With yesterday's calling of the election, the Rudd Government has now moved into caretaker mode. So there will be no more hastily drawn up memoranda of understanding with indigent Pacific nation states happy at a price to resettle genuine refugees who have set out for Australia from Indonesia by boat since 19 July 2013.
Both sides of politics want to stop the boats, and they are now prepared to do almost anything (except embrace the other's policy positions) to try to arrest the people smuggler trade and the tragic deaths at sea. Whoever wins government on 7 September 2013 will need to bring the PNG and Nauru deals back to Parliament even if the High Court does not get to them first.
Like the PNG agreement of 19 July, the agreement between the Governments of Australia and Nauru announced on Saturday and providing for resettlement of refugees (including unaccompanied minors) in Nauru has not been scrutinised or approved by the Australian Parliament. The Nauru agreement depends for legality on the fig leaf of parliamentary coverage given by the tabling of documents by Minister Chris Bowen on 10 September 2012 when he told Parliament:
By presenting the designation and accompanying documents in accordance with the legislation, we are providing the parliament with the opportunity to be satisfied that they are appropriate. Again, I call on both houses of parliament to approve this designation, to enable the first transfers of offshore entry persons to Nauru and to provide the circuit-breaker to irregular maritime arrivals called for by the (Houston) expert panel's report.
The memorandum of understanding (MOU) tabled by Bowen provided: 'The Commonwealth of Australia will make all efforts to ensure that all persons entering Nauru under this MOU will depart within as short a time as is reasonably necessary for the implementation of this MOU.' The Parliament didn't disallow the designation of Nauru as a 'regional processing country' in September 2012 but that was because all parliamentarians including Bowen thought the proposal was that Nauru be a temporary processing country, not a permanent resettlement country.
On Saturday Prime Minister Kevin Rudd appearing with Baron Waqa, the President of Nauru, said, 'Today we are pleased to announce that we've reached a new regional resettlement arrangement, one that supersedes the memorandum of understanding we signed last year.' Rudd was conceding that this new arrangement bears no resemblance to the one presented to Parliament last September.
The requirement to table such documents in Parliament was legislated when the Parliament decided it wanted to exclude the High Court from scrutinising future arrangements like the Malaysia Solution. The substitute was that the Parliament itself would have the chance to disallow any arrangement entered into by the Minister for Immigration acting in what he considered to be the national interest.
Rudd went on to say, 'Our Governments have agreed that the Republic of Nauru will not only maintain and extend its regional processing capacity, but it will also provide a settlement opportunity to persons it determines are in need of international protection.'
On the eve of calling the election, he has attempted to do this spared all scrutiny by the High Court and the Parliament. The Rudd Cabinet has purported to be completely immune from all supervision by the other arms of government when deciding to ship asylum seekers, including genuine refugees, across the Pacific Ocean to very precarious futures.
On Saturday, Tony Burke, the Minister for Immigration, conceded that Nauru was no place to be sending fit young adult male asylum seekers because the locals are very upset by the recent destruction of the processing centre by other fit young adult male asylum seekers. So we will send kids instead!
Since 19 July, the Rudd Government has been committed to a campaign of shock and awe trying to stop the boats. Like nuclear deterrence, such a campaign might be ethically justified provided the homework has been done to ensure that the threat has maximum effect reducing as far as possible the risk of having to do immoral damage to people. The necessary advertising and messaging is yet to be rolled out in Indonesia. It should have commenced before or when the threat was issued. This government blunder has resulted not in stopping the boats but in 1765 people still boarding boats and now being condemned to immoral damage.
Neither have the detailed arrangements been put in place to ensure appropriate accommodation, processing and resettlement in PNG and Nauru. Julia Gillard's Malaysia deal took months to negotiate.
The Government's message this time should have been, 'Any one who now boards a boat will not be resettled in Australia. They will be resettled in another country under arrangements complying with the requirements stipulated by the Houston Panel when it reviewed the Malaysia Arrangement. We are committed to working with everyone, including the Opposition, to set in place the immediate measures to stop the boats. The last thing we want is for people to get on boats now not only risking their lives, but being guaranteed devastating outcomes in other countries in the region.'
In the medium term, the boats can be stopped only through a negotiated regional agreement, with Indonesia and Malaysia at the table.
Like many Australians, I had hoped that the dastardly plan announced on 19 July would stop the boats in the short term, as a stop-gap measure. It is dismaying to learn that appropriate consultations had not occurred with Indonesia, with the result that the very people who were to receive the shock and awe message are yet to receive it. It is also dismaying to learn that the detailed negotiations demanded by the Houston Expert panel were not concluded with PNG and Nauru before bold press announcements made chiefly for local electoral consumption.
There's only one thing worse than shock and awe; that's shock and awe that doesn't work because you haven't done your homework. Prime Minister Rudd or Prime Minister Abbott will spend a lot of time in the next year cleaning up the mess and attending to the legitimate claims of the 1765 and more people to whom we forgot to send the shock and awe message of doubtful legality before implementing its dreadful consequences.
Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. This article originally appeared in The Drum.