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.
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.