Quick Post: Note on the Abyan case

There’s nothing new in saying that the public discussion about Australia’s asylum seeker policies is broken.  People who want policy change show no capacity to change the opinions of those who disagree with them; and those who want policies similar to the status quo show no desire to listen to alternative opinions.  It is a catastrophic failure of deliberative democracy.  There are no agreed facts; both ‘sides’ equally guilty of cherry-picking, misrepresenting, and outright deceit.  And there are a shit-tonne of celebrity talking heads and people with political motivations adding more chaos to the mix.  It is broken and will continue to be broken for the foreseeable future.

It’s in this framework that we have Abyan’s case: an extreme consequence of an unresolved, decades old policy problem.

Abyan (apparently not her real name) is a 23-year old Somalian woman seeking asylum.  As part of the offshore processing policy, she was being held in the Immigration Detention Facility on Nauru.  Recent policy shifts have worked to release more asylum seekers into the Nauruan community, and Abyan was in the community under this process.  Abyan alleges that she was raped while in the Nauruan community by Nauruans, which is denied by Nauruan police (more on this in a moment).  Abyan is pregnant (she alleges from the rape) and sought an abortion.  To undertake this, she had to be flown to Australia for medical treatment.  When she arrived in Australia, she sought counselling before undertaking the abortion, so the Australian Government flew her back to Nauru.

It’s very difficult to be certain about much of this.  The issues involved are absolutely horrible and — this is the important bit — the fact that this situation can even arise is probably the most concerning aspect of this story.  Forget that this is an asylum seeker issue for a moment.  Think about the problems we have with rape allegations in Australia — we know that women are systemically discouraged from reporting it, that they’re put through ordeal after ordeal when they do report it, that the ‘success’ rate of court action is ridiculously low, and that the sentences handed down are pathetic.  And this is all within a country that has the resources to do better.  Nauru is not in our position.  Its capacity to police gendered violence is limited, and even the fact that they (apparently) released Abyan’s real name shows that things are completely messed up.

Now build the asylum seeker aspect back into the story: you have ethnic tensions along with class tensions (local Nauruans are not benefiting as much from the IDF as they should be, and asylum seekers are physical embodiment of that tension).  And the asylum seekers are supposed to be under our care.

Local Nauruans become invisible when you build in the asylum seeker aspect too early.  By focusing too quickly on that aspect, it is easy to think that the solution is simply to move the asylum seekers somewhere else (e.g. to Australia).  But that lets Australia escape several accusations far too easily: why haven’t we done more to help the region deal with gendered violence?  Why haven’t we got programmes in place to help local police handle these issues?

We use the same method over and over again with the range of issues in play.  Healthcare, education, counselling, &c., &c., &c.  By focusing upon the asylum seeker aspect too quickly, we render other people invisible.

This is important because it’s a point of contact between both ‘sides’ of the policy discussion: regardless of your position on offshore processing, both sides should agree that, if we are processing asylum seekers in a third country, that third country should benefit most from the arrangement.

The serious policy point here relates to the standard of care for asylum seekers.  The mainstream position is that asylum seekers should have access to the same standard of care (e.g. healthcare) as the surrounding community.  If it’s better than the surrounding community, there are tensions (jealousy in the local population — we get it in Australia as well).  If it’s worse than the surrounding community, then we’re failing our moral obligations towards asylum seekers.  But if the standard of care is consistent with that available in the community, and the standard is still poor, then we should ask why we’re not doing more to improve the standard of care for everybody in the community, asylum seeker and local alike.

But this is all the view from nowhere.  In some hypothetical ideal universe, the Abyan situation didn’t happen — either because offshore processing was done in line with our best policy options or because offshore processing didn’t exist at all (because we process claims onshore or because asylum seekers don’t exist at all (because the economic motivators that create asylum seekers don’t exist or because the international coordination means everybody gets their asylum claims organised through regular migration channels (because… this becomes something like a Babushka doll…))).

We live in a real world where this really happened, and we can say meaningful things about our response to the policy failure regardless of our position on offshore processing.

[A quick tangent: When discussing these issues, there’s a strong temptation to consider that people who disagree with you are doing so for bad faith reasons.  Even I find it really difficult not to note the political reasons why the ASRC and GetUp! use particular rhetoric to advance their arguments, or draw upon the internecine squabbles between the various asylum seeker protest groups.  I struggle with it because the current framework of the policy discussion actively encourages it: the other side are liars, morons, crooks, and cheats, and that’s why they have bad opinions.  It’s also really difficult to discuss the underlying policy problems when faced with the relentless bullshit from people who disagree with you: everybody who supports offshore processing is cool with child abuse, for example, or wants to torture asylum seekers.  It is so easy to dismiss everybody else as morally obtuse and be done with it; after all, the politics is broken and isn’t going to change, so why bother?]

The accusation made by the State is that asylum seeker advocates abuse legal processes in order to undermine policies they don’t like.  The accusation made by the asylum seeker advocates is that the State abuses legal processes to undermine democratic oversight of executive action.

For what it’s worth, I think both sides are probably correct.  People were shocked that Abyan was removed so rapidly to avoid the injunction from her lawyers, but the part of the puzzle that makes absolutely no sense to me was the shift in Abyan’s behaviour.  She came to Australia for the purpose of having an abortion, and came after there was a lot of noise from advocates for this to occur.  When she arrived, she instead wanted to have counselling before going through with the abortion.  This is a contentious point because it depends on how you use language to describe the activity.  Both the State and her lawyers agree that Abyan did not want to go through with the abortion in the immediate future, and yet they both accuse each other of lying for saying so.  So the State says that she decided not to have the abortion that she was transferred to Australia to have (which is true, she wanted to undertake counselling first), and her lawyers say that she did want to go through with the abortion but only after having counselling to decide whether or not she wanted to go through with the abortion first (which is true).  But this raises an immediate problem: why wasn’t she offered counselling on Nauru before being flown to Australia for treatment?  And the answer appears to be: because there’s inadequate access to mental health services on Nauru.  Why not?  Because Nauruans are not benefiting sufficiently from hosting the asylum seekers and Australia has goofed its implementation.

The State claims (accurately) that lawyers are using this legal method to seek an outcome that they want, but the rhetoric is that they are being ‘underhanded’ or ‘sneaky’ about it.  This plays into the public perception of activist lawyers trying to subvert policies that the general public wants.  Asylum seekers are ‘coming in through the back door’ and their lawyers are helping them instead of defending policies that Australians voted for at the ballot box.  There’s a normative aspect to this complaint: lawyers ought not use legal methods in a way that wasn’t intended.

Of course, it’s a bizarre complaint.  The same people who make this claim about activist lawyers (and criminal defence lawyers) are the same people who try every trick in the book to avoid paying taxes (‘cashies’), avoid speeding tickets, and avoid drink driving charges (try garlic or mouthwash, apparently).  Further, they’re the same people who’d expect their lawyers to find something tricky to ‘get them off’.

The lawyers claim (accurately) that the State is using legal methods to preserve the policy outcomes it seeks, and the rhetoric being used is that this is ‘Orwellian’ or ‘Kafkaesque’ or ‘tyrannical’ or ‘fascist’.  Of course, it’s none of these things: this is a government that was — by all accounts — elected on the back of the arse-backwards policy platform of scrapping taxes and stopping boats.  The government should be doing those things that it thinks the electorate wants and it should be doing them lawfully.

But here’s the rub: regardless of your position on offshore processing, we should be able to hold the State to a higher moral standard than activist lawyers.  It is not good enough for the State to claim that activist lawyers are just as bad as they are; the State ought to be better.  There’s a conservative reason for this and a progressive reason.

The conservative reason is that the State has an obligation to be moral so that it has moral authority to govern.  If we want citizens to love their country, their country should be lovely.  If the State behaves this way in relation to asylum seekers, it is difficult to maintain faith that it hasn’t behaved this way when finding people guilty and deserving of punishment.  It’s not good enough that a State can perform this or that action; we should be concerned with whether or not it should.  By using legal mechanisms in what appears to be an underhanded way, and by behaving in a way that we would prefer people not to behave, the State weakens its moral authority.

The progressive reason is that the State has significantly more power than the other agents in the legal framework and so should not resort to ‘legal trickery’ in order to obtain its desired outcomes.  The power relationship between the State and the activists (and the asylum seekers, &c.) is grossly imbalanced, and allowing the State to resort to the same kind of trickery exacerbates that power inequality.

It’s through this framework that we can at least have some kind of meaningful dialogue.  The current rhetoric — about Dutton being a potato-headed monster who is a liar and a criminal and a fascist — suits a particular kind of audience: those who already think that Dutton is a potato-headed monster who is a liar and a criminal and a fascist.  But this isn’t an opinion shared widely in the community, especially not by the people who support offshore processing for (frankly) bad reasons, and it’s not an opinion that causes those people to change their minds about supporting the Government.  And it’s rhetoric designed only to motivate people who already oppose offshore processing.  How can you help asylum seekers?  By donating to this or that political group and attend this or that rally where an upcoming politician will be speaking.

Better rhetoric would instead engage people who agreed with offshore processing: if the Government will use legal trickery to subvert asylum seekers’ interests, can you trust it not to subvert your interests?

So this post covered a lot of ground.  The event is a catastrophic failure of policy regardless of the veracity of individual details, and the response to the event shows that everything’s too polarised to make much progress.  This is disappointing because there are ways of mobilising people from different ideological backgrounds into holding the Government to account, but each side is too busy accusing the other of war crimes (‘You support torture!’ ‘You support people drowning!’).

Burn it all down.

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4 thoughts on “Quick Post: Note on the Abyan case

  1. Again with the nonsense that there is an asylum seeker debate when it was decided by global concensus in 1948 that everyone has the right to seek asylum from persecution in other countries.

    That is set in concrete, it is the most fundamental human right on earth yet here in Australia and in some other racist white nations we pretend it is a ”debate”.

    • Hi Marilyn! Good to hear from you again! You’re still wrong; the UDHR doesn’t explicitly include a right to cross country borders, so there’s a debate about that at the very least.

      • No, that is the lazy racist west fudging. Refugees have to be outside their own country to seek protection, that is explicit right to move outside their own country or what would be the point.

  2. Congratulations Mark, you dragged professional troll and zealot Marilyn onto your page! Now you know your blog must really be hitting the big time (or at least, the first few pages of Google).

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