Well, call it what you will - "the Indonesian solution", "the Rudd solution" or "the not-in-my-backyard policy" - the bunfight preoccupying both the Government and the Opposition of late has had an on-the-nose whiff of the 2001 'Tampa' affair about it. It seems that, eight years on, Australia's politicians still find the issue of 'boat people' a little too tricky to touch. Some have gone so far as to suggest you might be able to get a cigarette paper between Kevin Rudd and John Howard on this issue, but only just! One of a growing chorus of critical reactions to the debate raging around the 78 Sri Lankans on the 'Oceanic Viking' has come from Sydney University's migration law expert Professor Mary Crock. Earlier she joined George Negus here in the studio.

GEORGE NEGUS: Professor, it's good to see you, because this obsession, as you call it, this expedient obsession that Australian politicians have got with boat people and the like is engulfing the country at the moment. What is it about leaky boats - as distinct from any other way of coming to this country - that has us all preoccupied?

PROFESSOR MARY CROCK, UNIVERSITY OF SYDNEY: I think there's a very deep historical fear of invasion, in Australia, by the sea. We're not unique in that respect. Many countries around the world overreact when people come by boat and seek asylum.

GEORGE NEGUS: Right! I hadn't thought of that. So it's because countries are usually invaded by boat that people seem to be so worried and preoccupied by this?

PROFESSOR MARY CROCK: Well, there are prehistoric precedents for that.

GEORGE NEGUS: Yeah. Even though there are a lot of people who come here by plane - a lot more by plane - and apply for political asylum and quite often get it.

PROFESSOR MARY CROCK: This is not a question of numbers. We've had many, many people coming here and claiming asylum over many years. We don't get concerned about that. There are a number of reasons why governments are concerned about boat arrivals. People who come by plane are at least processed to some extent - they present their passports to get into the country and so on. Whereas, people who come by boat come without any documentation of any kind and they haven't had any health or character checking at all. So, there are obvious concerns that are very valid for governments.

GEORGE NEGUS: Let me put it to you this way. The situation that the Rudd Government has got itself into and this boat that's still floating around like the 'Marie Celeste' with these Tamil people on it - is it legal, is it moral and is it good politics?

PROFESSOR MARY CROCK: The situation is a complex one. The boat was in the Indonesian search-and-rescue zone. It was approached by an Australian Government vessel - that's true - and we took the asylum-seekers on board, but we did so at the behest of Indonesia. It's very different from other situations, where asylum-seekers are on the high seas and closer to Australia - for example, the 'Tampa', it was within four hours of Australia, 12 hours of Indonesia.

GEORGE NEGUS: Let me interrupt you there. So, seeing that we agreed to that - the Indonesians asked us for help and we picked up the people from this boat - does that make it our responsibility or their responsibility? Because words like 'duck shove' and 'not in my backyard' spring to my mind every time I hear this story. We appear to be avoiding this issue and not taking our international responsibility.

PROFESSOR MARY CROCK: Well, this is a very complex situation. You have two countries in close proximity. We have people-smugglers who've established a route through Indonesia to Australia. These people are asylum-seekers. Some of them will be genuine refugees, to which both Australia and Indonesia owes obligations. The complication in our region is that Australia is a signatory to the refugee convention, but Indonesia isn't.

GEORGE NEGUS: That's very significant, isn't it? Because if we - to use the term, and some people have - 'dump' those people on Indonesian territory we've got no guarantee of how they're going to be treated as refugees.

PROFESSOR MARY CROCK: Well, it is and it isn't. I think what is significant is that Indonesia has invited UNHCR - the United Nations body responsible for refugees - into its territory and does allow UNHCR to do processing there. It's not as if we are in a complete vacuum from the point of view of international law. The problem is that nobody on earth really wants to encourage people to go by these leaking boats - they're extraordinarily dangerous, we've had an enormous amount of loss of life at sea in recent years. Before the 2001 election we had 353 people die in one single incident. Nobody wants that to happen again. So you have to try and devise a policy that is going to stop people from taking to the boats and at the same time handle sensitively the people, the refugees, who are on board the boats. With respect, I think the biggest problem here is we have a complex international political situation, where we have a country in our region - Sri Lanka - with a huge volume of asylum-seekers - and they ARE refugees …..

GEORGE NEGUS: After 25 years of civil war.

PROFESSOR MARY CROCK:….. who want to leave the country. They are going to do so by any means. Until we actually go to the source and not just talk to Indonesia but talk to Sri Lanka, with other countries - we're not the only country receiving these asylum-seekers. What we need here is a comprehensive plan of action that allows for the orderly departure of people who've got relatives in countries like Australia and Canada so that they do not have to resort to the people-smugglers. You have to try to beat the people-smugglers at their game.

GEORGE NEGUS: To your knowledge, has the Australian Government been speaking to the Sri Lankan Government? Is that what Kevin Rudd should be doing? More than engaging himself in this circumlocutory debate with Malcolm Turnbull, shouldn't he actually be on the phone - or on the boat, if you like, on the plane - to Sri Lanka to say, "We are suffering from the end result of this. "What are you doing here to allow this to happen?"

PROFESSOR MARY CROCK: I do feel some sympathy for the Rudd Government because I think the Opposition is playing ridiculous domestic politics. When the 'Tampa' affair was at its height, the Opposition stood shoulder to shoulder with the Government and tried not to make politics out of it. What we have here that's so different if you've got the Opposition trying to play domestic politics with an international situation, and it's like putting free advertising on the internet saying, "Australia is in chaos. "Asylum-seekers of the world come here."

GEORGE NEGUS: Why isn't the United Nations High Commission for Refugees talking to us - instructing us, if you like, encouraging us - on what our obligations are and how we fulfil them? It seems to me that they're sitting on the sideline watching this idiotic situation unravel. Shouldn't they be putting the heavies on us?

PROFESSOR MARY CROCK: Look, UNHCR has very good relations with the Australian Government. They are in discussions - there's no doubt about that. The point is, though, that these asylum-seekers were picked up in Indonesian waters and if Australia backs down with these it actually really weakens their position relative to Indonesia and the sharing that has to go on there. They are also playing a double game of politics with Australia and politics versus asylum-seekers because neither Australia nor Indonesia wants to get flooded with asylum-seekers and the more that they play this game the more people - they hope - are going to be discouraged.

GEORGE NEGUS: Had Australia NOT when they picked up those Tamil people off that boat, the 78, had they not headed to Indonesia - because they were in Indonesian search and rescue waters - had they headed for Christmas Island instead where would we be at now? Would we be talking now about this situation if Australia had done that - said, "We know it's not legally or necessarily our job to do this "but we'll take them to Christmas Island and process them, "find out whether they're asylum-seekers "and keep them in Australia or send them back home." We wouldn't be talking now if they had have done that.

PROFESSOR MARY CROCK: Of course not, but the problem is when you make one decision it's like a domino effect and you often can't go back to undo it. My great disappointment is that the Rudd Government didn't do more when they could have at the start before all of this blew up to dismantle the whole of the Christmas Island processing regime, which is not working - it's a waste of time a huge waste of money and it's not deterring a single person. We shouldn't be processing people on Christmas Island. Everybody's been saying it. We have, still, two different regimes for the determination of refugee status in Australia - one for people who make it to the mainland and one for people who are stopped before they come here. That sits uneasily under international law. As a matter of cost, as a matter of law, of humanity, we should just have one system - it would be cheaper, easier, to bring everyone to Australia and have done with it.

GEORGE NEGUS: If we can erase the term 'boat people' from our mind and our mentality they might be a lot better off.

PROFESSOR MARY CROCK: I think the point to make here is that boat people are not going to go away. We've been talking about people fleeing from a civil conflict here. Part of this whole debate has been to distract our attention from the environment debate. If we don't do something in the environment, we are going to have a lot of people coming

GEORGE NEGUS: If we think we've got a problem now, watch out!

PROFESSOR MARY CROCK: That's right.

GEORGE NEGUS: So we'd better get ourselves prepared for that.

PROFESSOR MARY CROCK: Particularly in the Pacific - Kiribati, Tuvalu, they're going down.

GEORGE NEGUS: Stay tuned, folks - it hasn't finished yet. Thanks for talking to us, Professor. Thank you very much.

PROFESSOR MARY CROCK: Pleasure. How depressing.

Interview Producer/Researcher 

JANE WORTHINGTON

Researchers

MELANIE MORRISON

VICTORIA STROBL