Labor is misguided in continuing to support offshore processing.
THE Gillard government stands at yet another crossroad on asylum policy. First the High Court, in a case known as M70, invalidated the Immigration Minister's declaration that Malaysia was a country that offered effective procedures for determining refugee status and met relevant human rights.
Clearly the majority of High Court judges were not impressed by the minister's ''understanding'' that Malaysia was ''keen to treat refugees better'' in the absence of any enduring legal frameworks to that effect.
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Then there was the Solicitor-General's advice in September that Nauru and Papua New Guinea did not satisfy the statutory criteria of a ''declared country'' - a place where asylum seekers could be sent for offshore processing.
And now the government's bill to negate M70 has foundered before it was even debated in the House of Representatives.
In a strange turn of events, the opposition has taken the high moral ground - apparently Nauru, with no functioning refugee determination process, is a more humane place to send asylum seekers.
Each juncture has presented the Gillard government with the opportunity to rethink offshore processing. The High Court's decision could not have been clearer. Sending asylum seekers to Malaysia was not an option while Australia purported to comply with the Refugee Convention. And any suggestion in the joint judgment in M70 that Nauru may have been an option was quickly dispelled by the Solicitor-General's advice.
And this leaves? The Timorese? Tried them. New Zealand? Not during the World Cup.
Yet Labor persists with offshore processing. One wonders how long Labor will hit its head against the wall.
Of course, it is a wall that it helped build. Even before the 2001 election - that saw Labor support the Howard government's amendments that paved the way for offshore processing under the Pacific Solution - successive Labor immigration ministers going back to Gerry Hand had talked up the language of queue jumpers, detention and deterrence. It was only a matter of time before an opportunistic leader took this further. And when Howard did, Labor was left with no public goodwill or understanding towards asylum seekers to fall back on.
The choice that confronted the Labor Party after the election defeat of 2001 was the same that confronts it now: continue to support offshore processing, as Prime Minister Julia Gillard wants, or begin the slow and painstaking process of rebuilding a principled asylum-seeker policy.
In 2002, a Labor-dominated Senate committee recommended that the ''use of declared countries [Nauru and PNG] for holding and assessing claims for refugee status … should be abandoned''.
The committee's recommendations were based on a level-headed assessment of Australia's international obligations, and an understanding of international refugee flows and the long-term response required to prevent conflict and persecution in countries of origin, and to generate a humane and equitable response from countries of asylum and resettlement.
Offshore processing was so obviously not that.
But Labor did not go far enough. In a sleight of hand, it rejected offshore processing but kept the legislative apparatus introduced in 2001 by the Howard government.
Those amendments created the so-called ''excision scheme'' - whereby unlawful non-citizens arriving at ''an excised offshore place'' were liable to be removed to a declared country or to be detained and processed in Australia under an administrative scheme with fewer procedural rights and no access to the courts (or so it was thought).
This gave Labor the option of disbanding Nauru and Manus Island but putting in place a processing regime on Christmas Island that did the same job. And this is what it did.
On the one hand it closed down Nauru and Manus Island and brought the remaining asylum seekers to Australia, while on the other it instigated a new refugee status assessment process on Christmas Island that denied refugee protection claimants a right of appeal to the Refugee Review Tribunal or to the courts. The High Court torpedoed that policy as well, in the cases M61 and M69. The upshot of all this has been that Labor has appeared like a party without direction or principles.
A principled asylum policy would be good politics.
Dr Angus Francis is a senior lecturer in the Human Rights and Governance Program, Queensland University of Technology Law School.