Human rights honoured yet people still die

THE irony of the current parliamentary paralysis over boat arrivals is that human rights are the justification offered by both Coalition and Greens for refusing to strike a compromise with Labor to stop the boats.

This week's deadlock guarantees that more boats will arrive, more people will die, border security will be destroyed yet human rights principles will be preserved. This is the position of Australia's parliament.

Tears have been shed, emotions have run high, human rights have been honoured yet people will still die. This summary may sound crude yet it is the essence of what the Senate voted for last Thursday.

Beneath this week's lofty sentiments lies a political brutality. Tony Abbott engaged in brinkmanship while offering his own compromise, yet the final loser was Julia Gillard. The iron law that keeps the Opposition Leader dominant is that the public holds Gillard as Prime Minister responsible for the boats.

Gillard now enters a zone of grave danger -- a lethal combination of her carbon tax start-up from this weekend and more boats during the winter recess.

In effect, this week was a dramatic contest between two competing compromise bills: the Rob Oakeshott-Labor backed bill with its generous view of offshore processing that permitted the Malaysia policy (along with Nauru) versus the Scott Morrison-Coalition bill with its restrictive view of offshore processing and stronger human rights protections that allowed Nauru but not Malaysia or Indonesia or most regional nations.

The Abbott-led Coalition has a more restrictive offshore processing policy and greater priority for human rights than Gillard. This raises serious doubts about Abbott's ability in office to stop the boats.

Abbott rejected Labor's bill because, as Morrison said, it was a human rights "abomination". Labor, in turn, rejected Morrison's amendments because it says the impact would be minimal and his bill could not halt the boats. This is a deeply entrenched logjam without any apparent solution.

The pivotal vote came on Wednesday afternoon when the Morrison amendment was lost 74-72. Its carriage would have been a perilous moment for Gillard. This vote followed intense negotiations between Morrison and Greens spokeswoman Sarah Hanson-Young, initiated by Liberal MP Judi Moylan.

Morrison signed up to the idea of the Coalition increasing the refugee and humanitarian intake to 20,000 across three years but on the basis that the Greens backed his offshore processing amendment. For a while the Coalition believed the deal was a live option. But there was never an agreement as such. Of course, the option failed. The Greens, in the end, refused any such concession from their longstanding rejection of offshore processing.

The upshot is that Gillard won a symbolic victory when the Oakeshott bill passed the House of Representatives 74-72 on Labor and crossbench votes. This meant the lower house had authorised Labor's core policy in the teeth of Coalition and Greens opposition.

Yet it was doomed in the Senate by the Coalition-Greens majority, thereby perpetuating the impasse.

Comparing the compromise bills, Labor has gone further, saying it would open up Nauru, in addition to Malaysia, and inquire into the temporary protection visas option. Hence Immigration Minister Chris Bowen's appeal: "Is there one single member of this house who could argue with any conviction, with any responsibility, that implementing the Malaysia arrangement and a detention centre at Nauru could not save lives? Is there one member of this house who could argue that?"

By contrast, the Coalition's bill permits offshore processing in nations that have signed up to the 1951 Refugees Convention. Abbott says his bill reflects shared ground, that Gillard was guilty of pride and stubbornness and that a prudent PM would "take what you can get from the parliament". The reality, however, is that neither side can secure its bill through the parliament. More concessions will be needed from both sides.

The heart of this week's deadlock lies in a Melbourne meeting last September when the Coalition brains trust -- Abbott, Julie Bishop, Morrison and opposition legal affairs spokesman George Brandis -- were briefed by senior officials including Immigration Department chief Andrew Metcalfe, law officers and the Solicitor-General Stephen Gageler. Their focus was the High Court decision that had ruled invalid Labor's Malaysia policy and virtually destroyed all offshore processing, a blatant judicial intrusion into policymaking.

This meeting is the origin of the Coalition-Labor split that now paralyses the parliament. It is a division over how to respond to the High Court.

Labor's response was to amend the Migration Act to weaken the human rights provisions and restore to the executive the discretion needed for the Australian government to make valid bilateral offshore processing deals. The key Coalition players, Morrison and Brandis, were alarmed at this. They asked Metcalfe what was the best legislative test to maintain protections and his answer was the 1951 Refugee Convention. This is the origin of the new Coalition policy -- that offshore processing by law must be limited to Refugee Convention nations.

This Liberal policy is only nine months old. Few people were even aware of it. Yet it has now assumed a status akin to "free enterprise" and an untouchable Liberal faith. Abbott told parliament: "Yesterday, today, forever -- the Malaysia deal is a dud deal. We will never, ever support it." He called on Labor members to justify the "abominable deeds" they proposed. Morrison attacked Labor's "abominable Malaysian people swap". Liberal after Liberal rose in emotional denunciation in a display of moral self-righteousness not witnessed from the Coalition side in decades.

Morrison's personal experience when he visited Malaysia is basic to his convictions. Nobody's sincerity should be doubted. Yet the Coalition's human rights morality is extremely convenient because it defeats Labor's legislation, deepens Gillard's humiliation, cripples her effort to halt the boats and keeps her trapped -- her options being either "lame duck" humiliation or the embrace of Abbott's policy, as reflected in Morrison's bill, that none of Labor's advisers think will stop the boats anyway.

The issue that puzzles many is why the Coalition thinks flying asylum-seekers to Malaysia an "abomination" when its policy is to turn boats with asylum-seekers back to Indonesia.

Most nations in our region have not signed the 1951 Refugee Convention. It is a blunder for the Coalition to impose a hard and fast rule that eliminates offshore processing in all such nations. It is not just Malaysia that Coalition eliminates as an option. It is most of Southeast Asia. How sensible is this from the party that boasts it invented the idea of offshore processing?

During the Senate debate, Foreign Minister Bob Carr attacked the High Court's decision as "one of the most questionable and curious" in memory, pointing out that it led to an upsurge in boats, only to have Brandis leap to defend the court's honour. This bitter Labor-Coalition rift flowing from the High Court decision is pivotal since any new policy must be based on Labor-Coalition bipartisanship, no matter how grudging. This is how John Howard implemented his hardline 2001 "stop-the-boats" stance. With the Greens pledged to rejection of offshore processing as a badge of identity, a resurrected offshore processing policy depends on Labor-Coalition agreement.

The Labor-backed Oakeshott bill allows offshore processing in the 40-plus regional nations that are part of the Bali process. Greens leader Christine Milne championed the High Court decision and attacked Oakeshott-Labor bill, saying it included Iraq, Iran, Afghanistan and Syria (some of which have signed the 1951 convention and come under Abbott's policy).

On Thursday Milne put forward a series of proposals -- taking the refugee and humanitarian intake to 20,000, boosting support for the UN High Commission for Refugees by $10 million and new Australia-Indonesia talks on regional co-operation. Morrison told the Greens he would accept them all, but their differences over offshore processing made any agreement impossible.

Gillard has no option but to maintain the pressure on Abbott. Hence, her decision to appoint an "eminent persons" panel headed by former Defence Force chief Angus Houston, to investigate the crisis, get briefings from government and put forward its independent views. Obviously, Gillard believes this will include the Malaysia option because, as she said, her own advisers when briefing Abbott "have looked him in the eye and said to him 'Nauru will not work'."

Pressed about the "eminent persons" panel, Gillard said that, once its report was done, "would the Leader of the Opposition say that was of no value?"

That's different from asking whether he would accept it. Abbott has burned his own political boat on this issue. He won't accept Malaysia. That's obvious. The leader who has destroyed Gillard on carbon pricing is intent on destroying Labor, once again, on the boats.

The Coalition knows that Labor, filled with moral hubris, softened the policy in 2008 and 2009 and got trapped when it faced an upsurge in boats. The government has never been able to recover, thwarted by the twin obstacles of the High Court and the parliament.

Gillard ran with the Oakeshott bill this week and has a beachhead to continue her campaign for a new policy. Abbott's tactics are brutal yet effective. The only risk is that opinion might turn; he might be seen as unreasonable or the cause of the problem. Yet that assumes Gillard has powers of persuasion and political capital to burn. She doesn't. Gillard, in fact, faces a perfect storm of carbon pricing and more boats.

Abbott, on the other hand, faces his ultimate test if he becomes prime minister: how on earth does he stops the boats? It remains a mystery.