No strategy, just band-aid solutions

Villawood sit-in

THE tougher policy on asylum-seekers who engage in violence unveiled yesterday by Immigration Minister Chris Bowen was essential and predictable but its impact will be less than its symbolism.

The truth is that Labor's asylum-seeker policy is completely hostage to events. Labor seems unable to control the flow of boats, impose firm requirements on the refugee determination process, keep order in the detention system or enforce effective sanctions on criminal behaviour by asylum-seekers.

Bowen has now moved on the latter front. In political terms, the Minister had no option. Labor had been in the untenable position, given the Villawood violence, of being unable to assure the Australian public that those responsible would be denied a permanent visa.

This was tantamount to handing the next election to Tony Abbott. Imagine the sort of political advertisement the Coalition could have run. Once the idea settled into public consciousness that such televised criminal behaviour did not necessarily prevent a person from permanently joining the Australian community then Labor's stocks would have been ruined.

This is not just an issue of political optics. It goes to principle. What is the justification for giving permanent residency to boatpeople who self-select Australia and then engage in criminal behaviour in detention to further their claims?

The stand taken by Abbott is that "people who break the law in immigration detention should have no hope of permanent residency in this country". This is a sound principle. Also, it is probably necessary to encourage better behaviour in detention. (None of this denies the urgency of limiting time in detention as Labor promised.)

The legal loophole Bowen has moved to close is narrow yet powerful in symbolic terms. At present a prison sentence of 12 months is needed to allow the minister to find against an asylum-seeker's claim by invoking the "character" provisions of section 501 of the Migration Act that authorise such ministerial discretion.

This is a highly limited provision. History shows it is difficult to gather evidence and lay charges against asylum-seekers who commit criminal acts, that it is difficult to secure a conviction and difficult to secure an imprisonment sentence of 12 months.

After the Christmas Island disturbances of late 2009, a total of 11 boatpeople were charged. Of these, only three were convicted, two being placed on a good behaviour bond and one fined. Each of these three was granted a visa late last year thereby proving convictions as such did not make them ineligible for Australian residency.

Such perceptions in the context of Villawood would radiate even further the perception of Australia's border protection weakness under Labor.

Bowen's amendments mean a person in detention would fail the character test once convicted of an offence regardless of sentence. This would apply to all persons, onshore or offshore arrivals, asylum-seekers or otherwise. The changes would apply from yesterday. In addition, the maximum penalty for manufacture, possession or distribution of weapons in detention will increase from three to five years' imprisonment.

What happens if an asylum-seeker is found to be a refugee but has a conviction? Bowen says after triggering the character test provisions he would then have several options: deportation, voluntary repatriation or, more likely, a temporary visa that does not permit family reunion. Deportation remains hard to achieve. While Labor is desperate to deny it, this visa option would be similar to the temporary protection visas used by the Howard government that Labor has consistently repudiated.

Has Labor retreated to John Howard's policy? No, it hasn't. Howard applied the temporary protection visa across the board while Labor will apply it only in the small number of cases arising from convictions.

Have Abbott and shadow immigration minister, Scott Morrison, been given a useful propaganda weapon? Yes, they have. They will argue, in Abbott's words, this concession "is a damning admission of Labor's failure".

In the current climate, it is easy for Abbott and Morrison to argue Labor is doing too little too late. Several weeks ago after the most recent riots at Christmas Island, Bowen's main threat was to use the "character" test, yet he now concedes it was ineffective.

Abbott said yesterday : "The idea that you should reward rioters with temporary protection visas is wrong. It's just wrong. Rioters should be rewarded with punishment not with temporary protection visas."

What would Abbott and Morrison do? This is not obvious. Morrison said such people "should be told to apply to another country for a visa". That is not a solution and does not absolve Australia from its obligations. If such people cannot be deported and cannot be given a temporary visa, they are doomed to detention.

Bowen, in effect, offers asylum-seekers a deal: perpetuate the violence and your residency hopes are finished but stop the violence and we will seek to speed up your determination process. His message yesterday was that "if you are a genuine refugee" whose behaviour accords with "the appropriate expectations of the Australian community" then you get a permanent visa. Bowen said there is "nothing which justifies the sorts of action we've seen at Christmas Island and Villawood in recent weeks." The people at Villawood had had their refugee claims rejected and Bowen said such protests would not help them.

Will the Coalition support Bowen's amendments? Having called for tougher action Abbott can hardly vote against these amendments on the grounds they are not harsh enough. This is a "no brainer" for Abbott and Morrison. They should give Labor what it wants and then attack when its changes have little impact.

The point, of course, is that such amendments will not help Labor with the bigger problem: the flow of boats to Australia, encouraged in part because of Labor's softer policies.

The community senses what is happening. Labor refuses to apply the harsh remedies demanded by the Coalition. It looks towards a regional solution but that is strictly a long-run project. In the interim Labor merely operates as a political firefighter.

It hoses down crises in the system where they arise. But it lacks any decisive policy capable of solving the boatpeople problem. Its guiding star is improved management of the asylum-seeker issue in the hope its lethal political profile will fade over time.

That won't happen. History shows Australians will accept a high offshore refugee intake and this has never created a serious political problem. But the public, for legitimate reasons, resists boatpeople self-selecting Australia and such sentiment is unlikely to diminish.