Policy surrounding asylum seekers arriving by boat is always contentious and this year it threatened to capsize the government. Labor's inability to swiftly and effectively deal with refugee policy has sailed the party into an unsettling policy storm and sinking the party's approval rating.

The government’s attempt to simultaneously show conviction and compassion led to the signing of the Malaysia Deal in July 2011. In this “swap” deal Prime Minister Julia Gillard and Immigration Minister Chris Bowen agreed to send 800 asylum seekers To Malaysia for detention, in exchange for 4000 genuine refugees.

Soon after in August, a legal challenge in the High Court found the government’s Malaysia deal to be “unlawful”. Refugee lawyers proposed that the Immigration Minister did not have the power to send asylum seekers to a country that did not have legal obligations to protect them.

Due to this, it was also argued that the minister breached his duty of care to unaccompanied minors, as the minister is obliged to act in their best interests.

The set back was a political embarrassment for Gillard and Bowen, but it was a political opportunity for Opposition Leader Tony Abbott. Abbott seized the moment, initially proposing to work with the Gillard government to refine a new edition of the Malaysia Deal policy, but in the end used the government’s amendment announcement as a soapbox to blast Labor’s asylum seeker policy.

A perennial and divisive issue, just how to process asylum seekers seems destined to remain a point of contention. The desire to ensure border security and tackle the illegal trade in people smuggling is not easily reconciled with the nation's duty of care as a member of the UN.