PM and Abbott face off over boat arrivals

The Gillard government is hell bent on pursuing its Malaysia solution because it believes that's the only way of stopping asylum seekers trying to reach Australia by boat.
But even if the policy of sending people back to where they've come from is a great deterrent Labor is facing two roadblocks that could prove insurmountable.
First, Opposition Leader Tony Abbott has declared "Malaysia is out" as far as he's concerned and the government needs coalition support to put offshore processing back on solid legal ground after last week's High Court ruling.
Second, even if the Migration Act and the Guardianship of Children Act are amended refugee advocates could challenge the Malaysia solution in the courts again - and it's not certain the commonwealth would win.
So faced with the prospect of a second bruising defeat why is the Gillard government pushing ahead with Malaysia?
The detailed answer was provided in a briefing to Abbott this week by immigration department officials.
They said the Malaysia solution was a "game changer" whereas sending people to Nauru or Manus Island in Papua New Guinea wouldn't deter them from boarding a boat because most, after a wait, would still end up in Australia.
People smugglers didn't know that when the so-called Pacific Solution began but they do now.
Department boss Andrew Metcalfe argues that the key to stopping the boats - if that's what government wants to do - is quickly returning people overseas.
It's proven to have worked in the past - the last time in 2001 and 2002 when the former Howard government towed boats back to Indonesia.
This wouldn't work nowadays as people smugglers have learnt to sabotage boats, there's no guarantee of safety for asylum seekers and, anyway, Indonesia wouldn't have a bar of it.
But, the departments says, the people swap with Malaysia was a "virtual tow-back" with humanitarian safeguards built in. Hence Immigration Minister Chris Bowen's description of it as an "elegant" policy.
The High Court begged to differ when it said the deal struck between Canberra and Kuala Lumpur wasn't good enough because a destination country had to be bound by domestic or international law to provide protection.
To get around that is simple enough, according to Australian National University international law expert Professor Don Rothwell.
The federal parliament could simply rewrite section 198A of the Migration Act so that the minister no longer had to declare a third country - say Malaysia - provided refugee assessment and human rights protections.
Prof Rothwell says if the intent was clear and unambiguous, and ruled out judicial review, the statute would override any international obligations Australia owed asylum seekers under the UN refugee convention.
It would be tough but effective.
However, there's another bump in the legal road.
Parliament would also have to change the law to allow the minister to send unaccompanied children to a third country for processing - and that could prove much trickier.
"Guardianship is not just a statutory creation but it's also recognised under the common law," Prof Rothwell told AAP.
"So there would still be the potential for legal argument to be made that the government of Australia has obligations to unaccompanied minors that arrive in this country under the common law."
But even if the changes could survive legal challenge Prime Minister Julia Gillard has to get past Abbott first.
It's been reported he might only support changes to migration law which allowed offshore processing in countries that had signed the UN refugee convention.
That could be done quite easily, Prof Rothwell says.
Which would leave Gillard in a political bind and Abbott, potentially, in a moral one.
The PM could acquiesce, give up on Malaysia, and reopen the Nauru and Manus Island centres only.
But according to departmental advice that won't stop the boats.
Alternatively, she could dig in. But without being able to change the law offshore processing wouldn't be an option.
Onshore processing only could see 600 people arriving by boat every month which would quickly overwhelm Australia's detention capacity.
If people lived in the community while being processed there's a risk of European-style unrest, the government has been told.
Abbott's dilemma is more complex.
If he insists on saying no to Malaysia all advice suggests the flow of boats will increase.
That might be good for him politically in that he can continue to use the arrivals to attack Labor (unless the government successfully changes the entire tenor of the debate).
But if the Gillard government falls Abbott may well face the same border protection problem.
It's a case of "Be careful what you wish for". (


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