Professor Gillian Triggs, president of the Australian Human Rights Commission, has found that by reason of its policy of the continued retention of children of asylum seekers, Australia has been and remains in breach of its international obligations. This applies to both major political parties. The legal argument is clear and has not been refuted. The best the Prime Minister could offer was bluster, condemning the report as a “transparent stitch-up.” Australia’s Human Rights Commissioner Tim Wilson conceded that retaining children in detention was not in anyone’s interest, but provided no justification for continuing the detention.
The Report of the Commission argues that asylum seeker families and children have been left “. . . [i]n a legal black hole in which their rights and dignity have been denied.” This ethical claim needs supporting argument.
Contemporary philosophers and lawyers have been working to clarify the notion of dignity. A leading exponent is Charles Foster, Fellow of Green Templeton College, and University of Oxford in Human Dignity in Bioethics and Law (2011).
Foster cites Christopher McCrudden’s summary of the basic, minimal agreed content of the notion of dignity drawn from international human rights texts; there are three points. The first is that “Every human being possesses an intrinsic worth merely by being human.” The second is that “This intrinsic worth should be recognised and respected by others;” it follows that some ways of treating others are inconsistent with this dignity or required by this dignity. The third is that the state exists for the sake of the individual person and not vice versa. The first point is ‘ontological;’ it refers to the being of the person. The second is relational; it concerns ways in which persons connect with each other. The third is political; it expresses the basic priorities that should govern political judgments and activities.
Foster begins his account with a question: “What makes humans thrive?” This was expressed in traditional philosophy drawing on Aristotle as “flourishing.” We can clarify what dignity requires and what violates dignity by asking what enables people to thrive. It is important for Foster’s argument that we can meaningfully ask this question not only of mature individuals, who we may presume are fully rational and free, but of the youngest children and of the most disabled. Foster argues that to make sound ethical and legal decisions we have to inquire empirically what is good for us.
We can connect Foster’s arguments with the present debates in Australia. As cited by Kim Oates in his recent contribution, the Australian Government’s own Early Years Learning Framework describes three foundations as the basis for healthy childhood growth and progress for pre-schoolers: “Belonging, being and becoming.” We can adopt the same three points to develop an account of dignity that is more specifically related to the present Australian situation.
To thrive, a human person needs to belong, that is to be part of a human community; this is the relational aspect of dignity. This community will normally be a family, but it could also be, of course, another group that takes over the role of the family. A family gives to its members and in particular to children what they need to thrive; food, clothing, affection, education. Children need to form relationships so as to establish a secure sense of themselves. Children characteristically achieve this by play-based behaviour. Learning to be themselves corresponds to the ‘ontological’ element of dignity.
They are enabled to become more fully themselves by engaging their capacities to learn and develop. Becoming is another word for thriving. The adults who are responsible for the children themselves thrive by engaging in these processes on behalf of children.
Thriving is the basis of dignity. But dignity entails more than this; it requires recognition. A parent or responsible adult recognizes the child as one who has inherent worth and enables a child to thrive. But the parent or adult who acts in such a way receives recognition also, recognition as a person of dignity.
Dignity is always a two-way notion; when one person recognises the dignity of another, the other accepts that recognition and in so doing recognises the dignity of the first. When the first receives that recognition she can then recognise her own dignity. I cannot recognise dignity in myself while I act in such a way as to refuse to recognise the dignity of the other.
Dignity in one important aspect entails recognition of self, of one’s own inherent worth. But the individual cannot recognise her or his own worth, without recognising the worth of those others with whom they are engaged. An adult who denies to a child for whom she or he is responsible what the child needs to thrive is denying to himself what that adult needs to thrive, namely recognition of his own inherent worth. A community of persons who recognize their own inherent worth or dignity will want to protect others whose dignity they recognize, especially when that dignity is being violated. Such protection is a requirement of justice which is the basis of rights.
Finally, the third element of the generally accepted notion of dignity also applies: the state exists for the sake of persons; persons may not be used as means for the benefit of the state and much less for keeping a political party in power.
We can now return to the empirical investigation that Charles Foster requires. The report of the Australian Human Rights Commission on Children in Detention, “The Forgotten Children” clearly provides ample empirical evidence that the children in detention are not being adequately provided with the support that would enable them to thrive. Rather, the contrary is the case: they are being treated in ways that seriously damage their thriving.
The case against the present policy of the Australian government regarding the detention of children can be summed up as follows:
- The government is in violation of its international treaty obligations.
- It is using the children as means to support its policies on refugees so as to remain in power, thus violating the due relationships between the state and individual persons.
- Finally, those who support and implement these policies are violating the dignity of the children. In so doing they are denying their own dignity. They make it impossible for themselves to recognise their own dignity. They also make it impossible for us, the citizens of Australia, to recognise their dignity.