Julia Gillard and Labor's moral decline


Malaysia solutionAt 2.38pm last Thursday in the House of Representatives, Philip Ruddock, principal political architect of offshore processing and the grandfather of the House, rose to his feet, received the call from the Speaker and asked the Prime Minister why she would not recommence the offshore processing of asylum seekers on Nauru.

At 2.39pm, Julia Gillard went for broke, responding: 'To the member's question I say not one fact asserted in it is true. The member who asked the question knows more than many others the obligation for accuracy in this debate.'

The political stakes could not be higher. Intimating that Ruddock is a serial liar about matters he knows intimately is a big call. Gillard continued:

The opposition tries to mislead and misconstrue the expert advice from people who advised the member when he was minister. He every day relied on their advice. He valued their advice and those very same people ... in whom the member when he was minister for immigration placed so much trust, are advising this government, and they have provided the same advice to the Opposition, that Nauru will not work. Those advisers have told us Nauru will not work.

I realised there and then why Labor is on a hiding to nothing on this issue. Either their advisers are naïve, conniving fools ('turkeys' as Bob Brown calls them) or this Government has toyed with their competent advice as if it were ill-conceived, and it is now way too late for the Government to ask anyone else to trust their long time advisers.

Had Labor, on coming to office, trusted those who advised Ruddock back in 2001, they would have retained offshore processing, unless they were knowingly recalibrating upwards the moral bottom line for decent treatment of asylum seekers, regardless of the advice about increasing boat traffic. They made the change, and I for one applauded them for it.

Had Gillard trusted, or even sought the most peremptory advice from, these advisers when she became Prime Minister in 2010, she would never have said in her first prime ministerial speech on these matters:

In recent days I have discussed with President Ramos Horta of East Timor the possibility of establishing a regional processing centre for the purpose of receiving and processing of the irregular entrants to the region. The purpose would be to ensure that people smugglers have no product to sell. Arriving by boat would just be a ticket back to the regional processing centre.

It would be to ensure that everyone is subject to a consistent, fair, assessment process. It would be to ensure that arriving by boat does not give anybody an advantage in the likelihood that they would end up settling in Australia or other countries of the region.

She now claims Nauru is unsuitable for offshore processing because it will not help the Government break 'the people smuggling business model'. If she really believes Nauru could not work, how could she ever have thought East Timor would work?

If her trusted advisers are now telling her Nauru will not work, there is no way they could ever have told her East Timor would work. East Timor would have become a honeypot for asylum seekers in Indonesia catching the ferry to West Timor and making their way by land to the East Timor processing centre, asking for fast track processing to Australia. It was always an absurd idea.

Back in July 2010, Gillard either did not trust her advisers, decided not to seek their advice, or chose to disregard it. This year, when announcing the Malaysia solution, she decided once again to recalibrate the moral bottom line for the treatment of asylum seekers — but this time it was to be recalibrated down rather than up, and well below the mark set by Ruddock in 2001.

This time she asked her advisers to design a system not for offshore processing but for offshore dumping. Instead of having refugees processed and resettled from an offshore location, she wants asylum seekers to be warehoused, placed on a queue so long that they will never have a reasonable chance of resettlement.

If John Howard had tried this in 2001, Labor would have gone ballistic, and UNHCR would have objected very strongly and refused to cooperate.

The advice of Gillard's intermittently trusted advisers, filtered to the public by her and her minister, is no longer worth the paper it is written on. And the Government's posturing about the moral basis for its latest proposal is derelict. The processing regime on Nauru had very serious shortcomings, but it did provide proven refugees with resettlement usually in Australia or New Zealand.

Parliament is right to remain firm in its resolve that offshore processing not be permitted except in a country which has legal obligations to comply with the key requirements of the Refugees Convention.

Furthermore, if the receiving country does not have the capacity to fulfil those obligations, Australia should maintain the responsibilities for providing the necessary services such as basic health, housing and education, for providing fair and transparent processing of claims, and for providing timely resettlement options for proven refugees.

In Parliament, there is a majority who favour either onshore processing or offshore processing with appropriate safeguards. And there is a minority led by the Prime Minister who favour offshore dumping with some safeguards set by unreviewable ministerial discretion.

Just imagine if the refugees on the Tampa had been taken to Malaysia and were still awaiting resettlement today. Not even the grandfather of the House ever contemplated that, regardless of what his advisers said.

Neither should Gillard. If she agreed to Abbott's amendment, she could effect a bipartisan return to a moral bottom line higher than that set by Ruddock in 2001.

We could then hold all future governments to Abbott's pledge: 'Our amendment secures offshore processing, but it also does the best we can to secure human decency and to protect human rights, subject to the kind of legal certainty that the Government now thinks is necessary in the wake of the High Court decision.'

Parliament should, at the very least, rule out offshore dumping and offshore processing without sufficient safeguards. 

Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. 

Topic tags: Frank Brennan, Malaysia solution, tampa, East Timor, Julia Gillard, Philip Ruddock, Tony Abbott



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Existing comments

quote: 'Just imagine if the refugees on the Tampa had been taken to Malaysia and were still awaiting resettlement today. Not even the grandfather of the House ever contemplated that, regardless of what his advisers said'

No Howard and Ruddock wanted the Indonesians to take the people on the Tampa - but they didn't agree, for that boat anyway. I'm sure they would haved loved to send them to Malaysia if possible.

Frank, this article has a lot of truths but you sound disappointingly like the Opposition, even using some of their sloganeering. And the opposition forcing boats around at sea is what we will end up with.
Diana | 27 September 2011

The simple solution is to send the illegal immigrants back to their last port of call and let the people smugglers take them somewhere else.

If they wish to migrate to Australia, then why not just apply for ordinary entry to Australia like the other migrants. The emotional and sentimentalist arguments don't make sense. These illegal immigrants have paid to come here by breaking Australian Law.
Trent | 27 September 2011

I am deeply sadenned by the failure of moral leadership in both parties: where are the "true believers" from the backbench? What about the Elders - Hawke,Keating?...Not to mention our [ catholic} leaders - or perhaps the media won't give them space. Long live "Eureka Street", "The Monthly"...and that's about it for sound independent views.
bernard ryan | 27 September 2011

All good upon you, Prof Brennan! Thank God a public commentator has finally got this one right!
john frawley | 27 September 2011

Interestingly, Australian lawmakers are pondering a quandary that's just been thrown up in most recent times: given that asylum seekers have every right under international law to seek asylum in any country...be it Iceland or Australia...they are not "illegals"..and, ipso facto, those assisting them could hardly be labelled as lawbreakers either. What laws are they breaking?

Those commanding the boats are simple fishermen who are offered a pittance to take refugees into Australian waters. They are not "the business model that needs to be smashed".

We need to remember that the legal advisers that Julia Gillard and Chris Bowen so often defer to were rubbished by one judge who referred to the Solicitor General's High Court presentation as 'half-baked."

We should also stop genuflecting before the ALP's so-called principles....its very platform forbids offshore processing but that has given way to the desperation of another would-be survivor...the Prime Minister herself who has, in effect, fashioned her own business model and any ALP member who crosses the floor in conscience against it will get expelled. That's the "model" that needs to be "smashed".
Brian Haill - Melbourne | 27 September 2011

This debate has clearly overstayed its welcome. I believe Australians are tired of the bickering between the political parties. Isn't it time they presented the real facts and figures regarding 'boat people' and present Australia as a compassionate country rather than one that fears those seeking asylum? Fact is that by far the greater majority of asylum seekers arrive by plane and simply overstay their visas. Fact is that many of these people fleeing persecution can make an enormous contribution to the prosperity of all Australians. Fact is this debate has totally lost site of the human face of suffering.

Common sense tells us surely that the issue is about how we process asylum seekers and not where they are processed. Something that needs to be done swiftly and humanely in cooperation with countries in the region and without lengthy lockups in detention centres. This way there won’t be a need for the ‘boats’.

Andrew Macleod, CEO of the Committee for Melbourne spoke on ABC Breakfast this morning on this issue. It's worth a listen http://www.abc.net.au/rn/breakfast/stories/2011/3326459.htm. He will also be speaking at BMW Edge this evening at 6.30pm.

Emmy Silvius | 27 September 2011

Gillard's immigration policy is motivated by ambition -a misguided attempt to immitate Howard's shameful path to re-electiion but with her own daft twist - breaking the neck of Australian law and international obligations.
Vacy Vlazna | 27 September 2011

I don't think Frank Brennan sounds like the Opposition, Diana. I think he sounds more like a person who has given up on expecting a high moral standard of Australia's response to the issue of asylum seekers. Sadly, he seems to be looking at the reality and arguing for the most moral line Australia is capable of.

Perhaps Father Brennan will enlighten us.
Maureen Strazzari | 27 September 2011

If Mr Rudd can learn his lessons, I believe, his return as Labor Party leader and Prime Minister would indeed be beneficial not only for Labor Party but for Australia.
Andreas Berg | 27 September 2011

I am disappointed that Frank Brennan is advocating a bipartisan approach that favours offshore processing in any form: as if offshore processing on Nauru is not asylum seeker dumping. The only reason Australia took in refugees from the Nauru camp is that most other resettlement countries refused to bail Australia out. It was not Howard's intention that they would ever come here. The total number of arrivals by boat this year is around 1700. For that, we are prepared to trash the Refugee Convention and the Convention on the Rights of the Child. The latter is not even considered here by Frank Brennan, yet it undermines the best interests framework for treatment of child non-citizens. Julia Gillard appealing to Phillip Ruddock for support for her toxic amendments is a real low point for Labor.
Kate | 27 September 2011

I used to vote Liberal, then Labor and now the time has come to shift again. This time the move will be to Green unless my MP breaks ranks and votes according to her spoken beliefs on this issue. and then I guess I would be voting for a Labor Independent. And it is morality and shame that is deciding the place for my vote.
john dallimore from fremantle | 27 September 2011

and what did Rudd do? he called the Indonesian president to stop a boat from reaching us. They are all on low moral ground.
Harry | 27 September 2011

Yes and if Julia Gillard agreed to the opposition's amendment it would not stop men, women and children drowning at sea whereas the Malaysia solution would. The people who take the boats have a choice. The children do not. If Fr Brennan had any empathy towards children he would not advocate a solution that would not stop children drowning or being bashed against rocks.
Marian Rumens | 27 September 2011

Well as there is no such legal thing as "off shore processing' for people who seek asylum in Australia the whole debate has reached high farce. The law is clear Frank, anyone who comes and asks for protection must be allowed to apply without punishment, expulsion or refoulement, they must have full access to the courts and the right to their freedom. The debate about ridiculous policy while always ignoring the law drives me crazy. Bowen knew in 2006 that it was illegal when Howard tried on the WEst Papuan push away solution, he knew it was illegal under Article 3 to discriminate due to method of arrival and place of origin and that has never changed. Gillard said though in her stupid Lowy speech that people flee genocide, persecution, imprisonment without charge (with a straight face), and other atrocities. Then she outlined all the ways she would STOP THEM COMING HERE TO DO IT. She believes in her racist heart and soul that refugees need to be proper like her parents - she is a disgrace. And Ruddock wanted so send the TAMPA Afghans to Pakistan.
Marilyn Shepherd | 27 September 2011

Brian the senate were told by all legal experts last year that the so-called smuggling didn't pass the smell test because no-one was being smuggled. Our legal profession have taken 12 years but they have finally noticed it is a lie. No-one is subject to any offence for entering this country without a visa so how on earth could it be a crime to help someone without a visa into the country. In fact our own courts said way back in 2000 "this is clearly not people smuggling", and under Article 19 of the smuggling of migrants protocol it states that those seeking help under the refugee convention are excluded from the protocol because they are not smuggled migrants but asylum seekers and the convention comes first. And it says we must not punish those who simply provide transport. The senate were told this by eminent legal experts like Ben Saul and Mary Crock and simply chose to ignore it. Now we see 13 year old Indonesian kids kidnapped by us and jailed with pedophiles in adult prisons instead of simply being sent home like they used to be.
Marilyn Shepherd | 27 September 2011

Time and time again it is pointed out that people who come to Australia seeking asylum, whether they do it by boat or aeroplane, are not acting illegally. They have a right to seek asylum here. They are not "illegals".

Why then, Trent, do you still use the word "illegals"?
Janet | 27 September 2011

This whole saga is sickening. That our supposed leaders compete with the Opposition to punish more harshly these unfortunate refugees--people seeking safety from severe oppression or death---whose right to seek our aid we have agreed to.
They are not illegal immigrants, they are not smuggled arrivals. They come with a range of life skills which they would be happy to share. They should be processed here onshore promptly--- for health and security and settled into the community. My preference would be an indentured employment scheme for 2 or 3 years where they would fill areas of employment gaps and be accepted by the local community where they may even choose to remain at the end of their prescribed time.{The scheme which worked so well during the 1950-60s immigration schemes.]

Please politicians restore our Australian pride.
Michelle Sydney | 27 September 2011

It is hard to believe where Julia Gillard has taken Labour and this Government or allowed it to be taken.
Brendan McCarthy | 27 September 2011

I urge all of you who like me are morally outraged at the Gillard Government's response to the High Court's decision to write to your local member. I fear that voicing your concern here may help to lower your blood pressure but do nothing to arm our back benchers to put pressure on the leaders of their parties.Do not be dismayed if politicians appear morally bankrupt unless you use your democratic right and make your view clear.
Ern Azzopardi | 27 September 2011

It seems that governments in all ages and of all political stripes will treat refugees like pieces of meat , if they can wrap it up in the right words. This reminds me of Canada's resistance to Jewish refugees in the 1930s and 40s. See: http://en.wikipedia.org/wiki/None_Is_Too_Many:_Canada_and_the_Jews_of_Europe_1933-1948
Bill Armstrong | 28 September 2011

The treatment of asylum seekers by our politicians, government advisers and most of the media is a farce and a disgrace. Julia Gillard and Chris Bowen have learnt nothing from the Howard and Rudd governments' mistakes. They have backed themselves into a corner and are incapable of resolving this issue in a rational and humane manner. Both the Labour and Liberal parties have low moral standards and their policies are based on political expediency. We will continue to be faced with asylum seekers arriving by boat with political and social instability in various parts of the world. I believe these asylum seekers arriving by boat should be processed in a major Australian city and most, if not all, should be given residency.
Mark Doyle | 28 September 2011

Now Australia is denying refuge to refugees on Christmas Island and pretending they are not here and denying family reunion rights by making kids wait until they are 18.
Marilyn Shepherd | 28 September 2011

There are moral and legal issues that for me are crystal clear in this debate about other, other who are human beings in great need. As a christian I will always try and extend a hand to those in need. Sadly the cardinal and bishops around the country aren't leading the way in righting this wrong. The GREENS are more vocal. As an Australian, the law tells me that we have a duty to ask in people fleeing persecution. The UN tells me this as well. I hear what you're saying Frank however I don't believe there is room to negotiate when strangers knock on our door.
Jo Dallimore fremantle | 29 September 2011

Julia Gillard shows far more heart and respect than then loony left wing mob of “do-gooders”. She tries very hard to prevent more death at sea and should be supported by all. Julia Gillard may be wrong in with many issues, but her policies are based on reality and empathy. She is not one of the headline hunting, rich and bored neo Marxists.
Beat Odermatt | 29 September 2011

Well done Beat Odermatt - you have fallen hook, line and sinker for the only moral line that the Government can peddle to justify the exclusion of asylum seekers. They might drown on the way here. Perhaps some adviser has remembered how many perished in the Second Fleet. Now perhaps someone else will remember the assistance given to Displaced Persons after the Second World War in transporting them to Australia.
Simon Lewis | 30 September 2011

Still no answer from Trent on how his legal training can provide credible evidence that the asylum seekers are "illegals".
Tony | 01 October 2011

Beat, just 456 refugees have been known to have drowned on the way here in the last 13 years, 117 million kids under 5 have died of starvation and preventable diseases and wars.

Now that dingbat Gillard wants to run dumb ads. to entice the coalition to break the law and the whiners on Insiders still whine about a couple of hundred refugees arriving.

Is there anyone in the media who heard the high court screaming out loud 'IT'S ILLEGAL"CH WHITE BREAD BIGOTS THEY LOVE THE SPORT.
Marilyn Shepherd | 02 October 2011

Moral discourse that ignores political reality is dangerous. Mr Spock said that the needs of the many outweigh the needs of the few. If Labor does as Brennan demands Abbott will win. That means millions of the poor and needy will suffer for the sake of a few Q jumpers. Rather than trying to appease Brennan et al Labor should have left the pacific solution and got on with governing, enacting social reforms and keeping the conservatives out of power; if the boats had of come regardless then the "pull factor" argument would have been defeated for all time. But no.

Now you are gonna get Abbott who will kick not only the Q jumpers in the teeth but many of the poorest and most disadvantaged people in Australia. But that won't stop the moral minority of the elitist academic section of the left, surely no coincidence that Brennan ignored social and working rights in his human rights charters (or is he politically realistic only when interests of the poor already here are at stake?),from clothing themselves in a moral aura.
MarkoB | 08 October 2011


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