Tony Abbott fails boat test

AUSTRALIA now confronts an institutional failure in its border protection policies with the parliament about to confirm by omission the recent High Court decision to remove, in effect, offshore processing policy from the discretion of the executive government.

Responsibility for this failure will lie essentially with the Coalition. Its stand constitutes a tangible weakening of Australia's border protection framework and a deeper entrenchment of the 1951 refugee convention in Australian law.

The Coalition's refusal to support Julia Gillard will limit the scope for offshore processing, encourage the people-smuggling industry and more boat arrivals. Tony Abbott's de facto allies are the Labor Left that distrusts the Malaysia Solution and the human rights lawyers who seize each chance to limit the power of the Australian government to curb the boats.

In political terms, however, Gillard as Prime Minister will carry the bulk of the blame for this failure. One of the obligations on any prime minister is to protect Australia's borders from unauthorised boat arrivals by people who have self-selected this country as destination of residence.

This event represents the demise of the tougher border protection policy engineered by Immigration Minister Chris Bowen and Gillard after the 2010 election despite the reservations of the Labor Left. Gillard and Bowen could have managed their own party but not the combined resistance of the High Court, the Coalition and the Greens. The consequences will be grave for Labor and asylum-seeker policy. Gillard will be humiliated. Labor will be discredited, having softened John Howard's policy under Kevin Rudd only to see a surge in boats, having unsuccessively tried to toughen the policy under Gillard and now being forced into a scrambling retreat.

On Monday night Bowen said if Labor's legislation were defeated "then offshore processing will be regarded as unlawful" and the result would be onshore processing. Labor, of course, hasn't done offshore processing but this was the intent of the Malaysia deal.

Its defeat will intensify pressures for Labor to revert to the softer Rudd-era outlook. The risk for Labor is that it sinks into divisions over asylum-seeker policy and agonises about what this means for its core faiths.

A sense of robust perspective is needed. The Labor Party was created to enhance the interests of the Australian people while this struggle, by contrast, is about the rights of non-Australian citizens not yet found to be refugees who have been in the country only a matter of days. Both Labor and Coalition are liable to the hypocrisy accusation. Gillard declared before the 2010 election she would "rule out anywhere" not signatory to the refugee convention. Has she changed her mind? Yes. Is she a hypocrite? Yes, if you want. But have the common sense to admit the Prime Minister's job is to find a new policy to meet the current dilemma.

Meanwhile the Coalition now sends two conflicting policy messages on the boats -- it is super tough and ready to turn boats around on the water (with Indonesian consent) yet, at the same time, it declares itself a superior champion of asylum-seeker rights than Labor and insists only nations pledged to the refugee convention should accept asylum-seekers from Australia. That eliminates Indonesia, Malaysia and most Southeast Asian nations.

So Abbott attacks Labor from two positions -- he is both tougher yet more humane. This is likely to invite confusion and division over Coalition policy both in terms of outside perceptions and how the Coalition sees itself. The idea that you can stop the boats and simultaneously be more humane is noble yet fanciful. The impression Abbott leaves is his real motive is to cripple Gillard in political terms. More significantly, the Coalition has weakened its options in office.

The opinion on the High Court decision by Solicitor-General Stephen Gageler, backed by other QCs, is that under current law signing up to the refugee convention is probably now essential for a country to become a valid destination for offshore processing. But it is not sufficient. Once Nauru signs up to the convention there still remains a legal risk. The opinion says Nauru would need to show "practical compliance" and this goes to "complex issues of fact". Such is the severity of the tests demanded by the High Court in its hijacking of offshore processing policy. Under current law an Abbott government might be able to get up Nauru. It might. Forget Papua New Guinea or probably anywhere else.

Even more difficult is the situation of unaccompanied minors given the High Court decision. Bowen says an unaccompanied minor in the High Court's view cannot be removed without the minister's written agreement, reviewable in the courts, and this applies even if the refugee claim has been rejected. The rights of the unaccompanied minor would be "likely" to be upheld in the courts. He says flatly this is "not sustainable as public policy". If such judicial interpretation stands, what is to stop the boat smugglers using unaccompanied minors as their legal spearhead?

This highlights the magnitude of this evolving parliamentary failure. The High Court decision is based on a historically false understanding of the Migration Act in the emphasis it places on the refugee convention. Because Australia (last time we checked) is still a parliamentary democracy, the proper response is for the parliament to amend the law to restore the executive's authority to negotiate offshore processing agreements with other nations. Why should this power be denied the Australian government?

Both Labor and the Coalition say they back the principle of offshore processing yet they cannot agree to save this policy. It is a true debacle. So determined is the Coalition to sink the Malaysia Solution that it will seriously curtail offshore processing.

There are two lessons from the boatpeople saga since the mid-1970s. The key to success lies in regional agreements and the best regional agreements involve offshore processing; witness the Fraser government's acceptance of so many Indochinese refugees. That entire program was based on stopping the boats and accepting people offshore.

Understand the power dynamics at work: the key to enforcing border protection is through parliamentary and executive action on behalf of the public interest while the key to enhancing the rights of boatpeople lies in building the authority of judges to make public policy. It is also time for another question: what rights do the Australian people via their parliament possess in this constitutional democracy to have a meaningful say in who joins their society given the claims by people who self-select this country and pay to travel here by boat?