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Doing Evil to Achieve Good? The Goverment's 'Moral Calculus' on Asylum Seekers

Monday, 3 December 2012  | Doug Hynd

Graeme Swincer in a previous article in Engage.mail provided a very helpful analysis of the Expert Panel on Asylum Seekers report.  Frank Brennan has recently given us an account of the policy options and an alternative to the Government’s approach: “Seeking a more ethical way to stop the boats and deaths at sea’.

Christians seeking to find their moral compass in a time of fear created by both major political parties in their race to the bottom as to who can devise the 'toughest' (translation 'cruellest') policy, need to return to the teaching of Jesus to get oriented. Reflection on the Parable of the Good Samaritan will provide a bracing and challenging point of departure to guide us in our approach to current debates over the treatment of asylum seekers. If we wish to dismiss it on the grounds that it is not “practical” then we should reconsider our decision to describe ourselves as followers of Jesus. In the longer term it may be the most “practical” approach there is. But that’s an argument for another time. 

The recent announcements (see here and here) by the Australian Government on the treatment of asylum seekers, subsequent to the Expert Panel report, has been accompanied by much hand-wringing by any Government Minister in sight over the moral difficulties in their decisions. They regret that the Government needs to be “tough” to save lives and prevent people from risking their lives on dangerous boat journeys and to send a “signal” to people arranging the boat travel, a group otherwise referred to, as “people smugglers”. 

Listening to the exchanges on a recent episode of Q&A, the Government policy seemed to be directed almost exclusively at the “people smugglers”. If the “people smugglers” would only go away, the suggestion is that the “problem” would be solved. And perhaps as viewed by the political parties it would. The continued arrival of refugees is a reminder that there is a world out there of which we in Australia are a part. Indeed they remind us, should anyone care to think about it, that Australia is deeply implicated through its involvement in warfare in Iraq and Afghanistan as an ally of the United States in the creation of the circumstances that is the source of much of the flow of refugees. 'Out of sight, out of mind' seems to be our motto, and so we can continue the path of denial of responsibility as long as those pesky refugees don’t keep turning up to disturb our bubble of comfort. As Jack Waterford from the Canberra Times observed, "What shames me most, I guess, is that a good many of these refugees have fled to places such as Australia only because of the miseries we Australians have heaped upon their countries in the name of liberating them from tyranny."

Leaving aside the reality that policy debate has focussed on a symptom - “people smuggling” rather than the central issue of the humane and effective handling of asylum seekers throughout South-East Asia - the moral assessments of the policy changes need more analysis than they have so far received. 

Let me see if I can unpack the Government’s logic of deterrence: 400 people seeking refugee status are held on Nauru in detention, that is, by coercion, not because they have done anything wrong, but to try and influence the behaviour of people unknown, to try prevent them undertaking an activity that is grounded in international law, seeking asylum. Holding people under duress to try and influence the behaviour of other actors normally falls within the category of an activity that we would normally label 'hostage taking'. 

What the Government is saying in its policy of deterrence is that we are going to cause cruelty to people, to try and save the lives of others. So what are the harms that the Government will cause by this policy, and what are the evils that they wish to prevent? 

The evil they wish to prevent are the deaths of some unknown proportion of people who take a risky and dangerous voyage to Australia to seek asylum from persecution. 

So on the one side of the ledger we have, if the policy is successful, a reduced number of deaths in transit. But notice something interesting here: the choice taken by people who risk their lives is their choice, presumably taken with some knowledge of the risks. The Government, without knowledge of their specific circumstances, is seeking to substitute its judgement as to the balance between the risks of loss of their lives and the risks that they face if they do not take the boat journey. The government is essentially saying, "We know better than you how much risk you should take." The government policy is based on a presumption that nothing bad will happen to them if they do not take the risk of the sea voyage. The judgement from an air-conditioned office in Canberra as to what that calculation looks like may be very different from the point of view of a refugee. 

Government  assumptions about the decision-makiing processes of people in desperate situations may not actually work out in the way the policy is intended to operate. If you are in a situation of dislocation in which you can't go back home as most refugees are, the calculations and the risks you may be willing to face might look completely different to the calculations as envisaged by a policy maker comfortably situated in Canberra, for whom a strictly utilitarian policy logic seems unassailable.  

As an indication of the refusal to take seriously the decisions being made by refugees we have the statement by the Home Affairs Minister that the fact that the boats are still coming is because “the people smugglers won’t give up”. This seems to me to have matters the wrong way round. The process is being driven by refugees and their decisions, not the other way around. ‘People smugglers’ didn’t create the circumstances that are driving the refugees to take to the boats. That lack of logic should tell you something about how policy is being driven at the moment. 

On the other side of the ledger we have some information based on experience in recent years as to the harms that will be done by the Government’s policy. We can expect a number of suicides, attempted suicides and mental health problems for those detained on Nauru and Manus Island, that will affect many individuals and their families for the rest of their lives. The inability to work for those on the Australian mainland while waiting for the granting of protection will have similar affects on self-esteem and self-confidence as well as creating an alienated, economically deprived group within Australia over the longer term.  

To knowingly cause mental health problems that may lead to suicide and self harm, and to actively prevent by force of law people from exercising their human vocation to work and to contribute to family livelihood and to the community welfare as well as to actively maintain people in abject poverty are all outcomes which are evil. The government and opposition are both committed to these outcomes as a matter of policy. How do these weigh in the balance against the objective of saving people’s lives? What we are saying to asylum seekers who come is "You must pay the price in your bodies and family lives to try and prevent other people making a choice that might result in the loss of their life." 

On its own terms, that is a somewhat dubious moral position, in that we are putting in the balance certain harm to some people against an uncertain number of deaths that are prevented (if the policy is successful in its goals). But what if the policy does not succeed in preventing people from taking the risk? In that case, we will have succeeded in being cruel for no possible, even vaguely arguable moral gain. We will not have stopped the deaths of those in transit, and the admitted cruelty to those refugees will have been undertaken without any arguable moral benefit. 

What is the evidence to suggest that the policy will be successful? The only study that I can find, undertaken back in 2009 here on the Crikey blog, suggested that push factors tended to override pull factors in driving people seeking asylum by boat. The Pacific solution did not stop the boats from coming. The author explains:

it diddled the stats by redefinition. Boats still made the attempt to enter Australia – which is a point worth noting as many of the proponents of Pull Factors cite reducing the risk of death from reducing the number of people attempting the voyage by boat, as one of their key rationales. Yet we know that SIEV(s) 5,7,11 and 12 in 2002 attempted to make the journey and were returned to Indonesia while SIEV(s) 4,6 and 10 actually sank. That was in very late 2001 through late 2002. In 2003 we know that boats were still attempting to make the voyage such as SIEV 14, but were again towed back from whence they came.

The UNHCR estimates that 1600 people were diverted throughout the time of the Pacific Solution, but hard numbers are difficult to come by.

In summary, the policy is an attempt to use a form of hostage-taking and causing a range of cruelty and harms to people with the intention of trying to discourage people from making a choice that involves the risk of death in pursuit of asylum. If the policy works, we have a situation in which the most vulnerable have borne the burden of the Government’s achievement of its policy goals. Frank Brennan is of the view that the principle is too complex to be workable and too uncertain to be a real deterrent given that there is no effective regional processing system operating in South-East Asia, a point that the UN High Commission for Refugees has raised with the Government.

If the policy doesn’t work (and the odds are against it) then the Government will have caused substantial harm to a vulnerable group of people for no outcome at all. Evil will have been done and no lives saved. On any moral calculus you like, that is a big risk to take.

On the Government’s logic, the Good Samaritan should have left the traveller by the side of the road. Helping him out would only encourage more travellers on to the Jerusalem-to-Jericho road to become victims to robbers.

In the meantime, the implications for Christians of the Parable of the Good Samaritan are pretty clear. We need to get involved in those community groups that will do what they can to act as neigbours to the vulnerable strangers in our midst. We can also begin to conduct a 'guerrilla tactic' of polite, respectful correspondence with our local members and political leaders on the moral and policy incoherence of the policy.  There is room for an ongoing attempt to contribute to the education of our parliamentary representatives and a prodding of their conscience by a persistent correspondence on this issue with your local member and/or Senator.  

If you are similarly concerned and you want to provide a voice for people who have no voice, here are some issues about the policy and its implementation that you could take up with your local member. Get them and their staff to pay ongoing attention to the issues and make it clear that even if you are in a minority in terms of public opinion, you are going to keep raising the questions. Remember Jesus’ parable of the widow and the unjust judge. 

There have been a number of substantial moral and policy critiques of the Government’s policy in the media. Use the information from them to inform your letters to members of Parliament. For example:

  • William Maley on some of the legal issues - here. 
  • Amnesty International report on refugees in Nauru - here. 

The 'No Advantage' Principle:
With respect to the 'no-disadvantage' test, raise questions about the social implications and harms that the policy as announced is going to cause by being detained on Nauru or Manus Island for up to five years, or in the community in Australia on a payment that is less than the totally inadequate level of (the totally misnamed) Newstart Allowance.

Mental Health Concerns:
Given what we know from previous policy initiatives by Australian Governments, of both political persuasions, about the impact on the mental health state of people detained for long periods of time, we should be concerned about the cultural appropriateness and adequacy of the mental health services that will be provided by the Australian Government to refugees moved to Nauru and Manus Island. A request for an account of the service levels that will be provided and how it is envisaged that the services will be delivered is appropriate. Given what we know about the delivery of such services in the past this is an issue that sadly is likely to require ongoing public attention and pressure.

Australian Selfishness:
One issue of principle about the offshore processing policy that has not received much attention is its fundamental selfishness.

Both Papua New Guinea and Nauru both are faced with development issues but have only limited administrative capacity. Taking on Australia's responsibilities through offshore processing puts demands on their respective Government's limited policy development and implementation capacity that would be better directed at helping improve the lot of their own communities. That is we are asking them to devote limited resources not for the benefit of their own communities but to help solve a political problem for Australia, a country that has extensive resources. There is a substantial element of injustice and selfishness embedded in this policy driven as it is by a refusal of many Australians to face the reality that we live in a troubled world and lack of willingness to share the burdens of that trouble.


Doug Hynd was formerly a senior public servant, has been a highly active member of the Zadok community and is currently a PhD student in theology and public policy at the Australian Catholic University. He serves on the board of Ethos.


Andrew Kulikovsky
June 18, 2013, 11:51PM
This article makes many claims and assertions that I do not believe are warranted. The author seems too quick to make negative moral judgments about others with apparently little or no knowledge of the facts, the policy difficulties, or the motives of the policy makers.

The author’s claim that the major political parties have created “fear” and raced to the bottom to devise the 'toughest' (translation 'cruellest') policy is the first example. “Cruelest” implies a deliberate intention to inflict pain and suffering. That is presumptuous if not slanderous. Fear motivation? There are actually very real social, legal and national security issues that come into play when our borders are left unchecked.

Are all those that claim to be asylum seekers actually genuine, or are they simply looking for better economic opportunities or wanting to exploit our generous welfare system, or are they criminals or terrorists trying to escape authorities?

Indeed, a former senior Immigration Department official has admitted that our refugee determination process has broken down completely, and many claims to refugee status are fraudulent. The system favours those who tell lies over those who tell the truth. In The Weekend Australian he wrote: "Having considerable experience interviewing and assessing boat arrival claims, I can confidently say ... that we are approving large numbers of people who are fabricating claims...Indeed, the current refugee determination system works in favour of those who are most adept at spinning a yarn."

Moreover, as has recently come to light, a known and convicted jihadist terrorist was held as an asylum seeker in low security family accommodation at Inverbrackie in the Adelaide Hills.

The claim that Australia is deeply implicated in creating asylum seekers because of its involvement in warfare in Iraq and Afghanistan as an ally of the United States is simply not true. Most refugees are coming from Sri Lanka, Iran, and Pakistan. These countries have nothing to do with Australia’s involvement in the mid-east conflicts.

The claim that people held on Nauru in detention and seeking refugee status have not done anything wrong is also simply not true. They entered Australian territory without identification and without authorisation. That is a violation of the Migration Act. One does not need to violate Australian territory let alone make a dangerous journey by boat to seek or apply for asylum. Furthermore, a country is not obliged to accept their claims for asylum.

It should alo be noted that people held in detention are actually free to return to their originating country at any time. And what cruelty are we inflicting on them? Asylum seekers in detention are given every comfort and service at no cost. They are denied only their physical freedom to move around. For genuine asylum seekers in fear of their lives this seems a good deal. For those who are not genuine, they are free to return home at any time.

It must also be pointed out that when the Coalition left office in 2007, there was only a handful of people in detention. As at 30 April, there were nearly 12,000 people in detention including over 2000 children, and at least 1000 people have died at sea trying to come here after the ALP government changed policy and weakened laws. So, in the end, who really has the more humane policy?

Does detention “knowingly cause mental health problems”? This is a dubious claim and depends greatly on how you define “mental health problems”. Detention has always been intended to be temporary until checks are made and claims are resolved. If mental health problems are a reason not to detain people, then why do we imprison criminals? Won’t their mental health be affected?

In any case, the bggest contributor to the long-term detention and asylum seeker anxiety is the lengthy assessment and process. If asylum seekers have travel documents or other proof of identity, a determination can be quickly made and detention is short. But people smugglers and asylum seeker advocates advise people to dump any documentation, resulting in more difficult and longer assessment periods and adverse decisions are then open to appeal in higher courts. These appeals, given their number and the heavy workload of the Federal Court in regard to other matters, can takes years to be resolved.

Regarding self harm by asylum seekers, this is more often than not a calculated political statement rather than a result of declining mental health. Regarding suicide, to my knowledge the only known case of suicide among asylum seekers is a Sri Lankan man who was actually living in the community in Perth.

I agree that preventing people from working is bad policy but this is the ALP government’s policy not the Coalition’s.

In conclusion, the article seems rich in moral posturing but light on in regard to facts and reasoned argument.

In Him,
Doug Hynd
June 19, 2013, 6:41PM
The response by Andrew does not really engage with the logic of the moral significance of current asylum seeker policy that I attempted to explore. His critique, if I can call it that, suggests that the argument I develop is light on evidence, a view that I strongly reject.

Under those circumstances probably the best way I can both make my case and advance the discussion on a firmer basis without getting into a ‘simple assertion of counter claims, is to provide links to some of the key pieces of evidence on issues to do with the policy, its implementation and in particular issues of mental health and detention. That way it is not simply a matter of trading assertions but dealing with authoritative discussion by people with expert knowledge and close involvement. People who care to follow up these links can make their own judgement as to what substance there is in Andrew’s criticism of my argument. While I agree that the issues are complex and in a public policy term “wicked” I do not accept that Christians should simply surrender to the prevailing zeitgeist of fear and accept the demonization of the stranger by the majority of our fellow Australians.

I should make clear, though I did not major on it in the article, that there is a strong theological and biblical underpinning that shapes my concerns on this issue as an expression of my discipleship. I would draw attention here in particular to the detailed account by Chris Marshall of the parable of the Good Samaritan in his recent book Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime and Restorative Justice (Cascade Books, 2013) and the radical call of Jesus. I would also draw attention to those themes in the New Testament (Hebrews and I Peter come to mind) that remind Christians that we are in our own way strangers and exiles whose ultimate loyalty is not to the powers that be but whose call is to seek the welfare, the wellbeing the peace of the earthly city while on our pilgrim way.

It may also be relevant to note that I bring to this debate in addition to the above noted Christian commitment:
• Extensive experience in the making and implementation of social policy in the Australian Public Service with an awareness of the complexity of policy-making and program implementation
• Practical involvement in a community group involved in the support of refugees over the past decade and substantial personal contact with asylum seekers over that period

In what follows I will simply provide links to substantive sources grouped under a number of key themes without providing commentary, on the assumption that anyone interested in becoming informed on the issues will follow the link and will not need me to insert myself any further. Some of the links will take the discussion further than my initial argument, or Andrew’s critique. Hopefully that might be helpful.

So read, reflect, seek the truth and do not give way to those who for their own gain would seek to make us afraid.

Doug Hynd

General issues on Asylum seekers and international conventions
The Refugee Council of Australia has a number of useful fact sheets covering all the basic issues including number of myths about asylum seekers that are particularly relevant to Andrew’s assertions:
http://www.refugeecouncil.org.au/f/myth-long.php This link will also connect you to the other RCA fact sheets on refugee policy and programs.
For a discussion on the legal issues see Australian Commission on Human rights:

Frank Brennan has extensively engaged with issues of asylum seekers and public policy over the past decade, bringing his legal training and his commitment to a Catholic social ethic to his discussion of public policy. His more recent contributions include:

His early book Tampering with Asylum is worth revisiting.

The logic of government policy and deterrence
Andrew Hamilton “Making an example of Asylum Seeker children”
Frank Brennan on the Huston report and deterrence:

Scott Stephens: http://www.abc.net.au/religion/articles/2012/11/05/3626029.htm
Waleed Aly: http://www.abc.net.au/religion/articles/2012/08/10/3565015.htm
Julian Burnside; http://www.abc.net.au/religion/articles/2012/07/11/3543738.htm

Detention and mental health
Australian Psychological Society – Web site with links to extensive resources and studies: there is well-documented evidence about the deleterious effects of immigration detention on the mental health and well-being of asylum seekers, particularly those who are already vulnerable, such as children, or those with pre-existing trauma or mental illness. This link provides access to literature surveys and submissions to Senate Inquiries and the Expert Panel on Asylum Seekers on the issues.

Other sources include:

Refugee Council of Australia

Typical of the research literature on detention and mental health is:

On the long-term costs of the impact of detention on mental health see the study by the Good shepherd Sisters:

Theological discussion
Mark Brett: http://www.abc.net.au/religion/articles/2013/06/17/3783383.htm
Erin Wilson: http://www.abc.net.au/religion/articles/2013/06/07/3777488.htm
Luke Bretherton: http://www.abc.net.au/religion/articles/2012/06/28/3535073.htm

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