More delusions than solutions in asylum impasse

AUSTRALIA's asylum-seeker deadlock is deepening as the latest drownings reveal not only the inability of the Gillard government to stop the boats but lack of confidence that an Abbott government could deliver this prize.

The nation is now in a governing crisis - it has no effective border protection, with boat numbers at more than 1000 a month and escalating as smugglers are able to supply demand with deaths mounting relentlessly. The crude mechanics of the logjam are that Labor will open Nauru in tandem with its Malaysia agreement yet the Coalition will not accept Malaysia under any circumstances. In this stand, Tony Abbott and his spokesman, Scott Morrison, are backed by the Greens, the Labor Left and the human rights lobby.

Much of the public debate misses the core point: the extraordinary hybrid that is Coalition policy. Abbott and Morrison promise a revival of John Howard's hardline anti-boats stand yet a far softer approach than Labor on offshore processing by insisting they will co-operate only with nations that have signed up to the 1951 Refugee Convention. This eliminates most of the region, including Malaysia and Indonesia. It injects the UN Convention into Australian law in an extraordinary abdication of executive discretion by the Coalition.

Three decisive events have delivered this crisis. They are Labor's initial hubris and misjudgment in softening Howard-era policy, the High Court's rejection of Labor's Malaysian agreement and the Coalition's refusal, primarily on human rights grounds, to accept Labor's legislation designed to re-invest the government with the discretion to negotiate bilateral agreements for offshore processing, notably with Malaysia.

This deadlock has deep significance for both Julia Gillard and Abbott. It exposes the collapse in Gillard's political authority. Unlike Howard, who eventually won Labor's agreement for his 2001 laws, Gillard cannot bring any pressure to bear on Abbott to win his support for her "stop the boats" law.

Abbott and Morrison treat Gillard with political contempt. They assume she cannot touch or hurt them. It is sad to see a Prime Minister reduced in this fashion.

Gillard and her Immigration Minister, Chris Bowen, have a policy but no power to legislate that policy. Above all, Abbott knows that Gillard, as prime minister, will be blamed by the public for the collapse of our border protection.

Gillard wears her humiliation like a badge - last year after Abbott vetoed her Malaysian policy she predicted more boats and more doom. Within government, anyone cognisant of border protection issues knew more boats and deaths were certain.

Yet Abbott is storing up a furnace of trouble. The Coalition position enjoys no support as a workable proposition within the immigration-border protection-national security apparatus. The agencies responsible for border security believe the Coalition's stance will not stop the boats. Reversion to Howard's 2001 stance works as a slogan but it does not constitute a viable policy for 2012.

Abbott's mantra is that what counts is not bipartisanship but effective policy. He's wrong. Both are necessary, as Howard proved. Bipartisanship is essential to legislate any new and effective policy. With the Greens opposed to offshore processing, any policy of deterrence can be legislated only on Coalition-Labor votes.

The Coalition has convinced itself that, in office, it can stop the boats. How? Is this a fatal delusion? Consider the damage to Abbott, just six months into his government, if the boats are arriving at the same rate. Every boast, every pledge he made, would be turned against him. If he needed new laws, don't think for a moment that Labor, having been denied by Abbott on its own laws, would forgive and meekly agree. On Malaysia, for instance, Abbott has killed Labor's policy and now proclaims its policy does not work.

Immigration Department head Andrew Metcalfe has made his views known: the department does not believe temporary protection visas or reopening Nauru have any hope of halting the boats. This is why they went for the much tougher Malaysian option.

History suggests only two options work - turning the boats back and a comprehensive regional arrangement. Turning some boats worked for Howard but the message is that Indonesia will not agree any more. Abbott says he intends to turn boats and will visit Indonesia as his initial priority. It is hard, however, to see how this option can be revised. As for a regional agreement, it seems years away.

In this situation, Bowen negotiated the Malaysian deal as the best fallback. It is a "virtual tow-back" in which asylum-seekers are put on a plane immediately and returned to Malaysia with no hope of an Australian visa.

The idea is to demolish the smugglers' product but it needs legislation; it is opposed by Right and Left on human rights grounds; there is considerable public outrage; and the 800 cap may be insufficient, given the flow of boats.

Morrison visited Malaysia last year and his rejection of the policy is genuine. This week he branded it "an abominable arrangement".

He has made the Coalition's core condition explicit: it wants enshrined in the Migration Act that offshore processing must be limited to nations that endorse the Refugee Convention.

This was not Howard's position. It significantly limits offshore processing.

It appears to accept the High Court's interference in policy and surrenders the option of parliamentary action to restore to government the discretion to transfer asylum-seekers to other nations in the region for processing.

After the High Court's decision, advice from the Solicitor-General, Stephen Gageler, was that under existing law Malaysia was out, Papua New Guinea was almost certainly out and Nauru was doubtful. The Coalition is sure Nauru is possible and it may be right.

The crisis destroys the moral superiority once claimed by opponents of offshore processing. The Age's Michelle Grattan correctly says there is no longer a moral high ground in this debate. Australia now sees the consequences of exclusive onshore processing - more boats, more division, more deaths. This is not a policy recommendation. The Greens will continue to back onshore processing. It is the stand of a party that will never have governing responsibility.

Momentum has moved decisively to offshore processing as the desired policy combined with the search for a regional solution.

Yet the bitter split between Labor and Coalition over the type of offshore processing dooms Australia to a protracted struggle of uncertain duration and grim consequences.