Stop the boats? Thinking about refugee policy and human rights

Suppose that, as a consequence of a past foreign invasion, contemporary Australia is riddled with land mines. Scattered across both urban and regional areas, these mines inflict grievous injury on hundreds of Australians every month. Despite the government’s best efforts, the technological sophistication of these mines places them largely beyond existing methods of detection.

Australia’s already overworked and under-resourced healthcare system is stretched to breaking point by those injured by the mines. This scourge has seen the growth of a back-alley medical industry, which provides treatment for those desperate people unable to find a hospital bed. Surgery is performed by amateurs, for extortionate prices, in unhygienic conditions. Many die from botched operations or subsequent infections, creating a further social problem.

The government decides that swift action must be taken to stop the growth of this exploitative industry. To ‘break the business model’ of these amateurs, the Prime Minister adopts a deterrent strategy: any man, woman or child found using these services will be imprisoned for a minimum of three years.

Can we imagine a world in which such a strategy would be even remotely acceptable?

The government might increase investment in research and development, to improve its capacity to detect and defuse the mines. It might pump money into the health system, to make care available for those in need. It might devote its efforts to finding and punishing those responsible for this shadowy industry. But would our society ever countenance the mandatory imprisonment of victims seeking aid as a morally permissible alternative? No. Even if better enforcement or more hospital beds failed to eliminate these back-alley surgeries, detention would not feature in the solution space.

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‘Stop the boats’. Tony Abbott made the phrase his own after ascending to the Liberal leadership in 2009. It evoked John Howard’s infamous ‘We will decide who comes to this country and the circumstances in which they come.’ It reinforced that refugee policy was an issue of border security: we need to reclaim control of our borders, by preventing outsiders from reaching safety in Australia. This rationale was evident in Abbott’s announcement (as Opposition Leader) of ‘Operation Sovereign Borders’:

This is a national emergency. When you’ve had almost 50,000 illegal arrivals by boat, you have a crisis on your borders; and in the end, the first responsibility of government is national security. If you don't control your borders, to that extent, you are losing sovereignty over your own nation.

Abbott’s slogan has taken on a dualistic quality, however, especially since Labor’s embrace of a similarly hard-line approach in 2013. Given the increasing number of deaths at sea, ‘stopping the boats’ is now a humanitarian imperative. Mandatory detention is justified as a necessary evil. As Malcolm Turnbull argued on ‘QandA’:

[T]he status quo under Labor was incredibly cruel. People were dying at sea. What we're doing is a harsh policy, I grant you that, but it is a lot better than hundreds of people drowning in the ocean.

This equivocation has contributed to the present bipartisan commitment to merciless deterrence. It is also reflected in popular opinion. It’s difficult to believe, but 60 per cent of Australians want the government to increase the severity of the treatment of asylum seekers. Now, the (ostensibly) compassionate have joined the xenophobic under the banner of ‘stopping the boats’ at all costs.

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For those concerned about the human rights of refugees, there is good reason to resist this humanitarian rationale. It accepts certain rights violations as a necessary means to minimise overall the violations associated with people-smuggling: exploitation of the vulnerable and deaths at sea. As an advocate of this approach might argue, ‘If you really care about the human rights of asylum seekers, shouldn’t minimising their violation be our goal? Given that the deterrence of mandatory detention minimises those violations in the long run, we should support it.’

This conception of rights is radically distorted, however, as the land mine analogy illustrates. Fundamental human rights, such as the right to life, liberty and security of the person and the right not to be subjected to cruel, inhuman or degrading treatment, are not goals to be promoted, but side-constraints. In the case of the land mines, the rights of the injured constrain the permissible approaches to this hypothetical social problem. Locking these people up would be unjust and unacceptable, even if doing so would promote the greater social good, or minimise rights violations overall.

Similarly, in the context of refugee policy, there are alternatives to prevent people from getting on boats. Increasing our humanitarian intake. Investing in more efficient processing in Indonesia. Fostering regional cooperation, to engage asylum seekers as they get off the plane in Malaysia or Singapore rather than once they’re on boats in the Timor Sea. But more importantly, if, in the face of these alternatives, some desperate refugees continued to get on boats, hard-line deterrence would not be any more acceptable. To think otherwise, as the humanitarian rationale urges us to do, is to retreat to what Robert Nozick calls a ‘utilitarianism of rights’. On this view, rights are seen as desirable states of affairs to be maximised.  But people are not part of some larger ‘social entity’ that can make short-term sacrifices for its own long-term good. They are just individuals, whose rights are violated for some separate end. Conversely, when properly understood as side-constraints, rights reflect the inviolability and separateness of the individual.

A true understanding of and respect for human rights entails a refusal to violate those rights, even when such violation may produce other social goods. The land mine analogy exposes how impoverished our conception of human rights has become with respect to asylum seekers. Whichever reading of Abbott’s slogan appeals to you, there must be moral limits on the means to which we resort in ‘stopping the boats’.