Hard cases make bad law, lawyers say, and in the case of the Oceanic Viking, they may make for bad policy. There are no easy or obvious solutions because all the options have negative consequences.

There’s no domestic policy reason why the refuseniks aboard the Oceanic Viking should not be taken to Christmas Island and processed like other boat arrivals. If they’re found to be genuine refugees, they will form a small part of the 13,750 refugees we’ll accept this year. If not, they will be sent back to Sri Lanka. That they have acted in an uncooperative fashion in order to secure being taken to Christmas Island is frustrating but, in the end, irrelevant.

But these are not like other boat arrivals. These people never left Indonesian waters.

Greg Sheridan argues today that taking them to Christmas Island would be “a tremendous defeat for the integrity of the Australian immigration program. The word would go out very quickly to all would-be illegal immigrants: you don’t even have to get to Australian waters, if you merely get into a section of the Indonesian search-and-rescue zone near Australian waters and declare yourself in distress, you get to live in Australia forever.”

That’s the floodgates argument. Always beware anyone warning that the floodgates will open — it usually means they don’t have a strong argument about why you shouldn’t do something. There are tens of thousands of asylum seekers in the region who are trying to come to Australia already. The specific circumstances of the handling of the Oceanic Viking are unlikely to make any significant difference to their numbers, regardless of Sheridan’s overblown claims.

What taking them to Christmas Island might do, however, is encourage other asylum seekers in the belief that the already-perilous boat journey to reach Australian territory can be undertaken with the assurance that they will be rescued by Australian vessels even deep inside Indonesian waters. Like temporary protection visas, this might have the unintended consequence of increasing the risk that a boat containing asylum seekers will sink before help can arrive.

It is conceivable that the lives of asylum seekers might be lost in future as a consequence of how the Oceanic Viking is handled, and policymakers will surely be remiss not to consider that possibility.

That this coincides with a political perception that agreeing to remove them to Christmas Island would be a “defeat” for the Government is, again, frustrating but not relevant.

The Government is waiting and hoping that something will happen along to resolve the dilemma. That’s the least worst option at the moment and the Government is correct to pursue it for now. It has repeatedly emphasised that both it and the Indonesian Government will be patient about a resolution. How long it remains the least worst option depends, more or less, on how long we can leave a major Customs asset stranded in an Indonesian port.

There’ll be a growing media clamour for some form of resolution, and repeated headlines about the Government’s policy being ‘in tatters” (© The Australian) but no compelling policy reason for precipitate action.

That’s the specific issue of the people aboard the Oceanic Viking. It is effectively unrelated to the broader issue of handling the flow of asylum seekers, where the Government has struck a sound policy of regional cooperation, humane handling of asylum seekers who reach our shores, and efforts to disrupt the process that sees people risking their lives to get here. It has also increased the number of places in Australia’s humanitarian program, although by no means nearly enough.

The fact that few people — and certainly not the Opposition — are proposing any significant change to Australia’s refugee assessment process suggests that, through the rhetorical sound and fury, the Government’s policy doesn’t differ significantly from that of the previous Government and has broad support.

Watching Paul Howes and John Roskam mostly agreeing on The 7.30 Report last night, despite Kerry O’Brien’s efforts to suggest otherwise, shows how the asylum seeker debate has evolved since eight years ago. Neither Roskam nor Howes is particularly representative of each’s notional sides of politics but even so, the sight of “the Left” and “the Right” agreeing we should be accepting more refugees and that the Oceanic Viking should head for Christmas Island suggests there should be room for a bipartisan policy on asylum seekers, which would go a significant way toward ending the sense of crisis — admittedly mainly stirred up by the ABC and The Australian — that pervades the issue.

The main problem in all that is that Kevin Rudd doesn’t really do bipartisanship, not even when the Government and Opposition agree on most aspects of the handling of asylum seekers. Normally Rudd has no interest in bipartisanship because he is in such a position of strength. On this issue, he has no interest because he fears he is in a position of weakness, and one slip could see his huge poll lead evaporate in a flash of fury about boat people.

Indeed it’s significant that Rudd’s normally deft touch in communicating his key message has deserted him in recent days and Stephen Smith has looked the more relaxed and calm figure, partly because he doesn’t start talking about “kids behind razor wire” the moment he opens his mouth. Rudd’s behaviour is suggestive of a man who isn’t confident of his own policy.

Eventually that lack of confidence might do more to undermine it than any number of boats. The PM should remember that not everything is a crisis just because some journalists and commentators insist that it is.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey