Election promises on boats will not pass parliament

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In the lead up to the election, we saw both major parties making policy pledges to stop asylum boats. Kate Gauthier looks at the numbers in a hung parliament and considers whether either major party can live up to their election promises.

Pledges to stop the boats were made from both the major parties seeking votes in marginal seats during the election campaign. The Coalition promised to bring back Temporary Protection Visas (TPVs), reopen the detention centre on Nauru, bring back the 45 day rule and bring in mandatory sentences for convicted people smugglers. The ALP said they would open a regional processing centre in a third country, preferably with the participation of UNHCR, and send any boat arrivals there for protection claims processing. There would be no guarantee of resettling refugees in Australia or other regional countries.

Whether or not these proposals are good policy (they aren’t) is not the point of this article. Instead, given the outcomes of the election we should evaluate whether they can get passed by parliament at all. Given the tight election, the views of the Independents plus the Liberals likely to cross the floor again, can either party live up to their election promises? Looking at the numbers, it looks highly unlikely that any regressive or punitive law changes towards asylum seekers would ever see the light of day.

To reopen Nauru would not require going to parliament, as the ALP did not repeal the excision laws that allow for it when they ended the Pacific Solution policy. Either side can immediately send asylum seekers to any ‘designated third country’ for processing, be it Nauru, East Timor or deepest darkest Peru.

Other policy promises by the Coalition will be much harder to follow through on. They have said that TPVs are critical to stop the boats, and they would need to lodge new regulations to bring them back. Likewise to bring back the 45 day rule to restrict work rights for asylum seekers.

Regulations do not automatically require a vote, but anyone in either House can disallow them, which then triggers a debate and a vote. A tied vote means the regulation does not go through.  In the lower house, if everyone turns up that day, you need 76 votes to pass legislation or regulations. This means the Coalition would need all their 73 seats plus an additional 3 votes from the 5 independent MPs (I includes the Greens MP here, but not Tony Crook the so-called independent National Party MP.) This is highly unlikely given the recent media statements by independents Wilkie and Oakeshott, the voting past of Oakeshott and Windsor who supported ALP reforms, and of course the Greens policies for Adam Bandt.  The Coalition could count in Bob Katter, but would also most probably lose votes from the re-elected MPs who have already crossed the floor to vote for ALP reforms, Broadbent and Moylan, with Mal Washer reported as intending to but was unfortunately rushed to hospital and unable to attend.

The Senate does not provide any more joy for proposed asylum law changes by the Coalition. After the changeover next July, the ALP, Greens and DLP will be 41 Senators to the Coalitions & CLPs 34. Until then the current count is 37 Coalition, 37 Labor-Greens, with Steve Fielding and Nick Xenophon holding the balance of power. Fielding would be likely to vote for anything against labor, but Xenophon has already voted and spoken out for compassionate and sensible asylum policy reform. This would be a tied vote, and any regulation would therefore not be passed. Any that’s not counting liberal Senator Troeth once again crossing the floor, as she did to vote for ALP reforms on detention debts and the 45 day rule. She’ll have even less to lose as she will be retiring from the Senate at the end of this term.

Overall, apart from third country processing, neither party will be able to bring in harsh or regressive laws aimed at asylum seekers. One could hope that this would prompt either side to listen to the advice of policy experts, that the punitive approach taken for the past 15 years has clearly failed. That offshore processing, TPVs and other punishments do not work. The only way for harsh policies to work is for them to be worse that the situations people are fleeing. Worse than persecution, torture or death.

Both Gillard and Abbott put forward the idea that people smugglers ‘sell’ protection in Australia. If they are serious about their desire to shut down the people smuggling rings, the most effective way to do this would be to work on strengthening refugee protection options in our region. After all, people smugglers wouldn’t have any customers if refugees could get the ‘product’ of protection for free through UNHCR and resettlement countries such as Australia.

  • http://www.andrewbartlett.com Andrew Bartlett

    A good article, focusing on the current reality rather than how we might want things to be.

    However, I have a tiny, but not irrelevant quibble. The comment that “A tied vote means the regulation does not go through” is not quite correct.

    In the House of Reps, a tied vote means the Speaker can cast the deciding vote. (this is the only time the Speaker can vote, as the Speaker does not have a deliberative vote – which in the current House of Reps, with 150 members, once the Speaker is removed from that total, there shouldn’t be a tie (unless there are deliberate abstentions or absences)

    By contrast, in the Senate, a tied vote means the question or motion is lost. To stop a Regulation ‘going through’, a motion has to be moved to disallow it. This means if a vote to disallow or negate a Regulation reintroducing TPVs is tied, the question is negatived and the Regulation stays in place.

    I know this is a bit counter-intuitive, given that if there is a tied vote in the Senate as to whether or not a new piece of legislation should be adopted, then it fails – but that’s the way it is. In that sense, a government needs one less vote to ‘pass’ (i.e’ avoid disallowance) for Regulations than they do for primary legislation.

    A motion to disallow a migration related Regulation in the late 90s (which I think was to do with the 45 day rule) was tied due to the Mal Colston factor – and thus stayed in place. Which is why I remember this.

    • Kate Gauthier

      Ahh of course… the ole double negative! It is the disallowance that does not go through, not the actual regulation.

      Thanks for the clarification Andrew.

      Re numbers, I was not removing the speaker’s vote from the total vote count…. we do not know from which side of politics that person will come from, and given the tight numbers it looks like the speaker will be voting a lot more often than they did in previous parliaments.

      • Marie Gordon

        Kate,

        I have ticks all over your piece on election promises on boats, but I was stopped by your comment on the people smugglers being eliminated if refugees could get the ‘product’ of protection for free through UNHCR. How could this be brought about? They still have to get here. If we wiped out Mandatory Detention (we’re the only developed country in the world which practises this punishment on asylum seekers) that would be a step in the right direction. Yes?

        Marie Gordon

        • Kate Gauthier

          Refugees and asylum seekers use people smugglers because they are left in limbo without safety.

          In Indonesia, a person granted refugees status by UNHCR then has to wait an average of 84 years for a settlement place. Understandably, they get frustrated and pay a smuggler to take them to a signatory country who is obliged to grant a settlement place if they claim asylum within that territory and they pass that country’s refugee assessment process. Many people in detention in Australia have already been found to be refugees by UNHCR.

          The problem of boats is caused by a lack of realistic settlement times for people in camps all over the world.

          The issue of mandatory detention is different – it does not increase or reduce boat arrivals. It is simply a cruelty inflicted on vulnerable people, which has no productive policy outcome and is an expensive waste of taxpayers money.