By Emma Larking
Is there anything money can’t buy? It buys most things, apparently. A list compiled recently by American philosopher Michael Sandel includes a prison cell upgrade, the services of a surrogate mother, the right to shoot an endangered black rhino, and admission to a prestigious university. Sandel’s list is a prelude to his investigation of what he calls ‘the moral limits of markets,’ and to his claim that ‘there are some things money should not buy.’  Here I want to ask if money can buy us out of our moral obligations to asylum seekers. Kevin Rudd would like us to think it can. He maintains that the ‘Regional Resettlement Arrangement’ (RRA) signed last Friday with Papua New Guinea PM Peter O’Neill will ‘ensure that we have a robust system of border security and orderly migration, on the one hand, as well as fulfilling our legal and compassionate obligations under the refugees convention on the other.’
I personally disagree with how Rudd frames the issue. I think we have obligations to refugees that go well beyond the UN Refugee Convention, whose provisions are extremely narrow. But for the moment, I want to address Rudd’s claims on his terms.
Rudd may be right about our legal obligations under the Refugee Convention, although the issue is contentious. Michelle Foster, director of Melbourne University Law School’s International Refugee Law Research Program, argues the deal is ‘in clear violation of international law,’ but acknowledges it may be consistent with Australian law. Alex Reilly, of the University of Adelaide’s Law School, agrees with Foster that Rudd’s deal is likely to survive a challenge in the Australian High Court, although he cautions that ‘statutory interpretation is not a science’ (see Reilly’s discussion on ‘The Conversation’) I think it’s likely that the plan will be deemed lawful by the High Court, which has historically been excessively deferential to the Executive in matters related to immigration.
So much for our legal obligations. What about what Rudd calls our ‘compassionate obligations’? Is it ok to ‘off-shore’ these obligations, for a price? Let’s be clear about what is involved here. Rudd is claiming that we are complying with our moral obligations by sending people who seek refugee protection from Australia to Papua New Guinea. But we are not just sending people to PNG so they can have their protection claims considered in accordance with the Refugee Convention, we are sending people to PNG to be incarcerated, and then at some point to have their protection claims considered.
The Australian government is now ‘racing’ to expand the capacity of the Manus Island detention centre, and the RRA envisages the construction of more such facilities. So we need to think about the morality of buying an off-shore detention regime before we consider whether it’s ok to pay another country to discharge our compassionate obligations.
Because detention involves the deprivation of a person’s liberty, it’s usually considered an extremely serious form of punishment, worthy of concerted efforts to ensure access to justice for those detained. For many years governments of various stripes in Australia have argued – and the High Court has accepted – that the detention of asylum seekers is an exercise of the government’s administrative powers over immigration, so people in immigration detention have been denied access to the criminal justice system and the procedural protections it affords. By detaining people in other countries, we also deprive them of access to the oversight and protections that might – however inadequately – be provided by other Australian institutions, such as the Australian Human Rights Commission.
We already have experience of what conditions are like for asylum seekers in camps on Nauru and Manus Island. When people are deprived of their liberty, when they are herded together in squalid conditions and they don’t know when, or if, their circumstances will change, when they have no control over their fate, and no one is interested in listening to their experience, it’s surprising how many respond with dignity and courage. Nevertheless, the conditions in immigration detention eventually grind people down. Some become angry, violent, and abusive. Rather than abusing others, many resort to self-harm. The majority become depressed, horrifying numbers become suicidal. If we pay another country to do the detaining on our behalf, are we responsible for the suffering inflicted? Clearly we are.
What about if we pay the other country to detain people, but we ask that country to ensure the conditions in detention are humane? (According to the RRA, ‘Australia and Papua New Guinea take seriously their obligations for the welfare and safety of any person transferred by Australia to Papua New Guinea under this Arrangement.’) Given the likelihood of abuse associated with any detention facility operating in the absence of rigorous oversight, we would be obliged to provide that oversight, and to do whatever else is necessary to guarantee humane conditions. We haven’t chosen to do this in relation to detention facilities within Australia, where abuse and self-harm are rife, and a recent death didn’t even warrant a mention in the Australian media; is it likely we will do it in relation to PNG?
The political genius of the RRA is that our government has no desire to monitor the conditions in the camps (it wouldn’t provide the Australian Human Rights Commission with access to Nauru – I see no reason for it changing its tune now). The government reasons that if Australians don’t know what’s going on in the camps, they won’t care about the people detained there. There are certainly grounds for thinking this, but it doesn’t mean we’re not responsible. We put the people there. We will continue to pay for and to service the detention facilities (see article 9 of the RRA). We are responsible.
Money may buy us an off-shore detention regime, but it doesn’t absolve us of responsibility for that regime. Would things be any better if PNG agreed to house asylum seekers in the community while their protection applications are considered, and then to re-settle all those found to be refugees? (Note that this is not what is provided for in the RRA, which specifically states that ‘transferees’ will be housed in ‘regional processing centres,’ in the ‘first instance’ on Manus. A ‘regional processing centre’ is a locked detention facility.) Would this be an acceptable means of buying our way out of our obligations of compassion? This question needs to be considered from two perspectives. One perspective relates to the kind of people, or country, we are. The other perspective relates to the people who are the objects of our compassion.
From the first perspective, there seems to be something wrong with paying someone else to do our good deeds. It’s likely to make us nastier, more self-serving people (a nastier, more self-serving country). Certainly we lose the chance to be enriched by the experience of giving directly to and engaging with others. But perhaps we are merely prioritising our good deeds – choosing to do more for others we know, in the neighbourhood, or down the road? If that’s really so, it might make our moral out-sourcing more acceptable, and less worrying, for our national character. But what of the second perspective – the people who are the objects of our out-sourced compassion?
From this perspective, our sole concern is with ensuring that asylum seekers are treated with humanity and dignity; that they are not expelled to countries in which they may be persecuted or killed; and that they are re-settled in a safe environment if there is genuine reason to fear that expulsion will lead to them being persecuted or killed. Could we be assured of this if the RRA was amended to rule out detention and to provide for community settlement?
According to the Australian Government’s current ‘Travel Advisory’ for PNG, anyone visiting the country should exercise a ‘high degree of caution’ given the high levels of serious crime; the likelihood of ethnic disputes escalating into violent clashes and general lawlessness; and the increase in reported incidents of sexual assault, including gang rape and the targeting of foreigners. The travel advisory adds that cholera is now considered endemic in PNG. As University of Sydney’s Ben Saul pointed out recently in the Age, PNG is ‘one of the poorest countries in the world’ – if it ‘can’t provide basic rights for its own people’, is it really likely to be able to accord such rights to asylum seekers?
What about PNG’s ability and willingness to assess asylum seekers’ protection claims under the Refugee Convention? Although PNG has signed the Convention, it did so with significant reservations, so it is not bound by some of the Convention’s most important provisions, including art.26 (freedom of movement); art.31 (right not to be penalised for unlawful presence or entry); art.32 (right not to be expelled); and art.34 (assimilation and naturalisation of refugees) (the other exclusions are articles 17(1), 21, & 22(1)).
The RRA specifies that PNG will ‘immediately take steps to withdraw its reservations to the Convention with respect to persons transferred by Australia to PNG’. Great. But does that mean it will fairly assess individuals’ protection claims? The UN High Commissioner for Refugees points out that while the country’s migration legislation allows its Minister for Foreign Affairs to ‘determine’ a person is a refugee, it ‘does not provide any details about how this determination is to be made’. The Commissioner concludes that the country’s national legislation ‘does not provide an adequate framework to deal with asylum seekers and refugees’.
So even if we’re not worried about the kind of people, or country, we will become if we off-shore our moral obligations to asylum seekers, we are not justified in doing so in this case because those obligations will not be met. We will be shipping vulnerable, traumatised people out of sight and possibly out of mind, but they won’t be being cared for, and we won’t have bought the right to call ourselves ‘compassionate’.
 Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets, New York: Farrar, Straus and Giroux, 2012, pp3-4. Thanks to Regarding Rights contributor Ned Dobos for referring me to this book.