The immigration minister, Peter Dutton, is concerned that revelations by Guardian Australia, the ABC and Fairfax could lead to more asylum seeker lives being lost at sea.

In the instance of the ABC, Dutton claimed the broadcaster has been “drinking the Kool-Aid” and was on a “crusade against government policy”.

The minister is also upset that the ABC didn’t accept his offer of a live interview at the tail of last Monday’s Four Corners, during which refugees, and in particular young children in detention, spoke of their experience on Nauru – their frustration, desperation and deterioration.

This is a well trod path, and even if the minister had appeared in our lounge rooms last Monday, he wouldn’t have been able to add anything insightful.

We must be careful using the word “detention”, because in 2015 Nauru said that detainees were free to wander about the island – an invitation, as we know, to be bashed and abused by some of the locals. In this sense the whole island is a broad-acre Alcatraz.

Apparently, the only one faithfully toeing the party line on offshore detention is News Corp, which has morphed the issue into yet another of its clunky swipes at the ABC.

The ABC broadcast brings front and centre a number of uncertainties, confusions and misconceptions about holding refugees in pitiable Pacific states.

These are among the many questions I hear frequently, and here, I hope, is a handy explainer:

1. The prime minister, Malcolm Turnbull, has claimed that what happens to refugees held on Nauru is the responsibility of the government of Nauru, not of Australia. Is this so?

His statement is incorrect. The high court has recognised that Australia has responsibility for the people it detains offshore. The latest affirmation of this was in February this year in the M68 case.

Indeed, the Migration Act says the Australian government can take “any action” in relation to regional processing.

2. Once people have refugee status, can they be held indefinitely on Nauru or Manus Island until a third country taken them?

Yes, in practice. No, in theory.

The high court has said that detention is lawful as long as it is not indefinite. In other words, detention is supposed to be a condition precedent to “processing” so that refugees will move out of detention. The court has indicated that long-term detention without charge or trial would be beyond the power of the parliament as that would trespass on judicial functions.

Australia had failed to protect refugees from ‘torture or cruel, inhuman or degrading treatment’

In the meantime, there is a hiatus. Many people have been “processed” with the government offering them “packages” to either go back home, stay in Nauru or PNG, or to a third country that Australian is looking to bribe.

Most of the refugees have refused these enticements, as well they might. Voluntarily returning to the place from which you are fleeing doesn’t make much sense, while many of the people of Nauru and PNG are hostile to refugees.

Of 551 Manus Island detainees assessed by the PNG government up to 31 May, 2016, 98% have been found to be refugees. Of those, 20 have been resettled in PNG. On Nauru, 77% of those “processed” are refugees and of those five have been resettled in Cambodia under the $55m Australia-Cambodia refugee relocation agreement.

Signs of resettlement progress have not been visible. It can only be a matter time before the high court finds a case affording it the opportunity to say that detention has the characteristic of being indefinite and thereby unlawful.

In the good old days of the Pacific Solution (circa 2001-2008) the following countries admitted refugees who were detained on Nauru and Manus: New Zealand 401, Sweden 21, Canada 16, Denmark 6 and Norway 4.

The opposition leader, Bill Shorten, is still banging the drum for the “Malaysia solution” – even though Malaysia is not a party to the refugee convention.

3. Is Australia’s offshore detention processing policy in violation of international law, and if so what can be done about it?

Yes, Australia has violated international law. In March 2015 the UN special rapporteur on torture, Juan Méndez, reported in relation to Manus Island that the conditions in which detainees were kept amounted to torture under the international convention against torture.

Australia is a party to the convention and as such would be required to “provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the regional processing centre”.

The report found that Australia had failed to protect refugees from “torture or cruel, inhuman or degrading treatment”.

The Migration Act and the Maritime Powers Act also allow for the arbitrary detention of people and for their status to be assessed on the high seas without access to lawyers – both violations of international law.

Amnesty International’s most recent report on Nauru says the indefinite detention of refugees, particularly children, falls foul of the refugee convention.

Australia ratified the convention in 1951 and parts of it were incorporated into the Migration Act and as such were enforceable under Australian law. This included the principle of non-refoulement (returning a refugee to a place where their life would be threatened) and the requirement that the minister should grant a protection visa to a non-citizen where protection obligations arise.

It would replace a policy of punitive deterrence with one of decency

The relevant bits of the refugee convention were removed from the Migration Act in the infamous December 2014 amendments and replaced by a definition of “refugee” narrower than that in the convention.

International conventions set “normative” standards for contracting countries, but individuals cannot enforce those standards unless they are incorporated into Australian law. Nonetheless, the high court has said in the 1995 case of Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, that legislation should be interpreted by courts, as far as possible, in a manner consistent with our international obligations.

4. Can refugees leave Manus Island and Nauru?

In theory, yes. In practice, no.

The refugee convention says, “The contracting states shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country”.

Both Nauru and PNG have signed the convention and Nauru’s temporary protection visas allow refugees to leave and re-enter the country – as long as they don’t come to Australia. How they might leave, of course, is the problem.

Nauru and PNG’s temporary settlement visas also allow refugees to work and receive vocational and language training. PNG also offers a pathway to citizenship, however a large proportion of refugees in this category are too fearful to move into the local communities.

In April the PNG supreme court found the detention of refugees on Manus Island to be unconstitutional and a violation of their rights under the international covenant on civil and political rights.

It might be open for a generous benefactor to have large helicopters swoop down onto the offshore camps and remove the refugees. Similarly, a chartered vessel might draw up alongside and spirit them away to another jurisdiction that would offer them more acceptable permanent residency. Of course that would involve violations of airspace and territorial waters but it would be a violation for a noble cause.

5. Is there a solution?

Yes. The current policy is a failure because Manus and Nauru were only meant to be places of temporary processing. They are now places of indeterminate detention because third-country destinations cannot be found and because the safety of refugees in local communities cannot be assured.

A revised policy would have to fulfil the twin objectives of ending the torture and other violations without rekindling the armada of boats.

This could be done by onshore (Australian) resettlement of those now held in the offshore facilities and at the same time instituting a program of regional refugee cooperation, focusing on Indonesia and Malaysia.

The only reason people get on boats is because they have no hope. If they were given hope of orderly processing and resettlement the boat incentive would disappear. If anyone did get on a boat then they would not be processed or resettled.

This would require Australia to shift its humanitarian refugee intake from distant camps in South America and the Middle East and focus on the region.

It would replace a policy of punitive deterrence with one of decency and put a stop to the hypocritical rhetoric that torture is justified in the name of saving lives at sea.