Injustices and the Art of Realpolitik

The latest instalment of Australia’s Pacific Solution has been an exercise in state-sanctioned cruelty.

Hardly a week goes by without new revelations about the mistreatment of refugees and asylum seekers on Manus Island and in Nauru. According to a group of legal experts, the “harrowing practices of the Australian state and corporations towards asylum seekers” might amount to crimes against humanity. In a submission coordinated by Stanford’s International Human Rights and Conflict Resolution Clinic, last month seventeen international lawyers (including Melbourne University’s Anne Orford) have petitioned the International Criminal Court to open an investigation.

There are now indications that the refugee swap agreed between the Australian government and the Obama administration might go ahead after all, despite misgivings by Donald Trump. But not all refugees on Manus and in Nauru would benefit from the deal, and as the Turnbull government has categorically ruled out resettling anybody from Manus or Nauru in Australia, the best outcome possible under the current policy would be a reduction in the number of refugees and asylum seekers banished to Nauru and Manus.

This is where a proposal by Frank Brennan, Tim Costello, Robert Manne and John Menadue comes in. It is premised on the idea that the treatment of asylum seekers and refugees on Manus and in Nauru is the main problem – or at least the only problem that is of immediate concern to “us” as Australians. In opinion pieces published in August last year and in February, and detailed in a longer piece by Robert Manne in the March edition of the Monthly, they have demanded that the facilities in Nauru and on Manus Island be closed down, and that the punitive measures against tens of thousands of asylum seekers living in Australia be discontinued. It’s hard to argue with that.

According to Brennan, Costello, Manne and Menadue, refugee advocates such as the Refugee Council of Australia are largely to blame for the current impasse, because they are committed to “political point scoring” and “purist disengagement”. Instead advocates ought to accept that the abolition of the Pacific Solution needs to have a price: the acknowledgment that the government’s policy of “stopping the boats” is both effective and necessary.

Brennan, Costello, Manne and Menadue are right in saying that the interception of boats on the high seas, rather than the incarceration of asylum seekers in offshore camps, has been responsible for the fact that in more than three years, hardly any asylum seekers have been able to reach Australia by boat. They are wrong in assuming that boats could be turned back “safely, transparently and legally”, and in any case provide no suggestions as to how this could be done. They remain silent about the boats that have been turned back not to Indonesia, but to Sri Lanka – after a perfunctory refugee status determination on the high seas.

Let’s assume – for a moment – that it were possible to turn back boats “safely, transparently and legally”. That would do nothing to address more significant systemic problems that are not on Brennan, Costello, Manne and Menadue’s radar: forcible displacement (and whatever factors are responsible for such displacement), and the discriminatory treatment of non-citizen others in countries that are not committed to upholding international human rights law and international refugee law.

If these problems were seen as key issues, then the question may have to be: what could Australia do to address them? Australia could, for example, recognise that it has the capacity to grant protection to a sizeable number of forcibly displaced people, be it only temporarily, and that it therefore ought to act accordingly. Australia could recognise that it would be able to influence some of its neighbours (many of whom, much like Australia, currently do not treat non-citizens fairly, decently, legally or transparently) to do likewise. Australia might also want to recognise that it has the moral responsibility to do far more than it is doing at the moment – either because it has been a beneficiary in a global system marked by inequality or because it has been engaged in actions that have led directly or indirectly to forced displacement.

“We Australians have a clear moral obligation to the refugees on Manus Island and Nauru”, Brennan and his co-authors write. The Australian government clearly does have such an obligation, and in turn “we” have that obligation because we have not done enough to stop the government from pursuing its policies. But as global citizens we have moral obligations that go further. I am open to the argument that some moral obligations are weaker than others because of different levels of proximity, but they are moral obligations nevertheless. And even if we used proximity as the criterion according to which we ought to focus on some moral obligations more so than on others, it would be difficult to argue that we don’t have strong moral obligations towards refugees stranded in Indonesia.

Why do Brennan, Costello, Manne and Menadue focus exclusively on the government’s treatment of people who have sought Australia’s protection? I suspect they are concerned about the reputational damage these policies do to Australia and Australians. Australians, they would like to believe, are essentially decent people. Their proposal is trying to rectify a perceived anomaly. The government’s offshore processing and detention regime has cast aspersions on Australia’s national character (which is supposedly distinguished by a commitment to fairness and mateship). The proposal is an attempt to come up with a plan for how, to use Robert Manne’s words, “our present shame might be relieved”. Are bigger issues perhaps of little concern because the government’s inaction does not impinge on Australians’ ability to identify as citizens of a fair and decent society? Might the proposal ultimately be driven by the perceived damage done to Australians, more so than the harm done to refugees and asylum seekers?

Brennan, Costello, Manne and Menadue demand that refugee advocates acknowledge – if not respect – that most Australians are staunchly opposed to the accommodation of “boat people”. There are of course other examples of majorities favouring policies that are harmful, unjust or immoral (capital punishment comes to mind). The fact that an unjust approach is supported by a majority shouldn’t stop politicians (and respected public figures, such as Tim Costello) from pursuing – and arguing for – different policies. Rather than blaming refugee advocates for being principled, Brennan, Costello, Manne and Menadue may want to try convincing Malcolm Turnbull and Bill Shorten that they and their parliamentary colleagues ought to stop pandering to irrational fears.

One last observation about the attributes of the path envisaged by Brennan, Costello, Manne and Menadue. They say that an alternative policy, which would involve the turning back of boats carrying people seeking Australia’s protection, must be decent, fair, transparent, safe and legal. They do not mention the one attribute that I would have thought should guide Australia’s response more than any other, namely: just.

Justice is more than a state of affairs in which relationships are governed by laws (in which some people can, for example, become “proven refugees”). Whether a particular policy or practice is legal might provide clues about whether or not it is also just – depending on the laws that decide whether something is legal or not – but the legality of a practice is no evidence of its justness.