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'Boat people' and the ethics of presence


Fence, razor wireAs former director of Jesuit Refugee Service Southern Sudan David Palmer remarked in his article yesterday, passion often trumps reasoned argument in discussion of asylum seekers. So I welcome the clarity and courtesy with which he makes his ethical case for the Malaysian solution. Although I agree with many of his points, I would like, with equal civility, to argue against his conclusions.

The core of David's argument that the Malaysian solution is ethical lies in his analysis of the argument from proximity: the moral obligation to meet the claims of people who make their claim on us in our own territory.

He argues that in an age when distance is relativised, proximity is not a decisive factor. The appeal to proximity, too, ignores other factors that are equally important: the relative needs of different groups of refugees; the unequal resources of these asylum seekers compared to others, and the need to maintain public support for refugee programs by controlling entry to Australia. He concludes that the Malaysian solution balances these different demands in an ethically acceptable way.

I agree with David that the core of the argument lies in the ethical significance we give to proximity. We both accept that an ethical refugee policy must be fair and attend to the relative needs of different asylum seekers. We differ about the point at which fairness and need should be taken into account, and so on how they are relevant to ethical judgment of the Malaysian solution.

David and I may also differ in the starting point of our ethical thinking. His reflection begins from above with a broad overview of the elements involved in a refugee policy abstracted from the people who are involved. Perhaps that is how thinking about policy works. My concern is that this starting point encourages the assumption that the only relevant ethical question to be asked about policy is whether it will bring the greatest benefit for the greatest number.

My reflection begins from the concrete dignity and experience of the people about whose treatment ethical questions are raised.

In this case these are the people who will be the objects of the Malaysian solution, and particularly those who discover that they will be sent to Malaysia as a result of the policy. The Malaysian solution is defined by the swapping of particular asylum seekers for others, and the sending of those who arrived by boat to live in Malaysia without lasting or specified guarantees about how they will live. These are the central ethical questions to resolve.

Our different starting points may shape the way each of us sees proximity. I see David's account of proximity as thin. It refers to geographical closeness, with no discernable difference in principle between the proximity of things and that of people.

The heart of my ethical argument is that the proximity of human beings is of a special kind, and is better described as presence. When people come into my presence and ask for my help, they make a claim on me to which I must respond. I am engaged in a different way than if the claim were made at a distance. This, and the progression of my argument, can best be seen through an extended example.

Suppose that in France under Hitler's occupation, a bloodied man arrived at our doorstep asking for shelter from a Nazi mob. His presence to us would be of a special kind. So his claim on our response would also be of a quite different order than that made by a brochure left on our doorstep, asking for help for Jews in Germany. The claim made by the presence of the endangered and injured man would precede questions of fairness and relative need.

We would be entitled to ask whether his claim was genuine — whether he was feigning risk or was planted on us by the secret police.

But we would not be entitled to send him away on the grounds that, whereas he was only at risk of a beating, there were Jewish Rabbis in town who were in danger of being killed. Nor would we be entitled to take him into the countryside and leave him to his own devices on the grounds that we were already contributing to a fund to support Jews in Germany that would help more people.

The moral claim made on us by people who are present to us may not ethically be discharged by kindness to others. Only the people present to us may free us from the claim they make on us. The only relevant thought experiment is to look into the eyes of the people we are sending away and tell them that we prefer to help others.

Fairness and relative need make their claim on us only after we have met the needs of those who make a claim on us by their presence. When we have helped the bleeding man, we may then reflect on the situation of Jews in occupied Europe and ask how best to help the most needy. In the same way the Australian refugee policy rightly takes into account fairness and relative need in its offshore program, and works to build a principled international response to refugees in urgent need.

In occupied France we might have chosen to join an international chain that would smuggle Jews through Europe. We could then pass on the bloodied man after we had assured him and ourselves that the chain would enable him to rebuild his life. Once we were part of the chain we would hold its security and strength in trust, for people's lives depended on it.

To risk the international solidarity required for the chain to work effectively by bypassing it and handing people over to an untried group with a dubious history would be ethically irresponsible.

The international network that offers some protection to asylum seekers is the UNHCR Convention. It provides a framework for enabling burden sharing among nations and in its provisions represents the ethical claims made by refugees. I would argue that to break that chain, inadequate though it may be, by substituting for it a parallel framework without equal force, is ethically irresponsible. It weakens the support for refugees. That is the second argument against the Malaysian solution.

Finally the protection of Jews in occupied France would have relied on tacit public support. So does the protection of asylum seekers in Australia. That requires political leadership, of which much needs to be said. But the absence of support would not justify sending away the bloodied man who came to our door. Nor does it justify sending away asylum seekers who make a claim on us by their presence.

I have argued that people in genuine need make a decisive claim by virtue of being present to us. We must respond to this claim. We may not swap people who are present to us for others, because the claim made by presence is not transferable. In our subsequent response to the needs of refugees more generally, we should take into account relative need and justice.

And finally, although we should help asylum seekers living in nations that have not signed the Convention, we may not ethically make side agreements that set aside the claim made directly on us by on-shore asylum seekers. 

Andrew HamiltonFr Andrew Hamilton SJ is chaplain at Maribyrnong Detention Centre.

Topic tags: Andrew Hamilton, David Palmer, JRS, Malaysia Solution, refugees, asylum seekers



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Existing comments

Hear! Hear! Well argued Andrew.

Vacy Vlazna | 17 August 2011  

I'm trying to imagine the mental trauma involved in listening to David Palmer and Andrew Hamilton talking to each other on a clifftop while the rope I'm clutching half way down its face is shredding, strand by strand against the hissing wind and the hungry sea.

Thoughts if a priest and a levite passig by flash through my mind.
I wonder of the debaters will hear the splash...whether it'll pierce their "proximity"
As for the bloodied man in (occupied !!!) France..he and his would-be helper face a common enemy in the Gestapo.

There's no such penalty for a door opener in Oz....just an international odium...the 'proximity" of which ought to be global...as opposed to perile.

Oops, there goes the splash....

Brian Haill - Melbourne | 17 August 2011  

Thank You Fr.Andrew for such an encouraging and compassionate writing, for calling us back to our obligation( not such a good word but which will suffice for now) to respond with charity to all who seek our help.

With reference to our political leaders I often wonder what their response wold be if they could respond from their hearts and not be controlled by party politics. May be they are waiting for our voices to become louder and clearer and compassionate and Christian to give them permission to speak as their hearts and conscience would have them do. Who knows!

Anna C North Avoca | 17 August 2011  

It seems that Fr Andrew Hamilton has become unable to think in a balanced way. His moral support of the people smuggling industry has never been balanced, but based on a selfish hypocritical outlook. We need fairness and not tunnel vision.

Beat Odermatt | 17 August 2011  

It strikes me that both parties have given implicit acknowledgement of the force of Andrew's argument of proximity, because in preaching a policy of boat-stopping far out to sea and the excision of territorial zones, they have both contorted themselves gymnastically to ensure they never have to look into the refugees' eyes at close quarters.

The most positive comment one might be able to make of the parties is that perhaps therefore deep down, deep deep down, almost beyond the thresholds of repressed consciousness, they know they are cowardly and wrong.

Stephen Kellett | 17 August 2011  

Your logic is clear. We have an obligation to assist People who present themselves on our shores. However, we also would be naive to ignore the context out of which they come. Parents or guardians who are sending children (minors) on the journey without some accountability for their motives, needs to be addressed. Exploitation by some is part of the scenario the Government has to take into account. I resonate with David's perspective.

Heather Marshall | 17 August 2011  

I agree absolutely. To me the Malaysian Solution is people trading, no more, no less and as such is unethical. I have the deepest compassion for asylum seekers and for the refugees in Malaysia.

If Australia is able to accept 8000 of those refugees,why have we not already done so? Some of them have been waiting for 20 years for us to have compassion on them. To use them as a trade-off for unwanted asylum seekers is cynical in the extreme. Is it out of the question that we accept both?

Ann Martin | 17 August 2011  

Well said, Andrew. Thank you.

ErikH | 17 August 2011  

The 'schemes' of various governments which brought thousands of 'unaccompanied minors'' to Australia (cf. Oranges and Sunshine, etc) may have been well-meant, even strictly speaking 'legal'.

But we, (and especially religious orders and 'n.g.os') surely must exercise great moral caution before falling into the trap of supporting modern equivalents, no matter how insistent political vote-catchers may urge them for perceived electoral advantage.

People 'smuggling' may be reprehensible or necessary, depending on circumstances, but it at least responds to the asylum seekers' wishes. People 'trafficking' consists in forcibly taking innocents where they do not wish to go.

The 'ware-housing' of refugees without trial, even if "legal" would seem to be always unethical, to say nothing of a breach of Habeas Corpus, and the 'trafficking of minors' as proposed for the Malaysian, New Guinea or East Timor 'swaps' seems to be child abuse whether perpetrated by parents, governments or religious .

JOHN EDDY, S.J. | 17 August 2011  

When we see Dadaab in all it's horror as we did on Foreign Correspondent last night and we are wasting $772 million here to jail 6,000 people endlessly and for no reason we see the ethics.

The reality is that the drafters of the conventions only applied it to those in territory.

For Bowen to claim to the courts that he has some legal right to shove people away to Malaysia because it might lead to better treatment for the 200,000 others in Malaysia is beyond ridiculous.

How on earth Australia with so few asylum seekers has strayed so far from the concept of everyone has the right to seek asylum though is beyond belief.

We are the whining bully in the corner monstering the neighbours to do out job.

Marilyn Shepherd | 17 August 2011  

Thanks for your thoughtful article in response to my own Andrew. A few comments.

Firstly, people can be present to us in various ways (think memories, imagination, television, etc), and I remain unconvinced that the obligations that flow from physical presence should always trump the obligations that flow from other forms of presence.

Secondly, if my approach seems 'thin' rather than 'thick' in terms of personal engagement, it is because we are discussing government policy, not personal initiative, and it is the business - some would say curse - of policy makers to juggle 'broad overviews' and 'personal stories'.

Thirdly, yes we do need to defend the Convention as a gain in international law, but we also need to work to address its gaps and weaknesses, including its failure to promote regional responses to refugee issues, and to distinguish between refugees seeking to address protection needs and refugees seeking to address humanitarian needs.

David Palmer | 17 August 2011  


Here is one of Beat's smugglers, yes I support him and all he did to help Iraqi and Iranian refugees escape and get here to safety.

All those he helped are now citizens but he is still demonised - it's absurd because the only time he set foot in Australia to commit his "crime" was after Ruddock made an illegal extradition deal with Thailand where he had committed the same non-crime as he committed here.

Marilyn Shepherd | 17 August 2011  

Actually David, wrong again. It is not the convention that ignores humanitarian need, it is governments and only one lazy government in particular links the two into one miniscule program.

Marilyn Shepherd | 17 August 2011  

I read your previous post with interest & attention, and it caused me to seriously stop and think about your argument. Certainly a far cry from so much of the knee-jerk rants. But your response to AH seems to lack the penetration ofvyour original post. To say that other presence(as described) is equally valid is a long bow - television? Come on! Secondly, are we as mere citizens/voters meant to take on the bureaucratic mind-set in order to see ethical issues in their clarity?

Rather, I would have thought our duty as citizens is to rightly think about issues, resolve them to our own conscience and thus inform our votes and our attitudes towards the body politic.

Am I so far removed from the population that I seriously err on this point.

Brian Larsson | 17 August 2011  

I wish I had your eloquence Andrew to better persuade others that we have an obligation to assist people who are in terrible need and seek our help. The best I can do encourage others to read your articles on this subject.

David Hannan | 17 August 2011  

Questions to Andrew and Marilyn.
If you have a spare $1000.00, who should get it?
A) A village in Africa for a better water supply?
B) Food for starving refugees in Kenya
C) A new iPad for a “migration lawyer?
You can divide the $1000.00, but only into 2 parts.

Beat Odermatt | 18 August 2011  

Thank you, David, for your reply. On your first point, the critical one in this debate, I suspect that we simply differ. I recognise that people present in the indirect ways you mention can make a claim on us, but argue that we cannot discharge the claim made on us by those bodily present to us by responding to others more distant. I wonder what the consequences to society in other areas would be if that principle were not upheld.

Second, I recognise that policy makers must do more than consider the effects of policy on individuals, and that this will involve juggling different considerations. But no just policy may systematically disrespect the human dignity of particular groups of people in order to benefit others. And this seems to be at the heart of the Malaysia swap.

Third, I agree with you that it is right to seek regional solutions in addition to the United Nations Convention. But these must not offer lesser benefits to those who make a claim on us than would be available under the United Nations Convention.

A minor point. I am a little puzzled at your claim that the United Nations provisions do not distinguish between protection and humanitarian claims. I had thought them deficient because they distinguish too sharply. Or at least the processes of refugee determination in Australia appear to.

Beat, I don't accept invitations to play poker with a stacked pack. If I stacked my own cards to offer you the choice as giving money to a charity that spends 30% of its money on marketing, and giving money to avoid sending a child away from its family members in Australia, I am sure you would walk away from the table, too.

The refugee lawyers whom I know generally make sacrifices in terms of their career and life style by choosing to work with asylum seekers. I don't see why it is necessary to call into question their good faith or character in order to argue against the positions on asylum seeker policy they might defend.

Andy Hamilton | 18 August 2011  

To Andrew Hamilton: The people smuggling business is an industry which provides work and income for many. People will keep on dying in the sea as long the people smuggling industry remains an attractive option for the operators and beneficiaries. The industry is harming refugees and charities as each charity Dollar can be only be spent once. We have also plenty of need for poor people in this country and currently there is a major disaster happening in Africa with potential mass starvation. But it seems that an obsession with supporting people smugglers is more important to many then saving lives.

Beat Odermatt | 18 August 2011  

Beat, it is literally not people smuggling to give refugees a ride because refugees have the legal right to cross borders and ask for help.

They have that right under the refugee convention, they have that right under the covenant on civil and political rights, the declaration of human rights article 13, the people smuggling and trafficking protocols which exclude refugees and their rights to travel without papers and under Australian law which gives anyone the right to enter and seek asylum.

It is a legal right ergo it is not smuggling.

Now slave traders bringing in forced workers, sex slaves and others certainly are criminal and should be stamped out. But we do precisely nothing.

Marilyn Shepherd | 19 August 2011  

Thank you Anrew I found this article very just,informative and needful.

Anne Nolan | 19 August 2011  

To Marilyn Shepherd: Nobody has “the right” to cross a border. Our world community depends on a system of nation state societies and these societies decide how to manage their own affairs. Some communities decide that democracy, tolerance and active economic activity may provide the best outcome. In other communities tribal hatred, drug cultivation; religious and racial intolerance and corruption are tolerated. We see today that countries with little natural resources and a long history of colonial and or feudal exploitation can prosper (Malaysia, South Korea, Taiwan, South Korea etc.) We see countries with massive natural resources continue to remain “poor”, especially in Africa and Central Asia. You and I understand that we may have several hundred Million people willing to exit their current situation to seek a better life somewhere else. Are these people “refugees” and in danger from prosecution or are these people merely seeking a better life? The fact is that either you or I can decide without getting more details. Having money to buy fares on boats to enter Australia should not be any of the considerations to assess if they are “refugees” or people wishing to have a better life. We need to have some sort of border control unless you suggest that we should open the border to about 350 Million people willing to come here. We need border control unless you don’t care about our environment, livestock and humans and are willing to tolerate screw worm flies, rabies, foot and mouth disease etc.

Beat Odermatt | 19 August 2011  

Beat, they do so. That is why the conventions were written.

Marilyn Shepherd | 19 August 2011  

We should not turn away refugees. However, we should stop the illegal people smuggling that fleeces money from the poorest of the poor. A world watches while nations starve: have a look at Africa and in particular the Democratic Republic of Congo where countless millions have been slaughtered and thousands are in unsanitary camps in Kenya, Uganda etc. What is wrong with the world acting on what happens there and allowing them to live - not flee. Very few humanitarian refugees in these camps can leave - some lucky ones are here in Australia. God help us to grow a bigger presence ourselves and help their fear, persecution and starvation. It is a sad and I am sure that Jesus has wept over all of the suffering that we pretend does not concern us!

JANE | 19 August 2011  

Was Schindler a people-smuggler, or a saint saving lives that would otherwise have been doomed?

Eveline Goy | 20 August 2011  

Jane, there are no smugglers fleecing anyone, just people giving refugees a ride.

Are Australian's really so brainwashed and ignorant that they believe the lies of pollies who pretend that evil people are running around war zones looking for passengers?

This article in the Australian today should stop that nonsense.


Smugglers are a pathway for people like us who wanted to escape the country," he says."According to the law, what the smugglers are doing, it's illegal, we all understand. But if you look at it from the other side, what they have done for us is a good thing. They didn't come to my house or knock at my door asking for money, saying 'I'm going to take you to this place.'

So for heaven's sake give it a rest.

Marilyn Shepherd | 20 August 2011  

Refugees have fled persecution for time immemorial. In Switzerland, my country of origin, the reformer Ulrich Zwingli urged all pious Confederates to welcome those displaced by persecution on the ground of their beliefs. They were the Huguenots, follwers of Luther against the Catholic Church. In 1698, Lausanne, an ancient city noted for its university and culture, you could count 1,600 refugees for every 6,500 inhabitants (almost 40%). The great majority of the Huguenots displaced at that time (between 150,00 to 250,000 people) fled France, sometimes only travelling through Switzerland in order to reach Holland or the German principalities who were more accepting that the Catholic Swiss. Bern founded a French colony and even built a church for their comfort. Zurich was said to have sheltered some 42,000 refugees from France and from Piedmont - a few only settled there, although many Tessin families from the reformed church settled in the city of Zurich. Forever, people have fled in the face of adversity and have sought refuge from folks who can show some compassion. Proximity means that we are put on the spot - we must make a decision immediately when the question is asked. Are we able to pass this test - or do we, like so many in the olden days, give the displaced people a hunk of bread. a drop of water, and send them on their way?

Eveline Goy | 20 August 2011  

I do not consider myself brainwashed. I actually work with refugees. They are the ones telling me some of their reality. I guess some people get so engrossed in their side of the story that they do not consider another. Refugees must be supported. But these who arrive on Sub-Class 200 Visas and are given so little support, miss their families, cannot find meaningful employment, cannot find adequate affordable housing, cannot run heating in the cold of winter - there are others in the country who are entitled to a valid viewpoint. I just believe the enormous cost going into the off shore processing would be better spent righting wrongs so that people do not have to flee. Their first choice is to be in their homeland. P.S. One family I know had a member save up, borrow from relatives for the trip of a lifetime on an ocean liner. He arrived here on a leaky boat! That is one way of fleecing!!!!!

Jane | 20 August 2011  

Christians should probably also try to have some compassion for their own people and think about long term consequencies of a constant influx of refugies in our country as our children will not have any other place to live.

Michael | 24 August 2011  

We have been: no the church has been less than charitable to many of it's own "refugees", not meeting the moral obligations on their very doorstep.
To protest about the rights of, or breaches of etc. whether human or childrens, always looks good on paper, while the minority pale away into oblivion.

L Newington | 07 October 2011  

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