Asylum-seeker policy should not involve the idea of deterrence, i.e of punishing survivors of the boat journey to deter others. Detainees and former detainees on Manus and Nauru should be given a definite date beyond which they will not be in PNG or Nauru (unless they choose), meaning that some will be brought to Australia. Work rights should be given to all asylum seekers or refugees, Australia should do what it can to improve the situation in countries of origin and in transit countries.

Turnbull, Shorten, Marles on Manus and Nauru

Messages to Malcolm Turnbull, Messages to Bill Shorten

Critique of a speech of  Richard Marles

Speech to 2014 ACTLabor Conference

Email to Andrew Leigh 10/7/2012


this morning’s Canberra Times quotes you: “The Greens have always argued for on-shore processing of asylum seekers. That’s the situation that is in place at the moment and you can see the results.”

The Greens’ policies do not consist in just one proposal, on-shore processing, but in a whole range of measures, which the government has not adopted. (For their proposals, see The “results we can see” are the result of on-shore processing without the other sensible measures the Greens propose.

On-shore processing simply means carrying out the obligations Australia has assumed under the 1951 Convention. Off-shore processing means that an asylum-seeker who arrives in a certain way will be sent away from Australia to be processed elsewhere by someone else, which (in respect of those people) is a refusal to carry out the terms of the Convention.

See “There is no reason why Australia should be exempt from receiving and processing onshore asylum claims while expecting other nations [that are not signatories to the Convention] to fulfil this responsibility. ... Applying for protection onshore is not a means of bypassing the ‘proper channel’ of applying for protection. In fact, applying onshore is the standard procedure for seeking protection. ... In order to be recognised as a refugee, you must leave your country and apply for refugee status onshore in another country.”

It’s not as if people sent elsewhere would have any reasonable chance of being processed and resettled in a timely way. How long would a refugee arriving in Indonesia and staying in that queue expect to take to be processed and resettled? What sort of life will they have while they wait?

(1) Australia is partly responsible for the loss of life. We should stop imprisoning crew and confiscating boats.

(2) The Australian government and other governments in this region should be helping/pressing the governments of the countries from which refugees originate to counteract the factors pushing people out.

(3) The countries in this region should all join in some reasonable agreement to protect and resettle refugees. If Australia’s membership of the 1951 Convention puts us at odds with our neighbours, then we should either get the Convention revised or exit from it to join something our neighbours are prepared to join. (The fact that Australia is the only country in the region that belongs to the 1951 Convention makes Australia the first place refugees can stop with security, e.g. with a right to work; this is surely a major “pull” factor.)

(4) Our refugee intake should be greatly increased, and Australia should encourage and subsidise the countries in our region to accept many more people for resettlement.

(5) Detention should not be used as a deterrent—and detention beyond a very short time is always, I suspect, disguised deterrence.

Reducing the outflow (point 2), accepting more for resettlement (point 4), making life more tolerable where they are for those who have to wait (point 3), should reduce the incentive to come by boat; and those who nevertheless board boats will not be put in additional danger by anything we do (point 1) or further traumatised by us if they do get here (point 5).

Look at it as a matter of arithmetic. The number of people in boats depends on (a) the number leaving their original home and coming our way, minus (b) the number willing/able to stay in intermediate countries, minus (c) the number accepted by us and flown here for resettlement. To minimise the number in boats, work on the other variables. Forget about deterrence: people desperate enough to make the boat journey in decrepit boats with expendable crew won’t be deterred.

What I am suggesting is all Greens policy, and common sense. Why can’t the government adopt it?


There is no political advantage for Labor in attacking the Greens. There are no circumstances in which I, or (I imagine) most other Labor voters, would preference Liberals over Greens or give the Liberals anything but last place. Greens voters and ex-Labor voters don’t have to give Labor candidates their preferences. In the coming ACT election, with optional expression of preferences, they can just vote Green. In the coming Federal election, they can let their votes be informal. (See article by Nic Stuart, Canberra Times 27 November 2001.) The current Labor campaign to put the Greens last will antagonise both Labor voters and Greens voters, and its electoral effect (if any) will be to give the Liberals control of both houses.

Email to Andrew Leigh 6/08/2012


I have just returned from a few weeks away. Thanks for your letter in reply to the Belconnen motions on refugees. I have scanned your material and I will attach it to the notices for our next meeting.

A few personal comments:

1. You say, “I believe offshore processing in Malaysia is currently the best approach.” But currently that approach is dead. It won’t happen. The government needs to look for some “second best” approach that is actually available.

2. You say, “Once a solution is found, I also hope we can increase Australia’s humanitarian intake - ideally to 20,000.” Similarly Chris Bowen promises to increase the humanitarian intake—but always conditionally, once someone else does something. The humanitarian intake should be increased now, whatever else happens. This would undoubtedly save some lives. As I said in my email to you of 10/07/2012, “The number of people in boats depends on (a) the number leaving their original home and coming our way, minus (b) the number willing/able to stay in intermediate countries, minus (c) the number accepted by us and flown here for resettlement. To minimise the number in boats, work on the other variables.”

3. In your speech in Parliament, you said: “The more onshore arrivals we take the fewer offshore arrivals we take.” Later you said: “Those who come by boat are invariably those who have enough money to pay a people smuggler. In saying this, I am not reflecting on those who come by boat. ... But we have a fixed humanitarian quota... I believe it is appropriate to prioritise those who are selected in our offshore processing centres.”

We have a fixed humanitarian quota because our government chooses to have a fixed quota, and it also chooses to count boat arrivals against that quota. It is entirely our government’s choice that makes boat people competitors with other humanitarian asylum seekers. They are queue jumpers because our government chooses to conceptualise them as such. (This was part of the Howard-Ruddock rhetorical strategy: the ALP, as usual, allows the other side to frame the terms of the debate.) The linkage the Labor government makes between these two categories is criticised in John Menadue, Arja Keski-Nummi, Kate Gauthier, A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers (’s-stalemate-on-refugees-and-asylum-seekers/), p. 29. See their recommendation #6. They write: “Australia continues to be out of step with international practice by counting those who seek refuge here as their country of first asylum, against our humanitarian resettlement program.”

You note that boat arrivals must have money. What better can a family spend its money on, if they are in the situation these people are in, than on a journey to a country where they will have rights, including the right to work? If it is OK for people to be wealthy at all, if it is OK for wealthy Australians (for example) to spend their money on their children’s education, thereby giving them an advantage in life, then what is the objection if a refugee family spends its money to get to Australia? By coming they do not keep anyone else out; the Australian government does that, by linking boat arrivals and a fixed humanitarian intake.

4. You repeat the claim that Australia does well in international comparisons of acceptance of refugees. “We are one of only about 20 nations worldwide that participate formally in the UNHCR’s resettlement program and accept quotas of refugees on an annual basis. For the last year for which I was able to obtain statistics, Australia had the third largest number of refugees for resettlement under this UNHCR program.” Yes, but the words I’ve put in bold are an acknowledgement that this is a selective statistic. For a broader perspective see Menadue et al., loc. cit., pp. 12-13. See the table on p. 12. “Australia barely gets a mention because its numbers are miniscule compared with those of other industrialised states. In 2009 the Nordic countries of Denmark, Sweden, Norway, Finland and Iceland, with a combined population of 25 million (roughly equivalent to Australia’s 22.5 million) received and processed 51 120 asylum claims. Australia received and processed 6 500.”

I don’t know the context of Dreyfus’s remark about “competing compassions”, but from my point of view there is no competition and it’s not a question of compassion. There is a life-and-death problem that needs an intelligent solution: how can the Australian government stop doing things that damage and destroy lives, and instead do the things needed to help a set of people in desperate circumstances, without bad unintended consequences?

What the Labor government has to stop doing includes confiscating boats and imprisoning crew. (The bad consequence of imprisoning crew is actually worsened by releasing minors, which almost guarantees that the expendable crew will be children.) The Labor government must stop further traumatising arrivals by imprisoning them in remote places under the pretext of health and security checks.

What it needs to do is not a single clever thing, like the Malaysian solution purported to be, but a list of things, which probably won’t add up to stopping the boats altogether. It needs to persuade/help countries like Sri Lanka stop pushing refugees out, persuade/help Malaysia, Indonesia and other intermediate countries to give better treatment to undocumented arrivals, persuade/help other possible resettlement countries to increase their intake, and increase our intake. Increasing our intake is the thing most in our power.

The possible unintended bad consequences might include increasing the exodus of people from countries where minorities are being treated badly. I would like to know a lot more about what calculations people make when leaving, and what pushes and pulls move them in our direction. We need to be careful not to raise false expectations. That’s the dilemma—how do we treat them decently, but not so as to make them overestimate our generosity?

I keep on about this issue because I don’t want to be silent while my country does things future Australians will be ashamed of, as we are of the behaviour of previous generations toward aborigines, Jewish refugees, orphans, British child migrants, unmarried mothers, etc. Apologising is good, but let’s not do things that will need to be apologised for, especially if the people who most deserve the apology will be dead.

Email to Andrew Leigh 16/08/2012


I support the Getup campaign on this matter [relating to the Houston report].

If the refugee camps on Nauru and Manus Island are as humane as they ought to be, transportation to Nauru won’t be a disincentive sufficient to balance whatever motives induce people to board the boats despite the risk of death.

The wholesale adoption of the recommendations of the Houston Committee is a serious mistake, both in policy and in politics.

It was already a mistake to set up such a committee. The Government should have made its own policy decisions. 

Email to Andrew Leigh 20/8/2012


The Houston committee’s justification for the reopening of Nauru is in para. xvi on p. 12. It is brief, superficial and unconvincing. It is pretty hard to deter people who are not already deterred by the risk of death by drowning. Nauru won’t be a deterrent, it may even be an additional incentive. People detained there will have food, shelter, medical care, education, recreation, etc. provided at Australian government expense under the supervision of people determined that Nauru won’t become a factory for mental illness. Detainees will be better off than they would be as undocumented foreigners in Malaysia or Indonesia. The only way to get there is to sign up with a people smuggler.

The political cost of this non-solution is enormous. Paul Kelly: “Gillard has become the new John Howard. What a fate for a proud Labor leader! On asylum-seeker policy Labor is battered and beaten, forced into subjugation so complete and comprehensive it is difficult to imagine a comparable ignominy in recent decades. Labor is tainted by this reversal precisely because it was the issue where it declared its moral superiority over Howard while dismantling his policy. Labor’s beliefs have been mugged by reality and abandoned. As the Houston report makes clear, Labor was blind to the power of pull factors. It substituted moral self-righteousness for sound policy. The Australian people will not forgive Labor for elevating its moral vanity before the national interest. The reckoning will be protracted.” Kelly of course assumes that Nauru was the solution all along, but that’s an assumption Labor can’t now challenge.

Somebody commenting on Kelly’s article: “Abbott doesn’t need it to work because Nauru is only one-third of Coalition policy, so he can distance himself from any failure to stop the boats. If it does work however Abbott will get credit. So Gillard has put her opponent in a no-lose situation. Has there ever been a more inept politician than Gillard?”

The committee’s weak reasoning is their responsibility, but the Prime Minister is responsible for setting up a situation in which she had no choice but to implement their recommendations without question or further deliberation. On 29 June, before the Houston committee met, “She said it would be remarkable indeed if Mr Abbott refused to accept the views of Mr Houston. ‘I can’t believe that’s possible.’” After this is was not possible for the government to form its own judgment. She has shown no sign of wanting to anyway.

After such a fiasco I have no confidence in Julia Gillard as leader of the Labor Party. ..

I would like to see Greg Combet become leader. He has the climate change portfolio, and he explains the Carbon Pricing scheme clearly and persuasively, when he gets a hearing. If anyone in government can change public opinion on that topic he can. ...  Perhaps no one can now win the next election for Labor, but to me it seems clear that Julia Gillard cannot lead the Party to anything but a massive defeat.


Moving a motion to close Nauru and Manus,  11/09/2012

Nauru won’t be a concentration camp. It won’t be one of the “factories for producing mental illness” that Patrick McGorry excoriated. ( The Houston report promises the Nauru detainees good treatment: no arbitrary detention; appropriate accommodation; physical and mental health services; education and vocational training; assistance in making applications for refugee status; appeal if the application is rejected. People with special vulnerability will be transferred to Australia; care and protection arrangements will be monitored by a supervising body., p. 49.

But if detention on Nauru is to be as humane as we hope it will be, it won’t be a deterrent. Strong motives must be causing people to get on the boats. They are not deterred by fear of drowning. Some people have attempted the journey, been rescued after a sinking in which many others died, and then made another attempt (, ). People as determined as this won’t be deterred by the likelihood of being detained under humane circumstances in an Australian-government sponsored facility. It may even be an incentive—ironically, the only way anyone can get into this humane facility is by setting out in a boat.

The Houston report talks of the balance of risks and incentives, and proposes a no-advantage test—i.e. people should be kept in Nauru for as long as they would have waited if they had stayed in the “queue”. But suppose you had a choice between, on the one hand, staying in Malaysia for, say, 5 years, with no right to work, no right to education for your children, etc., and, on the other hand, staying in Nauru for 5 years with Australian-government-guaranteed accommodation, food, medical care, education, vocational training, etc, without needing to find work, without needing to find money to keep your family from starving. Which would you choose? Obviously, you’d go to Nauru. Even if the waiting period is years, there will still be a very significant advantage to Nauru over the alternative.

So the boats will keep coming and people will drown. The problem won’t be off the front page. Perhaps this was some smart move by the Gillard government, so that when the boats keep coming they can say, “See, Abbott was wrong, Nauru doesn’t work—we’ve tried it and it failed!” Abbott has an answer: “You tried only one of my three policies”. Even if the government also adopted TPVs and tow-back, Abbott would still say, “The boat people didn’t believe you were really resolute and determined, as a Liberal government would have been”. Reopening Nauru was not smart politics, it was a serious political mistake.

In politics, history matters, historical myth matters. We all have beliefs about, e.g., the evils of the industrial revolution, the heroic efforts of the early trade unionists, the depression, Munich and appeasement, Winston Churchill, John Curtin’s turn to the United States during the darkest days of WWII, the pros and cons of the Menzies era, the collapse of the Soviet Union, Vietnam, the Whitlam era, the Hawke/Keating opening of the Australian economy to the world, the second Iraq war, etc., etc. Attitudes based on or reinforced by these fragments of history or pseudo-history help make the framework voters use to process political messages. By reopening Nauru, the Gillard government has reinforced an historical myth which will in future stand in the way of the Labor party when issues of border protection or immigration arise, a myth which discredits the advocates of more humane policies, a myth which will pre-dispose the electorate to listen to the xenophobes.

The reopening of Nauru vindicates Tony Abbott and Scott Morrison. It gives retrospective vindication to John Howard, Peter Reith and Philip Ruddock. The Gillard government has in effect said to the Australian public: the Liberals were right all along. They are the ones, after all, who know about border security. We were wrong to try what we thought was a more humane policy more respectful of human rights. The moral purists who advocated those policies—the churches, the refugee council, lawyers, Patrick McGorry—were wrong, they have turned out to be ineffectual do-gooders we shouldn’t have listened to. This message will still further lower the ethical standards of Australian politics.

The Houston committee was named on 28 June. On that night on the 7:30 report this is Chris Bowen’s response to the interviewer’s reference to Nauru:

“What happened before? Boats kept coming. Nauru got so full that they then had to open Manus Island as well. And the worst maritime disaster with an asylum seeker vessel this nation has seen, SIEV X, the loss of 353 men, women and children occurred while Nauru was open and operating. I do not accept for one second the myth by the Liberal Party that opening Nauru would stop drownings at sea because we’ve seen it before; we saw 353 souls perish while Nauru was open. …all the expert advice to us is that it would not work if re-implemented now because it was simply a Christmas Island further away.”

These are not the words of a man who wants to reopen Nauru as part of some clever political plan. Obviously, Chris Bowen had absolutely no inkling that the Houston committee would recommend the reopening of Nauru.

Why did the government accept the recommendation so promptly? Because they had tried to set up the situation so that Abbott would have to promptly accept the recommendations of the Committee. On 29 June, before the Houston committee had met, the Prime Minister “said it would be remarkable indeed if Mr Abbott refused to accept the views of Mr Houston. ‘I can’t believe that’s possible.’” This left the government no room to hesitate when the Committee reported.

So, as it turns out, the “myth by the Liberal Party” that Chris Bowen did “not accept for one second”, that Howard’s Pacific solution stopped the boats, has been canonised as an agreed part of Australian political and social history.

Paul Kelly: “Gillard has become the new John Howard. What a fate for a proud Labor leader! On asylum-seeker policy Labor is battered and beaten, forced into subjugation so complete and comprehensive it is difficult to imagine a comparable ignominy in recent decades. Labor is tainted by this reversal precisely because it was the issue where it declared its moral superiority over Howard while dismantling his policy. Labor’s beliefs have been mugged by reality and abandoned. … [Labor] substituted moral self-righteousness for sound policy. The Australian people will not forgive Labor for elevating its moral vanity before the national interest. The reckoning will be protracted.”

Irregular Migration, 20 March 2014

John Kilcullen

Julia Gillard’s reopening of Manus and Nauru, accepted and reinforced by Kevin Rudd, was a very serious mistake. Offshore processing is no part of a solution to any problem. Detention in remote places under harsh conditions for the purpose of deterring boat arrivals is punishment. It is wrong to punish people who have done nothing illegal or wrong or even imprudent (given their circumstances) for the purpose of influencing the behaviour of other people.

The Labor party must call for an end to offshore processing [more accurately: an end to offshore detention] and an end to any but short-term detention of asylum seekers.

In addition, Labor should call for refugees present in this country to have the right to work, to support themselves and their dependents. This is a human right, recognised in the Universal Declaration of Human Rights, art. 23. Australia should also try to persuade other countries in the region to give refugees the right to work. Not having a right to work exposes refugees to rip-offs and extortion; see Amnesty’s criticism of Malaysia [June 2010,]. One of the reasons why the “Malaysian Solution” would not have stopped the boats is that Malaysia gives refugees no right to work but would have given that right to returnees (, which would have made it worthwhile for refugees to send one of their family for a trip to Christmas Island.

Australia should greatly increase its intake both of refugees and also of people in difficult circumstances who will not qualify for asylum under the terms of the 1951 Convention (people fleeing natural disasters, poverty or war do not qualify under that Convention).[1] Australia’s humanitarian intake was “miniscule”[2] even before the Abbott government reduced it.

Australia should also stop confiscating boats and imprisoning crew. These measures merely guarantee that people will come in decrepit boats on their last voyage crewed by expendable crew (often under-age, since under-age crew are not imprisoned). If an Indonesian boat arrives that is unsafe or not properly crewed, Australia should ask Indonesia to impose penalties to enforce maritime safety.

Australia should help other countries in the region, both by giving them financial assistance to house and process refugees and by taking some asylum-seekers to Australia for processing their claims. (These people should be eligible for settlement in Australia, and eventual citizenship, since they will have come in a safe way.)

Last but not least, Australia and the other countries in the region should do what they can (which may not be much) to reduce the exodus of people from Sri Lanka, Afghanistan, Myanmar and other countries. For example, they could offer to the government of Sri Lanka to send observers to the Tamil regions to support the government’s professions of fair treatment and reconciliation.

The ALP under Gillard and Rudd lurched to the right on asylum seekers. It is time for Labor to put forward a humane alternative. Nitpicking over the Coalition government’s mis-steps in implementing its punitive policy is a waste of energy. What is needed is a strong campaign for a non-punitive approach.


Email to Andrew Leigh 31 March 2014


thanks for the reference ( [also at ; search to "I cannot end"].  Your discussion of population policy is excellent.

Your ethical discussion of refugee policy is not so good. It is never justifiable to try to deter some by inflicting punishment on others who have done nothing wrong. Your distinction between categoric and utilitarian ethics is not to the point. Even on a utilitarian view, deliberately inflicting pain on people who have done nothing wrong is unjust. Utilitarianism long ago moved past the arithmetic of pleasure and pain case-by-case, Utilitarianism, as much as what you call the “categorical” approach, recommends rule-guided behaviour, and one of the basic rules is that pain is not to be deliberately inflicted except for violation of a reasonable rule (and not always then, but only when punishment will have good effects). This is an aspect of the Rule of Law.

If there were a utilitarian argument for Manus and Nauru, there would be the same argument for sinking a couple of boats and machinegunning the survivors. You might say that deliberately killing people is very bad, whereas putting them on Manus Island is not so bad; but if in principle the question is simply how much good can be done at how much cost, then the exemplary killing of a few might well be a better choice than imprisoning many.

You say: “In the asylum-seeker debate, many people of goodwill simply cannot get past the fact that a person who claims a well-founded fear of persecution comes to Australia and is turned away. This is the categorical approach.” That isn’t my view. I don’t object if people who come by a dangerous method are refused entry, if that can be done safely and without injuring them. I wouldn’t object if they were let in but not as permanent residents. Removing an incentive to do something dangerous to themselves and to other people is fine. What I object to is harsh treatment for deterrent effect.

You say: “One of the few points of agreement among Labor, Liberal and Greens is that for every additional person who arrives by boat, we should take one less person from a refugee camp.” I certainly don’t agree with that. See John Menadue, Arja Keski-Nummi, Kate Gauthier, A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers (’s-stalemate-on-refugees-and-asylum-seekers/), p. 29. See their recommendation #6. They write: “Australia continues to be out of step with international practice by counting those who seek refuge here as their country of first asylum, against our humanitarian resettlement program.” See also

You call for “Not deploying the language of human rights in the service of a partisan agenda. Not making tear-choked over-my-dead-body declarations, and then dropping the issue after your side wins power.” So who is that blow aimed at? A step toward the more reasonable discussion you call for is to stop saying things like this. Or, if you think you need to say it, name names. Leave out the “tear-choked”. What you hear in the voices of Labor critics of Labor parliamentarians is not tears but anger.

Melissa Parke speaks for me: “What of the people caught in existential limbo on Manus and Nauru—places where Australia has made independent oversight near impossible, where those countries are barring any examination of human rights, where asylum claims are not being processed and where people have been killed, injured or driven by despair, fear and hopelessness to riots or suicide? It is not okay. This is not what the Australian community understood at the time those centres were re-established on Manus and Nauru, when parliamentarians solemnly promised to ensure that the Convention Relating to the Status of Refugees and international human rights would be respected, and that there would be independent oversight of offshore processing centres, especially in relation to the physical and mental health of detainees. Australia cannot contract out its obligations under international law to poor neighbouring countries. We have a responsibility to ensure the convention is complied with in respect of the people who have claimed asylum, even where these claims are being processed in a third country.

“This is patently not happening. Clearly the conditions under which Labor undertook offshore processing when in government are no longer being complied with [they never were, and I never believed they would be, JK], and as a nation we are in violation of our international legal obligations. In my view, either the protections required as preconditions to offshore processing must be restored or put in place, or the centres on Manus and Nauru cannot be supported and must be shut down.”

Since they won’t be put in place—since the money won’t be found, and money wouldn’t do it anyway—then these centres must be closed down. Please give Ms Parke your public support.

Yours sincerely,

 John Kilcullen

For a motion to close Manus and Nauru, July 2014

The whole area of immigration and asylum-seeker and refugee policy is very complex. It’s an interlocking set of problems without clear solutions. There is economic migration, and there is nothing wrong with that – I would guess that everyone in this room is, has been or will be an economic migrant or has an economic migrant in the family. I worked in Canada, members of my family work in the US and in NZ. Eric Abetz urges young Tasmanians to migrate to the mainland. Refugees inevitably become economic migrants, because when they flee their own country they have to find employment or business opportunities somewhere. Beside refugees in the sense of the 1951 convention there are also people fleeing war, natural disasters, rising sea-levels and poverty. A significant fraction of the human population is on the move. That has always been true. Population movement will continue in future and probably involve increasing numbers. I don’t know of any comprehensive policy solution. The policy set out in the current federal Labor platform seems pretty good. The motion passed by last year’s ACT conference was pretty good. But we will never have the last word.

I begin by emphasising the difficulty of these matters for two reasons. First because I want to acknowledge the good faith of people who take differing views—I hope they will feel free to say what they think in this debate; and second because I want to emphasise that the present motion is not an attempt to rule out the whole range of policies that we might not like. I don’t agree with offshore processing in Manus and Nauru, but if it were being done in New Zealand, Indonesia, Malaysia and various other places I would not object. We are not talking in general about offshore processing. This motion aims at offshore processing specifically in Manus and Nauru. Our conviction is that the detention centres on these islands are not part of any solution to any problem. Whatever else Australian immigration policy has in it, there is no place for Manus and Nauru.

It is a proposition that experience has confirmed over and over, that people who have little or no power, who are placed under the power of other people, are very likely to suffer abuse or at least neglect. The current inquiries into child abuse are yet another illustration of this proposition. It is a proposition fundamental to the liberal tradition of political thought, to which the Labor party also belongs. It is the reason why democracy exists, it is a reason why trade unions exist. Power over people has to be balanced by their power to protect themselves, and if inequality of power is unavoidable, the superior power has to be supervised effectively by some agency independent of the people who directly exercise it. This is the basic idea of the Rule of Law. Offshore processing is an attempt to remove our government’s treatment of non-citizens from the supervision of the Australian courts.

This would not be so bad if offshore detention were effectively supervised by the institutions of some other well-governed country. But PNG and Nauru are not well-governed countries willing and able to supervise these detention centres. The events at Manus are fresh in our memory. On 17 February there was a riot in which Reza Berati was killed. The events at Nauru are a bit further back in time. In July 2013 there were serious riots in Nauru. Nauruan local people were hastily deputised as police to enter the detention facility to repress the riot. Rioters have been charged. However, the rule of law in Nauru has collapsed. The government of Nauru has expelled its Chief Magistrate and its Chief Justice, the only judicial officers on the island. Recently several members of the Nauruan parliament were suspended from the Parliament. Nauru is not a state that can effectively supervise the treatment of detainees.

Besides the courts, there are other agencies of supervision. There is the Australian Human Rights commission. Its president, Gillian Triggs, has tried to visit both Nauru and Manus and has been prevented from going there. She has been told that the Australian Human Rights Commission has no jurisdiction over what happens in these detention centres. Another kind of supervision comes from the media. Journalists also have been prevented from going to Manus and Nauru, freedom of information inquiries are prohibitively expensive. In February this year the Nauruan government increased the visas for journalists to visit the country from $200 to $8,000. Our government and its partners clearly do not want the Australian electorate to know much about what is happening to people for whom Australia cannot escape at least a share of responsibility. But despite the government’s attempts to keep us in the dark, enough has transpired to make it clear that the treatment of people detained in those places is a disgrace.

The government will claim that in time it will all be fixed. They’ve had enough time. It won’t be fixed, because that would require more money than they will be willing to find, it would require skilled staff that they won’t be able to find, and it would require a complete reversal of the policy of keeping these places unsupervised by courts, human rights commission and the media.

Over the last few years our politicians and others have been apologising for how various categories of people have been badly treated in the past. In a few years time the government of the day will be apologising for Manus and Nauru.

Finally, let me answer briefly the argument often used for Manus and Nauru. It is said that these places are needed as a deterrent, and if we don’t deter people from getting onto boats we are to blame when they drown. Deterrence in this context means punishment. 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 have a right to do. It’s up to them to decide what risks to take. In a fire famous in American labor history, the Triangle factory fire in New York in 1911, young women workers jumped from the windows to escape the fire and were killed. Various people were to blame—the employers for an unsafe workplace, the city government for not enforcing safety regulations, etc., but no one was to blame for not threatening the women that they would be punished if they jumped and survived. There are many people responsible in various ways for the plight of the people who seek asylum by risky means, but no one has any responsibility, or any right, to threaten to punish them if they try to come by boat and survive.

Email to Richard Marles MP, 14 March 2016 

Dear Mr Marles,

I have sent several emails (below) asking for an appointment to discuss with you the closing of the Manus and Nauru detention centres, where about 2000 people are being detained indefinitely under harsh conditions with ALP support.

You are at present involved in an election campaign, so I suppose the fate of the detainees is low on your agenda. However, the proposed changes to the Senate electoral system will make it possible for the many people greatly dissatisfied with the detention policies of both major parties to vote formally for the candidates of their choice without giving any preference to either Labor or Liberal. This may have a significant impact on the Senate election result. In the 2001 “Tampa” election “Labor lost because it could not even win the votes of people who were refusing to vote for the Coalition... a massive number of (previously) Labor voters chose to spoil their ballots, rather than cast a valid vote”; Nicholas Stuart, Canberra Times 27 Nov 2001 (attached).

So please find time in your busy schedule to meet with us to discuss the future of the detention centres.

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,

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: Malcolm Turnbull frequently uses this language (, and often since). At the same time he promises to modify his own government’s policies if they “don’t work” (, which is an appropriately experimental approach. Every government action is an “experiment”, since no one can predict with certainty what its effects will be.

He also says (on a different topic) that “Fairness has got to be the key priority” (ibid.) Justice, humanity, respect for human rights are also key priorities. In doing away with the “Pacific solution” Kevin Rudd 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 the ALP should continue to 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, “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 B*** 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”, “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,

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

Comments on Speech by Richard Marles 3 December 2015

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[1] The Convention needs to be revised,

[2] See John Menadue, Arja Keski-Nummi, Kate Gauthier, A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers (, pp. 12-13.