08/02/2016 5:09 AM AEDT | Updated 15/07/2016 12:51 PM AEST

Returning People To Inhumane Conditions Is Tantamount To Condoning Them


The Australian Government faces a pivotal point in its policy on offshore detention. This despite the fact a High Court challenge into the legal basis for offshore detention has failed.

If 267 asylum seekers are legally returned to Nauru it will mark a fundamental shift in the disincentivisation strategy that underpins offshore detention.

At the moment Australia's policy aims to deter refugees by guaranteeing they will never be granted a home on the Australian mainland but will instead be resettled elsewhere. It aims to reduce the appeal of travelling to Australia in order to 'stop the boats'. The justifications that advocates have used to defend this policy rest on the claim that it deters asylum seekers from making the dangerous voyage across the sea, thereby saving their lives.

Deterrence relies on making the consequences of an action sufficiently undesirable to stop it from occurring. Put simply, it aims to make the costs outweigh the benefits.

This approach has long been the subject of discussion in the ethics of punishment -- should we design punishments severe enough to 'send a message' to other potential criminals? Minimum sentences for so-called 'coward punch' laws are a good example of this approach.

The ethical justification for deterrence approaches to punishment is controversial, but if it is to have any chance of being ethical, the type of punishment inflicted has to be intrinsically ethical. Thus, a deterrence approach which relied -- as a matter of principle -- on torture would never be defensible, whether or not it was effective.

The implications here for Australia's offshore detention policy are obvious. If Immigration Minister Peter Dutton decides to send asylum seekers back to the Nauru detention facility, despite the growing reports of traumatic conditions there, he risks creating a perception that Australia relies on inhumane conditions as part of its deterrence strategy. And relying on such measures may appear tantamount to condoning them.

Of course, every Australian official would rightly baulk at the suggestion we condone assault, rape or abuse for any reason, and I don't believe Australia does condone such things. But if refugees are returned to such conditions without clear signals as to how they will be protected once there, it appears as a crime of omission. We have heard asylum seekers are raped and assaulted. We know some have died. If we return people to those conditions it is morally incumbent on us to show how similar crimes will be prevented in future, because the present measures are, according to reports, proving ineffective.

Doctors, psychologists and support workers have repeatedly stated the conditions on Nauru are a recipe for both physical and psychological trauma. The fact they have spoken out about this despite being legally prohibited from doing so is admirable, but also highlights the severity of the conditions. You don't risk jail to blow the whistle on small issues. No informed person can claim negligence anymore, nor can inaction be a defensible response in the wake of such professional advice.

This has challenged the claim Australia has fulfilled its duty of care to provide the group of refugees once termed "irregular maritime arrivals" with a safe and secure environment for those fleeing persecution. It now falls to the government to demonstrate this is not the case, which would require greater transparency than there has been for some time. Otherwise we can only trust what we are hearing, which is that people including young children have been raped, traumatised and abused in the Commonwealth's care and we are contemplating sending them back to the very place this may be happening.

Unless it provides clear evidence they are protecting people and provide some modicum of transparency, the government can expect continued questions as to whether it is taking effective action against abuse -- some will ask whether it isn't complicit.