Inflicting Harm to Prevent Harm: Creating Policy for Vulnerable Populations Seeking Asylum in Australia

By Amy Louise Constable 

Australian asylum seeker policy is currently riddled with a series of ethical conundrums. Being party to the 1951 United Nations Convention and Protocol Relating to the Status of Refugees, Australia is obligated to accept those claiming asylum from persecution, violence or fear either who enter into Australian territory and respect the principle of non-refoulment and not send refugees to an environment from which they are fleeing. Detention of asylum seekers has been a bipartisan policy in Australia since 1992 when Australian Prime Minister Paul Keating introduced off-shore detention, with bipartisan support. The zealous implementation of increasingly cruel offshore detention policies has been described as a ‘race to the bottom’.

The 2013 Australian federal government was characterized by the promise of increasingly ‘tough’ and cruel policies seeking to deter asylum seekers entering Australia by boat and protect Australian sovereignty by both major parties. The conservative Government initiated Operation Sovereign Borders, an extension of existing asylum seeker policy. Operation Sovereign Borders is an extension of pre-existing off-shore processing policy which instructs that all asylum seekers arriving by boat, ‘illegal maritime arrivals’, are to be processed off-shore at Manus Island, a northern territory of Papua New Guinea (PNG), and at Nauru with “no chance of being settled in Australia as refugees”. This policy has been justified by both major Australia political parties as preventing further deaths at sea. Between 2008-2013 approximately 1200 people died at sea trying to come to Australia by boat. This begs the question, what is the ethically acceptable cost of preventing death at sea?

The ‘tough’ new stance on asylum seekers has recently inflamed debate surrounding exactly what the ethical, medical and legal responsibility of the Australian Government to the asylum seekers on Australian territory and on international territory in Australian Government funded detention centers is. The logic for this policy is justified by the Department of Immigration and Border Protection as stopping deaths at sea and protecting national security. Consequently, this policy sees the compulsory detention of thousands of adults, minors and children, of whom 91% are declared to be refugees, with higher protection visa rates for specific ethnic groups (i.e., the Afghani’s receiving a protection visa being approximately 99.7%)

Operation Sovereign Borders dictates that all asylum seekers be transferred from Australian sovereign territory within 48 hours, as instructed by Minister for Immigration and Border Protection, Scott Morrison. This rapid process involves all medicines, prostheses, and medical equipment being confiscated, and often not returned, and does not provide sufficient time for a comprehensive diagnosis of potential diseases. Consequently the process has seen several healthcare horrors:

--Potential exposure of asylum seekers to tuberculosis following a non-diagnosis while being processed on Christmas Island (remote north-western Australian territory).

--A 23 year old Iranian-Kurdish man dragged from a computer room and beaten to death by a G4S security employee.

--Detainees attacked with machetes and throats slashed during attacks by locally-hired security guards.

--A Rohingyan asylum seeker who was identified as having a ‘very high risk’ pregnancy was transferred to Nauru for the purpose of ‘setting an example’.

--a woman being told she should not ‘expect a lot’ of healthcare after miscarrying.

--An Iranian man lapsing into severe epilepsy following a refusal of access to confiscated epilepsy medication.

A 92 page letter from fifteen doctors working at the Christmas Island and Manus Island detention center has highlighted the inadequate resourcing of centers and the degradation of those seeking treatment. They have stated that they are being paid to compromise medical ethics and have explicitly stated that doctors are expected to participate in ‘unethical conduct and in gross departures from clinical standards’.

Issues of reciprocity have further confounded exactly what Australia’s obligations are to people fleeing their home countries. A particularly stark example of this is the employment of Afghan Hazāra, a persecuted ethnic minority in Afghanistan, as interpreters by the Australian Defense Forces during the NATO led military invasion in Afghanistan, many of whom have applied for asylum in Australia. Reports have surfaced that Afghani-Hazāra interpreters who have had their asylum application rejected have been killed by the Pashtun led Taliban due to their ethnic and religious difference to the Taliban and their assistance to the allied NATO forces. While this itself is an issue largely outside the scope of this short essay (what responsibility do we have to those who have offered us assistance?), it highlights the incredible complexity of ethical, moral and legal issues associated with formulating policy that may harm incredibly vulnerable or precarious populations.

These few specific issues among a sea of thousands of complaints and detailed reports by security contractors Serco of self-harm, sexual assault, hunger strikes and the transferal of unaccompanied minors to detention centers for indefinite prolonged periods. Transferal of minors into detention has been criticized for exposing children to distressing situations, children referring to themselves by their client number as opposed to their name (see 46.18-59.12 of attached video) report, confronting developmental delays due to lack of access to education and exposure to environments riddled with self-harm, sexual and physical assault. The ‘tough stance’ taken by the Government highlights the ethical fallacy of invoking a policy causing medical and psychological harm in the name of trying to deter people from taking a dangerous journey.

The ethical mess of Australian detention center medical administration is highlighted by a co-author of the 92 page letter to the Guardian and Minister Morrison says; “there will one day be a royal commission [the highest level of government-sanctioned inquiry in Australia] into what is taking place on Christmas Island. He suggested we document well.” Creation of policy for vulnerable populations is fraught with ethical difficulty and complexity, and is further confounded when the democratic processes, such as the 2013 Australian federal elections, indicate a seeming majority of the population support increased cruelty to vulnerable persons. Perhaps the easiest way to condense this ethically compromised ‘humanitarian’ policy is to ask: what is the cost of this policy? Is it justifiable to inflict harm onto those individuals in the aim of preventing harm to others?

Amy Constable is an Honours degree candidate at the Australian National University, and was a 2013 summer fellow of the Yale University Interdisciplinary Center for Bioethics.