This story is a part of our September focus on Violence – you can access more content from this issue here
By Stephanie Murphy
Begin with Ranjini. The silent alarm on her door has just stirred to life and she now cannot leave until tomorrow. She hasn’t seen her husband in weeks and their new son knows him as a stranger. She is 34. She has been in detention for three years. There is no foreseeable end. All she knows is that her son will grow up in the same prison as her.
Ranjini’s name might be familiar to some. A Tamil asylum seeker, she has become the most prominent face of the group of 48 refugees being kept in indefinite detention in Australia. She arrived in Australia by boat in 2010, and although found to be a genuine refugee, was assessed as a security risk by ASIO.
They have been in an impossible situation ever since: as genuine refugees, they cannot be returned. But since they have been deemed security risks they cannot be released. No other country will take them. Even in a political climate tainted by unprecedented hostility towards asylum seekers, their fate has attracted at least a flinch of concern. A current High Court challenge seeks to overturn a previous decision that supports the government’s decision to detain them indefinitely.
Beyond these individuals, one of the most curious aspects of the current situation is how a generally humane country like Australia ends up inflicting such harm. Although almost everyone continues to publicly condemn human rights violations, this belies a different conviction reflected in actual policy – as Australia’s detention policy shows.
A possible answer lies in the tangled threads of violence, the many faces of punishment and torture, and the justifications used for both.
Liberty, autonomy and torture
The definition of torture depends on who you ask. For the CIA, even “enhanced interrogation” techniques like waterboarding don’t amount to torture. According to most rights advocates, scholars and international law, however, varying degrees of emotional, physical and mental harm might all amount to torture, or cruel and unusual punishment.
Although there is disagreement at the margins, torture is usually defined according to a several key features: the infliction of suffering on an unconsenting and defenceless victim, depriving that person of their autonomy, usually for the purpose of extracting information.
Torture cuts to the core of some of our most deeply held beliefs about rights to life and liberty. But it’s useful to think about exactly what it is about torture that makes it so morally reprehensible. And there are two main reasons: the obvious one is that it involves the infliction of pain and suffering. But the second is just as important, especially in “humane” countries like Australia: it is the deprivation of liberty, autonomy and the ability of a person to control their own body.
The word torture is often used interchangeably with “cruel and unusual punishment”. However it helps to remember that the former is a specific instance of the latter. In the case of detention practices in particular, it is useful steer clear of the well-worn stereotypes and rhetoric that surround the use of “torture”.
More importantly, the idea of “cruel and unusual punishment” leaves room for the idea that these practices may serve political ends beyond the extraction of information. In the case of asylum seeker policy in Australia, this ulterior motive is disturbingly clear: punishment and deterrence.
Expanding the boundaries of the familiar
We’re familiar with the idea of torture in some prisons, in some countries. Images of crowded jails and corrupt officials in developing countries are familiar tropes that are easily deployed – and easy to keep at arms length, in a country like Australia.
It’s perhaps one of the reasons the revelations of torture at Guantanamo Bay in 2004 were so explosive. They forced an expansion of the geographical and conceptual boundaries of torture. Suddenly, methods and practices much closer to home were under the spotlight.
But while the “enhanced interrogation techniques” that were the focus of international outrage have been banned since 2009, the same cannot be said for the more mundane but similarly confronting conditions of detainees. A US Senate Committee heard in June that 69 detainees are on hunger strike. Forty-five of these have to be force-fed to prevent starvation: twice a day, for two hours, they are strapped to chairs and fed through plastic tubes.
It is this same removal of autonomy, this violence inflicted on the body of a person, that explains the wrongness of indefinite detention. There is no end in sight; the individual is trapped not only physically but mentally – and the cost is enormous.
But at the same time, violence is part of the justification of such treatment.
The justifications for harm
The most famous example of an argument to justify torture is the “ticking time bomb”. A terrorist group has planted a small nuclear device in a large city. It is about to detonate. One of the terrorists has been captured by police. Only by torturing him will they extract the information of the bomb’s location in time to disarm it.
In these circumstances, many people instinctively respond that it is morally justifiable for the police to act this way – to inflict suffering and deprive him of liberty in the interests of the greater good.
This same logic – that it is permissible to violate certain fundamental rights in order to prevent violence –underpins part of the justification for indefinite detention. The spectre of the terrorist is still routinely agitated and governments resort to disastrously misleading and unrealistic scenarios to justify their policies.
Hence the focus on past terrorist activities, the stubborn contention that this will determine future behaviour, and that benefits outweigh the costs. But even less than in the case of the nuclear bomb, it seems fundamentally flawed to set human rights standards in this way, by reference to extreme, unlikely and entirely hypothetical scenarios.
Indefinite detention and harm
Detention has severe consequences for mental wellbeing, even among ordinary prison populations. The situation of most asylum seekers is far worse. Among them are survivors of torture, rape and war, and indefinite detention is known to cause prolonged and acute mental and physical health problems.
Serco reports from 2009 to 2011 give a chillingly prosaic account of the daily misery inside these centres. By law, they were required to log every incident – electricity outages, blocked drains, a person found dead from hanging in their cell.
Amnesty International has condemned Australia’s detention system as a human rights “catastrophe”. Survivors of such detention speak of absolute despair. With no defined end in sight, they doubt there will ever be an end.
Given these devastating effects, it is hard to deny that indefinite detention is both cruel and unusual. Cruel in the severe suffering it inflicts. Unusual in that Australia, in the dubious company of countries like Uruguay and the United States, is one of the only countries to allow indefinite detention of genuine refugees, without trial, and without end. No other group of people could expect to be subjected to such treatment in a country like Australia.
And in light of asylum seeker policy from both major parties, detention is also arguably a punishment – at least in practice.
In a purely legal sense, the High Court decided in 2004 (in the now infamous Al-Kateb case) that indefinite detention could not be punitive. This decision and another underpin the current detention regime – and stand for the proposition that “indefinite detention, even in the worst conditions imaginable, is lawful.”
This “miserable” decision aside, however, asylum seeker policy from both sides makes clear that locking up asylum seekers is not simply a necessary administrative step: it is punishment and deterrence. The underlying rationale is simple: inflict harsh conditions to (a) punish the “illegal” arrivals, and (b) deter any others from coming.
The combination of appalling conditions and a clear government policy to inflict them is, as some observers argue, not just cruel and unusual, but a punishment.
The High Court, ASIO and indefinite detention
So where does this leave the refugees in indefinite detention and their appeal?
There is no reason to doubt that ASIO, for the most part, is faithfully attempting to fulfil its mandate to safeguard the nation’s security.
But achieving this task doesn’t necessarily require the violation of basic rights of autonomy for indefinite and arbitrary periods. Improvements to ASIO procedures – such as minimum disclosure requirements, merits review and increased transparency – would not undermine its legitimate functions.
Most importantly, there are existing measures in Australian law that are viable alternatives to detention that would not diminish security, and give refugees like Ranjini equal treatment under the law.
But in light of the Coalition Government’s stance and the less-than-promising hearings during the High Court challenge, this looks unlikely to change in the near future. The indefinite detention will continue, indefinitely.