Julia at sea, but towaway Tony misses boat

Julia Gillard and western Sydney MP David Bradbury join a naval exercise off Darwin.

LABOR is confused on asylum-seekers while the Coalition should hang its head in shame.

ONCE you get past the over-blown rhetoric designed to evoke fear and panic in the minds of voters over asylum boat arrivals - I am directing that criticism squarely at the opposition - there are two important as yet unanswered questions.

First, how on earth would Tony Abbott's proposal to tow boats back out to sea actually work?

Second, if Julia Gillard is so keen to set up a regional processing centre in a country that has signed up to the UN convention on refugees, why does it have to be offshore? Given the sloppy way she approached East Timor and the consequent likelihood that they won't agree to one being

housed in their territory, Australia as the richest nation in the region should do it.

The first question is simply answered: Abbott's towing proposal isn't realistic and won't work, but I will pay it more respect than it deserves by explaining why.

The second question about the merits or otherwise of domestically setting up a processing centre is more complicated. Our legal system gives asylum-seekers greater rights of appeal than UN guidelines. The government doesn't want to open that can of worms, so it favours offshore processing.

Abbott has said that he would tow boats back out to sea. He justifies this policy by pointing out that it happened (incredibly rarely) under John Howard's government, and by reminding us that Gillard in 2002 and Kevin Rudd on the eve of the 2007 election suggested doing the same thing.

That old adage two wrongs don't make a right comes to mind.

Just because Gillard and Rudd were once upon a time unrealistic enough to suggest something similar to the Coalition's present policy doesn't justify it. In fact Gillard and Rudd shirking from implementing such a system goes some way towards highlighting how unrealistic it is.

Howard's very rare policy of towing boats was predicated on having somewhere to take them: a nation from where they came willing to receive them back. Abbott is proposing to tow the boats out to international waters and leave them there.

Just stop and consider how that might work.

Asylum-seekers would resist (who wouldn't). To make doing so safe would mean restraining them. Unseaworthy boats couldn't be towed, and those that were would soon be sabotaged, leaving the navy vessel that just towed it needing to then rescue it.

This situation is not only inhumane, it is dangerous to our navy doing the heavy lifting.

That Abbott and his shadow ministers can keep straight faces when explaining this policy says a great deal about their willingness to do anything to get elected, even if it plays on people's fears and prejudices.

Meanwhile Gillard has promoted the virtue of a regional processing centre, and she wants it somewhere offshore.

In theory it is a good idea, and locating it in a country that is a signatory to the UN convention on refugees makes sense (Nauru wasn't and boatpeople who went there were solely Australia's problem, which is why comparing

Gillard's proposal with Howard's Pacific solution is inaccurate).

Sadly for Gillard she displayed a stunning ignorance for East Timor's political system when she approached the President instead of the Prime Minister. The latter is the head of government, the former simply a ceremonial head of state, slightly more significant than our Governor-General but substantially less powerful than the US President.

The question rarely asked is why does any processing centre need to be offshore, why can't it be right here in Australia? It's our idea, likely to be our money, we have a big geographical area and our diplomatic efforts are going to drive this debate in the months and potentially years ahead.

The answer is because just as Christmas Island and Ashmore Reef have been excised from the migration zone to deny refugees access to our courts, neither side of politics wants processing on the mainland, because UN refugee guidelines are superseded by domestic law.

Our system is a generous one of endless appeals and opportunities for asylum-seekers to drag out their applications to stay here, clogging up the courts system in the process.

Under UN guidelines, when establishing whether someone is a genuine refugee there is an assessment done with one right of appeal and that's it. Under Australian law asylum-seekers get an assessment by the immigration department and have a right of appeal to the refugee tribunal.

If that's unsuccessful they can take their case to a federal magistrate and then a judge from the Federal Court. If they still aren't successful they can apply for special leave to appeal to the High Court, which if successful means their case is heard in that highest court of the land.

It's an expensive and lengthy process.

The government must adhere to this process for mainland refugees because a legal case - S157 - set a precedent that Section 75 (5) of our Constitution enshrines these appeal rights.

Who was the legal counsel arguing for that determination? None other than Duncan Kerr, now a Labor MP who also served as a minister in the Keating government (you won't see Gillard advertising that little fact).

If anyone wanted to set up a regional processing centre in this country and have UN rules apply they would need a referendum to change the Constitution. At least then we could stop running away from our own legal system and deal with refugee arrivals right here on the mainland.

The refugees debate has become an unedifying spectacle, for the most part caused by an opposition using misleading rhetoric about an "armada" and "tsumani" of boats arriving that threaten our safety and security (we are never told how), when in fact even with the increase of arrivals the numbers are very low.

Let's not forget the navy is doing its job, intercepting boats for processing. Boatpeople aren't wandering up and down the Western Australian coastline threatening police and passers by.

I bet if any polling agency asks people to estimate the number of people arriving by boat the results would dramatically exceed the reality. That's because the way the opposition have prosecuted their case in this debate has left the impression you can't see the ocean for the number of boats on the horizon each week.

Abbott and his immigration spokesman Scott Morrison should hang their heads in shame for describing three boat arrivals a week carrying maybe a couple of hundred asylum seekers a tsumani or armada of boats threatening our safety.

History will quite properly judge them very harshly for it.

I happen to be a bleeding heart on refugees, the Right can tar and feather me later. But Gillard is right when she says people have a right to be concerned about boat arrivals.

That's what living in a democracy is all about: listening to the concerns of the people.

Equally Abbott and Morrison have a responsibility as political leaders to counter government policy rationally rather than by inciting a fear that isn't warranted by the problem at hand (if you can even describe boat arrivals that way).

So far they are chasing votes at the expense of the integrity of their arguments.

Watch Peter van Onselen interview the Coalition's education frontbencher Christopher Pyne on Sky News Saturday Agenda at 8.15am today, replayed at 8.30pm. The interview will be available at www.theaustralian.com.au after the broadcast.