Fundamental rights set adrift in the Pacific

It is an old and macabre tradition to design punishments as deterrents to future would-be offenders. Public executions were aimed at educating and terrifying the public as much as punishing the perpetrator. The Romans lined the Via Appia with crucified rebellious slaves. The English displayed the severed heads of the Gunpowder Plot conspirators on the bridges into London.

The message to entrants of both imperial cities was clear: the wages of sin against the sovereign were nasty and unpleasant, so commit them at your peril.

In these anxious times, sovereignty is nowhere more jealously guarded than against those who cross borders without permission. An unlawful arrival is viewed as a threat not just to national security but to our fragile sense of national identity, already fractured by the vicissitudes of a globalising economy and the cultural confusion of the postmodern era.

It is thus unsurprising that our ministers for immigration appear increasingly like the sovereigns of old: defenders of the body politic who wield an iron fist when it comes to those who would undermine it.

They are expected to sound tough and act tough.

It is in this context that we must read the statement of Immigration Minister Kevin Andrews that transporting unlawful boat arrivals to Nauru will "send a strong message to those considering any attempt to enter Australia illegally".

It is disingenuous to say that this is merely about restricting access to mainland Australia. Many of the refugees will end up here regardless of where their claims are processed, the international community having already reached the limits of its tolerance for Australia's burden shifting refugee program.

Rather, the message is one of harshness and severity that complements the policy of indefinite mandatory detention. Designed for domestic as well as international consumption, it says that asylum-seekers who arrive without permission will be punished in order to deter others from committing the same transgression.

Yet asylum-seekers who arrive illegally in Australia, unlike the people who traffic in them, are committing no crime.

This is not a matter of opinion: it is a legal fact. Domestic migration law long ago did away with the offence of unlawful entry.

Nor, indeed, can an asylum-seeker be punished for their method of arrival under international law, which recognises that a fear of persecution may justify extraordinary methods of escape, to which national boundaries must not stand as an impediment.

And while the barbed-wire fences and holding cells of our immigration detention centres may look and feel remarkably punitive, governments have gone out of their way to ensure that no court characterise it as such.