parliament last week?

The political ploy is transparent and the contempt for parliament is obvious.

Howard did not get the law he wanted in 2001, but he gained the wedge he needed to force his opponent on the defensive. Albanese is no doubt hoping he can blame Dutton for refusing to help fix the law. Expect to hear this rhetoric at full volume if the government loses the ASF17 case and is forced to release more detainees.

Albanese promised to do politics a better way. On borders, however, he falls back on the same old way. Tough rhetoric, hard law and a sharp wedge.

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