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Is our morality at sea with the refugees?


Text is from Fr Frank Brennan's contribution to a panel discussion at St Michael's Uniting Church on Collins Street, Melbourne Palm Sunday, 2014

The moral challenge from scripture and religious authority

Just after John Howard had successfully implemented his Pacific Solution Mark I 2001 stopping the boats with, in hindsight, more bluff than actual shock and awe, I spoke at an Anglican Church on the moral quandaries then confronting us. I referred to Luke 16:26:

Abraham said, 'Remember, my child, that all the good things fell to you while you were alive, and all the bad to Lazarus; now he has his consolation here and it is you who are in agony. But that is not all: there is a great chasm fixed between us; no one from our side who wants to reach you can cross it, and none may pass from your side to us.'

Seeking to implement a Christian Response to refugees and asylum seekers on our doorstep, I said we might contemplate the present Australian version of the parable of Dives and Lazarus: (Luke 16:19—26 with a contemporary Australian gloss)

There was once a rich man, who dressed in purple and the finest linen, and feasted in great magnificence every day. At his gate covered with sores, lay a poor man named Lazarus, who would have been glad to satisfy his hunger with the scraps from the rich man's table. Even the dogs used to come and lick his sores. One day the poor man died and was carried away by the angels to be with Abraham. The rich man also died and was buried, and in Hades, where he was in torment, he looked up; and there, far away was Abraham with Lazarus beside him. 'Abraham, my father,' he called out, 'Take pity on me! Send Lazarus to dip the tip of his finger in water to cool my tongue, for I am in agony in this fire. And remember that I overlooked Lazarus at my door only because there were many other people on the other side of the world who were in even greater need. I wanted to dispense charity and justice in an orderly way, not rewarding queue jumpers like Lazarus who is now with you.'

Back then, I proposed three simple questions, and I propose them again today with a slight variation to the third: Given that Australia has the advantage of geographic isolation, I ask my government, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations? Or if that is judged too naïve, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do? Or if that is too much to ask (given the fear driven mandate of the 2013 election), how about we limit our indecency to our treatment of adults, ensuring that never again are kids used as part of the government battle plan?

Pope Francis has been very prophetic in his utterances about asylum seekers who arrive by boat on the shores of first world Europe. The island Lampedusa is the European equivalent of our hellish Christmas Island. It is a lightning rod for European concerns about the security of borders in an increasingly globalized world where people as well as capital flow across porous borders. That's why Pope Francis went there on his first official papal visit outside Rome. At Lampedusa on 8 July 2013, Pope Francis said:

Where is your brother?' Who is responsible for this blood? In Spanish literature we have a comedy of Lope de Vega which tells how the people of the town of Fuente Ovejuna kill their governor because he is a tyrant. They do it in such a way that no one knows who the actual killer is. So when the royal judge asks: 'Who killed the governor?', they all reply: 'Fuente Ovejuna, sir'. Everybody and nobody! Today too, the question has to be asked: Who is responsible for the blood of these brothers and sisters of ours? Nobody! That is our answer: It isn't me; I don't have anything to do with it; it must be someone else, but certainly not me. Yet God is asking each of us: 'Where is the blood of your brother which cries out to me?' Today no one in our world feels responsible; we have lost a sense of responsibility for our brothers and sisters. We have fallen into the hypocrisy of the priest and the Levite whom Jesus described in the parable of the Good Samaritan: we see our brother half dead on the side of the road, and perhaps we say to ourselves: 'poor soul…!', and then go on our way. It's not our responsibility, and with that we feel reassured, assuaged. The culture of comfort, which makes us think only of ourselves, makes us insensitive to the cries of other people, makes us live in soap bubbles which, however lovely, are insubstantial; they offer a fleeting and empty illusion which results in indifference to others; indeed, it even leads to the globalization of indifference. In this globalized world, we have fallen into globalized indifference. We have become used to the suffering of others: it doesn't affect me; it doesn't concern me; it's none of my business!

Here we can think of Manzoni's character — 'the Unnamed'. The globalisation of indifference makes us all 'unnamed', responsible, yet nameless and faceless.

He followed up with a visit to the Jesuit Church in Rome which provides the base for the Jesuit Refugee Service serving meals and offering compassionate accompaniment to asylum seekers living on the streets of Rome. He said:

After Lampedusa and other places of arrival, our city, Rome, is the second stage for many people. Often — as we heard — it's a difficult, exhausting journey; what you face can even be violent — I'm thinking above all of the women, of mothers, who endure this to ensure a future for their children and the hope of a different life for themselves and their family. Rome should be the city that allows refugees to rediscover their humanity, to start smiling again. Instead, too often, here, as in other places, so many people who carry residence permits with the words 'international protection' on them are constrained to live in difficult, sometimes degrading, situations, without the possibility of building a life in dignity, of thinking of a new future!

Those of us schooled in the Christian tradition often contemplate the parable of the Good Samaritan, as Pope Francis did when at Lampedusa. That parable works well for one stray Jew fallen by the wayside in desperate need. It works even better when the travelling Samaritan has access to a trusting Jewish innkeeper who will offer credit on spec. It needs some imaginative discernment once we postulate hundreds fallen by the wayside, millions even more desperate in faraway places, and institutional innkeepers who have shareholders or voters to satisfy. The gospel message of charity and justice must always be prophetic, pedagogical and practical. The democratically elected leaders of a robust pluralist nation such as Australia have to accept that they cannot help everyone in need on the planet and they are elected to maintain secure borders and a standard of living for our citizens which could not be emulated for all persons on the planet.

I had the honour of preaching at the ecumenical service for the opening of the 2010 hung parliament. In part, I said:

As you prepare for those countless divisions in the Reps and the Senate, we all have cause to reflect this morning on that one great division called by the Son of Man coming in his glory — much like the shepherd putting the sheep at his right hand and the goats at his left. Each of us is to be judged by the times we visited the prisoner, gave food to the hungry, drink to the thirsty, a welcome to the stranger, clothing to the naked, and medical and pastoral care to the sick. As legislators you are better situated than most of us to affect the outcomes for many more prisoners, strangers, the sick, and the poor.

For every prisoner you help, there will be hundreds beyond the purview of your concern. For every stranger you welcome to these shores, there will be thousands you can't; and for every poor person to whom you give a helping hand, there will be tens of thousands who need more.

How then are you, how then are we to be judged? Yes, you will face your family and friends when you go home at the end of each parliamentary session. You will face the people at the next election. You have to face yourself in the mirror every morning. And many of us believe we will have to face our loving God who says consolingly, 'Truly I tell you, just as you did it to the least one of these who are members of my family, you did it to me.'

As we wrestle with the demands of justice and the common good, let's always make a place and accord a respectful hearing to all our fellow citizens whatever their religious or philosophical world views. May the most reasonable of legislators accord respect to the most devout citizens of faith. May the Parliament, our airwaves, our social media platforms and our public squares be places where charity and truth temper our passion for politics while that passion enhances our commitment to truth and charity for all.

Having announced his own Pacific Solution on 19 July 2013 at the end of that hung parliament, Kevin Rudd speaking on the Today show with Lisa Wilkinson said the issue was deaths at sea and the increasing numbers which were swamping the humanitarian migration category. He put out this challenge, presumably to the Churches, as well as all the other do gooders in the community:

I think you heard a people smuggler interviewed by a media outlet the other day say that this was a fundamental assault on their business model. Well, that's a pretty gruesome way for him to put that, but the bottom line is this, I challenge anyone else looking at this policy challenge for Australia to deliver a credible alternative policy.

That's the challenge still confronting all of us in this Church on this Palm Sunday 2014.

Collateral costs of unscrupulous means

On Monday, I was working from my office at home in Canberra. We have had a builder doing some work on the Jesuit house. He turns his radio up rather loudly while mixing cement. He is a great devotee of radio announcers Ray Hadlee and Alan Jones. I must confess that I had hardly ever heard these gentlemen plying their trade in the past. And don't they enjoy it. Ministers of the Crown are frequent interlocutors. On Monday morning, the Minister for Immigration, Mr Scott Morrison, made an appearance. He is obviously no stranger to Mr Hadlee's program. Together they defended our borders and repelled threats from every quarter. They rejoiced that no boats had arrived in Australia carrying asylum seekers without visas during the last 15 weeks. But there was more. Here is a sample of what I heard from Mr Morrison. On Cambodia he said:

Up in Cambodia we have continued our discussions there about regional cooperation and I think it raises important issues about resettlement and the whole idea of resettlement for refugees is that they don't get a one-way ticket to a first world economy. It is supposed to be to protect people from persecution now whatever country that may be in that is the focus of protecting people from persecution, not providing a passageway to a first world economy.

In 1995, I worked in Cambodia with our Jesuit Refugee Service helping to establish the first refugee status determination processes with UNHCR. I have been a regular visitor to Cambodia since then. I remember being there in late 2009 when a group of Uighur asylum seekers from China were in Phnom Penh. They were forcibly repatriated to China without determination of their claims. The UNHCR representative at the time said that in his 30 years history in UNHCR this was the most flagrant violation of the 1951 Convention on Refugees he had experienced. In March 2010, I wrote, 'Cambodia's long awaited refugee law is a sham. It may be a signatory to the UN Convention, but to date that counts for nothing.' I have not heard any evidence to make me change my mind. I know from our workers in the Jesuit Service there that Cambodia is no place to be resettling refugees who have arrived in Australia. The country is politically very unstable at this time and the human rights record of the government there is appalling. It's one thing to be committed to stopping the boats, providing protection rather than a passage to a first world economy. Even if the end sought is justified, that does not answer the ethical question about the means used. Regardless of their private morality of the ends not justifying the means, most politicians decide that there are some public policy circumstances in which the ends can justify the means. And most electors go along with them, pleased that the politicians make the morally fraught decisions accommodating the citizens' base self interests. Going to war in someone else's country in order to ensure peace at home in the long term comes to mind as a ready example. Some means are too morally fraught and the collateral damage from them so great that it would not matter how admirable the end sought. No Australian politician acting in good conscience could send asylum seekers to Cambodia satisfied that they would receive appropriate processing of their claims and protection.

When Mr Morrsion turned his attention to PNG, he said:

Well the $420 million that Kevin Rudd gave to the government of Papua New Guinea for what was effectively a blank sheet of paper at the time well we have honoured that arrangement but we have made sure that what was coming to us as part of that arrangement has been able to be established. Now we got a blank sheet of paper basically, it was a myth at the time of the election and we have turned this arrangement into reality.

Anyone with experience in PNG knows that it is not a suitable society in which to be resettling people coming from countries like Afghanistan and Sri Lanka. With the cheque book approach we have trashed many of the safeguards put in place previously to ensure better outcomes with expenditure of the aid dollar reducing corruption and waste. When an asylum seeker was killed in detention, we declined to assist the PNG police who requested that one of the 50 AFP officers posted in PNG act as observer during the inquiry. This was the official explanation: 'Given the AFP has no operational jurisdiction in PNG and undertakes an advisory role to the RPNGC, the AFP considered it inappropriate to act as an independent observer in a witness interview.' Given that our police act in an advisory role in PNG, I could not imagine a better way to assist than to observe such an inquiry when asked. If refugees are ultimately granted permanent residence in PNG, we will have to spend an ongoing fortune in securing the porous Torres Strait border much to the inconvenience of the locals who are used to their wantoks being able to come and go.

Meanwhile in Nauru, part the cost of placing asylum seekers there with no prospect of residence anywhere but Nauru has been the trashing of the rule of law with the expulsion of a magistrate and the exclusion of judges from the jurisdiction. Why? Because the Nauruan government could not countenance the exercise of judicial independence in dealing with asylum issues including the prosecution of detainees charged with property destruction and riotous behavior. We have paid a very high price in the region inflicting much collateral damage while trying to send a message that people should not get on boats. We continue to engage in the artifice that it may be necessary for Nauru to provide permanent residence to a refugee population 10% the size of their own population — and all this on an island where there is no industry and no employment. This is the stuff of Pacfic powder kegs.

Turning their attention to the 50,000 asylum seekers who arrived in Australia during the Rudd-Gillard years, Messrs Hadlee and Morrison painted a bleak picture of their willingness and ability to find employment in Australia, claiming that fewer than 5,000 of them would end up being productive in the workforce, with the remaining 45,000 being dependent on tax payer funded welfare assistance. If I thought or knew that only 5000 of 50,000 refugees granted asylum and residence in Australia were ever going to work, I would be pretty upset too. But isn't it time for the nation to take a deep breath and stop this dishonest demonising of asylum seekers? We know from our history that refugees once welcomed and established in the community love to work. We also know that there is no group keener to work than asylum seekers who have arrived by boat. Their initiative and their courage are not exhausted once they reach our shores. We are now placing tens of thousands of people in our community without work rights and without an appropriate level of welfare. We are renting asunder the fabric of the body politic which for decades maintained a white Australia policy so that everyone within our borders might be assured the right to work for a just wage or an adequate level of welfare assistance.

Seeking a moral path in the midst of the intractable issue of people flows

According to the United Nations High Commissioner for Refugees (UNHCR) there were 45.2 million forcibly displaced people worldwide at the end of 2012. This was the highest number since 1994. Of these, 28.8 million were internally displaced persons, 15.4 million were refugees and 937,000 were asylum seekers.

Some people argue that it is immoral for nations now to maintain sovereign borders and that we should permit the free flow of people much as we allow the free flow of capital and produce in an increasingly globalized world. In my own Catholic tradition, Pope John XXIII used to argue for a right to emigrate to the country of one's choice. It is not a right which has been espoused by any subsequent pope.

I accept the moral propriety of nation states maintaining secure borders and insisting on the need for an ordered migration program while playing their part providing protection for people in direct flight from persecution. Australia being a net migration country is well positioned to contribute to the protection mandate. If the rate of boat arrivals in 2012-2013 had continued to escalate at the rate it was, all humanitarian places in the annual allocation would have been taken up by the boat arrivals by now. If the flow was unabated, there was even the possibility down the track that the entire migration program would be filled by boat arrivals.

Both sides of Australian politics are now committed to stopping the boats. It's only the minor parties (Greens, Palmer United and DLP) which express ethical objections. The Abbott government has been elected with a strong mandate to stop the boats. For the moment, the government is not much interested in public discussion about the ethics of the policy. It is more a matter of 'whatever it takes'. Given that there have been no boats for 15 weeks, and given that a new government will be elected in Indonesia later this year, it is opportune to start our thinking about how Australia might contribute to better processing and protection of asylum seekers upstream in Indonesia and Malaysia. The government needs to engage the community about the ethical bottom line for long term detention and banishment of refugees to countries such as Nauru and PNG. We need to ensure a fair go for all — those on boats, those stranded in remote camps, and those trapped in transit countries.

Though most of our neighbours are not signatories to the Refugees Convention, Australia should remain a party to the Convention, and refugee advocates should not overstate or misstate the rights protected by the Convention and the UN Declaration of Human Rights (UNDHR). Article 14(1) of the UNDHR provides: 'Everyone has the right to seek and to enjoy in other countries asylum from persecution.' Back in 1948, the drafters had suggested that a person have the right to be 'granted asylum' — a legal right to just turn up here by boat! Australia was one of the strong, successful opponents, being prepared to acknowledge only the individual's right 'to seek and enjoy asylum', because such a right would not include the right to enter another country and it would not create a duty for a country to permit entry by the asylum seeker. That's why Article 31(1) of the Refugee Convention deals as it does with the illegal entry or presence of an asylum seeker who has entered or is present without authorisation. It provides: 'The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.' The immunity from penalty is restricted to refugees 'coming directly from a territory where their life or freedom was threatened'. The Australian Government website is correct when it states:

The Refugees Convention does not oblige signatory countries to provide protection to people who do not fear persecution and have left their country of nationality or residence on the basis of war, famine, environmental collapse or in order to seek economic opportunities.

Protection obligations may also not be owed to a person who already has effective protection in another country, through citizenship or some other right to enter and remain safe in that country.

International law recognises that people at risk of persecution have a legal right to flee their country and seek refuge elsewhere, but does not give them a right to enter a country of which they are not a national. Nor do people at risk of persecution have a right to choose their preferred country of protection.

There is a right to leave your country. There is a right to re-enter your country. There is a right to seek asylum. But there is no right to enter another country of which you are not a national — even to seek asylum. Should you have succeeded in entering another country not your own, whether legally or illegally, you have a right to enjoy asylum if you are a refugee. The Refugee Council of Australia rightly notes:

It is not a crime to enter Australia without authorisation for the purpose of seeking asylum. Asylum seekers do not break any Australian laws simply by arriving on boats or without authorisation.

Article 31 of the Refugee Convention clearly states that refugees should not be penalised for arriving without valid travel documents. What may be considered an illegal action under normal circumstances (e.g. entering a country without a visa) should not, according to the Convention, be considered illegal if a person is seeking asylum.

Permitting asylum seekers to entry a country without travel documents is similar to allowing ambulance drivers to exceed the speed limit in an emergency — the action may ordinarily be illegal but, in order to protect lives at risk, an exception is made.

Given that most of our neighbours are not signatories to the Refugee Convention, there is no point in over-stating our legal obligations when we come to the moral arguments and the diplomatic negotiations that will be required to enhance the processing and protection of refugees in our region. It would be folly to abandon the international legal instruments and just rely on moral argument and diplomatic negotiations. We should maintain the safety net of law. The political atmosphere is such that the safety net will become so frayed as to be useless if refugee advocates overstate and mis-state the law claiming, for example, that asylum seekers have a right to enter Australia and that it would never be legally permissible to turn boats back even if there were a guarantee of processing and protection in Indonesia. We all need to admit that there is a magnet effect for some asylum seekers and economic migrants wanting to settle in a first world economy like Australia once they have left the persecution and/or despair of their home country.

There is no doubt that the reforms of July 2008 instituted by the Rudd Government and not opposed by the Nelson Opposition contributed to a sharp increase in the arrival of boat people, not all of whom were in direct flight from persecution unable to find safety until they arrived in Australia. The annual arrivals continued to spiral upwards — from 2856, to 6689, a brief drop to 4730, then up to 17,271, and then up again to 25,145. By the time Kevin Rudd had become prime minister for the second time in June 2013 the boat arrivals were running at 3,300 per month (40,000 per annum). There was intelligence available that the people smuggling networks were now so adept at plying their trade in Indonesia that the numbers could escalate even further. These increases were not related to increased global refugee flows nor to new refugee producing situations in the region. There had been at least 900 deaths at sea since the 2008 reforms were instituted. Something had to be done — not just for crass political gain but for sound ethical reasons.

Since the High Court's rejection of the Gillard government's Malaysia solution, there has been a need to consider how ethically and practically to stop the boats. The lack of bipartisan agreement meant that the recommendations of the Houston panel could be only partially implemented. If we could put behind us the diplomatic stand-off arising from our government's spying on the wife of the Indonesian president, it might be possible to negotiate a regional agreement involving at least Australia, Indonesia and Malaysia. An agreement, with UNHCR backing, could provide basic protection and processing for asylum seekers transiting Malaysia and Indonesia. Asylum seekers headed for Australia could then be intercepted and promptly screened to determine that none was in direct flight from persecution in Indonesia. They could then be flown back safely to Indonesia and placed at the end of a real queue. Provided the necessary screening was done, it could then be appropriate to adopt Alexander Downer's suggestion: 'Australia would fly back to Indonesia anyone who arrived here by boat without a visa. In exchange, Australia would take, one for one, UNHCR approved refugees from refugee camps in Indonesia.' Given the present poisoned state of relations between our two governments, an agreement would take many years to negotiate and implement. It does not provide a short term solution to stopping the boats.

Kevin Rudd's pre-election agreements negotiated with Papua New Guinea and Nauru and first announced on 19 July 2013 were aimed at stopping the boats. It was the equivalent of a 'shock and awe' measure, threatening dreadful outcomes for people, hopefully deterring them from even considering getting on board a boat. During the 2013 election campaign, both major political parties tried to convince the electors that they would be able to design policies which stopped the boats.

Neither the PNG Agreement nor the Nauru Agreement negotiated by Kevin Rudd just before the commencement of the 2013 election campaign have 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 did not disallow the designation of Nauru as a 'regional processing country' in September 2012 but that was because all parliamentarians including Mr Bowen thought that the proposal was that Nauru be a temporary processing country, not a permanent resettlement country which it now is.

On 3 August 2013, 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 bore no resemblance to the one presented to Parliament in September 2012. The requirement to table such documents in parliament was legislated when the Parliament decided that 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 the 2013 election, government did this spared all scrutiny by the High Court and the Parliament. The Rudd Cabinet 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. The Abbott Cabinet has simply pursued the Rudd policy without feeling any compunction to present this enormous policy change to Parliament despite its doubtful legality.

During its last year in office, Labor had increased the humanitarian component of our migration program from 13,750 to 20,000 places — with 12,000 of those places being allocated to refugees offshore, 8,000 being available for refugees onshore and the special humanitarian program. The Coalition initially supported the increase but reversed this commitment during the election campaign. The Abbott Government is committed to providing only 2,750 places for onshore applicants. Having adopted the key planks of the Rudd plan, the Abbott government could give the 'shock and awe' response greater ethical coherence if they took the following seven steps.

First, Tony Abbott should commit his government to restoring good diplomatic relations with Indonesia so that he might initiate discussions with Jakarta with an eye to a negotiated agreement with both Indonesia and Malaysia aimed at upstream improvement of processing and protection.

Second, the Abbott government should return to its previous commitment to increase the humanitarian quota to 20,000.

Third, Scott Morrison should order an ethical reassessment of the plight of those who came by boat to Australia after the Rudd announcement of 19 July 2013 without notice of the new shock and awe policy, bearing in mind that many of those who arrived immediately after 19 July had received no notice of the new policy. This was admitted by Minister Tony Burke when he told the media on 22 August 2013: 'First week after the announcement, the figures remained very high, but let's not forget those figures include people who are already at sea'.

Fourth, Scott Morrison should undertake to care for unaccompanied minors who arrive in Australia's territorial waters until they can be safely resettled or safely returned to their family or to the guardians in transit from whom they were separated. They should not be sent offshore for processing. If they be sent to Nauru or PNG, Australia should retain responsibility for their well being until they can be reunited with their families or provided with a durable solution.

Fifth, Scott Morrison should institute safeguards, including a transparent complaints mechanism, in PNG and Nauru consistent with the safeguards recommended by the Houston Panel for both Pacific processing countries and for Malaysia under the Malaysia Solution. The Houston Panel had recommended a monitoring mechanism involving senior officials and eminent persons from civil society in Australia and the receiving country. That group would be charged with developing guidelines for the support of vulnerable transferees, including unaccompanied minors, and with reporting on the adequacy of protections receiving regular updates on the welfare of transferees. Such a group would be likely to insist that resident AFP officers be available to witness local police investigations if requested so as to ensure more transparent outcomes when asylum seekers have been killed or violated while in detention.

Sixth, Tony Abbott should introduce a bill to Parliament detailing the measures aimed at stopping the boats, thereby putting beyond legal doubt the 'shock and awe measures' implemented on the eve of the election campaign without parliamentary scrutiny, and locking in the major political parties so that petty party point scoring might cease. Debate on the bill would allow both sides of the Chamber to purge themselves of the hypocrisy that has accompanied Labor's unctuous condemnation of John Howard's Pacific Solution and the Coalition's unctuous condemnation of Julia Gillard's Malaysia Solution. The bill would undoubtedly win the support of the major political parties, restoring a more bipartisan approach as existed in July 2008 when Minister Chris Evans announced 'the seven key immigration values' then unanimously embraced by the Parliament's Joint Standing Committee on Migration.

Seventh, the government should commit itself to the prompt processing onshore of Papuan asylum seekers in direct flight from West Papua. The Coalition's Policy on asylum seekers published during the election campaign states, 'The Coalition will work with our regional partners to address the secondary movement of asylum seekers into our region as a transit point to illegally enter Australia through the establishment of a comprehensive Regional Deterrence Framework'. Papuans fleeing persecution at home are not engaged in secondary movement. If refugees, they are in direct flight from persecution. The Abbott government should recommit to our obligation under the Refugees Convention to grant asylum to refugees who have entered Australia in direct flight from persecution.

In the medium term, I think the only way to stop the boats ethically is to negotiate a regional agreement with Indonesia and Malaysia. Given our poisoned relations with Indonesia at the moment in the wake of our admitted spying on the Indonesian President's wife, this would take a considerable period of time, a good cheque book, and a strong commitment to detailed backroom diplomatic work avoiding the megaphone diplomacy which has marked this issue of late. It would be possible only if there was agreement in the community that asylum seekers from places like Afghanistan and Iraq were no longer in direct flight from persecution and could be legally, morally, and safely intercepted on the high seas and returned in a dignified manner to Indonesia if there was in place an adequate system for processing and protection. We would need to admit that there is a magnet effect for people engaged in secondary movement seeking a benign migration outcome enjoying the fruits of a first world economy. And there would need to be safeguards against that magnet effect.

In the short term, the boats can be stopped and the orderly migration program maintained only with some sort of 'shock and awe' campaign. Could such a campaign ever be ethically justified? And for how long should it be maintained?

40 years ago the American philosopher Michael Walzer wrote his famous essay on 'The Problem of Dirty Hands' in which he posited the moral paradox of the ticking bomb. A suspected terrorist is being held and the state officials assure the president that the terrorist has information about bombs which have been planted in schools and apartment buildings. Should he authorise the use of torture? This essay came into vogue with the discussion of the torture memos from the Bush administration. When interviewed in 2006, Walzer said 'we should want leaders who were prepared both to give the order and to bear the guilt'. He is not so keen on Alan Dershowitz's approach of drawing up rules for the authorisation of torture with judicial warrant that the rules have been complied with. Walzer thinks extreme cases make bad law. He says:

I don't want to rewrite the rule against torture to incorporate this exception. Rules are rules, and exceptions are exceptions. I want political leaders to accept the rule, to understand its reasons, even to internalise it. I also want them to be smart enough to know when to break it. And finally, because they believe in the rule, I want them to feel guilty about breaking it — which is the only guarantee they can offer us that they won't break it too often.

When confronted with any of these truly awful moral dilemmas, whether as private citizens or as politicians, we seek the prophetic voice and principled discussion before taking pragmatic action. We can heed John Henry Newman's advice:

I should look to see what theologians could do for me, what the Bishops and clergy around me, what my confessor; what friends whom I have revered: and if, after all, I could not take their view of the matter, then I must rule myself by my own judgment and my own conscience.

And so it must be for our political leaders when they sit in the isolation of their own studies contemplating whether 'shock and awe' is justified to stop the boats. This advice is consistent with the Second Vatican Council's injunction to the laity in Gaudium et Spes:

Lay persons should also know that it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city; from priests they may look for spiritual light and nourishment. Let lay persons not imagine that their pastors are always such experts, that to every problem which arises, however complicated, they can readily give a concrete solution, or even that such is their mission. Rather, enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the laity take on their own distinctive role.

Three years ago, Patrick Keane, Australia's newest High Court Justice spoke at Monash University describing the Book of Deuteronomy as 'an example of a shared national morality that inspires its people to be generous, even to strangers. The idea is that we should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity, because we too have — at some time — been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition.' I think it will be some time before we hear any of that on Ray Hadlee or Alan Jones, no matter who their guest of the moment, and no matter what that guest's party allegiance.

We will be at sea in a moral morass on this issue for some time to come. If our government does succeed in stopping the boats, they will only be able to convince us and even themselves that the moral cost was bearable if they do four things: (1) invest the dividend from no boats arriving in measures aimed at enhancing processing and protection in the region; (2) increase the humanitarian quota for refugees and persons at risk offshore coming with an approved visa; (3) attend to the needs of those persons damaged by long term detention whether offshore or onshore; and (4) commit to reinstating the rule of law and social harmony in Nauru and PNG. By next Palm Sunday we should have a fair idea if the shock and awe tactic has worked. There will be two indicia, not one. Yes, the boats will have stopped coming; but second, there should no longer be a reservoir of people waiting in Java to get on boats. The message should have got back to Malaysia and beyond that there is no point in seeking a more benign outcome by heading to Indonesia in the hope of enhancing your chances of getting to Australia.

We should abandon talk of taking Australia off the table. There is no way we can take Australia off the table in our globalised world without taking it off the planet. We should also abandon talk of taking the sugar off the table. The collateral damage of that is too great. The best we can do ethically and practically is to put the sugar out of reach while leaving it on the table for those who make it here with a visa or in direct flight from persecution. We need to design a system on the high seas where it would be ethical to intercept and turn back those who come without a visa. That will require a system of regional processing and protection especially in Indonesia which would entitle us to say that everyone except Papuans arriving from Indonesia by boat are engaged in secondary movement seeking a more benign migration outcome. Let us pray, and let us recommit ourselves to resolute action for the sake of asylum seekers and for the sake of ourselves who will hear Abraham's call: 'Remember, my child, that all the good things fell to you while you were alive, and all the bad to Lazarus; now he has his consolation here and it is you who are in agony. But that is not all: there is a great chasm fixed between us; no one from our side who wants to reach you can cross it, and none may pass from your side to us.' It's time to reduce the chasm between here and Nauru, between here and Manus Island, between here and Indonesia.


Frank BrennanFr 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.

Topic tags: Frank Brennan, asylum seekers, Palm Sunday, Scott Morrison



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Frank you have been told that 'directly' includes bypassing all those nations not party to the refugee convention: The UNHCR stated that clearly to our parliament years ago. And there have been 10 new wars since 2008 so why do you say that closing Manus and Nauru caused more refugees to come. It is a flat out lazy lie.

Marilyn | 11 April 2014  

And there is never anything ethical about turning away anyone without a visa they don't even need?

Marilyn | 11 April 2014  

Marilyn asserts that I say that “closing Manus and Nauru caused more refugees to come” and that this “is a flat out lazy lie”. What I said is, “There is no doubt that the reforms of July 2008 instituted by the Rudd Government and not opposed by the Nelson Opposition contributed to a sharp increase in the arrival of boat people, not all of whom were in direct flight from persecution unable to find safety until they arrived in Australia. The annual arrivals continued to spiral upwards – from 2856, to 6689, a brief drop to 4730, then up to 17,271, and then up again to 25,145. By the time Kevin Rudd had become prime minister for the second time in June 2013 the boat arrivals were running at 3,300 per month (40,000 per annum). There was intelligence available that the people smuggling networks were now so adept at plying their trade in Indonesia that the numbers could escalate even further. These increases were not related to increased global refugee flows nor to new refugee producing situations in the region.” What part of the paragraph qualifies as “a flat out lazy lie”? Do we have to put up with this sort of character assassination even on the Eureka Street site? Could we not commit to addressing the substantive matters at hand? As Marilyn well knows, many of those who came as part of the increased spike were Iranians, and they were not refugees, and they had not waited months or years in transit countries to reach Australia, and they could not be returned readily to Iran.

Frank Brennan SJ | 13 April 2014  

I agree that a genuine, timely, humane system for assessing asylum claims in Indonesia and Malaysia (in conjunction with UNHCR), which led to resettlement in countries including Australia, would reduce risky boat trips. It would be a far preferable alternative to the current policy of using the harsh, inhumane conditions on Manus Island and Nauru as a deterrence. However, I am interested in the idea of ''secondary movement' as opposed to 'direct flight'. The UNHCR defines 'coming directly' as not having been provided with protection in another country first. According to this definition, people fleeing political, racial or religious persecution in Syria, Afghanistan, Iraq, Iran and Sri Lanka appear to be currently coming directly. Protection (which should include the right to work, access to education and access to legal assistance according to the Refugee Convention) is not offered in countries which are not UN Refugee Convention Signatories, such as Indonesia. How then, in a new, regionally coordinated processing system, would we be able to justify turning back boats to Indonesia? Would the processing system itself be considered 'protection'?

Linda | 15 April 2014  

Terrific article. However please note it IS possible to reach out across the chasm. I talk every day with people interned on Manus and Nauru. As well as visit between nonce and twice a week in immigration detention. More Aussies should reach out.. It really isn't that hard and it does make a difference.

Victoria | 15 April 2014  

Here is a video of my Palm Sunday Address on the morality of Australia's asylum policies. https://www.youtube.com/watch?v=k2HjLBedjl0&feature=youtu.be

Frank Brennan SJ | 16 April 2014  

I'm a late comer here, but I'm grateful for this excellent argument - I suspect that a compelling "opportunity to purge hypocrisy" is an essential basis for the political and diplomatic will necessary for any lasting (as opposed to "shock and awe") solution. At present, the political advantages of hypocrisy, for all sides, are just too great. Also excellent information - but I'm wondering if someone can help me clear up a simple but crucial area of ignorance: exactly what advantages come from arriving without documents and a visa? If you can raise the money for a smuggler, what barriers or disadvantages are there to coming by plane as a tourist and then applying for asylum? Is it simply the speed with which your application might be rejected? Is the likelihood that it will be rejected also affected, particularly if your case is less than watertight? If the latter, what evidence is necessary to mount a watertight case? Perhaps someone can direct me to a discussion of this.

Ewan Coffey | 17 April 2014  

Re asylum policy: Answering a question from the Chief Justice of the High Court about the PNG solution yesterday, Mr Donaghue QC for the Commonwealth has said, "Our submission is that this scheme established by Subdivision B does authorise the taking of persons who may or may not have protection claims to a regional processing country and that it does so whether or not that is consistent with Australia’s obligations as a matter of international law. "In saying that, I should point out to your Honours that in the Malaysia Declaration Case at paragraph 117, your Honours acknowledged that the content of international law in that scenario, with respect to persons who have claims that may not have been assessed, is a matter upon which opinions differ. But, in the event that it is found that such removal is contrary to international obligations, we submit that it is, nevertheless, specifically authorised by this scheme which is why the scheme emphasises that it is for the Minister and for the Parliament to decide, subject to political accountability, whether or not a designation should occur and be allowed to operate in accordance with the scheme." Parliament has never been asked about the Rudd or Abbott PNG solutions of 2013 and 2014. It's high time the scheme was brought back to parliament for the application of a fig leaf of political accountability. At least it would give the Greens, Clive Palmer, the DLP and disaffected ALP members like Melissa Parke the opportunity to state their principled case against the scheme.

Frank Brennan SJ | 13 May 2014  

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