On many issues I am a big fan of Tony Abbott. I think he’s right on the total worthlessness of the carbon tax, that it won’t accomplish anything at all other than gutting our economy. I want repeal. I think he’s right about the threat to free speech at present. I like the fact he won’t countenance any Finkelstein-type regime. And I think it’s better than nothing that he and his shadow Attorney-General say they’ll rid us of half of the s.18C hate speech law used to go after Andrew Bolt, though for the life of me I can’t see why a party that says it is committed to free speech would repeal only some parts of this egregious law and not the whole thing. And of course Abbott is correct on the mining tax, and a lot more besides.
But no voter is likely ever to agree with every policy a political leader takes to an election. And the Abbott policy that I most disagree with right now has to do with the boats. I think it is just bizarre that we have a centre-right Opposition attacking the Gillard government from the left, over near the Greens somewhere.
Don’t get me wrong: I don’t think the so-called Malaysia Solution will work. I’m sure it won’t.
But two things argue against this Abbott line. First off, the High Court decision taking Malaysia off the table without new legislation was a pretty awful, and in my view activist, decision. So as I said at the time, on the grounds of principle and not being seen to be a hypocrite, Abbott should have passed this legislation and let the voters watch as the Malaysia Solution crumbled. Alas, it is probably too late for that now.
And that takes me to the other big problem with Abbott’s present Greens-lite policy on the boats. What happens if he ever needs to pass legislation in order to stop the boats in the future after he wins the election, an outcome anyone with a brain now thinks overwhelmingly likely?
I don’t mean that I think the Nauru option requires new legislation. I don’t. My reading of the High Court case is that Nauru will be allowed to go ahead by the judges who (illegitimately in my view) took Malaysia off the table without new legislation.
No, what I mean is that Abbott is painting himself into a corner on this. He and his weeping frontbenchers are sounding as though we are not a country that is itself in charge of its own borders (the core job of a nation state), but that we must first seek approval from this, that and the other UN agency.
So what happens when the various internationalists start objecting to the Abbott changes post-election? What happens if someone says ‘This doesn’t meet international standards’? Worst of all, what if Abbott needs to tweak things, requiring new legislation? Any honest answer to our current boat people fiasco involves some admission that the UN itself is no moral beacon, as even the most cursory glance at which countries make it onto various rights-related UN councils reveals.
And a related fact that needs to be kept in mind is that the Refugee Convention itself is now more than 60 years old. Even the amending Protocol, which left the essence of the obligations the same, is 45 years old. Are we to bind ourselves for eternity to a treaty designed to deal with a post-world war two world? Why?
Remember the world back in 1951. Women teachers were explicitly paid less than men, and often were asked to resign each year lest any men might need a job. Married women found it hard to get a bank loan without their husband’s consent. Protectionism was rife. And so on.
We’ve moved on, thankfully. We’ve adapted to changed circumstances. And when it comes to most law, things like statutes, we don’t hesitate for a second to change what needs changing. And we do so democratically, with everyone in Australia having an equal say.
Heck, we have even changed our Constitution by means of a referendum where everyone has an equal say. But mention some 60-year-old Convention and it’s as though it must govern us forever, however outdated it has become.
Of course, even if you feel that confronting that treaty isn’t worth the cost, you might at least try to leave open your options for ‘stopping the boats’ after the election. What the Coalition is doing now is simply sounding like the Greens.
So when push comes to shove post-election, why would Labor give Abbott anything on the boats? I wouldn’t were I Labor. And I say that as someone who has long believed that on the carbon tax, after an Abbott landslide, Labor will roll over and pass the repeal within a month.
But on the boats they’ll just quote back Joe Hockey’s tearful speech, as though a self-indulgent ability to display your feelings about some group’s terrible plight is a good basis on which to make decisions about how to deal with the future. It isn’t. It’s the equivalent of bumper sticker moralising. It’s the error of thinking good intentions are all that counts in life.
We all know that’s false though, and where good intentions can take us, because Kevin Rudd and Julia Gillard by repealing a system that worked virtually perfectly have shown us where they lead.
So enough of the self-righteous displays of tears. A workable policy on the boats requires what the Howard government delivered. It has to appear tougher than it is and so will inevitably attract condemnation from all the usual suspects. But it can’t be a policy that farms out to the UN or anyone else the decision about whether the policy is OK. And it has to be tough-minded.
I don’t recall the Howard government recoiling because Nauru hadn’t then signed the Convention (which makes Abbott’s current stance seem so hypocritical).
There are tens of millions of what might be thought of as economic refugees out there who, for understandable reasons, would do almost anything to come here, including trying to pass themselves off as political refugees. Either you give up and throw open the doors, as wide open free traders on the right and Greens on the left would do. Or you control the borders and make people play by the rules.
The latter requires tough-minded policies to ensure those who do play by the rules are first in line. It requires you to ignore the usual suspects who cry that nothing can stop the influx (most of whom cried this before and were proved wrong by Howard).
Crying over the unfairness of the world, and so in a way lamenting that some have won the lottery by being born here, is not the basis for any solution at all. So I say to Tony Abbott: it’s your party and you should stop your frontbench from crying if they want to.
James Allan is the Garrick Professor of Law at the University of Queensland.