The High Court of Australia deeming offshore immigration detention to be within the scope of the legal powers of the Commonwealth does not change one clear fact: offshore detention is bereft of any moral foundation.
It is a policy that is inconsistent with the Australian government’s own values charter it forces applicants for migration visas to sign.
The High Court’s majority ruling on Wednesday is an exemplar of the idea that a society’s legal framework and the morality of that framework can be separate beasts.
The Migration Act allows for the detention of persons who are not charged with any offence; it allows them to be detained for any length of time; it allows for children to be detained; and as the High Court has found, it lawfully enables Australian governments to keep detainees in hellish conditions on the barren benighted island of Nauru and disease-infested Manus Island.
Australia sees itself as a nation with a moral compass.
It is a cruel irony that the Department of Immigration has on its website an ‘Australian Values statement’ that sets out the content of that moral compass.
It is worth reciting that statement, which visa applicants sign, in the context of offshore immigration detention.
“Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good,” reads the statement.
“Australian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background,” it concludes.
That statement reflects what our government and legislators believe are core Australian values.
Therefore, we must judge Australian government policy and the decisions of legislators according to these ‘values’.
Immigration detention, particularly of the offshore kind, clearly breaches the values set out in the statement.
We know, and there is no evidence to the contrary, that children who are forced by the Australian government to exist (they do not ‘live’) on Nauru and Manus Island are having their mental and physical health damaged, in some cases possibly permanently.
We know that women, in particular, are subjected to harassment and sexual abuse.
We are aware of the psychological harm that men and women endure because they do not have any idea when their case will be resolved.
The physical conditions on both Nauru and Manus Island are harsh to say the least.
There is no ‘fair play’, no ‘compassion for those in need’ and no ‘mutual respect’ in offshore detention policies.
It is a morally bankrupt policy that remains without peer for cruelty in Australia.
There is another moral issue that emerged from Wednesday’s High Court decision.
If the Turnbull government orders those who are might be returned to Nauru as a result of the decision – 33 children born in Australia and 54 other children and families – then what are the doctors and other health professionals who care for these vulnerable individuals to do?
Are they to comply with a government edict that will see children and families subjected to an extreme risk of physical and mental abuse or do they defy the government’s technically lawful order?
It is truly evil of any government to force citizens to set aside their personal and professional ethics and the human obligation to protect others from harm.
What people of conscience in Australia and globally know about offshore immigration detention is this – it is institutionalised government-sanctioned cruelty.
Because a court gives the laws a tick of approval does not change that immutable fact.
Greg Barns is a barrister and spokesman for the Australian Lawyers Alliance.