The circumstances in which the Sri Lankan asylum seekers have found themselves in an Australian ship off the coast of Indonesia are dramatic. And the arguments about the legality of the steps by which they have found themselves there are complex.
But this incident is part of a clear policy to prevent asylum seekers from arriving by boat in Australian waters, and to transfer responsibility for housing them, adjudicating their claims and ensuring protection for those found to be refugees, from Australia to Indonesia, in concert with the United Nations High Commissioner for Refugees.
Given the stridency of the arguments about the issue, it may be helpful to review the moral claims that asylum seekers in boats make on Australia, and the morality of attempting to prevent them from making those claims by transferring responsibility for them to Indonesia.
The core of the argument that we have moral obligations to asylum seekers lies in the responsibility we all have to one another by virtue of our shared humanity. When people come to us in need, they make a claim on us. Where their lives and safety are at risk, we are responsible for helping them insofar as is reasonable.
The difficult moral questions arise in assessing honestly what is reasonable. The obligation we have to try to save the life of a child who has fallen into a river, for example, will be affected by the fact that we cannot swim.
The responsibility to help those in need of protection also falls on us as a society and nation. It is acknowledged in our incorporation of the United Nations Convention on the Status of Refugees and Protocol into our domestic legislation. The UN also provides a framework for sharing the burdens of protecting asylum seekers. Australia, as a wealthy nation with considerable resources, helps by processing and accepting off-shore some refugees from nations where they face danger on return. These have recently included Myanmar, Sudan and Afghanistan.
The Convention also provides ethical ways of responding to people who make claims for protection on-shore. It allows for processes to discern those with strong claims for protection from those whose claims are weak.
Not all people in urgent need are covered by the grounds set out in the Convention, a fact that is recognised in forthcoming Australian legislation on complementary protection. But the Convention and the prospective legislation recognise that morally the reception of asylum seekers is to be judged primarily by the human reality of those who seek asylum, and not by the will or convenience of those on whom they make a claim.
The political challenge posed by asylum seekers who come to Australia by boat is not that they are not refugees, but that most are refugees. Even by the unsatisfactory processes of adjudicating claims on Nauru and on Christmas Island, the majority of claims for protection have been upheld.
So the only valid ethical grounds on which Australia could refuse to accept for adjudication claims made by boat people for asylum are that they would impose an unreasonable and disproportionate burden on Australia.
This case is difficult to make when we compare the number of asylum seekers making claims on Australia with those who are received in other nations, and the relative resources of these nations. It is also hard to sustain when we compare the numbers of those arriving by boat with the number of immigrants and of visa overstayers that Australia tolerates each year.
It's even more difficult to argue that Australia is entitled to transfer its responsibilities to Indonesia. The transfer does not guarantee effective protection to refugees, and Indonesia is less well resourced to provide protection, both financially and culturally, than Australia. Together these mean that asylum seekers held there will face a long and dehumanising period of detention, beset by fear, insecurity, and inability to live fruitfully.
The asylum seekers will not enjoy effective protection in Indonesia, which is not a signatory to the UN Convention and is unlikely to embody it into its domestic law. Without that measure, those found by the UN to be refugees have no guarantee that they will not be returned to persecution in the nations from which they fled.
Nor will an agreement with Australia promise resettlement outside Indonesia. On the evidence of those detained in Nauru, other nations will see it as Australia's responsibility to protect asylum seekers held in Indonesia at Australia's instigation.
It can be expected then that Australian policy will ensure asylum seekers found to be refugees will wait long in Indonesian detention centres under harsh conditions. Their future will be precarious, with no prospect of returning safely to their own countries, little possibility of resettlement and almost no opportunity to begin a new life in Indonesia. The human damage done by long detention is well documented. It damages human beings in ways that last long after they have been detained.
One argument put tenaciously by the previous Australian government, and still retailed, was that treating asylum seekers arriving by boat punitively was necessary to curb their exploitation by people smugglers and the dangers they would face at sea. Like the argument for deterrence by indefinite detention, this argument effectively involves abusing the human dignity of people in need in order to deter others.
Unless the Government establishes effective ways in which desperate people can find protection in Australia without the need for using people smugglers and accepting the risks involved, the argument is cant. It would also have told against accepting Jewish refugees from Nazi occupied lands and Indochinese refugees after 1975.
The moral argument must begin with the humanity of the asylum seekers and their need, with consideration of what demands are reasonably made on Australia. By these standards the Indonesian solution is morally unjustifiable.
Andrew Hamilton is the consulting editor for Eureka Street. He also teaches at the United Faculty of Theology in Melbourne.