Occasionally you have to pause to take stock of just how bizarre Australia’s asylum seeker debate has become. In summary, it works like this: the Coalition implements a policy that is mostly Labor’s while pretending it is doing something so uniquely tough that no one else could possibly be so courageous. Labor, meanwhile, objects because that’s what oppositions do, while trying delicately to avoid criticising the very thing it has unleashed. The mainstream public responds, in poll after poll, with a mix of approval and bloodlust. Some call for even harsher measures though it is difficult to imagine what that would mean. Operation Sovereign Slaughter, perhaps?



Events might punctuate this story, but they do not truly alter it. There’s a death or suicide in detention here, and a High Court intervention there. These matter, but they don’t Matter. Nothing evolves, nothing is reset. Whatever talk there might be that the Abbott government this week encountered its “children overboard” moment overlooks the fact that that episode did nothing to damage Howard’s fortunes, and that whatever demonisation of asylum seekers it might have embodied, the tradition is clearly flourishing. That’s why reports of detainees’ attempted suicides are seen not as tragic signs of unbearable mental pain, but as a cynical political strategem; dismissed as merely rank “blackmail”.



So for all the incredulity, all the outrage, all the lawyering that this week has produced, it’s worth realising that we hardly crossed an intolerable threshold. At least not if that means we did something far beyond what we’ve done before. Perhaps the most confronting fact in all this is that whatever it is we did to those Sri Lankan boat people, there was very little that was new about it.



Let’s begin with the thought that by sending asylum seekers into the arms of the Sri Lankan navy we’re returning them to their torturers. It’s true that Sri Lanka’s human rights record is poor on this point. Indeed, it was bad enough for Canada and India to boycott the Commonwealth summit Sri Lanka hosted last November. It’s also true that, particularly in the case of Tamils, there are substantial grounds for believing they are in danger of being tortured. And it’s therefore an abundantly plain violation of the single most basic tenet of the Refugee Convention.



But it’s also true that we’ve done this before. Lots. We’ve sent people back to the Taliban to be killed for years. And in the case of Sri Lanka, we’ve returned more than 1000 people. Only it was the previous Labor government that did it. Indeed Chris Bowen, then Immigration Minister, was proud of the fact. He’d call these returns “steps forward” because those are the terms of our public conversation. It’s not a success when we resettle someone fleeing persecution. It’s a success when we manage not to.



The difference in Labor’s case was that the returns Bowen was celebrating were voluntary. Faced with the prospect of detention in Nauru or Papua New Guinea, these people decided to go home. Scott Morrison’s latest episode has seen them forcibly handed over to Sri Lanka. And at first blush, this seems a significant difference. But it’s far less significant than it appears.



That’s because in both cases, there was no assessment process worthy of the name. We now know the present government is doing it by teleconference, asking four preliminary questions before rejecting them. It is this practice, as much as anything, that has the government sweating it out in the High Court right now. But again, it’s hardly new. These days it carries the mocking name of “enhanced screening”, but it used to be called “screening out” and some version of it has been around for decades.



It’s about the most cynical way there is of getting around the law. You don’t even wait for an asylum application, you just press ahead with a cursory informal interview. If they don’t say all of the right things about why they’re there, you simply tell them they aren’t eligible and encourage them to give up. The trouble is that they typically have no idea why they’re being interviewed, so often don’t understand they are being asked to make their case.



And it’s what they don’t understand that makes this work a treat. You don’t tell them this isn’t a formal assessment. You certainly don’t tell them that they have a right to go ahead and apply anyway. And for God’s sake you don’t tell them they have a right to a lawyer. You just daze them with bureaucratic smoke and hope they’ll be confused and disappointed enough to go away. Usually they do, probably because they’re under the false impression their application has been rejected. Suddenly, Labor’s returns don’t look nearly so voluntary.



This, you’d think, is crying out for a High Court challenge. And here we are. But even on that score, we’ve been here before. The challenge never concludes because the government simply settles out of court. That’s exactly what happened last year, and it may well happen again this time if the government decides simply to take this latest boatload of asylum seekers somewhere else, making the High Court case moot.



It’s entirely possible these people are economic migrant and not refugees, as both major parties variously claim. Indeed it’s more likely in the case of Sinhalese boat people than, say, the boats that come from Indonesia. But the point is we don’t know because we determinedly don’t assess them. It’s a total subversion of the refugee system, but it’s a bipartisan subversion, which is why Labor’s only real attack is that the Abbott government should be more transparent. Fair enough. But what if it were? What could it say that wouldn’t sound remarkably familiar?

Waleed Aly is a Fairfax columnist. He hosts drive on ABC Radio National and is a lecturer in politics at Monash University.

