September 1, 2011
The High Court has given the Gillard government a massive kick in the guts when it is already writhing on the political floor.
The government has huge policy issues on its hands after the court scuttled the Malaysia Solution - namely, what to do with the asylum seekers who were supposed to be flown there and how to replace the deterrent the ''people swap'' was supposed to represent.
It also has a worsening problem of perception. This is another example of apparent Labor incompetence.
''The Commonwealth government is on very strong legal grounds,'' Immigration Minister Chris Bowen insisted last month.
Really?
Clearly, he didn't know what he was talking about. The government was too gung-ho and, if the advice was convincing, it was also bad. If the Commonwealth's legal experts can't anticipate the High Court, they might need a refresher course in the law. While its impression initially was that the case would be won, later on the government became increasingly worried.
The Malaysia Solution had been conceived as the ultimate quick and clever fix. If you put aside the doubtful morality of sending people off to be dealt with by another country with a dubious human rights record, it looked almost too good to be true - and it was.
The deal was born of desperation but in failure it has added to the general air of disaster and disarray surrounding the government. Its collapse has also been embarrassing for relations with Malaysia. The court stressed that its judgment about the legality of the minister's action did not involve any view on whether Malaysia met relevant human rights standards or treated asylum seekers appropriately. But inevitably, the judgment will be seen as reflecting on Malaysia.
The government's options now are all practically difficult or impossible and politically unpleasant.
It could try to change the law to lower the bar, so it would be possible to send people to Malaysia. But to do that it would have to get support from either the opposition or the Greens (and from some independents in the House), and that's almost certainly impossible. It could proceed with Manus Island - which is now being prepared to process asylum seekers - and hope that passes the High Court test. But that will take some time to get operating. Or, it could cop the ultimate humiliation and go for the Nauru solution - again assuming that could stand up to a challenge.
The government looked shell-shocked yesterday, even though it had started to expect the worst. The hasty cabinet meeting and the fact it could not rule anything out showed how devastating this is.
Fixing asylum seeker policy and stopping the boats was one of the promises Julia Gillard made when she overthrew Kevin Rudd (the others were dealing with climate change and the mining tax).
She has failed spectacularly, with the East Timor project aborted by that country and now the Malaysia Solution having been shot down.
She and Bowen have talked about the need to send a message to the people smugglers. Thanks to what now has been exposed as an ill-prepared policy based on flaky legal advice, they have sent a message, all right. That is, ''Come on down''. Unless the government can produce some spectacular fall back, that message will resonate loud and clear among those running the people smuggling trade.
Michelle Grattan is Age political editor.
