For asylum seekers, ‘disincentives’ are the new deterrence

In asylum seeker policy, the most punitive measures are the most politically acceptable. AAP/Lukas Coch

Remarkably, in all the 162 pages of the Houston panel’s report on asylum seekers, the word “deter” does not appear a single time. But this does not necessarily indicate a welcome move away from the deterrence-based policies endorsed by both major parties in recent years.

There are a number of positive measures amongst the expert panel’s 22 recommendations. But anyone hoping for a policy shift away from border control and towards refugee protection will quickly find their hopes dashed.

The panel’s approach is underpinned by the firm resolve that “the single most important priority” is to ensure that asylum seekers “will not be advantaged if they pay people smugglers to attempt dangerous irregular entry into Australia”. This is textbook deterrence as we have come to know it. It is simply rephrased in the innocuous language of incentives and disincentives, risks and benefits, advantages and lack thereof.

But to argue that this linguistic shift is nothing more than a cover for more of the same discredited thinking would be too hasty.

Social scientists may have good reason to be wary of the instrumental language used by economists. But the language of costs, benefits and rational choice does at least promote an analysis that is wider, if not deeper, than a purely deterrence-based perspective.

Positive measures in the report, such as increased quotas and improved access to refugee determination procedures would not find a place in a standard deterrence-based model. Pure deterrence relies solely on inflicting painful consequences for non-compliance.

But on the painful side of the cost-benefit equation, the panel strongly endorses a return to offshore processing for those who continue to see irregular travel as their best or only option. Not only that, but potentially implemented in a wider range of destinations and circumstances than before. Once again, individuals who have arrived safely in Australian waters or on Australian shores through irregular means are to be subjected to further ordeals in the hope of deterring those who might otherwise follow.

Equally disturbing from a human rights point of view are the proposals to reduce access to family reunion for those who are eventually recognised as refugees. This is expressly intended to remove any “possible advantage” they might otherwise have gained from their decision to travel to Australia by sea. Whatever policy benefits might be expected to flow from this measure, its individual cruelty is not diminished by recourse to euphemistic language.

Inflicting penalties on some in order to obtain an expected benefit for others is a fundamental component of deterrence theory. This distinguishes its utilitarian mode of reasoning from approaches which foreground individual welfare, needs and rights. Still, it is possible to endorse deterrence while hoping that the negative consequences associated with its failure will be suffered by the smallest number of people possible.

This seems to be the fervent hope of the members of the expert panel who have stressed repeatedly that the whole package must be implemented in order to have the intended effect of fewer dangerous voyages.

But whatever position one takes on the likely success of the proposed program on its own terms, selective implementation of the most expedient, politically popular, and possibly the most punitive aspects looms as a serious risk.

The positive proposals about increasing access to refugee determination procedures seek to turn the myth of an orderly queue into a reality. But the business-as-usual parliamentary debate that has ensued in the short time since the report was released does not augur well for maintaining the balance of positive and negative incentives.

The early indications are that efforts to divert boat arrivals are likely to proceed with indecent haste. The more workmanlike and less politically visible business of providing greater access to regulated refugee determination channels will struggle to keep apace.

Sadly, the primacy given to ensuring asylum seekers “will not be advantaged if they pay people smugglers” plays directly into this entrenched political agenda, as does the stipulation that legislation to enable offshore processing be passed “as a matter of urgency”.

In the midst of this discussion about the manipulation of incentives, it is important to ask precisely what it is that asylum seekers are being “incentivised” to do.

The answer is that they are expected to stay outside of Australia and wait to be processed.

The failure to discuss Australia’s wider border control policies and critically assess the human rights implications for those whose avenues for safe travel are blocked, is a significant and regrettable gap in the report. It represents a second front on which the panel’s report has failed to act as a possible game-changer.