Australia fails to find an asylum solution

Burmese refugee Mang Thai Par, 7, looks out of a window at her family"s flat which they share with three other relatives in Kuala Lumpur June 24, 2011
Critics say Malaysia does not have the necessary safeguards for asylum seekers

The tagline was the invention of journalists rather than the Gillard government, but when ministers came up with the idea of sending asylum seekers to Kuala Lumpur, they hoped it would offer a "Malaysian Solution".

This was an emergency measure borne of a political and logistical dilemma. The country's detention centres are overcrowded and volatile. Julia Gillard has been hammered in the polls over one of Australia's most toxic political issues. No Labor leader wants to be portrayed as being soft on border protection. Indeed, Paul Keating pioneered the policy of mandatory detention.

However, neither the politics nor the logistics have worked out as the government intended. Not for the first time, the government announced the policy before the details had been hammered out (the equally inaptly named East Timor Solution provided another example).

It did not have the backing of the UN's refugee agency. Initially, the Department of Immigration said the asylum seekers would be sent to Malaysia within 72 hours of arriving at the Christmas Island detention centre, a timeline that it could not meet. There was confusion over whether unaccompanied children would be included in the swap deal. When it emerged that they would be, the government faced fierce criticism for its alleged heartlessness and callousness. The announcement that the asylum seekers would be filmed arriving in and then leaving Australia again brought on another wave of negative international headlines. Some of the world's most vulnerable people were being used as props, was the cry.

Politically speaking, the Malaysian Solution has so far done nothing to halt the Gillard government's slide in the polls. Indeed, it has highlighted another problem: its recurring incompetence. It is not hard to imagine the Malaysian Solution appearing in the curricula of public policy schools around the world as a case study in ineptitude and knee-jerk policy-making.

Immigration Minister Chris Bowen (L) is under huge pressure

For Ms Gillard, this is especially problematic. Australians do not require their leaders to be especially charismatic, telegenic or eloquent. But, in a country that has long favoured the practical over the philosophical, there is an expectation of competence.

Lambasted from both the left and the right, the government has now run into interference from the courts. On Sunday, as a plane sat on the tarmac at Christmas Island waiting to transport the first group of asylum seekers to Malaysia, a High Court judge issued a temporary injunction halting the planned departure. On Monday afternoon, the court extended the injunction until later this month, when a full hearing will decide whether the Malaysian Solution is lawful or not.

The government said it had predicted a legal challenge. But Justice Kenneth Hayne, the High Court judge who heard the application from a refugee advocates group, seems to think its lawyers were ill-prepared. He called the government's arguments "half-baked". Again, the accusation, this time from a senior judge, is of incompetence.

In response, embattled Immigration Minister Chris Bowen said there was a clear statutory basis for the policy. The Migration Act allows the immigration minister to "declare" or identify a third country to which asylum seekers can be sent. Under the law, he is also the legal guardian for the unaccompanied children put on boats by their parents in the hope that Australia will offer them asylum.

The government claims that the Malaysian swap deal will ultimately break the business model of the people smugglers, who charge large amounts to ferry asylum seekers towards Australian shores. It says the safety of the asylum seekers lies at the heart of the policy. But Julia Gillard has herself been accused of moral bankruptcy, especially for proposing to send unaccompanied children to Malaysian detention centres.

The lower house of parliament has passed a motion condemning the policy. The UN Human Rights Commissioner has also been vehemently opposed. Now a senior judge, a member of the highest court in the land, has expressed reservations. The opposition wants a return to the controversial Pacific Solution, with the reopening of an Australian-run detention centre on the tiny island on Nauru.

Should the government also look for an alternative solution?