By Harold Zwier, Robert Richter, Paris Aristotle, Robert Manne and Ralph Genende
This is the transcript of a Limmud Oz session held at Monash University, Caulfield Campus, on Sunday 8th June 2014, on Asylum Seekers and Refugees. Organized by Harold Zwier, the session provided a forum for a broad discussion of a vexed issue that reflects badly on Australia’s claim to be a society that values and upholds the rights and dignity of all people.
In February the Australian Human Rights Commission report, “The Forgotten Children”, the National Inquiry into Children in Immigration Detention, was tabled in the Federal Parliament. In the Foreword of that report, Professor Gillian Triggs, President of the AHRC wrote:
Australia is unique in its treatment of asylum seeker children. No other country mandates the closed and indefinite detention of children when they arrive on our shores. Unlike all other common law countries, Australia has no constitutional or legislative Bill of Rights to enable our courts to protect children. The Convention on the Rights of the Child is not part of Australian law, although Australia is a party. The Convention is, however, part of the mandate of the Australian Human Rights Commission to hold the Government to account for compliance with human rights. This Convention accordingly informs the findings and recommendations made by the Inquiry.
The Foreword is scathing of all recent federal governments, and beyond the specific issues addressed in this report, my assessment is that our political leaders have a strong understanding of the benefits of exploiting this issue for political gain but demonstrate that their moral compasses are badly in need of recalibration.
For the last 13 years in particular, the asylum seeker and refugee debate in Australia has been polarised, fractured and often ugly. The session tackled the asylum seeker issue broadly and informatively, with prominent speakers who presented four aspects: Legal, Working with government, Political and Ethical.
The session was moderated by Richard Niall, who gave a short introduction to the discussion and the four speakers: Robert Richter, Paris Aristotle, Robert Manne and Ralph Genende.
1. Robert Richter QC
I don’t think there is anyone who requires any great profundity to understand
that the interaction between law and human rights is exceedingly tenuous for reasons that I will explain.
Reading newspapers in recent times about the suicide of Leo Seemanpillai and about the murder of Reza Barati, all decent people would say, “there ought to be a law”, well there is and there isn’t. There are two kinds of law with which we are concerned. There is international law on the one hand as a discipline and there is domestic law as a discipline. There is an international law paper castle, if I can call it that, which has been built up in particular since World War II – there was a structure before that – but the bulk of the binding obligations (binding to the extent that people allow themselves to be bound) has grown enormously since World War II. And then there is the sovereign law – Australian domestic law.
The international legal structure is built around customary international law – treaties, conventions, protocols – and we subscribe to all the principal instruments in the relevant sphere of law. And there are quite a number that impact on the obligations relating to asylum seekers and refugees. If we want a starting point we really need to go to the international Universal Declaration of Human Rights. The reason I say that that’s the starting point is because that is the declaration which grants a person the right to seek asylum from persecution. The other relevant instruments arise as a way of putting flesh on the bare bone and there are a lot of international instruments that bear on the issue of people who are asylum seekers and people who become refugees.
Some of those are the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is supposed to cover the situation of people who aren’t asylum seekers because they are not subject to persecution of that kind. There’s the International Covenant on Civil and Political Rights which declares there is universal human rights in both the political and civic sphere. There’s the International Covenant on Economic, Social and Cultural Rights which comes into play when you consider the rights of asylum seekers to be able to survive; being able to access health care, housing, education. There’s the Convention on the Rights of the Child which impacts on the way we treat children and in our particular context it impacts on the way we treat the children of asylum seekers and refugees. And so far as asylum seekers are concerned, there’s special focus on unaccompanied minors who happen to land on our territory.
And of course the primary instrument giving expression to the right to seek asylum is the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees – more generally referred to as the Refugee Convention. It tells us who is a refugee and spell out principal rights and other rights which flow from the status of refugees. A refugee is defined in the instruments as “Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” So that gives you the broad definition of who we accept as being a refugee.
The theory is that once a person’s status as a refugee is established, acceptance of that status will entail certain rights which flow from various sources. The principle protection of refugee status is contained in article 33 of the instrument, which provides against what’s called refoulement. It’s a very interesting expression – don’t refoul – in other words don’t send the person back into the pit of crap that they came from. That’s the basic fundamental protection. And it’s expressed as this, “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
So that is effectively the principal protection that the status of refugee offers as a protection. There are exceptions but we needn’t bother about the exceptions at the moment because we’re concerned with the principal guarantees. And as far as those principal guarantees are concerned, I’d say that the principal concern is that of providing security. And then as a result of various international instruments there is content given to the way in which you ought to be treating people who have attained the status of being declared refugees properly and certain consequences follow from that. So that we have that kind of overall structure of international law, and then we have domestic law.
Basically the structure of domestic law centres on the Migration Act with its various amendments and subordinate legislation which are referable to various powers and various headings of power in the Migration Act. The domestic law deals basically with the process by which someone seeking refuge may obtain the status, and deals with the means by which persons who are found to be non-refugees are to be dispatched. It deals with the protections and rights that we have conferred upon for those we recognise as refugees.
Now you will appreciate that there is an interface between international law and domestic law and the interface between those is absolutely clear. International law is effectively optional in the sense that it is not enforceable except to the extent it’s been domesticated by Australian law; by Australian legislation. Australia with its judicial and jurisdictional tradition has always acted on the basis that the United Nations may declare what it wants to declare; the international and Australian human rights commissions may say what they want to say about whether or not we are complying with obligations, but in terms of enforcing any such compliance, that will depend entirely on the way in which the international obligations have been domesticated. Of course the pronouncements of the high commissioner for refugees; the pronouncements of our own human rights commissioners has been pretty critical of the way in which our governments have dealt with the issues – and I don’t select any particular colour, they’ve all been culpable. But that criticism can have no more than a degree of moral suasion and it does not translate into enforceable rights in domestic laws, tribunals, or executive action. And ultimately the response of domestic law under the migration act and the legislative and regulatory structure that we have established does not leave the determination of the status of a person as a refugee or non-refugee to courts, it leaves it to the executive, subject to some administrative review and subject to a court looking at administrative reviews where they exist for certain administrative decisions. Courts can then set them aside on the basis of jurisdictional error – if they don’t exercise the powers they have and if they take into account irrelevant considerations or don’t take into account some relevant considerations.
The measure of our adherence to international law is interestingly found when we look at what happened in 2012 with the designation of Nauru and Papua New Guinea as the regional processing countries. On 10th September 2012 the then minister for immigration signed the legislative instrument which designated Nauru as a regional processing country under the Migration Act.
Outsourcing has been fantastic. If you’ve tried ringing Telstra or a number of other companies to complain, by the time you’ve listened to someone who’s supposed to deal with your problems and then tried to make the situation clear, you’ll understand what outsourcing means. And what we’ve done is essentially to outsource and commercialise processing for the determination of refugee status. And we’ve paid a lot of shekels. When you consider the number of people who are in detention on Nauru and on Manus Island – I think we’ve got a couple of thousand at the moment – and that we have set aside something like $2.6bn, you start wondering whether it makes economic sense to outsource. Because for the cost of administering a draconian policy, wouldn’t you be better off letting them in and after having a decent process here to exclude the possibly 10% to 15% of people who are not genuine refugees, just giving each of them a house and letting them work?
That’s a political observation that applies to all parties in the game. But then again, the whole process is political, and as Richard (Niall) has indicated, we’re talking about a political race to the bottom and I was very interested to see the latest polls that indicate that 70% of Australians say that turning the boats back is an act of piracy on the high seas. But we won’t deal with that aspect of it because there’s no one to enforce it. But coming back to the question of the relationship between international obligations and the actual domestic law situation, as I was saying, the then minister on 10th September 2012 signed the instrument designating Nauru and he had to table a statement and he tabled the instrument and accompanying documents in the parliament. And included in his statement were the reasons for thinking that the designation of Nauru was in the “national interest”. That was one of the requirements of designation – that the minister had to be satisfied it was in the national interest. He said this:
“On the basis of the material set out in the submission from the Department, I think that it is not inconsistent with Australia’s international obligations (including but not limited to Australia’s obligations under the Refugees Convention) to designate Nauru as a regional processing country.”
He was saying it was not inconsistent with Australia’s international obligations. He then goes on to say this:
“However, even if the designation of Nauru to be a regional processing country is inconsistent with Australia’s international obligations, I nevertheless think that it is in the national interest to designate Nauru to be a regional processing country.”
Now, there it is. That’s the game. That’s the relationship between the international obligations that we have and domestic law as we perpetrate it. And the statement continues to say this:
“In considering whether I think it is in the national interest to designate Nauru to be a regional processing country, in addition to the matters outlined above I have:
(1) had regard to the UNHCR advice;
(2) chosen not to have regard to the international obligations or domestic law of Nauru.”
That tells you what the deal is when it actually comes to considering what the problems were with the designation of Nauru and Papua New Guinea. They were based on a Memorandum Of Understanding (MOU) and in relation to the designation of Nauru, the UNHCR noted the apparent contradiction between the tenor of the MOU – that legal responsibility for the asylum seekers would be shared between the Australian government and the Nauru government, and the Australian government officials indications that Australia did not see itself as having any legal responsibilities under the convention after an asylum seeker has been transferred to Nauru. This comes out of an examination of the migration package of legislation that was conducted by the Australian Human Rights Commission and the report is dated January 2013. Things haven’t got better. They’ve got worse.
Now this is gobbledegook, saying we pay lip service to international obligations and our domestic law says we don’t have to – and it’s only in very special circumstances of ambiguity that a statutory construction of the Migration Act and regulations can have regard to those instruments.
I’m told it’s time to wind up, so we can discuss those things later in question time.
Robert Richter QC is a barrister with a practice specialising in criminal law and associated fields. He is the former chairman of the Criminal Bar Association, former President of Victorian Council for Civil Liberties, former part-time Law Reform Commissioner for Victoria and former member of Bar Council. He is an immigrant who came to Australia at the age of 13 from Israel.
2. Paris Aristotle AM
It’s great to be here. Anybody who’s prepared to turn up on a Sunday to listen to four people speak about this issue deserves congratulations, particularly in this climate.
This is an issue that I’ve spent just over half my natural life working on and about three quarters of my professional life. So it’s been a long time and a substantive commitment for me over many years to support refugees and asylum seekers, in particular those that have suffered torture and trauma.
I was asked to talk about working with government and in a sense I will reflect on that through the way in which I talk about this topic. Working with government is a challenging and very difficult thing to engage in. Importantly the issue here is not simply about working with government. It’s about working with everybody: oppositions; minor parties; independents; non-government organisations; church bodies; civil society representatives; legal representatives; advocates – all of them. No one single group has the ability to deliver and provide everything that is required in this area. We need a collective level of leadership and collaboration if we are going to have any hope of making a real and meaningful contribution to what is one of the most complex social issues in the world today.
So working with government I can tell you is about as much fun as….well you can imagine what I mean. Oftentimes you are dealing with primarily political objectives and every now and then political objectives and human rights objectives coalesce – but most of the time on this particular issue they collide and in that collision they create enormous disruption, distress and confusion.
I want to reflect a little bit on my role on the Expert Panel (on Asylum Seekers, which reported to the Federal Government in August 2012) just to talk a bit about the complexity of the issues that we’re dealing with. I want to do all of this saying that there are a vast number of aspects about the way in which the previous government responded to the recommendations of the Panel, as well as the Opposition and the Greens – and the way in which policy is being implemented now; that I have a fundamental disagreement with. But I also want to talk about the complexity of the issue.
The treatment of refugees and asylum seekers is one of the most politically manipulated, adversarial and acrimonious areas of social policy, and in many respects one of the most shameful issues in our recent history. It’s been characterised by misinformation, by the demonisation of people, many of whom, but certainly not all, have fled persecution and human rights violations in search of a peaceful life. They are often people who have suffered violence and oppression in their countries of origin; suffered a life of subsistence in impoverished circumstances while in refugee camps, or countries of first asylum, while the international community failed to provide durable outcomes for them by in their home countries or by providing safer options in the country of asylum or through to resettlement in a safe third country.
Many asylum seekers have endured exploitation by people smugglers who sought to capitalise on the failures and indifference of the international community, by providing expensive and unsafe passage to developed nations, often resulting in the death of women, children and men. Then upon arrival in a country of asylum such as Australia, asylum seekers are often confronted with a toxic political environment in which their plight and suffering is compounded by punitive policies. The harshness of our country’s response was to portray a message of deterrence to anyone else who may be considering a similar path.
I genuinely think that these cumulative responses ultimately diminish us all. Together we must consider how to build a pathway that addresses the legitimate concerns of exploitation and loss of life at sea. But here’s the rub; while I deeply believe, and listen to people talk about it in these terms all the time; while I deeply believe everything that I’ve just said, my comments on their own are also unfortunately easy and simplistic statements. If made in isolation of an appreciation of the deeply complex nature of the challenge at hand they are simply feel-good motherhood comments that contribute little to the necessary task of finding better alternatives.
Indeed one of the most significant impediments to finding better, more humane alternatives has been the lack of appreciation about the full complexity of what we are dealing with here. Glib comments, facile analysis and so-called solutions all perpetuate the cycle of ineffectiveness in our responses. And this doesn’t just come from government. In doing so it gives succour and credence to the political case for harsh deterrence measures that are purely punitive and seen as the only means for bringing this issue under control. But they are not the only way.
Thoughtful policy that is grounded in facts; that is ethically sound and coupled with a willingness to examine all of the relevant information about changing dynamics is the only way we are going to be able to deal with this issue better in the long term.
The issues I want to talk about are often misrepresented at the political level. They are a very important consideration for politicians but they often give way to the political objective of garnering electoral support for a particular political position. It is the question of deaths at sea.
At my organisation we have about twenty to twenty-five cases of families, all of whom have lost family and loved ones at sea. Their ability to recover from past traumas or to reconcile how they will move forward in their lives from here is compromised and compounded even further as a consequence of that terrible and awful loss.
In one sinking an eleven year old boy spent eighteen hours in the water while he watched his father, uncle and brother drown, others were taken by sharks – one whom when rescue boats finally arrived subsequently died of blood loss as a result of him having lost an arm in a shark attack.
I would challenge anyone to tell me how that was a good outcome for an eleven year old boy and how he could recover from that experience.
And there are other stories of boat trips where fifty at a time died; where one hundred and fifty at a time died. One boat capsized while people were being rescued, killing eight people including a young baby boy.
These are very real consequences that we simply cannot afford to ignore. They are not justification though, for implementing cruel and punitive policies that ignore our human rights obligations or our obligations to treat people fairly and humanely. From a social policy context, we are dealing with what is often referred to as a wicked problem. It was a term developed by urban planners in the US in the 1970s and which the Australian Public Service Commission uses as a basis for working with senior government officials to look at complex issues such as indigenous disadvantage or environmental issues and so forth. And it applies very much to these issues as well.
Some of the characteristics of a wicked problem are that they are usually highly resistant to resolution; there is often disagreement about the causes of the problems and the best way to tackle them and attempts to address wicked problems often lead to unforeseen consequences. Wicked problems usually have no clear solution and may never be completely solved, and the challenge is to find the best way to manage them instead – some would say the least harmful way to deal with them. And wicked problems are socially complex; they involve coordinated action by a range of governmental and civil society stakeholders.
So a wicked problem is a very apt description of this issue because we control very little of the causal factors, our ability to influence movements is marginal and efforts are dependent on the support of others. Policy makers are confronted with impossible choices and as a consequence, policy objectives are not simply about creating the perfect, ideal solution, because there are no perfect, ideal solutions. Rather, we are starting to find the best possible imperfect system. How do we come up with a system that is the least harmful? That’s a phenomenally confronting predicament and ethical challenge, for someone in my position and it came home very strongly for me during the work on the Expert Panel.
The ethical challenges when you’re dealing with these sorts of issues are complex and I can’t go into this in detail because I don’t have the time. However, for myself, in-spite of the scepticism I had about the establishment of the Expert Panel and how it would be responded to, I felt a responsibility to at least try – given what was going on at the time. Part of the reason why, was that I could no longer accept the increasing rates of loss of life at sea and the number of our clients who were becoming grief stricken on top of their pre-existing trauma. I couldn’t accept that the casualties increasingly included children. I couldn’t continue to accept the distorting impact of this on our humanitarian program, in particular the devastating effect of virtually wiping out any hope of a family reunion for refugees. Most of all, I could no longer accept it when I knew we had the ability to do more and better to protect thousands more refugees each year, and to do so without them having to die on their way to Australia.
In summarising the ethical debate I should say from the outset; very good people disagree on these issues. It’s not just nasty people trying to project a particular position. Very good people of strong humanitarian conscience disagree on the way to deal with this issue.
I think there is an ethical case for someone to make that we should not intervene to stop someone coming to Australia by boat, even if it means they are risking their lives and the lives of their children and families. That if someone is fleeing persecution and they choose to take those risks in order to secure safety, that ethically we should not do anything to prevent them from doing so, regardless of the consequences. I think there is a case that can be made on those grounds. It is a difficult and complex issue to consider and to contemplate.
The other side of the ethical debate, which is the side that the Expert Panel came down on, was that if we were in a position to do something to prevent the necessity for people to take those risks and die at sea and it was within our power to do and protect thousands more people every year safely, then that is what we should do. That’s a very simplified version of the ethical conundrum that we were trying to deal with on the Panel but that was the side we came down on when we developed our recommendations. The issue is that when you get into that it is not such a straightforward thing to deal with when actually having to come up with real responses to these issues.
I would like to read a segment from the Panel’s forward which really captured what we were trying to achieve. We said we wanted to create strategies that would:
“…shift the balance of Australian policies and regional arrangements to give greater hope and confidence to asylum seekers that regional arrangements will work more effectively” and “Rather than denying asylum seekers the ‘right’ to take terrible risks, there is a responsibility to create opportunities that would enable their claims to be processed more fairly and effectively in ways that make those risks unnecessary.”
That was the focus for the Panel and when the Panel produced its report the government accepted all 22 of its recommendations and said they were going to implement them all. The Opposition was prepared to support some of the recommendations and not others. The Greens were prepared to support some of them and not others. I almost took to buying myself a tattoo gun and tattooing across my forehead “This is an integrated package”, that you cannot cherry pick the bits that you like and leave out the bits that you don’t like, because each bit was interconnected.
My colleagues, many friends and others, were often criticising the recommendations in the report because it did recommend reintroducing processing centres on Nauru and PNG as the first stepping stones towards a proper regional system. I understand the concerns about it completely, but criticisms were pouring out before anyone even read the report, or was prepared to take on board the detail and the complexity of the information that was contained in it. As a consequence, all the parties, the Government, the Opposition, the Greens, many people within the non-government sector contributed to the on-going entrenchment of this debate. At present everybody is so dug into their trenches, that finding a better way through remains beyond our reach. One of my colleagues who’s here, Jo Szwarc, was saying, when anybody says’ it can’t get any worse than this or the trenches can’t get any deeper; that opposing groups reach for the shovels and start digging deeper. As a consequence we continue to fail to provide a coordinated, integrated, humane response to this issue.
I want to pick up on one of the things that highlight this conundrum ethically for us if I can – and I’ve got one minute to do it. It relates in part to the grotesque, utterly unacceptable murder of Reza Barati on Manus Island. People say he was killed and so forth, but Reza Barati was murdered on Manus Island and it should never have occurred in any circumstance that we had control over. When the Expert Panel made the recommendations, it had a series of safeguards built in including:
compliance with international human rights standards;
no arbitrary detention;
fair and transparent processing;
legal assistance for people making claims;
adequate health, educational and vocational training;
independent merits review of cases;
independent oversight mechanism to make sure that the compliance with all these things were in place.
All of the necessary safeguards which UNHCR has started to talk about with regard to processing centres in Europe were all a part of the report. But the political pressure and the inability of people to come together meant that the previous government just gave up and went for the old deterrence based approach. It moved people to those places before they negotiated all of those safeguards being in place and as a consequence, once they went, it meant trying to get the safeguards in place subsequently became increasingly difficult.
Without those safeguards in place it was utterly predictable that riots of that nature would happen, and the murder of Reza Barati as a consequence of something that Australia put in place is utterly unacceptable.
The outpourings of support were entirely legitimate. The opinion pieces, the media interviews, the call from advocacy groups and advocates and so forth to do something about this so that it had to stop were all legitimate. It should never have happened in the first place. The organising of vigils to mourn that loss were all wonderful, fantastic and absolutely the right thing to do. But here’s a conundrum that I want to leave you with: shortly after the federal election, in late September 2013, a boat sank, full of Lebanese people. Forty five drowned in one boat trip – forty five. Twenty of them were children. Not one church leader in this country said a word. Not one peak body put out a media release. Not one advocate did an interview that said this was an appalling situation that needed urgent attention. In one case a man paid $80,000 to the smugglers. He lost his wife and six children.
I’m not making that point to justify anything. I’m making that point to illustrate that this is a phenomenally complex issue and if you want to deal with it you can’t approach it with blinkers on, and only stick to the bits that sit comfortably with your pre-existing ideological position or the political argument you want to hold onto. You have to be prepared to confront some of those things in yourself in order to come up with alternatives that preserve our principles and our obligations to protect people; to take care of them; to provide them with durable solutions and options. How do we justify compartmentalising our ethical concerns and considerations if we are also serious about creating pathways that mean twenty children don’t have to die in one sinking or an eleven year old boy doesn’t have to watch his father, uncle and brother drown before his eyes.
This issue is phenomenally complex and it requires us to do more than just hold on rigidly to our pre-existing positions. Refugees and asylum seekers need us to do better.
Paris Aristotle AM is the CEO of the Victorian Foundation for Survivors of Torture Inc. and an Executive Member of the Forum of Australian Services for Survivors of Torture and Trauma. Paris has worked extensively with government and currently serves as the Chair of the Ministers Council on Asylum Seekers and Detention, and has been a member of the Refugee Resettlement Advisory Council. Paris has over 25 years’ experience supporting refugees and asylum seekers.
3. Professor Robert Manne
It would seem as if this whole thing has been planned, but my following on from Paris (Aristotle) and taking up exactly what he has to say hasn’t been planned. I’m giving this talk with a heavy heart and it represents what has been happening for a long time – my break with the Left on this issue.
The asylum seeker issue, or more accurately the issue of those asylum seekers who arrive by boat, has been near the centre of Australian politics for the past 15 years. Opinion has generally fallen into two broad camps – the friends of the asylum seekers, and their enemies. These camps have now become very rigid. Thought has become frozen, and as happens when thought is frozen, dishonesty abounds.
The dishonesty of the enemies of the asylum seekers is familiar. They deny or diminish the human cruelty of their deterrent policies–mandatory indefinite detention; temporary protection visas; offshore processing; tow-back to Indonesia. They close their eyes to the damage these deterrent policies inflict upon the reputation of this country, especially in the Asia-Pacific region where the White Australia Policy is remembered. Their attitudes moreover reek of hypocrisy. The enemies of the asylum seekers opposed the idea of deterring boat arrivals, by sending 800 to Malaysia, on the grounds that it was not a signatory to the United Nations Refugee Convention. They simultaneously advocated towing boats back to Indonesia, itself not a signatory to the Convention. In public they shed crocodile tears about the hundreds of drownings that occurred under the policies of Rudd and Gillard. In private, despite the mass drownings, they were delighted with the political advantages the accelerated arrivals offered to the Abbott Opposition, as a Wikileaks cable revealed.
Of more interest to me, given my history, however is the dishonesty that I have witnessed from my former allies, the friends of the asylum seekers. From late August 2001 the Howard government introduced the policies of off-shore processing on Nauru and Manus Island and occasional tow-back to Indonesia, known as the Pacific Solution. Between 2002 and 2007 virtually no asylum seekers arrived by boat, and yet throughout these years, almost without exception, the friends of the asylum seekers refused to admit that in its deterrent objective the policy had “worked”. In 2008 the Rudd government dismantled the Pacific Solution. Shortly after, the asylum seeker boats returned – eventually in much larger numbers than during the Howard period. Under Howard there were approximately 13,000 boat asylum seekers. In just the final year of the Gillard government, there were some 25,000. And yet friends of the asylum seekers rarely admitted that it was the dismantling of the Howard policies that was primarily responsible. Frequently, moreover, the friends of the asylum seekers claimed that with firm political leadership the anti-asylum seeker sentiment of the Australian people could be turned around. This denied the meaning of hundreds of public opinion surveys and flew in the face of common sense.
Most troublingly, the friends of the asylum seekers – and Paris (Aristotle) has talked about this very eloquently – failed to register the moral meaning of the 1,100 certain or probable drownings that took place under Rudd and Gillard. There was great anguish at the time of the mass drowning following the sinking of SIEV X as it was called, in October 2001, for which the Howard government was blamed. And in fact I was one of the main people blaming them. There has been great anguish following the terrible death of Reza Barati on Manus Island for which the policies of the Abbott government have been blamed. But among the friends of the asylum seekers the mass drownings that took place under Rudd and Gillard barely registered or lingered in collective memory.
Today I frequently read articles by prominent friends of the asylum seekers berating the present policies of off-shore processing and tow-back where even the fact of mass death by drowning is not mentioned. In their principled opposition to all forms of deterrent policy many friends of the asylum seekers are wedded to a Kantian absolute. For them it is never permissible to save a greater number of lives by treating certain people, like those presently marooned on off-shore processing centres on Nauru and Manus Island, as a means to an end. Others are legal absolutists for whom, no matter what the consequences, it is never permissible for the letter or spirit of International Law – in this case the UN Convention – to be violated in any way by a regime of off-shore processing. Yet others are indifferent to the political dimension of the asylum seeker question. For them there is no problem for the Labor Party, the only Opposition party that is a serious contender for government, to hand permanent political advantage to its coalition opponents. This position implies that in Australia today, the asylum seeker issue should trump all other considerations. For example, whether or not our country becomes involved in the most vital issue of our era; the struggle to combat global warming. We’ve seen what the Abbott government is doing with that and there’s no doubt, even though it was going to win anyhow, it gained great advantage from the asylum seeker question.
In my view, all these forms of absolutism—moral, legal, anti-political—are wrong-headed. On the asylum seeker issue, many legal, moral and political questions have to be balanced and taken into account. The world is complex. The asylum seeker issue is inherently very difficult, as Paris (Aristotle) has told us.
Because of their commitment to one or another form of absolutism, almost all friends of the asylum seekers now advocate dismantling of the policy of off-shore processing and tow-back – in other words a return to the policy of the Rudd government in 2007/8. Our own reliable guide to what might eventuate if they succeeded in their ambition, is what happened in the past.
Following Rudd’s abandonment of the Pacific Solution, three things occurred: The issue of asylum seekers helped undermine the government’s popularity and served the interests of the Coalition. Asylum seekers arrived by boat in accelerating numbers. In the financial year 2010/11 – 5,000. In 2011/12 – 8,000. And in 2012/13 – 25,000. Most importantly, as I stress, in these few years, on their way to Australia, some 1,100 asylum seekers died at sea. Those who now advocate the end of the current policy of off-shore processing and tow-back, a policy that has quite predictably stopped the boats, need to explain why history will not repeat itself.
There is another consequence of the present position of the friends of the asylum seekers. By campaigning for the dismantling of off-shore processing, they have abandoned any prospect of contributing to the formulation of a more humane and politically realistic asylum seeker and refugee policy.
Let me outline what I think such a policy might be. One aspect would be to look to conditions in off-shore processing centres, and the ultimate fate of those presently there, in such a way that suffering was diminished but the deterrent purpose maintained. The other would be to look to the future of the 30,000 or so recently arrived asylum seekers in Australia who are being treated with great cruelty by the present government. Some of these people are in detention centres. A larger number are on some form of bridging visa, waiting for their asylum seeker claims to be assessed. Some with adverse ASIO assessments have been imprisoned without trial for life. Many are living in penury. Many are not allowed to work. These people are promised that even if they are assessed to be genuine refugees, they will never be allowed to become permanent citizens.
Through the combination of these policies Australia, for the first time in its history, has a government that is consciously engineering the creation of an immigrant underclass. As there is now an effective deterrent at the border, older ineffective domestic deterrent policies, like mandatory detention, temporary protection visas, absence of work rights, or access to decent welfare are not only cruel but entirely purposeless. They are also quite predictably creating social problems for Australia in the future. All these policies should be abandoned. But the friends of the asylum seekers, by campaigning for the end of off-shore processing have absented themselves from that question, in my view.
It is moreover a misunderstanding to think that Australians are hostile to refugees. Historical experience and almost all opinion polls show that Australians are opposed not to refugees but to those who arrive without visa by boat. My experience in this issue goes back to the 1970s – and it was more politically difficult for the Fraser government to accept the 2,000 Vietnamese, spontaneous boat refugee arrivals than it was for them to settle tens of thousands of Vietnamese, Lao and Cambodian refugees selected by the government from the archipelago of camps in South East Asia.
Rather than advocating the dismantling of off-shore processing, the friends of the asylum seekers, in my opinion, could play a far more fruitful role by the advocacy of full human rights for those asylum seekers presently on Australian soil. And, as recommended by the Expert Panel that Paris Aristotle participated in, an annual intake in Australia of 30,000 refugees, chosen from among those in most desperate need – like the persecuted Hazaras of Afghanistan, or the Rohingyas of Myanmar; the ethno-religious groups most closely experiencing what the Jews of central Europe experienced in the late 1930s. This is the kind of policy that the Labor party could realistically take to the next election and it is the policy for which I intend to fight.
Robert Manne is Emeritus Professor of Politics and Vice-Chancellor’s Fellow at La Trobe University. He was for many years a commentator on public affairs for both Fairfax and the Murdoch press. He is the author or editor of some twenty books and a regular contributor to both The Monthly and the Quarterly Essay.
4. Rabbi Ralph Genende
Just a few days ago we celebrated the festival of Shavuot. It’s a holiday about a moral code. It’s also about a legal code that was given at Mount Sinai. And it’s rather odd if you think about it, that we have a festival to celebrate a radical idea. It’s not about a Queen’s birthday. It’s not especially about a historical agricultural event. But it’s essentially a celebration of legislation. A set of tablets. A book of laws.
Now laws can sometimes be very cruel, even if they are designed to provide an orderly predictable framework for a society. There is law, after all, even among barbarians; honour even among thieves. And dictators can inflict cruelty in the guise of law as well.
Jewish law, and by Jewish law I mean Biblical law – what we call D’Oraita – as well as Rabbinical law – which we call D’Rabbanan – is a vast body of laws that starts off in the Bible and then is teased out in the Talmud, presented in the codes of Jewish law and then developed in the Responsa – what’s called the She’elot U’teshuvot, (“questions and answers”).
So we have centuries of Jewish law. We are a nation of lawyers. That’s what makes us a particularly argumentative people – stroppy as hell, stubborn, and stiff necked. But throughout these layers of law is a commitment to compassion and that is the golden thread that goes through them. Righteousness is seen as our highest calling.
Paul Johnson, a Christian historian, says that we Jews provided the basic moral furniture of the human mind. One of the basic axioms of Judaism’s laws of compassion is what Chief Rabbi of South Africa, Rabbi Warren Goldstein, calls the vulnerability principle, which is about the protection of vulnerable people from oppression at the hands of those who are more powerful.
There are many examples. One of the most popular laws, mentioned more than any other in the Pentateuch itself; in the Torah, – repeated 36 times – is that you shall not taunt or oppress the stranger for you were strangers in the land of Egypt. You shall not cause pain to any widow or orphan.
There are 3 categories there. There’s the widow. There’s the orphan. There’s the stranger. But there is the one common denominator – that’s their fragility; their vulnerability. There’s a wide debate on the definition of the stranger. Is the “ger”, the stranger, a non-Jewish convert? Is it a non-Jew living in a predominantly Jewish society? But I’ll take the Sefer Ha-Chinuch’s definition, that it’s people who come from other places who are unfamiliar to you; who are unfamiliar to your place – to your society. That is who the stranger is.
And the asylum seeker / refugee is surely the stranger; the outsider – entitled to that special practical measure that is offered by Jewish law and underpinned by the commandment ve’ahavta l’ray’acha ka’mocha – Love your neighbour as yourself.
One of the amazing things is that the command to love another is mentioned first of all as loving your neighbour and the second reference is to love the stranger. It’s a very specific one. You’re not told to love your children. You are told to love a stranger. You’re not even told to love your parents. You are told to love a stranger. And you’re also told, of-course, to love G-d.
I want to pick up on the very thoughtful and challenging words of our previous speakers, in particular Robert Manne’s. And particularly looking at the asylum seekers and refugees who are here already – the refusal to allow people who are on bridging visas to work even voluntarily is stupendous. To release people into a community and then to deny them the right to work or to be part of the community is to sentence them to despair, depression and desperation. If that doesn’t fall under the rubric within Jewish law – of halacha – of oppressing the stranger and the vulnerable, then what does?
We’ve had special mention, of course, of children with reference to the 15 years olds and to younger children who have come without their families. There is a special welcome provision for the orphan within Jewish ethics; and within the halacha. The orphan is somebody who has either lost their parent or their parent is unable to care for them financially, emotionally or educationally. You are called to care for them; to adopt them; to bring them into your home. The highest moral act is responding to the orphan – helping them to get married or find work. Incarceration of children, is religiously repugnant, legally questionable and certainly morally myopic.
In Jewish law, the word that we use for compassion is chesed, which is generously applied to the stranger. If you think of the Abrahamic example: Abraham the first Jew reaches out to all strangers – strangers who are not Jewish. And that is emphasised by our prophets, the source of Jewish law: Learn to do good. Seek justice. You know, one of the things that occurs during Yom Kippur, during the Day of Atonement, in the middle of the fast day, when we’re at our most hungry, thinking of our stomachs more than anything else – at that particular point the Torah says to us; “What’s the purpose of your fast, if you’re not reaching out to the righteous. If you are fasting, making a day so you can afflict yourself, so you can bow your head like a bulrush, make a mattress of sackcloth – is that what you call a fast day? Surely this is the fast I choose; loosen the bonds of wickedness; dissolve the groups that pervert justice; let the oppressed go free; annul perverted justice; divide your bread among the hungry etc.”
Simone de Beauvoir said that we can judge a society by the way that it treats its old. And I think we can judge a society as well by the way it treats its defenceless including the asylum seeker or refugee who is here already.
One of the highest principles in Jewish law is Pikuach Nefesh – saving a life. Certainly if stopping the boats; stopping people from drowning; people being lost at sea; does mean saving a life, then it is a great act of Pikuach Nefesh and a great mark of morality in terms of Jewish ethics.
Regarding the verse, that you were strangers in the land of Egypt – Ramban (Nachmanides), a classic 13th century commentator, said, that you have to address a would be oppressor: “You were a stranger in the land of Egypt, you were totally helpless and hopeless to defend yourself. G-d came to your defence because you couldn’t defend yourself and G-d will come to the defence of any stranger that you oppress”. That’s what G-d himself does. G-d sees the tears of the oppressed with none to comfort them. And the oppressors will be judged by G-d.
Soloveitchik has said that the fountainhead and moral inspiration of Judaism comes from our Egyptian experience and that experience is not something that just took place three and a half thousand years ago. It is something, which has been accentuated by Jewish suffering and exile throughout the centuries and most recently in terms of the Holocaust.
Dietrich Bonhoeffer in a Nazi prison in 1942 expressed the idea that we see the great events of world history best from below; from the perspective of those excluded, under suspicion, ill treated, powerless, scorned; from the perspective of those who suffer. And that’s why I think we as Jews who have observed history from below are called on to have a special moral acuity and sensitivity to the plight of asylum seekers and refugees.
It is not just one-sided. It’s not about merely responding because it sounds good. We have to examine the moral dilemmas and it’s an incredibly complex moral issue as has been highlighted by the speakers before me. Thus we have principles of shmor et nafshechem, ‘’guard your souls”. You have to protect human life and you have a reason and right to protect your own life and your own lifestyle as well. You have a reason and a right to look after yourself first – but not only to look after yourself first. Charity may begin at home, but it doesn’t end at home. So we need to be mindful of the issues, and in Jewish laws and ethics it is not just about saying, “be compassionate”. It says, weigh up the situation as well. Weigh up the situation and be mindful of the complexities and of the other moral principles that come into play in a particular issue.
Thus there are other issues of for example the principle of mipnei darchei shalom (for the paths of peace) is about promoting peace for the honour and dignity of human beings. The honour and dignity of human beings is about making sure that we are not oppressing them, and also that we are saving lives. That’s what needs to be factored into any policy when it comes to asylum seekers and certainly we have a lot to answer for in terms of sending people to places like PNG and Manus if we cannot provide them with protection, if we cannot provide them with asylum, if we do not recognise their vulnerability.
We seek to defend the human spirit by protecting the oppressed. As the Netziv, Rabbi Burnett said, this law of you were a stranger is not just about compassion, but it is also about preventing the suppression of human potential. Never underestimate, he said, the human potential of the stranger, that he or she could be the person who is destined for greatness. Don’t crush the Betzelem Elokim; don’t crush the image of G-d.
Judaism is not absolutist in the Kantian sense. I think it recognises the subtleties of the moral argument and we may rejoice that there are no more drownings, but I don’t think we necessarily have to rejoice in the fact that we are not allowing more refugees into our country, more people who are threatened, persecuted or forced to leave their own homes.
Let us recognise the potential that they bring, just as we Jews have brought so much to so many cultures and we have brought so much to Australia itself. Let us encourage that.
Shavuot is a chag (festival) of compassion. That’s why we read the Book of Ruth during Shavuot. That’s why the milk of human kindness also runs through the festival and literally in all that cheesecake we consume. The story of Ruth that we read just a few days ago on the festival of Shavuot reminds us of the value that Judaism places on the widow, the orphan and the stranger. Ruth is the quintessential stranger there “amid the alien corn” as Keats put it.
Rabbi Berel Wein opines that the greatness of the Jewish people is founded on acts of compassion – Ruth to Naomi; Naomi to Ruth; Boaz to Ruth etc. It’s a little book that’s a pointed reminder of the harmfulness of xenophobia and in many ways about the triumph of the stranger. Ruth overcomes the racial and xenophobic attitudes towards that Moabite woman to become the mother of Israel; the matriarch of royalty.
May we find the courage of compassion in this stormy debate.
Rabbi Ralph Genende has been the senior rabbi at Caulfield Hebrew Congregation since 2007. He is principal rabbi to the Australian Defence Forces, Vice President of the Rabbinical Council of Victoria and is a member of the Premier’s Multi-faith Advisory Group. He has a Masters degree in counselling.