I know that politicians do not read their email and that they take advice only from insiders, but still I offer them gratuitous advice. Occasionally I get an answer of the form: thanks for writing, I very much appreciate your input, our policy is as follows…,  if you have any questions please do not hesitate to write again. Someone may have crossed out the formal address at the top and written in “John”, and the letter may be signed in blue ink with the politician’s given name, but obviously it is entirely the work of a staffer.

19 Feb. 2016

Dear Mr Turnbull,

I would like an appointment with you to discuss the closing of the Manus and Nauru detention centres. ….

Kevin Rudd’s decree that no one sent to Manus and Nauru would ever settle in Australia may have seemed a good idea at the time because it removed incentives to take the dangerous voyage, but Mr Rudd did not anticipate that it would lead to indefinite detention in conditions of abuse.

There are several possibilities. One is the bold solution, to announce that since things have turned out differently the detainees will be settled in Australia after all.

Another, which would be consistent with Rudd’s decree, is to make an arrangement with the European countries now trying to accommodate large numbers of Syrian refugees. Australia should offer to take (consenting) refugees the Europeans send if in return they accept for settlement the people from Manus and Nauru. (Compare PM Gillard’s “Malaysia solution”, where Australia promised to take 4000 processed refugees in exchange for Malaysia’s accepting 800 asylum seekers.) Refugees now in Europe might well consent to be sent to Australia because it is an English-speaking country; in most parts of the world if people know a second language it is English.

A third is to negotiate again with New Zealand. Mr Key has recently offered to accept some of the asylum-seekers now in Australia slated to be returned to Nauru. We are concerned not only for the people currently in Australia, but for all the detainees. Retaining here only some of them would be a cop-out. However, Mr Key might be willing to make again the agreement he made with Julia Gillard. Mr Abbott rejected that arrangement, saying that “People ought not think that New Zealand is some kind of a consolation prize if they can’t come to Australia”, http://www.abc.net.au/news/2016-01-12/nz-unable-to-accept-nauru-refugees/7082764. On this view nothing short of lifelong misery would do—any kind of “happy ending” would be a consolation prize and an encouragement to people smugglers. Unfortunately you have already echoed Mr Abbott in rejecting the NZ offer, http://www.abc.net.au/news/2016-02-17/visa-cancellations-on-agenda-for-turnbull-key/7176516. You should reconsider.

The Gillard and Rudd governments tried to find other Asia-Pacific countries to accept the detainees for permanent settlement and you have continued their attempts. It is clear by now that there is no realistic prospect of success. Similarly there have been efforts to improve the living conditions of detainees and protect them from abuse, but money and good staff are short. To think that with a bit more time and effort all will be well is a delusion. The whole point of detaining people on Manus and Nauru is to prevent any effective supervision of what happens to them, http://members.iinet.net.au/~akilcull@homemail.com.au/Refugees.html#conf (my speech at the 2014 ACT ALP Conference). They must be brought to where their treatment will be properly supervised.

I endorse your intention to run a genuine “cabinet government”, but cabinet members are chosen by the Prime Minister and cabinet decisions are not made by counting heads. A Prime Minister in a strong political position can and should shape cabinet decisions. Your political position is very strong at present. There is no possibility that you will be replaced before the coming election, or afterwards, unless you lose public support. The public will not be forgiving if you do not offer firm leadership and instead allow so-called conservatives to determine government policy.

In one way or other the detention camps on Manus and Nauru, and any similar camps in Australia, must be closed in the near future. Decent people abhor violence against women and are shocked at what is being revealed by the Royal Commission into child abuse. Abuse of men, women and children is happening also in these detention centres. The reason why critics of government policy focus on the children is that no one can argue that the children are guilty of any wrong-doing. The detention of people—men, women and children—who have not been convicted of any crime is a violation of the rule of law.

The various arguments you and other politicians use to justify the harsh treatment of these people—in terms of border security, drownings, people smugglers, etc.—are not convincing. Against all of them there is the decisive objection that it is wrong to use harsh treatment of innocent people as a means to any end.

20 February 2016.

This is a follow-up to an email I sent yesterday.

This is what I would like you to do:

(1) As soon as possible hold a cabinet meeting about Manus and Nauru. Begin by telling the cabinet what you want to do, listen, modify, then at the end tell them what you will do. None of them will quit.

(2) As soon as possible after the cabinet decision get a video link to Manus and Nauru and tell the detainees what you will do and what the time frame will be, giving a date.

You should tell them that all who are assessed as genuine refugees will get permanent residence in a country with a reasonable economy and a reasonable level of safety and political freedom, that they will have there the right to work for their living and the right to access education and medical services on the same terms as other residents.

You may not wish to say, but you should have in mind, that if they can’t be resettled to that standard in the specified time frame, they will be settled in Australia. Meanwhile you should talk to New Zealand and to European governments.

Some brief comments on some commonplace arguments for “harsh” treatment:

Securing the borders: People without visas coming by boat do not threaten border security. They are not armed. They do not land surreptitiously and vanish into the countryside. Boat arrivals contact authorities and ask for asylum.

Preventing drownings: People in desperate and intolerable circumstances have a right to take risky means to change their situation. It’s up to them to decide what risks to take. We have no right to punish people who have done what they have a right to do, even if it’s dangerous, to deter others from doing what they also have a right to do. There are other ways of reducing the incentive to take dangerous voyages—see my emails to Andrew Leigh MP, http://members.iinet.net.au/~akilcull@homemail.com.au/Refugees.html

Putting people smugglers out of business: The argument is sometimes framed in terms of a “business model”. People fleeing an intolerable situation are imagined considering the smugglers track record. If he can say, “Here is a list of people I got through to Australia, after a few years of pleasant detention on a Pacific island”, then the customer signs up. If the Australian government can make sure that detention is “harsh” and that the customer never gets through, then there will be no sales.

This seems a very unrealistic model of most of these transactions.

Some (not all) people smugglers are unscrupulous wicked people who rip off asylum seekers and care nothing about their survival—or even cage them in the jungle and extort money from their relatives. But it is perverse to try to destroy people-smuggling by inflicting additional injury on asylum-seekers. No one would think that financial fraud should be discouraged by fining the victims of fraudsters to make people more cautious.

The logic of the anti-people-smuggler argument is that people who use people smugglers not only must never get to Australia, but must never get any “consolation prize” or happy ending at all. Life-long suffering must be their fate.

Kevin Rudd’s massive social science experiment: You frequently use this language (http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-defends-harsh-boats-policy-as-necessary-20140507-zr66s.html, and often since). At the same time you promise to modify your own government’s policies if they “don’t work” (http://www.theguardian.com/australia-news/2015/oct/23/the-malcolm-turnbull-interview-if-something-isnt-working-chuck-it-out), which is an appropriately experimental approach. Every government action is an “experiment”, since no one can predict with certainty what its effects will be.

You also say (on a different topic) that “Fairness has got to be the key priority” (ibid.) Justice, humanity, respect for human rights are also key priorities. Be fair to Rudd. In doing away with the “Pacific solution” he was not experimenting to see what might happen, as a contribution to social science. He was trying to achieve a more humane, fairer, juster treatment of asylum-seekers, more respectful of their human rights. This was a worthy end, which a Turnbull government should also seek.

Ethics: The arguments about border security, drownings and people smugglers are in terms of means and ends. Any policy of deterrence means inflicting or threatening bad things to some people as a means of changing the behaviour of others. (Terrorism is doing this to innocent people.) Some users of such argument invoke Utilitarianism. For example, Andrew Leigh MP, http://www.andrewleigh.com/5944: “I’ve come to the view that which approach you prefer depends on whether you think in categorical or utilitarian terms… Utilitarian reasoning looks at the greatest good for the greatest number... In answering most problems, I tend to use utilitarian reasoning. That leads me to believe that we have to deter a sea journey with a one-in-twenty chance of death.” Similarly a correspondent in the Canberra Times, 11 February: “Is the evil of killing the innocent child [referring to “baby Hitler”] justified by the saving of those lives? For English utilitarian philosophers Jeremy Bentham and John Stuart Mill, the answer would have been obvious — weighing the costs and benefits on each side tells you how to proceed. But others, among whom we can number John Blount (Letters, February 8), are not so sure. Mr Blount believes the ends don’t justify the means: that we cannot knowingly harm those in our offshore detention centres simply because it saves the lives of those who would otherwise die taking a people smuggler’s boat to Australia.”

This interpretation of Utilitarianism was demolished long ago, in 1953, J.O. Urmson, “The Interpretation of the Moral Philosophy of J.S. Mill”, https://books.google.com.au/books?id=CmueQnjmQIMC&pg=PA1&lpg=PA1&dq=urmson+mill+utilitarianism&source=bl&ots=YvgV_PBa3B&sig=kEBmIA-UeuqZjG6os7Uzvf3ckVo&hl=en&sa=X&ved=0ahUKEwjAnfrA0fDKAhVj3KYKHfGrCmgQ6AEISDAG#v=onepage&q=urmson%20mill%20utilitarianism&f=false “Instead of Mill’s own doctrines a travesty is discussed”. Urmson pointed out that besides the Utility Principle Mill stressed the importance of other moral principles, which he called secondary principles. Secondary principles include prohibitions against lying, against killing innocent people, against the imprisonment of people not convicted of any crime, etc. Such principles put constraints on what we can do to further legitimate or even praiseworthy ends, such as preventing drownings, securing borders, stopping people-smuggling. Utilitarians do not believe that the end always justifies the means. If they did, Utilitarianism would not be an interpretation or rationalisation of morality but the rejection of morality. See also my article in Ethics, 1983, http://www.mq.edu.au/about_us/faculties_and_departments/faculty_of_arts/mhpir/staff/staff-politics_and_international_relations/john_kilcullen/utilitarianism_and_virtue/

Users of these “utilitarian” arguments must ask themselves whether they believe there are any ethical constraints at all on the way governments treat people. Mill and other classical Liberals certainly believed there were.