How To Overcome The Major Argument Behind Australia’s Refugee Policies

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While Australian Border Force officers hover in hospital corridors waiting to spirit away infants into offshore detention, political leaders continue to argue that these egregious acts are somehow necessary.

Sometimes the reason given is border security, prompting critics to ask whether the government fears an invasion of babies. More often, the mistreatment of these children and their families is weighed against what is billed as the greater evil of deaths at sea.

This instrumental thinking would be rejected out of hand by those whose judgments are guided strictly by moral principles. For them, the indefinite detention of children and other asylum seekers is so patently wrong that no argument that it is achieving a greater good can redeem it.

But in this article I want to give these ends-justify-the-means arguments an airing, in order to show that they fail even on their own terms.

In order to unpack this utilitarian calculus I’m appealing to a style of moral analysis that I used to teach my first year policing students, by framing offshore detention as a potential Dirty Harry scenario.

A Dirty Harry problem can be conceived of as a particularly testing moral dilemma where someone is faced with the prospect of having to do evil in order to achieve something good. In the movies, such predicaments tend to involve torture and kidnapped children secreted in disused warehouses. In the everyday world of policing more probable scenarios would be the fabrication of evidence to guarantee the conviction of a notorious villain, or by-passing the justice system altogether by dishing out a dose of summary corporal punishment.

According to the undergraduate textbook Police Ethics (Miller, Blackler and Alexandra), a true moral dilemma of the Dirty Harry variety (as opposed to a convenient exercise in rationalisation) arises only if the following conditions are met.

  1. Someone has the opportunity to achieve some morally good end or outcome, and they aim to do so.
  2. The means they use to achieve this good end are normally morally wrong i.e. they are ‘dirty’.
  3. The use of these means is the best or perhaps the only practicable way of ensuring that this good end is realised.
  4. The good likely to be achieved by using the dirty means far outweighs the evil likely to follow from their use.

This formulation may appear to play fast and loose with the intuitive idea that we should uphold moral principles in all circumstances. However, with some exceptions, even human rights principles that are codified in international treaties allow some wiggle room for consequentialist considerations. Governments might restrict individual rights to freedom of speech, for example, if necessary to achieve the greater good of safeguarding minorities from vilification.

It is precisely this balancing of moral principles with expected consequences that is set out systemically in the Dirty Harry framework. But, even if it is conceded that individual rights and other moral principles are not always absolute, it turns out that in the real world beyond Hollywood, all four conditions of the Dirty Harry conundrum are rarely met, at least when the harm being contemplated is extreme. In other words, even within the realms of ends-justify-the means reasoning, doing serious harm in the hope of achieving good is extremely difficult to justify.

In relation to offshore detention, I would hope that even my first year policing students could have arrived at this conclusion by following the four steps in the Dirty Harry framework.

Let’s assume in relation to condition one that successive governments have been motivated in their border control efforts by the preservation of life. This is a huge concession, since there are many reasons to believe that, while individual politicians may be genuinely distressed about loss of life at sea, the overwhelming driver of Australian border policies is preventing arrival. But, for argument’s sake, let’s accept that the politically expedient claims about saving lives are in fact sincere.

The second condition – that the mandatory detention of children and of adults who have committed no crime is ‘normally morally wrong’ – should be obvious. But if incontrovertible evidence is needed, the Australian Human Rights Commission’s 2014 report on the harm to children of prolonged detention and repeated findings from the UN Human Rights Committee, dating as far back as the 1990s, that Australia’s mandatory detention policies contravene important international legal norms, should suffice.

So far we have established (or conceded in relation to step one) that the first two conditions of a genuine moral dilemma – the pursuit of a purportedly good end, but using a very dirty means – do apply to mandatory offshore detention. But what about the third and fourth conditions that, if met, might justify using those dirty means?

To satisfy the third condition, governments must demonstrate that detaining some asylum seekers in order to prevent others from making the same journey is the best or only way to save lives at sea. This is where their argument starts to take on water.

Potential life-saving options that do not involve inflicting suffering are not hard to find. These include increasing the humanitarian intake, front loading the system to provide genuine options for refugee processing offshore, or stepping up rescue efforts rather than turning boats back.

Better still, governments could dismantle the virtual border of offshore visa checks they have created that prevents most asylum seekers from accessing safe and regulated modes of travel, or could at least follow the British Refugee Council’s recommendations to mitigate its deadly effects.

All these options would be less brutal, and probably also cheaper, than the current policy settings, and would have the added benefit of improving Australia’s tarnished international reputation among those who care about human rights.

So, the moral justification of offshore detention as a life-saving strategy falls spectacularly at the third hurdle. But for the sake of completeness, let’s stagger along to the fourth.

The final condition of a Dirty Harry dilemma requires that the good to be achieved is likely to far outweigh the evil being done. Understandably, the bar in this high stakes gamble is set high.

Although predicting the future is an inexact science, expert evidence given to the Houston Panel in 2012 which ushered in the latest wave of offshore detention, cited social science research that casts doubt on the efficacy of deterrence as a mechanism of behavioural change. Deterrence is known to be of marginal effect particularly where the behaviour in question is virtually unavoidable in the circumstances, and where the message about the damaging consequences that might follow is imperfectly communicated to the targeted groups.

At this point it might be objected that, while the Houston Panel was engaged in an exercise of predicting the future, we are now several years down the track so that the actual effects of the offshore detention regime in relation to loss of life should be clear. Both major parties now take the view that detaining babies, however regrettable, has contributed to stopping the boats and, as a consequence, has dramatically reduced deaths at sea.

But what is the hard evidence for this claim in relation, specifically, to offshore detention?

Our Australian Border Deaths Database records the most recent known death at sea on December 9, 2013. This means that boat journeys and deaths did continue for some time after the ‘no advantage’ policy, including offshore detention, was hastily implemented under the previous government from August 2012. It was not until later, after deterrence was backed up by physical turn-backs under Operation Sovereign Borders that both arrivals and deaths, as far as we can tell, began to drop sharply.

Of course causal links, as opposed to temporal associations, are always hard to establish. What can be said is that it is difficult to disentangle the purported deterrent effects of offshore detention from the practice of physically preventing arrival through military interdiction (which of course generates its own Dirty Harry scenario). The secrecy and information control that surrounds these practices compounds the empirical uncertainty.

But we do know from decades of accumulated evidence from Europe and the US-Mexico border that aggressive measures to prevent arrival often merely displace journeys or immobilise populations in distant locations where they may be out of sight but are likely to face heightened risks.

Assessing the overall impact of Australian offshore border control policies in terms of saving lives therefore demands a regional perspective. Only detailed regional research could shed light on the ripple effects that will have been set in train by Australia’s unilateral policies.

The failure of the’ detention saves lives’ argument to meet all the conditions of the ‘Dirty Harry’ scenario confirms that there is no genuine moral dilemma surrounding this issue as successive, and possibly future, governments would have us believe.

As the appalling impacts of offshore detention become more widely known, alternative policies are advocated in high places, and simplistic slogans about stopping the boats begin to unravel, governments will find it increasingly difficult to maintain the charade that these policies, on any reasonable criteria, represent a lesser of evils.

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Leanne Weber

Leanne Weber is ARC Future Fellow in the policing of internal borders at Monash University and co-Director of the Border Crossing Observatory.

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