Labor needs new policies, and guts to sell them without an instant Albanese wilt

However inconvenient for her, the Greens have long had a consistent (and principled) policy on refugee matters, one that does not seem to change much for short-, medium- or long-term considerations. That may be more than can be said of green tactics and strategies with all of its policies. They may have been opportunistic in joining with the Coalition (with its own purposes) and Senate independents (generally, like the Greens, more principled and humane on refugee matters) but that was a consequence of the appalling position Labor had put itself in, over an essentially indefensible tactic for an illegitimate end.

The "politics" of the affair, assuming that politics is, these days, a wicked and shameful thing, goes back more than a decade. Back to when the Labor Party, very much against its will, pragmatically accepted that the Coalition policy designed to stop asylum seekers arriving by boat worked, while previously policies of the Rudd and Gillard government had not. Rudd, indeed, had inserted the most significantly cruel and implacable elements of the future equation in declaring that those who arrived by boat would never be allowed to settle in Australia, and would be detained abroad, whether in Nauru or Manus Island.

The bipartisan acceptance of the need for a policy to stop the flow of boats was never primarily a concern for the safety of asylum seekers taking considerable risks to reach help and safety. It was instead an evolution of an increasingly popular hostility to refugees, particularly at a time when most of them were Muslim and the war against terrorism was in full flight. Populist politicians suggested the movement of refugees from Iraq and Afghanistan contained terrorists and others undeserving of any refuge or protection.

From the time of the Tampa in 2001 Labor virtually abandoned any argument about human rights and providing asylum for refugees. Instead of being seen as children, women and men escaping violent conflicts, it allowed (mostly by its silence) them to be seen primarily as unwelcome and illegal invaders. By Coalition edict, they were not to be "humanised" by sympathetic description of the sufferings from which they had escaped, and their ill-treatment took place far away, with only tame media allowed to visit.

Perhaps Labor's loss of sympathy was not simply because it had lost its heart, but because it understood the depth of the populist opposition and the effectiveness of John Howard's insistence that the government would decide who came to Australia and the circumstances in which they came. But Labor has stared down the mob before. Its gutlessness in 2001 had a massive effect on the Labor movement. Half of the then paid membership of Labor did not renew its membership, primarily from disgust at its abandonment of refugees.

The overwhelming proportion of these have not voted Labor since. Their vote instead goes to the Greens, if less because it is an environmental movement than because it has been steadfast on refugee and human rights issues. The defections stripped the Labor Left of much of its intellectual and policy generation capacity, leaving leaders, including Albanese, squabbling chiefly with other factions about spoils of office. Offhand, it is hard to think of a "left" idea Albanese has articulated in office.

It is all at one with the "pragmatic" decision of Albanese and Wong that Labor would give completely uncritical support to AUKUS and nuclear submarines, by way of keeping at bay a conscious Morrison attempt to wedge Labor. The Coalition has wanted to paint Labor as "soft" and "weak" on defence, national security, and China: Albanese has faced the challenge manfully by trying to be, if anything, more stridently and uncritically pro-American on all matters associated with defence and foreign affairs.

The consequence is that there is almost no proper debate within mainstream Australian politics about what our ideal foreign affairs and defence policies should be. Albanese retains Scott Morrison's national security advisers, including ideologues brought in to sharpen the war against Labor. Attorneys-general, security officials, police and home affairs, the security establishment, lobbies dominated by anti-China hawks parroting US lines, carry on exactly as in the last government, if usually, with lesser political skills than its ministers and some of its officials. They dismiss alternative ideas and those who put them up.

Anthony Albanese is visibly frustrated by old Labor folk who won't put aside concern for the battler, the underdog, the refugee, protection of the environment and promotion of peace while he and his ministers are focused on vague "big" ideas of tax cuts, jobs in coal and timber, a new (and improbable) manufacturing base, and preparation for war with China. Likely, he sees many as sentimental old fools, unaware of the complexity of modern economies and the problems of retaining popular support. But he is at far more risk of losing office from his timorousness than his boldness. Never, at least since Scullin, has Labor wasted so many opportunities while presiding over one of the richest economies on Earth.

It was not the Labor government's fault that the High Court found indefinite immigration detention was unconstitutional. But it became a political disaster for Labor because Albanese, Wong, and, particularly Clare O'Neil, lacked the communication skills to counter efforts to incite panic by The Australian and the Murdoch press generally, and Coalition spokesmen from Dutton down. Labor's obvious foundering and inability to get on top of the issue drew the ABC and the old Fairfax press into the panic mongering, recounting day by day the crimes of people who had to be released, and the need for all Australians to lock up their wives and daughters.

Suddenly, apparently, all Australians were at risk from child molesters, robbers, paedophiles, each the more dangerous for being an alien. An alien, indeed, without a country to be returned to, either because their original country would not take them back, (for example Iran), because they had no country and were stateless (such as the Rohingya people) or because there was very good reason to fear they would face human rights abuses if they were forcibly repatriated.

The High Court is not a barrier to the removal from Australia of people guilty of crimes or bad character. Nor to people to whom we won't issue a visa. It is not a barrier to the holding of such people in detention to allow them to be sent off. But if there is no reasonable prospect of deporting them in the future they cannot be held forever. Despite what Peter Dutton might be suggesting, all the "criminals" facing orders to be deported have already served full sentences for their crimes, and the risk that Australians face from them is much the same as Australian murders, robbers, child molesters and others who have been released back into the community. People like Dutton might want such people jailed forever, but some proportion in sentencing is what our justice system does.

Finding absurd and unjust ways of putting those slated for deportation into detention, for example by requiring them, on pain of prison, to cooperate with efforts to deport them is not a step on the path to what Clare O'Neil described as "a better run, better managed migration system ... to improve community safety". It is, rather a step towards a greater shambles. Likewise, attempting to confer extraordinary powers on ministers (as though there were some sort of national emergency), and creating Trump-like powers to refuse entry to people (including asylum seekers) of specified countries is a step towards arbitrary and lawless government.

O'Neil and the government must accept that they are trapped inside the opposition's narrative.

Regardless of legislation anticipating High Court decisions, or ill-judged (and even more ill-advised) legislation trying to nullify them, the opposition will always be able to have them on the run. They can, after all, set the tests and decide whether Labor has failed them. They can stir up populist panic - as can the media organisations leading or following them. There are even folk in the national security establishment and the Department of Home Affairs who can be expected to leak out information which will show that any public relations attempt to pretend all is well is fake news. The culture, and the anti-refugee mindset of these people does not change with a change of government or the sacking of a secretary who worked very hard to make every officer of the agency sing, in his or her uniform, from his hymn-sheet.

Labor needs a new narrative, new policies, and guts to sell them without the instant Albanese wilt. (Look at the backdown on car emissions this week, which he called "consultation"). What the government should do is construct an entirely new narrative, based on an entirely new administrative and legislative regime. That this need arises in a time of crisis, with the administrative system in a shambles, and with government determination to pull back on immigration numbers, provides not an obstacle but an opportunity. No good crisis should be wasted, Rahm Emanuel, Barack Obama's chief of staff once said.

Australia has been one of the world's successes in taking in migrants from all over, and in taking in displaced people and refugees. The sense of crisis, mismanagement and evasion of the law that percolates the past 20 years is novel, not business as usual. The reason it has become chaotic has been a function of politicians attempting to politicise what was once a largely bipartisan process. Bureaucratic resistance to accountability in administrative law has also contributed. It would be quite possible to get back on track, with (if needs be) fewer entrants, but a good deal less coercion, less bullying and more regularity. And, probably, with a good deal less litigation. As it happens, Australia has never had a major influx of refugees, let alone one which has stressed our capacity to manage them. Some other countries in Europe have much bigger problems, even if much of the public discussion of them is more a matter of populist agendas, racism and ethnic nationalism than it is of serious incapacity to absorb other populations. It was only a few years ago that Germany swallowed a million refugees from Syria and the Middle East without insurmountable problems. The former chancellor of Germany, Angela Merkel, deserves the Nobel Peace Prize for her leadership with this. She is a giant compared to many other European, or British, leaders.

Clare O'Neil ought to have an especial stake in calming the waters. She is seen by many as future prime ministerial material - perhaps the logical successor, indeed, to Albanese himself. She has done very little to enhance her reputation over recent months. This may owe something to poor advice, and panic induced by media criticism, but that is just the sort of situation where able ministers prove their mettle.

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The biggest criticism of O'Neil is that she is obviously not in charge, whether of refugee issues or migration matters at large. She is not controlling events, but lurching from crisis to crisis, not even knowing, or guessing very accurately, where the next one is coming from. She is too easily distracted (and far too slow at answering questions and taking responsibility). The government's attempt through her and minister Andrew Giles to ram novel and very illiberal legislation through Parliament with minimal debate was a disaster. And unsuccessful at that. It made the Liberals look good, and it gave the Greens, and the teals, an opportunity to show that on this, as on many other issues, they, not Labor are the representatives with decency and principle as their guide. If Labor thinks they are frauds - or at the least enemies to be denied air - this was not the way to show it. It was Labor's moral and policy bankruptcy on display.

Distractions such as some domestic spying crisis, paedophile ring, or clamp down on corruption, incompetence and maladministration in her department won't take the opposition's eye off the ball. Nor will it much distract the media. Instead of letting past Dutton policies and present Dutton dog-whistling set her agendas, she must create, for Labor, an immigration and refugee system that represents Labor values and ideas, including respect for human rights. Hint, it doesn't start with playing bastards, coercion, cruelty and indifference to human suffering.

The real heroes of this saga sit on the High Court. The original High Court 4-3 decision upholding indefinite detention several decades ago was an anomaly at the time, and in returning to general principles about the court's control of detention that looks like being punishment, the court is back on a constitutional straight path. Now they are being cursed by Labor for creating a surprise obstacle to a cruel and unjust system. In due course, Labor may recognise that a summons to operate by the rule of law, due process and respect for the separation of powers was a turning point from which Labor supporters could hold their heads up again.