Human deterrence policy compromises our moral principles

This article by Professor David Dixon, former Dean of UNSW Law, was originally published in The Mandarin on 26 October 2016. 

Amnesty’s recent report Island of Despair condemns Australia’s treatment of refugees and people seeking asylum on Nauru as founded on deterrence. But it does not directly address the Australian government’s justification of this policy.

The government has been unrepentant, even bullish, in its response. Ministers and officials have responded to their critics by trying to claim the moral high ground. Their priority, they claim, is to prevent the tragedy of deaths at sea. Stopping the boats is, from this perspective, a humanitarian policy, and its critics are at best short-sighted and at worst deeply hypocritical.

By making an example of those who have attempted to reach Australia by sea and by ensuring that none of them ever reaches Australia, the government is acting morally in the interests of people seeking asylum and deserves praise rather than scorn.

Is Australia justified in using deterrence in this way? It is not, because doing so infringes the moral right of the subjects of this policy to be treated as individuals with what legal philosophers term “equal concern and respect”. Treating people as tools to achieve a policy is to deny them that equal concern and respect.

I am not claiming this as a human right in any legal sense. My reference is not to international legal obligations (because to do so would take us down a blind alley of objections to international ‘busybodies’), but rather to fundamental elements of our society’s shared morality: we respect a person’s individuality and treat him or her as we would have others treat us.

This right is not unqualified, and there are circumstances in which we justifiably infringe it. The most obvious and relevant is the use of general deterrence as an accepted objective of sentencing in appropriate criminal cases. If we are prepared to “send a message” to potential criminals by imposing a long jail sentence, why can’t we send a message to potential people seeking asylum by treating those in refugee detention harshly?

In fact, these cases are clearly distinguishable. First, a precondition of resorting to general deterrence in sentencing is that the person convicted has broken a law. As refugee lawyers have to assert repeatedly, it is legal to seek asylum. The vast majority of those processed are found to be genuine refugees. They are fleeing persecution and mistreatment in their country of origin, and there is no justification for Australia to impose further persecution and mistreatment on them in an attempt to deter others from following them.

Second, general deterrence is only accepted as an exception to our moral principle if it is used proportionately. Much as we might like to do so, we would not be justified in jailing for life someone who parks illegally in a spot reserved for drivers with disabilities. There has to be a proportionate relationship between what a person has done and what we do to them pour encourager les autres.

Subjecting innocent people to the horrors documented by Amnesty fails this standard of proportionality.

Mistreatment of refugees and people seeking asylum cannot be justified as a policy of deterrence in the interests of those who might otherwise attempt to come to Australia by boat. We fail to meet fundamental moral standards when we treat people on Nauru — and elsewhere, including those in limbo inside and outside detention in Australia — as less than individuals with rights to dignity and respect. This failure complements our failure to meet fundamental international legal obligations.

No doubt, this will provoke the question: “So you are happy to accept that people will die at sea trying to reach Australia?” The answer is: of course not. We need positive responses to the refugee crisis — and we need to see Australia as a tiny player in a global crisis. It is shameful that Australian politicians recommend our deterrence policy as a model for Europe and elsewhere.

I do not believe that humanitarian concern is at the heart of the government’s deterrence policy. What I see is hypocrisy, self-delusion and crocodile tears. But even if taken at face value, Australia’s policy of deterrence is unacceptable because it compromises principles which are at the heart of our moral identity.

The Mandarin Editor’s note: The Department of Immigration and Border Protection has strongly disputed claims made in the Amnesty report. In a blog post on the DIBP website, the department outlines its corrections and posits that these “inaccuracies and omissions discredit the report in totality”. It is not custom for officials to address the policy rationale.