A solution they can live with

So Kevin Rudd has announced that asylum seekers reaching Australia by boat will no longer have the chance to resettle here – instead they will, if found to be legitimate refugees, be settled in Papua New Guinea. Kevin Rudd and the Labor party may have come up with this plan and made the announcement, but make no mistake: this is squarely Tony Abbott and the Coalition’s fault.

Six years ago Kevin Rudd and Labor dismantled Howard’s Pacific Solution. They were supported in this by public opinion, which had turned as people became aware of the psychological damage being done by the harshness of the policy. By some measures, the Pacific solution was a less harsh measure than the current announcement of permanent resettlement in PNG. It seems fair to say that the current policy is one that Labor would never have countenanced when it first came to office six years ago. In those six years, the discussion has soured; the public opinion has turned; and Labor is on the verge of being decimated in an election with the significant risk that all of their good achievements of the past two terms could be reversed under an Abbott government.

Those six years have seen a marked increase in the number of refugee boats arriving in Australian waters. Some blame push factors, claiming that the safety and living standards in countries such as Afghanistan, Iran, Iraq and Sri Lanka has deteriorated, causing many more people to become refugees than previously. Some blame pull factors, claiming that Kevin Rudd “laid out the welcome mat” for asylum seekers and “lost control of our borders”. (Interestingly, there is strong statistical evidence that pull factors are not a significant cause of the increase in boat arrivals: see this excellent Crikey blog, or more recently this article on The Guardian.)

Since returning to the Big Chair a few weeks ago, Kevin Rudd has been methodically addressing and removing the three major attack fronts the Coalition has in the upcoming election. Carbon tax? “Terminated”. (The discussion was always poisoned by the Coalition’s insistence on using, and Labor’s eventual acceptance of, the term “tax” in what was always a carbon trading scheme, albeit with an initial fixed price.) Faceless men? Rudd has stormed into NSW with steel-capped boots to kick a few heads, and is blasting through a “you’re not getting rid of me again” bill to ensure that the Prime Minister you voted for is the one you’re stuck with. The third major attack front, and arguably the one that has been the most damaging to Labor’s electoral chances, is “the greatest policy failure in years”, being asylum seeker policy, boat people and the removal of the “policies that worked”, the Pacific Solution.

Over the past six years, Labor’s every attempt to find a policy solution to boat arrivals has been wilfully thwarted by the Coalition and other, sometimes well-meaning, groups. It doesn’t suit the Coalition for Labor to have a workable solution; it’s the strongest ammunition in the Liberals’ war chest and a bipartisan approach would blunt its effectiveness as a vote-changer. And for refugee advocates, most “solutions” that have been proposed are not sufficient or acceptable. In the same way that the Greens sabotaged the original ETS, thus preventing a “somewhat better” solution because it wasn’t “ideal”, some parties have blocked partial solutions to the boat people problem, leaving Labor in an ongoing bind and the Coalition with legs under their arguments.  The Malaysia solution was regarded as having at least a chance of reducing the number of boat arrivals, but refugee advocates challenged it in the courts and it fell foul of a technicality of Australian law. Labor’s attempt to change that law to make Malaysia possible was then voted down by the Coalition.

Over the past six years, the national discourse on asylum seekers has been poisoned with a continuous diet of terms such as “illegal immigrants”, “queue jumpers” and “border control”. (There is nothing illegal about seeking asylum, nor about arriving by boat; in their countries of origin, there often is no queue to jump; and the flow of boat arrivals makes up, at most, 5% of asylum seekers arriving in this country.)

The deaths of asylum seekers on leaky, overcrowded, under-resourced fishing boats has been a series of hammer blows against Labor’s credentials. Every time a boat arrives in Australian waters, with ever-increasing numbers of refugees crammed aboard, it’s portrayed as a critical failure of policy. Every time a refugee or migrant commits a crime, it’s a national emergency. Against this dialogue, Labor has seemed powerless, and the public mood has swung away from those heady days in 2007 when we showed a touch of compassion. Now, it seems, the majority of Australians (or at least, the majority of Australians in critical swing seats) feels that the best way of helping these immigrants is to show them that we’re bloody well not going to help them. We need to stop them getting on boats, goes the argument. The way to do that, it continues, is to remove the motivation to get on the boat in the first place; not by fixing things in the country of origin, but ensuring that the country of destination will not be their eventual home. The sad thing is, it might actually work.

So Kevin Rudd was desperately in need of a solution that would meet three key criteria:

  1. It will work, and quickly;
  2. It is not illegal under international or domestic law, nor does it literally breach Australia’s obligations under the refugee convention; and
  3. It can be construed as less harsh than the Opposition’s approach.

The PNG solution meets these criteria. In 2002, the year that Howard’s Pacific Solution was implemented, the number of boats arriving in Australia’s waters dropped precipitously. Of course, this is partly because the Navy was turning boats around and sending them back to Indonesia (until their crews learned that sabotaging the vessel would put paid to that idea), and partly because the places where boats arrived were technically redefined in that year as not being part of Australia for immigration purposes. However, Rudd will be hoping for a similar immediate drop in boat arrivals. Even though the halt in 2002 was brief, in 2013 the boats don’t need to stop for good; they just need to stop arriving inconveniently during an election period.

Australia has no legal obligation to resettle asylum seekers here (moral obligations aside). The key legal requirement is non-refoulement – not sending victims of persecution back to their oppressors. That covers internation law. PNG is a signatory to the refugee convention, so it is not subject to the same domestic law that scuttled the Malaysia solution. There’s little doubt that the PNG solution will be challenged in the courts, but certainly not before this election is done and dusted. And Rudd, as an international diplomat / ex foreign minister, can be expected to have a shrewd idea of what is and is not possible under international law, so there’s at least a chance that this solution will survive a challenge.

Thirdly, look at the alternative. If we’re stuck with a choice between Labor’s “Bring ’em here, treat ’em kind, then ship them off” approach, and the Coalition’s hardline “They don’t get here, even if we have to tow the boats back to sea and leave them to founder in international waters” approach, Labor can be seen as the lesser of two evils. And when Rudd says that Papua New Guinea is “an emerging economy with a strong future, a robust democracy”, there’s at least an underlying tinge of appeal, as if he’s trying to convince himself of that.

So if you have a problem with this new policy, we can blame the Coalition for setting the terms of the debate and the tone of argument in the public sphere; we can blame the media for aiding and abetting this change in discourse; we can blame the majority of the Australian people who consistently answer polls saying that boat people are a problem that needs fixing; and we can blame Labor for compromising their own principles in the face of this overwhelming political reality.

At least the Greens won’t change their policies at the whim of an ignorant public, and even if they don’t have a chance to win government, the more that people, horrified at the collusion of the two major parties in this arena, vote Green, the more likely there will be a third party in the Parliament leavening the mix with a bit of politically sour but morally upright attitude.

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