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On asylum

by Simon Longstaff
23 October 2013
LAW, JUSTICE AND HUMAN RIGHTS;
POLITICS AND GOVERNMENT
It is late September 2013 as I write this article. I do so from the comfort of my seat aboard an A380, heading home from Europe, well cared for and safe at 39,000 feet above sea level. It is impossible not to be struck by how my fortunate circumstances stand in stark and awful contrast to those drowned, just days ago, when making their way to Australia in a vessel that never should have put to sea.

The tragic loss of another group of asylum seekers is bound to prompt fresh debate about Australian Government policies and what role, if any, these have played in sealing the fate of those lost to the deep. What follows does not consider the legal foundations for sound policy in this area. Rather, I wish to strip back to its bare ethical bones our national response to asylum seekers. So, to begin.

My first proposition is that there is little to be gained by questioning the sincerity of those who claim to be motivated by a compassionate desire to dissuade asylum seekers from making the sometimes fatal (and now futile) choice to come by boat. Perhaps past and present policy has been formed in hearts as brittle as Georgian glass—worn with use and easily cracked. Perhaps the dictates of conscience just happen to coincide with electoral opportunity. At least let us hope so—for the putrid alternative is that our politicians have traded the welfare of asylum seekers for political power.

My second proposition is that it is neither fair nor reasonable to hold the Australian Government responsible for the decisions of asylum seekers to place their lives (and those of their children) at risk. The obvious point to acknowledge here is that the choice to procure a place in a boat bound for Australia is the asylum seekers’ alone. They venture all—and often lose—in the face of the clearest signals from Australia that the journey should not be attempted, that the sea-route to Australia is closed. Yet, despite the election of a Government that has pledged to ‘stop the boats’, still they come—at least for the time being. That is the reality—the reality against which the relevant policies of the Australian Government must be evaluated.

So, my third proposition is that the Government is solely responsible for the quality and character of its response to the decision by asylum seekers to attempt the sea-route.
As a moral (rather than legal) obligation, the duty to offer asylum falls on those with the power and resources to provide for the safety of others.

My fourth proposition is that the concept of ‘asylum’ is, at its core, about the provision of safety to those who are at risk of harm (without just cause) and who lack the capacity either to protect themselves or to enjoy the protection of another. ‘Asylum’ is this—and nothing more. As a moral (rather than legal) obligation, the duty to offer asylum falls on those with the power and resources to provide for the safety of others—and in the aftermath of the genocidal horrors of the Second World War, the right to asylum extends to all persons—irrespective of their nationality, race, religion, political beliefs, age, etc.—whether friend or stranger. That is, it is the objective circumstances of the person seeking asylum and the capacity of those from whom asylum is sought that gives rise to the relevant, reciprocal rights and responsibilities.

We should note here what the concept of ‘asylum’ does not entail. Specifically, it does not entail a right to prosperity or to other more refined goods associated with human fulfilment and flourishing. And it is in this distinction that much of the confusion lies. Some critics of Government policy argue as if asylum seekers are owed something more than safety. If this is so, then the critics’ argument will not succeed if based on an appeal to the concept of ‘asylum’. Rather, more general grounds attached to notions of human rights will need to be invoked. Even so, we should not think that the concept of ‘asylum’ is all too ‘thin’ to be of any real use. On the contrary, it offers a powerful norm against which to rate government policy.

For example, we see this norm invoked in the Coalition’s policy to ‘turn around the boats’ when safe to do so. The Coalition knows that Australia’s mariners will never, ever violate the doctrine of Safety Of Life At Sea (SOLAS) and that it is pointless asking (or even ordering) them to do so. But the appeal to the value of ‘safety’ is an overriding condition that places the policy within the definition of what constitutes asylum.

The application of the core value of ‘safety’ is not confined to conduct at sea. Equally, it applies to all aspects of the treatment of asylum seekers from the moment they enter into the effective domain of Australian decision-making. For example, it could be the case that Nauru and Manus Island are already (or can be made) safe places. But this is not solely a matter of subjective judgement. If asylum seekers are at risk of harm, then these risks must be mitigated—not exacerbated by Australian Government policy.

In saying this, I should be clear that the government has no obligation to make life idyllic for those seeking (or granted) asylum. Safety does not involve the complete absence of trial, tribulation or even of risk. However, there are some trials, some tribulations and some risks that are intrinsically at odds with any reasonable understanding of safety. For example, placing people in a form of detention that is known to cause mental illness and self-harm is not consistent with the concept of asylum. Whatever else is done, the conditions for asylum must be safe—that is all.

If asylum seekers are safe in countries such as Indonesia, Malaysia and other so-called ‘transit’ countries then, in principle, from the point of view of asylum-seeking, there is no good reason for asylum seekers to move on. Nor is there any good reason for them not to be returned to such places—providing that the means for doing so are also safe. Equally, if Australia can divert boat-borne asylum seekers to Nauru or PNG—in conditions of safety—then this would be consistent with the core ethical duty.

Yet, there is one further point to be made. If coming by boat was actually safe, then there would be no ethical basis for turning asylum seekers away. This is because the concept of ‘asylum’ is indifferent to the means by which people arrive at your ‘metaphorical door’ seeking protection. Again, as noted previously, it is the objective circumstances of the person seeking asylum [not the means by which they present] and the capacity of those from whom asylum is sought that gives rise to the relevant, reciprocal rights and responsibilities.

All of this leads to a final consideration—could the Australian Government make the sea-route safe (or redundant)? Some commentators have certainly proposed measures to achieve this end; for example, by arranging flights for all asylum seekers or by providing ships that offer safe passage, etc. Realistically, it seems unlikely that even such generous measures would stem the flow. Rather, there would likely be that small additional group willing to hazard it all rather than wait.

Unfortunately, the challenge presented by ‘boat people’ is likely to remain for as long as we have oppression in the world. We would do well to play an active role in remediating the conditions under which people flee. At the same time, we are obliged to stand ready to offer asylum to those who claim it. How we do so should be assessed against a core criterion—is what we offer and what we demand of others, safe?
 
Dr Simon Longstaff AO is Executive Director of St James Ethics Centre.

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