Desmond Manderson is a Future Fellow at the Australia National University College of Law/Humanities Research Centre. The author of several books, his work takes an interdisciplinary approach to law and the humanities. In this interview, he speaks about his essay 'Groundhog Day: why the asylum problem is like the drug problem', published in Griffith REVIEW 41: Now We Are Ten, in which he advocates a 'harm reduction' approach to asylum seeker policy in Australia.
Your approach to law and is very much an interdisciplinary one, of thinking across ideas and areas of study. What are the benefits of that way of thinking?
Law and policy never exist in a vacuum. They always exist, and their meanings and implications can only be understood, in relation to the cultural web in which they're set. My second answer would be that it's one of the things I think that's gone wrong with the ways in which we, in this society, think about law. We have abstracted it from culture and from history and from philosophy and we treat it as a purely instrumental approach to legal regulation. It doesn't have any relationship to the rest of our lives. We have this fundamental divide between the insiders who know the rules and are prepared to use them in whatever way suits them and don't see a problem with that and the outsiders who see it as a fundamental barrier to their engagement with the legal process. Part of the mission I have in all my work, and you saw a small bit of that in 'Groundhog Day', is to reconnect our thinking about law to our experience of a lot of other things that matter in our lives.
One of the ideas you bring out in the piece is the fact that there's a crisis of language and perception complicating the debate around both drugs and asylum seekers. I was wondering whether you could speak about where that language comes from and how it gets used by politicians and in society.
I think we have templates for thinking, and the language of hysteria and anxiety is very effective because it seems familiar to people. I think that maybe that's part of the answer to 'where does it come from,' because we tend not to be very original in how we talk about particular circumstances. We borrow concepts and languages from other fields because they feel comfortable. So the language is doing something destructive in that it's creating anxiety, but the response to it is to continue using the familiar language, and therefore to exacerbate the anxiety.
Do you think that response is a product of a repetitive, sound-byte type language being used by politicians?
I think it's hard for politicians because evidence of thinking is treated as weakness. I don't think that it's an overstatement to say that if you see somebody on television thinking, then there's a sense of blood in the air. But that language gives people very little room for manoeuvre. While the language is about 'zero tolerance' and law and order there's a lot of reasons why politicians might want to get on that bandwagon. The language makes it very hard for politicians and policy makers to see any short-term incentive in stepping away from it.
You talk about creating a harm reduction policy for asylum seekers, mirroring the turnaround in the policy on drugs. In particular you point out that people die not because they are a heroin addict, or an asylum seeker, but because of secretive conditions which ensure chaos and danger will proliferate. Could you explain how a harm reduction policy would change and improve those conditions?
A very stealthy but remarkable success in public policy has been the way in which the drug debate has turned around, and the way in which it's lead to measurably effective public health outcomes. I thought it was a good way of seeing where the shift can take place. It leads you to think not about how to stop the boats, but how to stop people getting on the boats. The drug analogy shows you the profound limits of a deterrence strategy, the things it just can't accomplish or the things it accomplishes only at huge social, political and economic cost. It allows you to stop fantasising about unrealistic solutions and to think pragmatically about what you can do. That means thinking about finding incentives for Malaysia and Indonesia to sign on to the Convention, to develop better protections for the much more serious refugee problem that they have, with our support. That provides better conditions for the people in those countries and therefore takes the pressure off people moving to Australia. We have a real vested interest in improving the treatment of refugees throughout our region and that means not a race to the bottom but an effort to improve regulatory practices right through the region. We need each other, and the tragedy of the current solutions is that they move us away from a real solution. The social and economic pressures are overwhelmingly in favour of a harm reduction approach but the policies we've got on both sides are a desperate effort to separate Australia from social problems that we are not able to separate ourselves from.
You wrote the piece before Kevin Rudd announced his PNG policy, and before Tony Abbott announced that he would militarise the borders. I'd be interested to know what your take on those policies is, because they contradict the harm reduction policy you advocate.
It's a tough question. From my point of view, the Coalition's policy is pointless. It won't stop people coming. One of my favourite lines is by Arthur Koestler, who says that Phoenicians used to beat the waves to calm the storm, and that's exactly what the Coalition's proposal is: 'if only we beat the waves hard enough then the storm will go away.' No, it won't happen. I think the Rudd policy is slightly different. I've said in the article that basically deterrence doesn't work, but I suppose if we did take all the asylum seekers and threw them in a jail somewhere and let them rot, then that might work to some extent. There comes a point where deterrence might be effective, but at huge social and legal costs. It's not at all clear that it's legal, because of what convention responsibilities are and because of the implications of what this policy would mean for the refugee convention if every country in the world did it. I also think PNG further increases the exorbitant expense of the relatively pointless asylum exercises we currently go through. That was one of the important things in the re-thinking of drug policy, was just how expensive those kinds of approaches were and the very poor value for money they gave government and communities. The other point is that it seems to be accompanied by an intensification of the attempt to separate Australia from global and regional solutions. In other words, to drive us further and further away from a genuine solution to a really serious regional problem. In that way I think it makes the long-term solution further and further out of reach.
One of the things you pointed out at the end of the piece was that the issue of drugs was gradually humanised, and stories like the Bali Nine and Schapelle Corby made the issue more personal for people. It reminded me of the comments the Christmas Island administrator made the other week after another boat sunk and he couldn't name the baby boy who had died, at the same time that the country was clambering to know the name of the royal baby. How important might those stories be in changing attitudes and humanising to asylum seekers?
Your example of the named and the unnamed baby is a very good one. And I also think about the case this year when a boat sank and the border control officials left dead bodies in the water. While I think there's a lot of genuine distress amongst people for deaths at sea, at the same time it's not a concern connected to the actual human lives that are involved. I know if it had been a round-the-world yachtsman who had drowned off Christmas Island we wouldn't be leaving that body in the water. If it was a ferryboat or a pleasure craft or an ocean liner full of British and American people we wouldn't be leaving those bodies in the water. It says something about how we think about the people in those circumstances, that they remain anonymous for us even though we're concerned in some abstract way with their deaths. So I think the question of humanisation is incredibly important. Unfortunately the strategy, at least in the last ten years, has made that harder and harder. Mandatory detention and offshore processing removes those people from our community so we can't have a personal connection with them, we can't see them in the street or engage with them in any way. I think we're going through a period of increased callousness, which is partly a function of the way we have chosen to organise our response to these sorts of events, and I think that's a really important challenge for Australia and for journalists and storytellers in Australia.