It may seem harsh to question the heartfelt public response to the image of toddler Aylan Kurdi lying dead on a Turkish beach. However, the motivating force of compassion can easily be reduced to futile gestures, unless it is spliced onto a set of actionable principles that will endure beyond the first wave of sympathy.

Then prime minister Tony Abbott’s 2015 announcement that Australia would permanently resettle an additional 12,000 Syrian refugees was a significant response to the mass exodus of asylum seekers. But we should assess the quality of Australia’s offer against a solid foundation of principles.

In this case, those principles are the institution of sanctuary or, in its modern guise, asylum. Using this approach, I would suggest that asylum is fundamentally about the public and personal good of human safety. As such:

1. Those who meet the objective condition of fleeing from persecution and oppression, whether arising in conditions of peace or war, are entitled to seek asylum. Their claims for asylum may never be deemed as ‘unlawful’ or ‘illegal’. To apply these labels to such people is wrong and involves a profound misunderstanding of the law.
2. The ways in which people seek asylum may, in some circumstances, be illegal. However, that does not make the asylum seekers themselves ‘illegal’. This focus on legality is a relatively new concern. At the height of the Cold War, the representatives of the liberal democracies weren’t heard to condemn defectors and asylum seekers for breaching borders as they escaped from behind the Iron Curtain. But, moving on…
3. Those who have the capacity to offer asylum are obliged to do so when a bona fide request is made. Asylum is an offer of safety (not a promise of prosperity). Nearly everything hangs on the obligation to keep an asylum seeker safe. This is central to the criticism of the conditions under which the Australian government holds people arriving irregularly by boat. To subject an asylum seeker to indefinite detention in conditions like those on Manus Island and Nauru clearly fails this minimal test. The evidence of mental illness and physical abuse suffered by those held in such places makes this clear.
4. Not everyone claiming asylum is a bona fide refugee. Some people making such a claim may merely be seeking a more prosperous future. There is no duty to offer asylum to such people. However, given our inability (at least on the high seas) to distinguish between those who are entitled to asylum and those who are not, we should give all the benefit of the doubt. To accept an illegitimate claimant is a lesser evil than it would be to deny asylum to a person with a legitimate claim.
5. Finally, the compassionate urge to avoid preventable deaths among those seeking asylum (for example, at sea) is a worthy one and should not be mocked nor denied. That said, the means employed to achieve this end should be consistent with the other principles outlined above.

What effect might these principles have if applied to the tsunami of refugees seeking sanctuary in Europe? Our starting point must be the distinctive nature of the cause of the great displacement.

Abbott labelled Daesh (ISIS) a ‘death cult’ and compared it to the Nazis. Australian Defence Force personnel were posted in Iraq at the request of the Iraqi government to degrade and destroy this pernicious power. We know Daesh was not constrained by established international borders and their actions in one place (Iraq) generated effects not just there but also in the murderous conflict in Syria. So, under any reasonable test, those fleeing from this conflict were refugees and their claims for asylum were lawful and legitimate.

Moreover, as a country that was directly involved in the conflict in Iraq and Syria, Australia could be said to have a particular obligation to these refugees, as their plight was an unintended consequence of our conduct. Given this, a marginal response would be inadequate.

The mayhem was indifferent to the religion, ethnicity, nationality, age or gender of its victims. And so should we be. Any attempt to define a ‘preferred cohort’ of refugees who might receive the benefit of Australian sanctuary would have to be specifically justified – and I doubt that could be done without inviting criticism that our aid is sectarian or self-serving.

We should ensure that the refugees’ passage to Australia is safe. Instead of stopping the boats we might, perhaps, send them.

In an ideal world, Australia would already have developed a comprehensive regional solution based, in part, on mutual interests, shared ethical obligations and a willingness to do our fair share of the ‘heavy lifting’. We might then have led an effort to bring many more people from Europe to the relative safety of our region.

Given our obligation to offer asylum to those whose objective circumstances give rise to a legitimate claim, and given the vast size of the problem we’re involved with, Australia should be generous in its offer of refuge – if only by adopting special measures to increase our humanitarian intake well beyond the current cap. That is the general principle against which the number ‘12,000’ needs to be evaluated.

Finally, we should ensure that the refugees’ passage to Australia is safe. Instead of stopping the boats we might, perhaps, send them.

There are more references to lighthouses, beacons and buoys in Australia’s Constitution than there are to Aboriginal and Torres Strait Islander people. As it stands, our First Peoples aren’t mentioned at all.

Most Australians and the two major political parties agree this must change – but opinion is divided on how such changes should take form.

The then prime minister Tony Abbott had wanted a referendum on Indigenous Constitutional recognition to take place on 27 May 2017 – the 50th anniversary of the 1967 referendum to include Aborigines in the census and amend racially discriminatory sections of the Constitution. But the 2017 referendum didn’t happen.

What needs amending?

Constitutional law professor George Williams has said, “The 1967 referendum deleted discriminatory references specific to Aboriginal people, but put nothing in their place. Torres Strait Islanders have never been referred to in the constitution. As a result, rather than recognising Indigenous people, the referendum left a silence at the heart of the Constitution”.

While race discrimination specifically against Indigenous people has been deleted, “Australia is now the only democratic nation in the world that has a constitution with clauses that still authorise discrimination on the basis of race”, says Williams.

There are two sections of the Constitution that mention race. The first, section 25, says that the states can ban people from voting based on their race. The second, section 51(26), gives federal parliament power to pass laws that discriminate against people based on their race.

Professor Melissa Castan says, “section 51(26), the so-called “races power”, has been interpreted by the High Court to allow the federal parliament to make laws that discriminate adversely on the basis of race.” She points out, “Parliament only ever used the races power regarding Aboriginal and Torres Strait Islander people.”

Some are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

Some concerns from Constitutional conservatives

Some Australians are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

This concern is an echo of the reluctance to embrace a national apology to Australia’s stolen generations in 2008.

Speaking at the Kennedy School of Government at Harvard soon after the apology, former Liberal PM John Howard said, “I do not believe, as a matter of principle, that one generation can accept responsibility for the acts of an earlier generation.”

The apology, however, did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

Howard went on to say his view was shared by Noel Pearson of the Cape York Indigenous Council, a man whom he regarded as “the voice of contemporary Indigenous Australia”.

Pearson remains an authority for many conservatives. In an effort to temper the concerns of constitutional conservatives, in 2015 Pearson put forward a three-part proposal to minimise Constitutional change:

1. Remove racially discriminatory wording in the Constitution
2. Devise a Declaration of Recognition to stand alongside the Constitution
3. Assemble a parliamentary advisory body to comment on laws affecting Indigenous people

Vice-chancellor of the Australian Catholic University, Greg Craven, described Pearson’s proposal as “genuinely brilliant”.

The apology did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

“The greatest danger would be inserting vague, manipulable language into the Constitution,” Craven argued. “There are no references to ‘sovereignty’ or sweeping guarantees of equality and far-flung rights.”

Craven claims Pearson’s proposal will allay constitutional conservatives’ fears that recognition of Indigenous Australians will promote Aboriginal and Torres Strait Islander people as in some way superior to other races.

“Indigenous identity, indigeneity, is not superior to the identity of other Australians, nor does it in any way threaten that national identity”, Craven wrote. “It simply is the case that an identity based upon millennia of profound connection with this country, physical and spiritual, is sufficiently special to be worthy of safe, certain recognition.”

What are some of the proposals by Indigenous leaders?

The then Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, was reluctant to accept a Declaration that sat outside of the Constitution, so was not a legal document. “It is the law out of which all other law in this country comes from and to be recognised in [the Constitution] is probably the ultimate form of recognition,” he said.

Geoff Clark, former chairman of the disbanded Aboriginal and Torres Strait Islander Commission, had proposed Australia, “include a simple clause in the body of the Constitution that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people.”

Such a clause would have had the power to stop a government initiative like the Northern Territory Intervention, which has been criticised for lack of consultation with Indigenous communities. On the other hand, Craven says, Pearson’s body of Indigenous representatives, would “advise, suggest and comment. Its views would be debatable, disputable and disposable.”

RECOGNISE was an Indigenous advocacy group governed by the board of Reconciliation Australia, which from 2012 to 2017 ran a campaign “to see fairness and respect at the heart of our Constitution, and to ensure racial discrimination has no place in it. Our goal is a more united nation.”

Based on the recommendations by an Expert Panel in 2012, RECOGNISE proposed Constitutional amendments that included a provision for government to: “pass laws for the benefit of Aboriginal and Torres Strait Islander peoples”.

However, for many Indigenous people, the goal is not constitutional reform, it is sovereignty and a treaty. As mentioned in this Expert Panel report a survey conducted by the National Congress of Australia’s First Peoples in July 2011 revealed: “88 per cent of Congress members identified constitutional recognition and sovereignty as a top priority. Unfortunately, it was apparent from consultations and submissions that sovereignty means different things to different Aboriginal and Torres Strait Islander communities.”

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established in November 2012 to interpret the findings from the Expert Panel.

What might voting ‘No’ look like?

Senator Cory Bernardi remains opposed to a Constitution that makes special reference to racial groups. “Anything that seeks to divide our country by race, and every proposal that I’ve heard of seeks to do exactly that, I think is doomed to fail … I would be absolutely campaigning for the ‘No’ vote,” Bernardi told AM.

If stamping out racism is what Bernardi was aiming for, that is honourable. But the way he conjures a post-racial society seems to frame race as a distinctly negative quality. Wilful ‘colour blindness’ to what makes us different denies what makes us special. From wherever on earth we descend, we should hope to draw on our racial heritage as a source of pride, and find a comforting sense of community in our culture.

A position statement from The Royal Australian and New Zealand College of Psychiatrists states: “The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity and value within the community, and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people.” The College concluded, “Recognition in the constitution … is an important step to support and improve the lives and mental health of Indigenous Australians.”

The institutional abuse of children detained by the government of the Northern Territory is a bone-chilling example of what occurs when raw power is exercised without ethical restraint.

The scenes broadcast by the ABC’s Four Corners program in July 2016 were the stuff of nightmares – the kind of thing done by ‘other people’, in ‘other countries’, in ‘other circumstances’. But this nightmare became real, for us – here and now. The prime minister announced a Royal Commission to investigate what had happened and why.

But first, we need to look at the general conditions that made the unthinkable possible. Those conditions do not just apply in the context of juvenile ‘justice’ in the Northern Territory. Australian governments are responsible for the detention of people throughout our states and territories as well as on Manus Island and Nauru. In every case, there is a risk (and often a reality) of people with power exercising it in a manner that fails the test of the most basic standards of decency.

Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a ‘person’.

Second, we need to reckon with arguments that the ‘ends justify the means’ and the prisoner or detainee is the author of their own fate – that they ‘deserve what they get’.

Normally, you would expect parliaments in a liberal democracy to place strict curbs on the exercise of power by government officials. But in recent years, the tendency has been to take the opposite path – to smooth the way for excess.

This has been done by creating numerous exceptions to the application of usual legal and ethical restraints that have been designed, over millennia, to tame power – such as judicial oversight, civil and criminal liability, media scrutiny and respect for individual rights like habeas corpus.

Australia has wide exemptions – for members of the intelligence services, for those detaining suspected terrorists, for detention centres and, as evidenced in the Four Corners report, for those guarding juvenile detainees in the Northern Territory.

Section 215 of the Northern Territory’s Youth Justice Act confers a wide-ranging immunity on virtually all people working with juvenile detainees. Specifically it says:

“The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.”

It is yet to be determined whether or not the behaviour revealed by Four Corners was done ‘in good faith’. If so, then the people responsible can never be held to account. The parliament of the Northern Territory has, for all intents and purposes, written a blank cheque.

Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel.

These provisions were likely enacted as part of a law-and-order campaign. It probably never occurred to legislators that children might be tear-gassed, bound to chairs (and all the rest) by their guards. I’ve no doubt they are now appalled at what has been done. But their lack of forethought does not lessen their responsibility for what they have made possible. It only deepens it.

Governments bear the ultimate responsibility for the treatment of those they detain. Such responsibilities cannot be outsourced. Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a person. If we do not deny this for the worst of humanity, how can it be absent for children? They may be angry. They may be rebellious. They may be violent. Even so, they are children. Our children.

It is almost certainly the case that those responsible for abuse are not monsters. They will be just like most of us – most likely unable to conceive of treating their own children as they have those in detention. It’s an age-old puzzle. How can basically good people end up doing such terrible deeds?

It will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.

There are a number of factors that were likely at work here:

• The guards could have been conditioned to look at their task through a purely legal lens – ‘if it’s not illegal it’s not wrong’.
• An element of tribalism – people conforming to the norms of a tight (usually isolated) group that overwhelms the dictates of individual conscience.
• A belief they were serving a ‘higher good’ (law and order) and their child victims deserved harsh treatment.
• A belief that the methods employed were ‘best practice’ sanctioned by a ‘respected authority’.
• A sense the children were not deserving of basic respect because they were ‘not like us’ – most likely linked to their Aboriginality.
• And most importantly, people within the group may have questioned what was being done while lacking the moral courage to speak out for fear (usually well-founded) of retribution.

Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel. Instead, we need to look at the ‘rotten barrel’ – and who made and maintained it.

How we respond to this issue will tell us a lot about Australia and its people. In particular, it will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.

Australia is one of the 19 countries in the world that legally enforces the vote. For Australian citizens voting is not merely a right, but also a duty. First introduced in Queensland in 1915, extended to the whole country in 1924, compulsory voting is a salient feature of the Australian electoral system. But is it democratic?

The main argument in defence of compulsory voting is the importance of raising citizens’ participation in elections. Australia’s turn-out rate has never fallen below 90% since 1924, in striking comparison with most Western countries that struggle to reach 60%. These are nevertheless, merely quantitative considerations: the fact that more people go to vote is not a better thing for democracy. In fact, it could be argued that compulsory voting is likely to do more damage than good, by reducing the quality of the electoral outcome.

Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country.

Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country. This generates what author Jason Brennan calls ‘pollution of the polls’ in his book The ethics of voting1 and is one of the main causes of the actual crisis of democracy worldwide: incompetent politicians winning elections through media control (the recent case of Italy under Silvio Berlusconi epitomises this phenomenon).

By the same token, compulsory voting cannot be defended by arguing that a government’s legitimacy of a majority formed by a low turnout is questionable, for numbers alone do not add credibility in this regard.

Those who do not care about politics should not vote.

Favouring democracy to other forms of government cannot be because of the mere fact that democracy allows everyone’s voice in the public arena. This might be, if anything, a reason against democracy. Dragging people to the polls will do nothing to improve the quality of our democratic lives, insofar as people do not take seriously what they are doing. There must be something else that makes democracy preferable to other forms of government.

This something else is the empowerment of the citizen. In a democracy, everyone has the power to partake in determining the rules according to which the community should be run. However, the misunderstanding lies in the fact that democracy does not entitle citizens to do everything: it confers not only entitlements but also responsibilities. Those who do not care about politics should not vote.

It could even be argued that they should not have a right to vote, and maybe the state would be better off justifiably preventing them from, not forcing them into, voting. Citizens should undergo a basic competence test, as with driving. This is because careless voters may seriously undermine those other citizens who spend time and energy gathering sufficient information before voting.

People’s efforts to follow politics to develop an informed idea might be cancelled out by the vote of someone else who does not care, but still is given the power to vote. In such a situation, making the effort to follow politics might even be irrational for the individual citizen, given that this effort may well be wasted due to the careless voters. Thus, compulsory voting backfires twice, since it even makes it pointless for citizens to develop political awareness.

Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility.

It is not only wrong to think citizens have a duty to vote. As Brennan argues in his book, it is rather the case that some citizens (those who do not care about politics) have a duty to not vote, for we all have duties to not cause damage to others. It is also the case that not everyone has the right to vote, for the latter is not an unconditional entitlement we receive through mere membership to a democratic community. If people do not care about politics, then they do not have a right to participate—forcing them to vote is counterintuitive, and counterproductive. The right to vote can be gained, and lost, depending on one’s commitment to democratic values.

Compulsory voting does not seem to offer any substantial advantage to the democratic life of a country, since quantity does not mean quality (and in the end, it is the quality of our decision-making procedures that should matter). Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility. To be sure, no one should be forced to be a responsible citizen: however, neither should anyone be forced to do what responsible citizens can do; that is, cast their vote at election time.

Reference

1. Brennan, J. (2011), The ethics of voting, Princeton University Press

It’s Monday morning in Newcastle when a child arrives at school, places her finger on the scanner, and waits until a crackly electronic voice acknowledges her.

In Sydney, a wall-mounted CCTV camera records a 12-year-old boy entering a classroom and taking his seat. While this might sound like an Orwellian prophecy, it’s slowly becoming reality. Surveillance technologies such as CCTV cameras and biometrics are being used in schools across Australia. What’s the point? And what are the issues we need to be aware of?

Australia is tentatively following in the footsteps of the UK in implementing surveillance in its schools. In England, it is estimated that 85% of secondary schools have some form of CCTV system, and that a third systematically fingerprint pupils from the age of four. Schools in Australia haven’t reached the same level of near-ubiquity yet, but they are demonstrating a growing appetite.

The effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’.

More than 50 schools in NSW have CCTV cameras in playgrounds and outside dining areas, with plans to install them in classrooms and corridors. Similarly, in Western Australia where the Department of Education confirmed its plans to roll out systems across the state’s schools, half of Perth’s secondary government schools have installed CCTV. Further momentum has been provided by the WA State School Teachers Union that tabled a motion to have at least five surveillance cameras installed in all schools.

The overarching reason cited for the use of CCTV is the prevention and detection of crime. However, it is important to remember that the effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’. In the UK, arguably the CCTV capital of the world, a government funded evaluation failed to find evidence of efficacy. Just one out of 14 CCTV systems demonstrated a significant reduction in crime. More recent studies have revealed that for every 1000 cameras in London, just one crime per year is solved. A sobering thought when the government has already invested more than £500 million in the equipment.

Debate about asylum seekers and refugees, especially when it concerns “boat people”, is often characterised by misrepresentation and hysteria. Amid all of the politics concerning the issue, the ethical dimensions of asylum are not always given their proper attention.

This paper seeks to offer a brief guide to the ethics of asylum and refugees, focusing in particular on four general questions:

1. What should be the place of empathy and compassion in our moral reasoning with respect to asylum seekers and refugees?
2. To what extent must any ethical account of refugee policy incorporate concerns about practical or political feasibility?
3. What is the nature of Australia’s moral obligations to asylum seekers and refugees, and to what extent are these shaped by our understanding of membership?
4. Can mandatory detention and offshore processing be ethically justified?

It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

It is argued that empathy should figure in ethical reasoning, that it is irresponsible to adopt an ethical framework without attention to practical feasibility, and that in a liberal democracy, moral obligations are complicated by a value of self-determination.

In policy terms, the paper argues that it is difficult to justify the continuation of mandatory detention, and that onshore processing of asylum seekers who arrive in Australia by boat is the ideal response. Yet the latter would be best achieved with bipartisan political support and as part of a credible, regional solution. By itself, a shift to onshore processing is likely to lead to an increase in the arrival of boats carrying asylum seekers wanting to make it to Australian territory.

In such a scenario, political leaders must educate public opinion about asylum seekers and refugees and avoid politicking over boat people. Where such resolve is missing, a shift to onshore processing may carry the risk of a number of “spillover” effects – in particular, the possible undermining of public acceptance of a substantial, racially non-discriminatory immigration program, and of a multicultural Australian society.

If there is to be offshore processing, as may well be the case, there must be legislated minimum standards for how asylum seekers are treated in any offshore facility, based on relevant human rights standards, with adequate legal protections. It is also important that any durable policy response involves a regional dimension. It is important to ensure Australia bears a larger burden, if there is to be successful cooperation with our regional neighbours, particularly in stemming the arrival of asylum seekers by boat. It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

There is also merit in proposals to establish an independent commission to facilitate informed public debate, and an independent authority to administer Australia’s humanitarian programs. At least until there can be strong bipartisan political leadership on this issue, it may be necessary to seek an institutionalised form of depoliticising this most divisive of issues.

Read Dr Tim Soutphommasane’s introduction to the Ethics of Asylum and Refugees Symposium, held on 30 June 2011.