For months now it's been hard to determine which is the right wing of the Liberal Party and which is our Labor Prime Minister. This situation is most apparent in the case of policy for asylum seekers. Gillard has lurched ever further from a social justice position to a position of pointless rhetoric about some "business model" which she ascribes to "people smugglers". On the way, asylum seekers are used as chess pieces in some game that, apparently, is designed to "break the people smugglers' business model".
Abbott and Gillard have painted themselves into corners which are so close that they are able to put their arms around each other if they wish. And lo, as the High Court decision on Malaysia was released, we saw Abbott and Gillard attempt to do just that.
The bit that both have missed is that, on the subject of asylum seekers, the public have moved on. A majority of Australians in recent polls have supported on-shore processing of asylum seekers. Yet both Gillard and Abbott continue to rant and rave about the necessity for "offshore" processing.
So let's get down to the facts:
- In response to a challenge about Gillard's proposal to send asylum seekers to Malaysia, the High Court ruled that Chris Bowen, as Minister, had acted beyond his powers in declaring Malaysia and could not send asylum seekers there;
- The key issue was that the immigration act, the Court held, had various protections in it. The Court held that these protections arose in the act out of an intention to enact Australia's obligations under the Refugee Convention and other related instruments. The Court was not prepared to accept that these protections were available in Malaysia and therefore the Minister acted beyond his powers in determining that they were;
- The High Court further made it clear that other countries might represent the same problems for Australia as Malaysia had, due to the same provisions;
- Gillard, after some prevarication, looks likely to partner with Abbott to seek to change the law to enable her to continue off-shore processing of asylum seekers;
- On the way to doing that Gillard arranged a Departmental briefing for Abbott. That briefing, we are told by the press, sank to the depths of xenophobia and scaremongering.
Here's the problem for me in changing the law: My reading of the High Court judgement leads me to think that there are perhaps two things that Gillard could do to make it possible to send asylum seekers off-shore for processing. Either she could substantially water down Australia's obligations to treat asylum seekers in accordance with our various international obligations (such as the Refugee Convention); or she could somehow put the decision making process beyond the reach of judicial review. You'd need to be a decent lawyer to determine whether the latter path is possible.
Leaving aside what I think should happen to asylum seekers (more of that in a moment), either of those courses of action are a total anathema to me. How could we water down our obligations to treat asylum seekers with a basic set of protections? When is it ever acceptable to place politicians' decisions beyond review of the courts? There may be other mechanisms open to Gillard in changing the act but you'd have to be smarter than me to see them.
What is most disappointing to a natural left voter is that Gillard has not only wilfully failed to take this opportunity to extricate herself from a dreadful political bind over asylum seekers, but she has lurched further into the bind. She wants to be there, she wants to be cheek by jowl with the worst of the Liberal Party and she wants to treat asylum seekers in a totally unacceptable and inhumane way.
Let's be clear about this. At the heart of the High Court's decision was a view that the Minister could not find that Malaysia had appropriate protections for the basic rights of asylum seekers under the appropriate international instruments. This isn't sophistry, or lawyers playing with words. It's about basic protection of asylum seekers' rights. Gillard meanwhile has clearly shown that she doesn't give a fig for those rights, not a fig.
Gillard was offered a "get out of jail" card by the High Court. She could have dumped her old rhetoric "the Court won't let us do what we think is right, so now we have to process on-shore" or whatever face-saving spin she wanted to put on it. She could have freed herself from her lock-step with the Libs and in the process begun to live up to our obligations. She has proved either too stupid to see the opportunity or too set in her firm belief about the rightness of her path. Either way, this week has seen an extraordinary phenomenon in my small circle. Life-long left voters vowing that the Labor Party will never again get their vote.
I've previously written about what I think about the political rhetoric around asylum seekers and people smugglers. Please go and read it. Suffice to say that the "pull" theory expounded by our politicians of all colours is simply bollocks. The people smugglers will only go away when peace descends on countries of origin and people no longer feel their only option is to flee.
Australia's politicians are demonstrating that we are a mean, selfish and uncaring country. We are not prepared to live up to our humanitarian obligations. The one ray of hope is that it appears that the Australian population are beginning to abandon their politicians, beginning to look like they support the right thing - on-shore processing, indeed in my view community processing.
Now to my dilemma. finding yourself politically homeless never happens overnight. Rather a slow build up reaches breaking point. This is the breaking point for me and many others I know. We are left in a disturbing situation of there being no natural party of the left. On Twitter, @sunili made the point that if we wanted a Liberal PM we wouldn't vote for Gillard so she should stop acting like a Liberal (my paraphrase). That's exactly right. The problem is that we want a real party of the left. A party that is about social justice, real protection for workers, a society that is both productive and supportive of those who can't produce, a society that cares for its planet, a society where the wealth of the country, particularly the mineral wealth, is used wisely and for the common good. We have NO party in this country that now fulfils that place in anything but rhetoric.
I am, as yet, entirely unconvinced that the Greens can live up to that broader agenda.
My great hope for the coming weeks is that the left of the Labor Party, the Independents, the Greens and those few real liberals left in the Liberal Party might band together to stop the passing of any changes that would again open the way to off-shore processing.
That may do something for asylum seekers, I hope so. It won't do anything for Australian voters like me, left in the cold on the left.