“This government will not be lurching to the right on the question of asylum seekers, as some have counselled us to do.” — Kevin Rudd, June 23, 2010

“I am full of understanding of the perspective of the Australian people that they want strong management of our borders and I will provide it.” — Julia Gillard, June 24, 2010

It was Julia Gillard who elevated the handling of asylum seekers to its status as a totemic issue by which her government would be judged, right from the outset. It was Julia Gillard who rushed out a half-baked “East Timor Solution” as part of a deck-clearing operation before last year’s election, with only token consultation with East Timor.

It was Julia Gillard who pitched one of Labor’s few real talents, Chris Bowen, into the political meat grinder by giving him the immigration portfolio. It was Julia Gillard who rushed out the announcement of a “Malaysia Solution” even before it had been negotiated with that country. It was Julia Gillard who spruiked it even as the Malaysian government was engaging in its own human rights crackdown.

She set the standard by which her leadership would be judged. This is a debacle of her own making.

The key problem with the implementation of the Malaysian Solution was almost certainly its non-legislative character. The government’s lawyers may well have identified the risk of a court finding a flaw with a declaration relating to the transfer of asylum seekers to another country made under the current Act. Their advice, which we’ll never see, might have recommended amendments to the Migration Act to eliminate that risk. But the government wasn’t interested in legislation for the Malaysian Solution, not given how long it would have taken, and not when the Greens and the Coalition would likely have blocked it, for very different reasons.

It can still seek to amend the Act to fix the problems identified by the High Court, but that’s a theoretical possibility only.

Worse, the government doesn’t appear to have had a back-up plan in the event the High Court ruled against it. All governments lose court cases. The possibility it might have lost yesterday was a real one, but the government has been purely reactive. Yet again there’s the impression the basics of good planning elude Labor.

If the result isn’t fatal to Julia Gillard’s chances of recovering her reputation with voters, then it must be damn close. She explicitly invited voters to judge her on asylum seekers, and the issue has been bungled ever since. The replacement of Julia Gillard now seems a whole lot more likely, even inevitable, barring the sort of recovery that would make John Howard’s Lazarus look downright ordinary.

It’s an unusual decision that unites Left and Right. Asylum seeker advocates, the Greens and progressives are delighted with the High Court judgment because it cruels the Malaysian deal and rules out unaccompanied minors ever being sent offshore. Conservatives are cracking the bubbly because it’s a major blow to an ailing government. Even a lot of Labor MPs were hoping the court would vote it down. And asylum seekers and people smugglers will be delighted as well. Already there are plenty of reports of boat trips, delayed pending a resolution of the Malaysian issue, about to start from Indonesia.

That means hundreds of asylum seekers will now risk their lives to try to get here when they otherwise may not have. If one of those boats founders, lives will be lost. When the Left and the Right have stopped fetishising this issue as either a one-stop test of national morality or some macho game of border security, we’re left with the policy problems of how many asylum seekers Australia should take, and how we can stop lives being placed at risk.

The point of the Malaysian deal — a deal seemingly more criticised than properly understood — was to try to address both at the same time. When all the cheering has stopped, we still need to address those issues. And doing nothing, warehousing people on Nauru before inevitably allowing them to come to Australia or only giving them Temporary Protection Visas, aren’t any more solutions than what’s left of the Malaysian deal now that the High Court has ripped it apart.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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