On Saturday Scott Morrison's border asylum meter registered the arrival of the 150th boat and 8700th asylum seeker since Julia Gillard's announcement of the Pacific Solution Mark II in August.
On Monday the three members of the Expert Panel on Asylum Seekers appeared before the Parliamentary Joint Committee on Human Rights. The panel members remained fairly upbeat that their suite of measures were still kicking in. They remain hopeful their recommendations provide the surest way forward for Australia decently to protect its borders and to arrest the risk of desperate people making perilous journeys on leaky boats.
This inquiry is a litmus test for the new Committee on Human Rights as it listens to evidence from lawyers scrutinising a raft of new migration legislation for compliance with key international human rights instruments, trying to avoid the toxic policy debate about border protection which has so paralysed the Parliament.
The flood of boat arrivals since the Government's adoption of the expert panel's recommendations vindicates the 2011 observation by Andrew Metcalfe, then Secretary of the Department of Immigration, who told Parliament:
Our view is not simply that the Nauru option would not work but that the combination of circumstances that existed at the end of 2001 could not be repeated with success. That is a view that we held for some time ... it is the collective view of agencies involved in providing advice in this area.
The committee heard that the new Pacific Solution is being rolled out at a cost of billions of dollars.
Richard Towle, the United Nations High Commissioner for Refugees' regional representative, expressed concern about the so-called 'no advantage test' and whether the detention of asylum seekers on Nauru or Papua New Guinea is arbitrary, and thus a breach of international law.
The UNHCR has put the Government on notice that 'the practical implications of the no advantage test are not fully clear to us' and UNHCR is 'concerned about any negative impact on recognised refugees who might be required to wait for long periods in remote island locations'.
Angus Houston, the chair of the expert panel, insisted that his panel had never formulated a no advantage test. They simply recommended 'the application of a no advantage principle to ensure that no benefit is gained through circumventing regular migration arrangements'.
But any such principle needs to be operationalised. That can be done only by formulating a verifiable test against independent criteria to determine whether or not any asylum seeker is gaining an unwarranted advantage by jumping on a leaky boat headed for Australia. If such a test could be rendered workable and coherent, Philip Ruddock, the original architect of the Pacific Solution, would have implemented it a long time ago.
Immigration Minister Chris Bowen has cooperated fully with the deliberations of the new human rights committee telling them that 'Australia takes its obligations in relation to people in detention very seriously'. He said:
The Government's position is that the detention of asylum seekers is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether proper grounds for the detention continue to exist.
The Government claims that people generally are detained only for 'identity, security and other relevant checks'. But what if they are being held for longer than is required for such checks? And what if they are being held for protracted periods simply to satisfy the incoherent and and unworkable 'no advantage test'?
Surely the detention then becomes arbitrary, whether or not it occurs onshore in Australia or offshore in Nauru or Papua New Guinea with Australian acquiescence and payment for the 'service'.
On 14 August 2012, Prime Minister Gillard told Parliament:
The aim of the integrated package is to ensure that if people risk their lives at sea, if people give their money to a people smuggler, they get no advantage from it.
So one element ... is a regional processing centre on Nauru which would operate in a different way than detention centres in Nauru have operated in the past, and, in particular, the operation in Nauru would have built into it the same amount of waiting time to get a resettlement opportunity as people would have experienced before they risked their life at sea, before they gave a people smuggler their money.
That is the difference: the breadth of the package, the interlocking nature of the recommendations, and the change to the recommendations about what should happen on Nauru and on PNG.
This week, the expert panel told the parliamentary committee the no advantage principle was not a means for keeping people longer in detention or keeping them waiting longer for a durable solution. If the principle is coherent and workable, the panel and the Prime Minister have very different understandings of its operation.
Bowen has also told the committee the use of force authorised by the Migration Act to authorise removal of asylum seekers from Australia to Nauru or PNG does not amount to cruel, inhuman or degrading treatment under the International Covenant on Civil and Political Rights.
But if force is being used to remove a person from Australia to another place for the purpose of detaining that person for a protracted period of time under a no advantage test, the force is then truly degrading.
After the High Court's decision in August 2011 striking down the Malaysia solution, the expert panel (none of whom is a lawyer) agreed with government that it was best that the courts be excluded from considering whether executive government had sufficiently protected the human rights of asylum seekers when designating a new offshore processing country.
Substituting High Court review, the expert panel recommended that 'legislation should require that any future designation of the country as an appropriate place for processing be achieved through a further legislative instrument that would provide the opportunity for the Australian Parliament to allow or disallow the instrument'.
It is very disturbing to see that the Government has now submitted to the human rights committee that the instruments designating Nauru and PNG are 'not subject to disallowance' and that there was therefore no need for the Government to provide a statement of compatibility with human rights.
The first tranche of legislation passed by the Parliament implementing the recommendations of the expert panel allows the Parliament to 'disapprove' but not 'disallow' such a designation.
It's on legal niceties like this that the protection of human rights of asylum seekers have come to depend.
Vigilance is required even when our parliamentary committees are meeting within the octave of Christmas. In the New Year, we will all need to move our focus from Nauru and PNG back to better regional cooperation with Indonesia and Malaysia. Meanwhile, Scott Morrison's meter keeps ticking over.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He gave evidence to the Parliamentary Joint Committee on Human Rights in Canberra on Monday. The committee sits again in Melbourne today.