The problem that Keane and Manne have to deal with is this. Our commitment to refugees is an argument based on human rights, and on a categorical imperative. The Convention we are signed up to makes a promise to any potential refugee that if they reach our shores, they have the right to make a claim for asylum. Recent laws we have put in place may interfere with that treaty/promise, but that doesn’t mean we haven’t made it.
The extreme form of such a morality would suggest that we make no consideration of the situation of refugees before they make landfall, at which point we would accord them full rights. But such abstract positions become immoral in themselves if they become an excuse for allowing great wrong to occur.
So both Manne and Keane put the emphasis on a utilitarian argument — the need to dissuade people from lethal voyages outweighs honouring the rights of others to claim asylum. They are appealing implicitly to the process by which general rights are curtailed for specific good — a compulsory seat-belt law would be one mundane example.
Yet such an example gives the reasons why overseas mandatory detention can’t be advanced in that way. We make such trade-offs in situations like the seat-belt one, of clear knowledge and limited impact on rights.
The boat-borne refugee situation is the reverse — we are being asked to wholly negate someone’s rights (that we have explicitly promised them), in a situation where their life and freedom will be wholly annihilated indefinitely, all as a strategy for dissuading unknown future persons from making a possibly perilous journey.
By that definition we are using the “deterrent” — the people locked up for years on Manus, Nauru, in Malaysia, or god knows where — as a means to a utilitarian end. It is a clear use of human beings in their totality, as means to other ends, and cannot in any sense ground a moral policy.
Such a negation of the humanity of the present refugee in favour of the welfare of a possible future one thus makes the ultility calculus impossible. The old challenge to utilitarianism was the question as to whether one can torture a small number of people to make a larger number happy.
Since we know that prolonged mandatory detention has many of the effects of torture, on adults and children alike, the solution that Rob Manne proposes — overseas detention in Australian de facto dependencies for “lengthy” periods that would deter others — would seem to elevate that philosophical conundrum to the policy level.
http://www.crikey.com.au/2011/12/22/rundle-refugee-debate-dominated-by-compromise-not-core-promises/
