In the two months since the Government reinstated offshore processing, it has had one eye nervously fixed on the polls, while the other roves our oceanic frontiers – both searching for an indication that the policy is working.

Unquestionably, both would have reached disparate conclusions. The boats have not only continued to arrive, but they have done so in record numbers. Last month, 35 vessels were intercepted carrying 2360 asylum seekers – the largest number of arrivals in any month on record. However, with the Parliamentary deadlock resolved, and a “solution” in place that boasts the legitimacy of the Expert Panel, the media cycle has moved on. In this respect, the new regime has been a political success for the Government; it has had a positive impact on the polls by not having a negative one.

It is this dissonance between outcome and rhetoric which highlights the paradox operating at the heart of this new regime. Speaking with Woroni, human rights lawyer and refugee advocate, Julian Burnside QC, rejects the Government’s stated humanitarian objective of saving lives at sea as one which is completely incompatible with the operational realities of the Pacific Solution Mark II.

“Interestingly, what is going to happened under the new proposal is that people will get in boats in Indonesia and once the risk of drowning has passed, they will be intercepted by the Australian navy or customs, and will then be taken to Nauru or Manus Island. Now, I think it’s rather odd to save a person from a risk once the risk has passed”.

The second, glaring strategic flaw that underscores the Pacific Solution Mark II is the inherent contradiction between its “no advantage” test and the limited capacity of the Nauru and Manus Island centres. The intention of the “no advantage principle” is that asylum seekers will be deterred from getting on a boat because, according to Immigration Minister Christopher Bowen, they will be forced to endure comparable resettlement times on Nauru or Manus as endured by those in places like “Jakarta, Kula Lumpur and Pakistan”. On this basis, Mr Burnside says they can expect to wait “anywhere between 5-50 years, or perhaps the rest of their lives.” Practically, it is expected that a wait of around 5 years will apply. However, with the number of boat arrivals since the policy change already surpassing the combined capacity of both centres, the intention of the “no advantage principle” is so blatantly untenable that its proposal, from a purely functional perspective before humanitarian questions are even contemplated (and there are many), beggars belief.

Most troubling is the fact that the no advantage test only beings to operate once a person has been assessed as a legitimate refugee, meaning that they will then be left to languish in indefinite detention after having endured an already protracted processing period. With this in mind, Australia begins to wade into the realm of arbitrary detention, a human rights violation under the International Covenant of Civil and Political Rights.

“If we were doing it here [in Australia] it would undoubtedly breach our domestic legal norms and our international legal obligations”, Mr Burside said.

In order to distance itself from this legal quagmire, the Australian Government has insisted that Nauru and Manus Island will bear the legal responsibility for all processing operations, a claim so utterly infeasible it’s provoked the explicit condemnation of the toothless tiger of refugees, the UN High Commission on Refugees. It pointed to the fact that “Papua New Guinea does not have the legal safeguards, nor the competency or capacity to shoulder alone the responsibility of protecting and processing asylum-seekers transferred by Australia.” According to Mr Burnside, Nauru also has a distinct lack of legal infrastructure as “it does not have any domestic legislation which even deals with refugees, and it doesn’t have any domestic experience handling refugee claims.”

The confusion, it seems, isn’t just at Australia’s end. In what can only be interpreted as an intention to send a clear message to the Australian Government, foreign minister Kieren Keke declared last week that it is the prerogative of the Nauruan government, not Australia, to decide how long asylum seekers would stay on Nauru. Keke has also made a point of putting on the public record the assurances he received from the Australian Government that processing and resettlement on Nauru would occur as quickly as possible. Indeed, with the relationship between the Nauruan and Gillard Government’s showing the first signs of fracturing, the decision to remains terse-lipped on the operational details of the no advantage principle suggests that this “solution” is not only extremely unforgiving but also ill-thought out. Certainly, the haste with which the solution was devised and then hurriedly pushed through Parliament barely twenty four hours after the Panel handed down their recommendations  at best gives the impression of policy on the run. At worst, it reeks of a political fix.

All this is frightfully murky territory and for what? According to Mr X who, from inside detention has spoken with his friends back in Afghanistan via Skype, there is no such thing as a deterrent to people who face the prospect of death.

“Many of them want to come to Australia and I tell them that they will go to Nauru and not Australia but they say ‘what choice do I have? If I stay I could die’”.

Last week this sentiment was echoed officially by Afghanistan’s Ambassador to Australia, who publicly stated that the prospect of being transferred to Nauru or Manus Island would have no deterrent effect upon the thousands of Afghanis currently waiting in Indonesia. Sadly, the unavoidable conclusion seems to be that Nauru and Manus Island will once again become a warehouse for the most desperate of people for whom return to their country of origin is simply not an option. According to Nick Haslam, Director of Researchers for Asylum Seekers, the reinvented Pacific Solution II sets out to impose, “exactly the kind of circumstance that you would expect to have the worst outcome because it does create indefinite periods of detention, and we know that periods over 6 months in particular are likely to be psychologically damaging but also we know that if you don’t know how long it’s going to be, that uncertainty in itself is pathological.”

This is the policy that the Expert Panel described as “hard-headed but not hard-hearted”. As the weekend news cycle delivered the first report of self-harm on Nauru, these words ring more hollowly than ever.

 

Read Lisa Visentin’s account of the Northern Territory’s immigration detention centres here.

 

 

Listen to the full podcast with Julian Burnside here.

Listen to the full podcast with Nick Haslam here.

You can follow Lisa on twitter here.