Legal v. Ethical: Seeking asylum in Australia

Legal v. Ethical: Seeking asylum in Australia

Last week Australia’s High Court ruled that it was lawful for Australia to detain asylum seekers in a foreign country. The court’s ruling, originally brought to the court by the lawyers of a Bangladeshi woman flown from Nauru to Australia due to severe medical complications, sets a precedent to deport an additional 267 asylum seekers currently in Australia seeking medical treatment.

This ruling reminds us that what is legal, isn’t always what is ethical.

As a child I thought that what is legal is also what is right. Laws are there for a reason – if you remain within the law you will be treated justly. But as I got older I began to realise that what is legal and what is “right” are not always the same. By the time I realised that cheating on a test would not result in the police swooping down on me, I had started learning about the legality of slavery in 17th century America, and about the anti-Semitic laws passed by Hitler in 1930’s Germany. I learned how Australia was totally cool with marital rape until the 1980’s and Tasmania considered sex between two men a criminal act up until 1997. These were all perfectly legal things in their time and yet they seemed so abhorrent and unethical to me.

Now determining what’s ethical can be a fraught subject. For this reason it’s important here to distinguish between ‘ethical’ and ‘moral’.

Ethics are codes of conduct determined by a larger body e.g. the society you live in or the profession you belong to. Morals however are individually determined codes of conduct that may have been influenced by an individual’s society, culture or faith. What is moral to one person may be immoral to another, but both may be subject to the ethics of a particular society.

What is classified as ‘legal’ is far more straightforward. If an act is permissible under the law of the country in question, then it is legal. Australia’s high court ruled it was legal to allow the government to detain asylum seekers offshore as there is a law that permits it. This law however was enacted retroactively upon the woman who brought the case to the high court. The woman was detained on Nauru between January 2014 and August 2014. She was then moved to Australia for medical treatment related to her pregnancy. The law that will permit her deportation, 198AHA of the Migration Act, passed parliament (became law) in June 2015, after the case against the woman’s detainment had been initiated. This suggests that the then government knew the arrangement they detained asylum seekers in was illegal, and hastily legitimised it.

Deporting 267 asylum seekers offshore for an indeterminate amount of time in squalid conditions may be legal, but it is severely unethical. Institutions that are arguably seen as ethical bastions in Australia, institutions that supposedly have great influence on our individual morals, strongly oppose this deportation as well as the general treatment of asylum seekers on Nauru. Doctors have risked prosecution for speaking up the substandard treatment of asylum seekers on Nauru. Lawyers have appealed to international law on the grounds that seeking asylum is a human right. Churches are offering sanctuary to these asylum seekers, confirming for many the similarities of character between the Australian government and medieval Europe. The United Nations and Amnesty International have both condemned this offshore internment.

Turnbull government, off to protect our borders

Just a thought: when the leading international human rights organisations are condemning your actions, it might be time to rethink them.

In their defence, the government maintains that “the line must be drawn somewhere”, lest all those pesky people smugglers start up again and more people die at sea. Essentially, they’re arguing the most humane option is detaining 267 people (including 30 babies).

*heavy sarcasm alert*

Because it’s obviously better to know that an extra 267 people suffer under cruel and inhumane conditions, than to risk more asylum seekers dying at sea. Or worse – actually making it to Australia.

The government’s argument might even have some credence if there wasn’t already allegations that they’d been paying people smugglers to turn their boats around.

Or even that due to the tight restrictions (read: censorship) placed on reporting ANYTHING to do with “on water matters”, it’s near impossible to get independent data on how many boats have actually entered Australian waters since the start of operation Sovereign Borders. There very well may have been deaths at sea, but a lack of departmental transparency means they aren’t publicly reported.

Legal as they may be, the actions of the Australian government towards asylum seekers are unethical and inhumane. Legitimised only by a law passed at the eleventh hour, their treatment of vulnerable people has been overwhelmingly denounced by the institutions Australians generally regard as ethically upstanding. What ever happened to the Australian notion of “a fair go”? To detain people in fetid conditions simply because it’s lawful, exposes a government that is deliberately callous. History will not remember how safe Australia kept its borders, but it will give damning evidence on how unethically it treated its asylum seekers.





Advance Australia Fear

In a nation relatively devoid of fear, why do some feel the urge to create it?

Deng Thiak Adut

The Australia Day Address for 2016 was delivered this year by solicitor Deng Thiak Adut. Born in a small town in South Sudan, Deng was taken from his parents as a young boy to be used as a child soldier. Marched thousands of kilometres he witnessed many other children dying of starvation and exhaustion. He was forced into war at an age most children are forced into brushing their teeth. Before being smuggled out by his brother with the help of the UN, Deng experienced the kind of fear that made some of his fellow child soldiers shoot their own brains out rather than continue to live with that fear.

The theme of Deng Thiak Adut’s Australia Day address was freedom from fear. He spoke about how lucky he felt to be accepted into a country which is overwhelmingly, free from the kind of fears that plagued Deng as a child. He was right – how many Australians celebrating with fervent jingoism on January 26 this year can appreciate what it’s like to experience fear like Deng Thiak Adut? The fear of having to kill or be killed. The fear that comes from having bombs arbitrarily dropped on your town. The fear of having to take an overloaded, unseaworthy ship across the ocean because that is the safest option for your family. The fear of death because of your religion. The fear of rape because of your sex. The fear of death because of your sexuality.

The fear of not knowing if your son will be safe in police custody because he’s indigenous.

Australia’s citizens are fortunate to receive a number of provisions that ensure they live, ideally, without fear. We are a nation that provides its people with social welfare, safe sources of food and water, free basic healthcare and free education. We live on a giant island with a stable government that has avenues to express ourselves politically. We should have nothing to fear.

And yet we Aussies can come across as such a fearful bunch. In fact some Australians seem to be so unaware of the freedom from fear they’re afforded, that they feel a compulsion to create fears where none need exist, whilst belittling the real fears that impact on Indigenous Australians.

Reclaim Australia protesters demonstrating irony.

In a country where 90% of the fauna is potentially lethal, constructed fears are by far the most dangerous creature. They are the cause of the Cronulla riots, the Reclaim Australia rallies and the Bendigo anti-mosque protests. They are the reason why an indigenous actor and Australian of the year was refused a taxi and why footballer Adam Goodes was booed for celebrating a goal with an indigenous war dance.

Discrimination and prejudice – the backbone of concepts like racism, sexism etc. – develop from a combination of fear and ignorance. When a man says he hates refugees, what he really means is that he’s afraid. Afraid that they’re a security threat. That they’re going to steal jobs. He fears that they’ll change his way of life.

Claims refugees take jobs. Doesn’t realise that more people means more jobs created.

This fear of change, this idea that anything different is without exception bad, is what undermines discrimination. Many of Australia’s social inequities could be amended if our nation’s fear of difference and change was addressed. With the impending Australia Day holiday there is no better time to let go of past prejudices and work towards change.

How can we have a national day – a day supposed to unite the country – on a date that marks the beginning of widespread fear and suffering for indigenous Australians? I imagine when the first settlers arrived the people of the Gadigal indigenous nation may have felt fear, a fear that no doubt intensified as colonisation progressed. For many indigenous Australians it is a fear still felt today. Unlike non-indigenous Australians, they do not have the freedom from fear the majority of Australians take for granted. To say that indigenous Australians should just “get over” past injustices and that “it’s in the past, nothing can be done” is both profoundly insensitive and inaccurate.

In 2016, Indigenous Australians are still more likely to:

  • die younger
  • be in poorer health
  • not complete a year 12 certificate or equivalent
  • be incarcerated
  • die in police custody
  • live in poverty
  • be unemployed
  • experience youth mental health problems and suicide

I am not against Australia. I am not against the idea of a national holiday celebrating our country. But it should be a day which all Australians can wholeheartedly take part in. Not held on a date of great historical sorrow for the traditional custodians of the country. January 26 1788 is not even the date that Australia, as a nation, was formed. When there are so many other potential significant dates to celebrate Australia, why do we continue to choose a day that creates such division in our nation?

Do not fear change. There is nothing to be feared from changing the date of Australia Day. It will not stop you from having a barbeque, playing cricket or drinking beer. Changing the date will not erase your freedom to wear cheap, Chinese-made Australian flag apparel. For most Australians changing the date of Australia Day will mean postponing the party, nothing more. But for Indigenous Australians it will mean acknowledgment of social injustices and a willingness to work towards a nation that allows – as Deng Thiak Adut advocated – freedom from fear for all its citizens.