But what are we backing when we #BacktheBill?

Right now we are witnessing a building up of pressure. In parliament, in our newspapers, on our social media. If you follow Behrouz Boochani or Abdul Aziz Adam on twitter, at the moment you’re seeing almost daily reports of attempts at suicide and self-harm. It is horror.

On Monday 3 December Kerryn Phelps introduced her first bill to Parliament. Called the Migration Amendment (Urgent Medical Treatment) Bill 2018, the Explanatory Memorandum for the Bill explains that:

This bill seeks to amend the Migration Act 1958 to require the temporary transfer of transitory persons on Manus Island or Nauru, and their families, to Australia if they are assessed by two or more treating doctors as requiring medical treatment. It also requires the temporary transfer of children and their families from offshore detention to Australia for the purpose of medical or psychiatric assessment.

In her second reading speech, Phelps made clear that she believed that this amendment was necessary to deal with a ‘medical crisis’. The remedy for this ‘crisis’, in this vision, is highly limited and contained: the continued permanent temporariness of settlement for those who would be brought to Australia, the continuation of the regime of offshore processing in general, and the continued support for the bipartisan fearmongering around, as she put it, ‘letting the people smugglers win, or inviting a flood of boats.’

This Bill then, supported by the expanding crossbench and a range of NGOs and lobby-groups, should only be seen as a deeply ambivalent ‘solution’. Just like the Kids off Nauru campaign – which created the hashtag #KidsOff – this Bill has spawned a campaigning hashtag (#BacktheBill) and provides a very partial remedy to a much larger problem. It is a crisis response to a crisis purely of the politicians’ making. Where KidsOff wants only children out of offshore detention – seeing, it would seem, adults as at least partly disposable – Phelps’s Bill sees permanent settlement, an end to offshore processing, and a fight against the pernicious discourses of drownings, boats, and people smugglers, as either unnecessary, not critical, or available to be used as tactical bargaining chips.

In doing so, these discourses, which structure and limit so much of what is available to be spoken about and done, are further entrenched.

Why is this a problem? Indeed, I can understand why it is seductive for politicians and activists to get caught up in the narrative of crisis, and think both that an immediate solution is what is most needed, and that the only possible immediate solution is that which will come from lowering the bar. As The Project put it on Monday, ‘With only four sitting days left for our Federal pollies this year, the window to get asylum seekers off Manus and Nauru before Christmas, has nearly closed. Today, there’s renewed pressure to make it happen.’

But this is the thing: legislative change is not needed to take everyone out of detention. Decisions are made every day to bring people to Australia. While yes, legislation is needed to outlaw offshore detention, or potentially to offer permanent resettlement to those currently in detention, those options are seemingly not on the table. Unless public pressure puts them there.

While we do indeed need to keep up the pressure (seriously!), and at least Phelps’s Bill doesn’t only target children (although it does treat children differently to non-children), Phelps’s remedy doesn’t seem to me to tackle the broader problem, which we could understand to lie in the discourses and narratives which proliferate around refugees and politicians, limiting what is speakable, what is imaginable, and what is doable.

If we remember back to 9 November this year, we recall that Scott Morrison spoke at a Lifeline event, telling his audience that, ‘politics is not for the fainthearted. And you’ve got to be prepared to understand and own and carry the burden of decisions. And you’ll find yourself on your knees, you’ll find yourself in tears. You’ll find yourself wrestling with this tough stuff.’ He continued, highlighting the same discourse which Phelps fell back on: ‘And I, probably more than any other, perhaps a few, have to deal with the consequences and understand what happens when a young Border Force officer or military officer has to pull a child face down from the water. And I’m never going to let that happen again.’

Anyone, that is, can deploy the discourses of ‘caring’, to suit their own political ends.

Morrison’s interviewer for that event, noted that ‘certainly the public generally agrees with the border control. No argument. When it comes to the children, a lot of people don’t. Is there a timeline when you might get all of these children out of the detention centres?’. In Phelps’s iteration, it is both children and the medically diagnosed ill about whom ‘a lot of people don’t.’

Writing about Aboriginal incarceration, Nayuka Gorrie and Witt Church explained in The Guardian last week that, ‘Jail is something we take as part of the furniture in the settler state.’ Its structural place in Australian society has played out repeatedly with calls for the centrality of the continued detention of refugees and asylum seekers. The continuation of regimes of offshore detention is a necessity, in Phelps’s Bill: it is ‘part of the furniture’.

From the beginning of mandatory detention on – which began, we should always recall, under an ALP Government, implemented by a member of the left of the ALP – there has been a focus on using detention as a form of control. In the words of Nick Bolkus, former ALP Minister for Immigration and Ethnic Affairs (1993-1996), who I interviewed earlier this year, detention meant that they ‘kept a lid on the program. It was managed. And in the process we didn’t have to sink boats.’

This focus on the sinking boats, and on the ‘we’ who is understood to play a role in whether or not ‘they’ sink, is crucial to the history which created Morrison’s recent comments. It’s also crucial to understanding Phelps’s approach.

Indeed, we need always recall the bipartisan ways in which drownings discourses, and fears of refugees coming by boat, have been deployed. In August 2011 – when he was Minister for Sustainability, Environment, Water, Population and Communities – ALP MP Tony Burke defended the new ALP policy of sending asylum seekers to Malaysia (a policy which would be overturned by the High Court, in part because of the illegal way this policy dealt with unaccompanied asylum seeking children) by asserting that people should ‘not lose sight of the fact that in this trade people drown on the way here.’ ‘And,’ he said, ‘we can’t change the reality that if you put some sort of incentive in that encourages people to put children on (boats), then you will end up with children face-down in the water.”

In the 2005 parliamentary committee discussions regarding the Migration Amendment (Detention Arrangements) Bill – which was primarily designed to alter the conditions under which children could be held in detention, and to introduce community detention for them – Liberal Minister for Immigration and Multicultural and Indigenous Affairs, Amanda Vanstone, asserted that:

What the government want to do is maintain strong border protection. We are very pleased that we have largely stopped people coming on boats. We hope that no more lives are lost by people taking a chance on those rickety, stinking, unsafe vessels to come in monsoon time, or at other times, and put their lives at risk.

Vanstone continued on to talk about the ‘choices’ that politicians are forced to make between ‘policy alternatives’ – such as whether to face the ‘crisis’ of boats arriving, or to allow child asylum seekers out of detention – when ‘you do not want either of them but you have to have one. Or you are forced to choose between alternatives when you want both of them but you cannot have both. Government,’ Vanstone said, ‘is not about the luxury of writing on a whiteboard what is the ideal world… It is not about the luxury of sitting in academia and saying, “what would be ideal?” It is about what must be done in the national interest at this time and what is fair.’

There is, we can see, a rhetorical routine deployment of discourses of fears of boats, drownings, and the problems of detention. There is also the deployment of discourses of crisis and what we could call ‘being stuck in a bind’. These binds though are of politicians’ making. A crisis is produced, and that crisis then limits the responses. ‘Choosing between alternatives’, as Vanstone framed it, is a frame of mind in public policy, not a natural inevitability.

My point here isn’t to fully explain why Phelps and the crossbench developed the legislation they did (I don’t have those answers), nor to necessarily argue that the legislation, or any further compromises made in negotiations with the ALP today, shouldn’t be supported (I don’t know or understand enough to make a claim either way). But my point is larger: this Bill, and others like it (such as the Kids Off Nauru campaign), move refugees, asylum seekers, and Australia towards a dead end, ultimately limiting what is possible.

We need to be thinking of alternative possibilities which can break the support for offshore detention and temporariness. We need, that is, to reimagine what is at stake. It is easy to think of children and those who are sick as vulnerable and in need of paternalistic care: care, that is, which is offered only on our terms. But instead we need to reimagine vulnerability, understanding it as resulting from interpersonal and political relationships, rather than being a precarious position held by those who are deficient.

As John Tobin has noted, an alternative to focusing on children’s vulnerability could be ‘to embrace the idea of universal vulnerability’ and ‘to acknowledge our interdependence and the value of our relationships, intimacy and the need to care for one another.’ Or we could also follow Marianne Hirsch, who asks us to think of vulnerability as a radical openness toward surprising possibilities’: to think of it ‘as a space to work from and not only as something to be overcome.’

The recognition of this kind of vulnerability could change how the violence and harm perpetrated by Australia’s border regime is understood and fought against. An understanding of vulnerability as something within each of us has the political potential to provide a way for the population, and the crossbench, to recreate the political pressure for all peoples to be permanently resettled wherever they choose; for aid to be provided which is not paternalistic; for the possibility of deaths at sea to be re-understood as the possibility of death anywhere; for offshore processing and boat turnbacks to be no longer viewed as usable techniques of governmental control; and for seeing the utilisation of people-smugglers to come by boat seeking asylum not as a problem, but as merely a mode of transportation. This kind of recognition, in short, would open up new horizons of possibility in our languages, cultures, and actions.


This article is part of a special edition we are running, ‘If you’ve come here to help me: solidarity beyond borders’. See the other articles in this edition:

– ‘How could it all have happened?’: Janet Galbraith

– ‘Beyond “refugees”?’: Max Kaiser

Editorial: Sian Vate

Jordy Silverstein

Jordana Silverstein is a Senior Research Fellow in the Melbourne Law School. A social and cultural historian, she is the author of Cruel Care: A History of Children at our Borders (Monash University Publishing, 2023) and Anxious Histories: Narrating the Holocaust in Jewish Communities at the Beginning of the Twenty-First Century (Berghahn Books, 2015).

More by Jordy Silverstein ›

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