God oh god, it's Christmas and I wanted to write some sort of light frippery that allowed me to get in a joke about news that Molly Meldrum's condition being described as 'stable' was a lifetime first. But there's no alternative to saying a word or two on the strange turn that the refugee debate has taken, in the wake of the sinking of Siev-221, and the reaction it has produced in the commentariat.
M'colleague Keane summed it up
by saying yesterday that: "Opinion now seems to be shifting to recognise that, to the extent that if the Australian government can take action to deter people from risking their lives, it should."
That may well be true, but exactly whose opinion is it that's shifting? The comments strings here, at The Drum
and the major papers shows nothing that is so easily readable. More than usually for comments strings, they show such a wild variation not merely of opinion, but of basic perception and understanding that no simple summary really covers it.
That is to be expected. After all, the asylum seeker debate has been prodded, pushed, manipulated, reshaped and repackaged for so long now that one layer of official sentiment lies atop another.
We have gone from the high/low point of children overboard -- in which boat-borne refugees were constructed as inhuman monsters who did not love their children -- to an official bipartisan version blaming people smugglers, and constructing boat-borne refugees as wholly passive, and thereby innocent.
The latter attitude suits both major parties: the ALP can use it to pursue exclusionary refugee policies by framing them within a notion of oppression and exploitation, and the Coalition can back away from the race-hate it deployed in 2001-4, which caused major internal party disruption, and endangered inner-urban seats with a left-liberal tinge.
The racist "children overboard" version licensed a form of visceral hate close to the surface, and made it permissible by expressing it in terms of national traditions -- as an alleged expression of the "fair go".
The "people smugglers" version licenses another sort of approach: that we try and manage not only the people who come here, but do so by managing their beliefs and expectations. Suddenly, the whole approach to boat-borne refugees has become very UK New Labourish.
Rather than treat them as subjects and world citizens to whom we have a treaty-based obligation, should they arrive at our shores, the new approach is that they should be managed from afar, so that they don't even want to come here.
This is expressed not as a preventative tactic for national security, but as a way of honouring our obligation to them -- in designing policies that treat them as psychological units to be deterred, we can claim to have their best interests at heart.
This argument is the latest one being used to justify "overseas mandatory detention" -- the process known as "offshore processing" the very use of such a weasel term all but conceding the argument to the "people managers". It came from within Rudd Labor as a branded alternative to the Coalition's overseas mandatory detention policy, the so-called Pacific Solution.
The claimed superiority of Labor's Malaysia solution was that it would engage the region in a collective approach, thus drawing on notions of equality. But inequality was central to the process -- the inequality between Convention signatories and non-signatories, between countries with an independent economy, and dependent states, and so on. This stands to reason -- if we were exchanging refugees between two equal countries (as Nordic countries sometimes do) it would have no strategic effect at all.
The "regional" rhetoric of the Malaysian mandatory detention fooled no-one paying attention. Now it, and Pacific mandatory detention, are being re-examined as a tool for people management by those who were never fooled by the official version.
Bernard Keane gave a policy-led utilitarian version assessment of it in these pages some months ago, arguing for a boat-deterrent policy coupled with an increase in official refugee intake. In his blog and in The Age
, Robert Manne has give a more, erm, performative take on the whole thing, arguing a similar policy.
Given the horrors of mass drownings, it's worth taking their arguments seriously -- a great deal more so than the endless position skirmishes of the major parties. But both positions are nevertheless found wanting.
The problem that Keane and Manne have to deal with is this. Our commitment to refugees is an argument based on human rights, and on a categorical imperative. The Convention we are signed up to makes a promise to any potential refugee that if they reach our shores, they have the right to make a claim for asylum. Recent laws we have put in place may interfere with that treaty/promise, but that doesn't mean we haven't made it.
The extreme form of such a morality would suggest that we make no consideration of the situation of refugees before they make landfall, at which point we would accord them full rights. But such abstract positions become immoral in themselves if they become an excuse for allowing great wrong to occur.
So both Manne and Keane put the emphasis on a utilitarian argument -- the need to dissuade people from lethal voyages outweighs honouring the rights of others to claim asylum. They are appealing implicitly to the process by which general rights are curtailed for specific good -- a compulsory seat-belt law would be one mundane example.
Yet such an example gives the reasons why overseas mandatory detention can't be advanced in that way. We make such trade-offs in situations like the seat-belt one, of clear knowledge and limited impact on rights.
The boat-borne refugee situation is the reverse -- we are being asked to wholly negate someone's rights (that we have explicitly promised them), in a situation where their life and freedom will be wholly annihilated indefinitely, all as a strategy for dissuading unknown future persons from making a possibly perilous journey.
By that definition we are using the "deterrent" -- the people locked up for years on Manus, Nauru, in Malaysia, or god knows where -- as a means to a utilitarian end. It is a clear use of human beings in their totality, as means to other ends, and cannot in any sense ground a moral policy.
Such a negation of the humanity of the present refugee in favour of the welfare of a possible future one thus makes the ultility calculus impossible. The old challenge to utilitarianism was the question as to whether one can torture a small number of people to make a larger number happy.
Since we know that prolonged mandatory detention has many of the effects of torture, on adults and children alike, the solution that Rob Manne proposes -- overseas detention in Australian de facto dependencies for "lengthy" periods that would deter others -- would seem to elevate that philosophical conundrum to the policy level.
How have these two commentators got themselves to this position -- negating the irreducible moral base with a utilitarian argument based on unknowable contingencies and outcomes that cannot be guaranteed? Such an over-ride usually occurs when an obligation is honoured partially, and the resulting situation is blamed not on the partiality of the response but on the obligation itself.
Put simply, our specific obligation to refugees under the Convention, and our general obligation to fellow human beings means, not a curtailing of the former but an expansion of the latter -- in the form of increased sea patrols to the north to make possible the rescue of people in unsafe vessels. Any other activity -- harsh prosecution of users of unsafe boats, warnings in third country -- may be a good idea, but they are not central to the moral obligation.
Both Keane and Manne would respond, I suspect, that there is no chance of that being a realistic policy option -- and in the absence of one, the current half-cut muddle will continue to see human disasters occur. But that then becomes a question as to what one is actually doing in voicing an opinion and arguing a case. Is it really, as both seem to argue, to provide the government of the day with a policy?
Or is the role to stand up for what we believe to be irreducibly right -- right not by emotion, but by well-argued reason from fundamental principles, capable of debate -- and seek to repeatedly make those issues clear as they are ceaselessly covered over by, well by notions like "offshore processing".
Making those issues clear would be done by making clear the fundamental political question that no politician will put -- are we going to stay within the Convention, or are we not? Surely anyone who wants an honest debate and decision would want that question to rise to the surface.
Either we stay with the Convention, and honour its obligations – and further obligations that arise from those -- or we repudiate it. Putting the question thus is first of all, simply honest -- but I suspect it would also make clear to people eager to impose desert prisons etc, exactly what they are repudiating, about themselves as much as anything.
That seems to be the only moral approach of any honest commentator from any side regarding the issue. In that respect, Rob's approach in his two recent pieces has served to put the debate about as badly arse-about as one could imagine.
To be swept up in Rob's grandiose mea culpa, assailing the Left for failing to provide the government with a refugee policy, is merely irritating in its implicit claim to leadership of a political formation of which he is not really a member.
But the wider suggestion -- that it is the role of activists and writers to provide governments with pre-packaged compromises, is simply a mistake, and a more serious one, about what such people should do, what their role is.
I think Rob knows that, and I think the brief sunlit days of the Rudd era, when it looked like public intellectuals etc might have a direct line to the Lodge, is leading him astray on that one.
The anti-mandatory detention campaign, which came from the Left, has a simple demand -- that the country live up to its freely taken-on treaty obligations – that puts it firmly in the tradition of the Left giving heft to campaigns that liberals and centrists can't or won't push through.
Such campaigns may demand strategic compromise, but they defeat themselves if that involves turning core principles into their opposite. From Mabo back to Charter 77, to the Moratorium, to Wave Hill, to Selma, Alabama, and back further, such core demands are how progress gets done. I would have thought that was understood -- indeed I would have thought that some still, small voice might have told Rob that the week Vaclav Havel died was a bad one to float the idea of a prison archipelago as a progressive cause.