04/02/2016 4:04 PM AEDT | Updated 15/07/2016 12:51 PM AEST

Malcolm Turnbull Has Ducked The Greatest Moral Challenge Of His Political Life


On 3 February 2016 the High Court of Australia dismissed an application which challenged the constitutional underpinnings of Australia's offshore detention regime.

Offshore detention is a practice introduced by the Howard government in 2001 in response to the Tampa episode. The Norwegian cargo ship MV Tampa had rescued 438 people (mostly Afghan Hazaras) after their boat sank. It is startling to remember that, in the year to August 2001, the number of boat people who arrived in Australia was just over 4000. It is sobering to recall that judgment in the Tampa litigation was handed down at 2.15 in the afternoon (Melbourne time) on September 11, 2001. The next morning we read about, and saw footage of, the attack on America.

11 September 2001 changed Australian asylum seeker policy profoundly. John Howard's use of the Tampa episode to make an issue about asylum seekers was carefully calculated: it was designed as an appeal to members of the right-wing of the Liberal Party who had drifted across to Pauline Hanson's One Nation party.

But after the attack on America, there were no longer any terrorists, just "Muslim terrorists", no longer boat people, just "Muslim boat people". After the attack on America, John Howard started calling boat people "illegals". It's false, but the tag has stuck for the past 14 years. When Scott Morrison was Immigration Minister, he not only ramped up the use of "illegal" to refer to boat people, he ordered officers of the Department to refer to them as "illegal maritime arrivals" and he renamed the Department "Immigration and Border Protection".

The obvious political purpose was to make it seem alright to mistreat boat people. After all, we punish criminals, and we need to be protected from them. Morrison's cynical political stunt was dishonest but effective. It is not the first time (and will certainly not be the last time) that plain dishonesty has been used by politicians to gain an advantage.

After a while, though, politicians began to notice that the mistreatment of refugee children was not playing well. After all, it is difficult to see a young child behind razor wire and think of her as a criminal from whom we need to be protected. So the next piece of political cynicism was called into play. Politicians began to wring their hands in anguish at the idea that some boat people drown in their attempt to reach safety. Perhaps those politicians had not been paying attention: it has been widely known for decades that refugees perish in their attempts to escape persecution.

But Australia's politicians managed to use this fact to reach new levels of foolishness. The "Stop the boats" mantra was regularly accompanied by a stated concern that they did not want to see refugees drown. Offshore processing came to be seen as an expression of our deep humanitarian concern that refugees should not be exposed to the perils of the sea. The harsher the treatment in detention, the less likely it was that people would run the risk of drowning. In short, the message became: "We are so worried about you drowning, that we will punish you if you don't drown".

To have its desired deterrent effect, offshore detention has to be harsh. Logically, the prospect of being sent to Nauru or Manus has to be seen as worse than the prospect of being persecuted at home, or the risk of dying in an attempt to find safety somewhere else.

Prime Minister Turnbull seemed to welcome the High Court's decision, as a result of which 257 people will be returned to Nauru. Those people include a number of children, and babies who were born in Australia to refugee parents. Turnbull said that the High Court's decision upheld the existing framework as "legally and constitutionally valid". He said that the framework had kept Australia's border secure and prevented drownings at sea, and that "The people smugglers will not prevail over our sovereignty."

All noble-sounding stuff, but he ducked the greatest moral challenge of his political life. A number of doctors have said plainly that detention on Nauru constituted child abuse. No-one familiar with the basics of the system could disagree. Turnbull had a choice: he could deliberately, knowingly send children to a situation amounting to child abuse, or he could begin to recast Australia's shameful refugee detention system.

The problem facing all LNP politicians, and most Labor politicians as well, is this: for 14 years, both major parties have pursued a hard line on boat people. Their policies have been supported by the great lie, that we are being "protected" from "illegals". LNP politicians have repeated the "illegals" lie too often to keep count. Labor politicians have been too timid to stand up and contradict the lie. As a result, Australia's international reputation has been dragged down.

No doubt it would be difficult for any politician from either major party to stand up publicly and say "We have misled you for 14 years. Now we will tell you the truth...". But that's what they will have to say if ever we are to escape the moral void into which both major parties have cast this country.