Laws of Inclusion & Strategies of Exclusion

June 01, 2013

Laws of Inclusion & Strategies of Exclusion

The new Australian policy on asylum seekers[1] has received widespread critique for its failure to fulfil its legal obligations under the Refugee Convention and for outstripping any other western nation’s policy in straying from internationally agreed norms for refugee protection. But there is also a basis for critique arising from ethical principles grounded in Scripture that form the basis for faith and ethics for a large number of Australians.

On July 19, 2013 Prime Minister Kevin Rudd announced the ‘Regional Resettlement Agreement’ (henceforth RRA), through which all asylum seekers arriving on Australian shores by boat will be removed to Papua New Guinea. In addition, all of these people will be denied any chance of being settled in Australia.

This paper focuses on ethical principles articulated in the Bible, specifically in the Book of Deuteronomy. The claim being made is that some important aspects of the RRA run contrary to the biblical ethics espoused in Deuteronomy. Components of the policy—such as mandatory detention, removal to PNG, and the excision of the Australian mainland from the migration zone—are challenged by the ethics, system of justice, and polity of Deuteronomy.

Ancient Israel had a large number of people within its borders who were seeking a new home, and the book of Deuteronomy provided detailed instruction on how these ‘strangers’ or ‘refugees’ were to be welcomed and treated. During the course of this paper I show that Israel was to include the stranger in the social, economic and even religious life of the nation.

The stranger in Deuteronomy: an ethic of radical welcome

The Hebrew word that describes a vulnerable person from another place who is seeking a home is ger. In English Bibles ger tends to be translated as ‘stranger’, ‘alien’, or ‘sojourner’. This person is from another tribe or country with no means of his or her own and so is dependent upon the generosity of their hosts. The word ger, as it is used in Deuteronomy, corresponds quite closely to the English word ‘refugee’.[2] In what follows ger will be translated ‘stranger’.

Instruction on how the stranger is to be welcomed and protected is prevalent in Deuteronomy—the noun ‘stranger’ occurs twenty-one times. It seems that there were many thousands of displaced and vulnerable people in the land of Israel, raising complex questions about who was responsible to care for them and how they were to be treated. People may be ‘refugeed’ through a variety of circumstances, most prominently famine (see the book of Ruth) and war.

The text that is perhaps the best known in scripture regarding the stranger is found in Deuteronomy:

He executes justice for the fatherless and the widow, and loves the stranger, giving them food and clothing. Love the stranger, therefore, for you were strangers in the land of Egypt (Dt 10:18-19).

Israel was to ‘love’ the stranger, as Yahweh loves the stranger. It is clear from the text that loving the stranger includes providing for them materially, offering help with food and clothing.

Though this passage is cited often, few people realise its depth and power. The Hebrew word for ‘love’ used here, ahav, is a technical word for covenant commitment—that is expressed in action. It is a key word used to describe Yahweh’s covenant commitment to his people Israel—indeed it is used just three verses earlier in that way (10:15).

Now this is extraordinary: the very word used to explain Yahweh’s covenant commitment to Israel is now applied to Yahweh’s love for the stranger. This can only mean that Yahweh has a fierce commitment to the stranger. Yahweh is on the stranger’s side, and he will secure a future for these people. To be on Yahweh’s side means to be on the stranger’s side too. Israel is called to have a covenant commitment to the stranger.

Deuteronomy’s ethic of welcome is also demonstrated powerfully in laws concerning a fleeing slave. When two kings made a treaty in the ancient Near East it was common to include clauses of compulsory slave return: fleeing slaves were to be returned to their owners. Israel’s laws are countercultural here:

You shall not give up to his master a slave who has escaped from his master to you. He shall dwell with you, in your midst, in the place that he shall choose within one of your towns, wherever it suits him. You shall not wrong him. (Dt 23:15-16).  

A fleeing slave is to be invited to dwell within a settlement of his choosing. It is up to the slave himself or herself to decide where they will live—these homeless people may expect a brotherly and sisterly welcome in whatever town they desire to call home! For emphasis, the Hebrew text repeats that the fleeing slave will live ‘with you’, three times.

Yet what does it mean for a fleeing slave to live ‘with you’? Practically speaking, Deuteronomy envisions that vulnerable people, including the slave or stranger, receive a welcome within a local township, with which they will be associated. And within the township these find a home in a particular extended household (in Old Testament times extended families lived together). The stranger shares in the social, agricultural, economic and religious life of the extended family.

Deuteronomy’s ethics of justice and inclusion are embedded theologically. Elsewhere I have described a three part theological movement within Deuteronomy, of gift, thanksgiving and generosity/inclusion.[3] First, Yahweh has given the gift of land and its abundance. Second, Israel responds to Yahweh’s generosity with thanksgiving. Third, the reflex of thanksgiving (the other side of this coin so to speak) is justice and inclusion. This three part theological movement may be expressed in this way:

  1. Gift
  2. Thanksgiving
  3. Generosity/justice/inclusion

Yet I pause at this early stage to ask, how relevant are Israel’s ethics of inclusion for a modern nation-state like Australian? It may be objected that the modern idea of nationhood and citizenship has little connection with an ancient society such as Israel. Certainly ancient Israel did not have a modern notion of state sovereignty and certainly ancient state borders were more porous than state borders today. Yet Israel did possess a self-perception as Israel, as opposed to another nation. And within Israel there was something akin to citizenship, indeed this is suggested by the very title, ‘stranger’.

I also need to acknowledge that Deuteronomy does not advocate for the inclusion of anybody and everybody within Israel—its ethics are more complex than that. For example Deuteronomy’s relentless concern for covenant faithfulness means that limits may be placed upon those who would compromise Israel’s faithfulness.[4] Nonetheless it remains that Deuteronomy relentlessly advocates for the inclusion of the vulnerable ethnic other. Indeed we may reflect that Deuteronomy’s concern about religious contamination makes its ethics of inclusion all the more remarkable.

Now it is time to examine specific components of Australia’s current refugee policy in the light of the ethics and theology of Deuteronomy.

Issue 1: Resistance to welcoming refugees

The new policy has been accompanied by a rise in popularity for the Prime Minister. Why? A popular perception in Australia is that the country is being ‘swamped’ by asylum seekers and is asked to settle far more refugees than its fair share. ‘In Australia, a country surrounded by water, the metaphor of swamping waves is used unrelentingly in news media about asylum seekers arriving by boat’.[5] This rhetoric produces fear about unusually high numbers of asylum seekers overtaking Australia.

Yet immigration statistics tell a different story.

In 2011-12, 14,620 people were admitted into Australia on humanitarian grounds, only 6% of the total overseas admission into Australia, which totalled 245,270. By comparison, recently, over two million refugees have fled Syria due to civil war, receiving impressive hospitality within Jordan, Lebanon, Turkey, Iraq and Egypt. Millions of refugees have been hosted by Kenya due to local conflicts, and Pakistan has become home to over two million Afghan refugees. Calculated relative to total national gross domestic product (GDP), Australia is ranked 52nd as a recipient of refugees.[6] Former Refugee Council of Australia CEO Paul Power said recently:

From time to time, I hear people involved in public debate suggest that Australia’s values could somehow be under threat from people coming from outside the country. Perhaps our national values could be enhanced by a greater understanding of Arabic and Turkish hospitality.[7] 

Deuteronomy insists upon a radical welcome for displaced people seeking a home. Generosity and welcome acknowledge that the Lord has been generous to Israel. Furthermore, while Australian immigration policy favours those with wealth and education, Deuteronomy insists that vulnerable people be given priority and it resists practices that privilege the rich. Vulnerable people are prioritised, for example, in tithe laws, which stipulate that agricultural produce customarily siphoned off for the benefit of the elite is to be shared by everybody, especially vulnerable people (Deuteronomy 14:22-29; 26:12-15).

Issue 2: Mandatory Detention

Mandatory detention of asylum seekers arriving by boat was introduced in 1992 and has been maintained by successive Governments up until now—it will continue under this new policy. Yet the human cost of detention is immense. Detention centres have high incidences of mental illness and suicide, and medical services tend to be poor. Dr John Valentine, a former International Health and Medical Services worker on Manus Island, said in an interview: ‘The whole time I was there it was just a disaster, medically’.[8] Further, the number of children in detention centres has been increasing, posing both psychological and medical problems for these children. As Power has stated, ‘The devastating psychological impacts of detention on children have been well-known and widely discussed for more than a decade.’[9]

I have written elsewhere regarding mandatory detention:

Such an arrangement is simply unthinkable within the ethics of Deuteronomy. First, it runs counter to the right of all people to an equitable social order (4:8). Second, it is an abrogation of the command to ‘love the sojourner’ (which is in turn grounded in the reality that God ‘loves the sojourner’, 10:18-19)… From the range of social practices in Deuteronomy, the practice closest to mandatory detention is, I would think, the forbidden act of kidnapping (24:7, cf Ex 21:16).[10]

I add that detention of refugees runs counter to Deuteronomy’s vision for the thriving of families: families are to ‘rest’ together (5:15), worship together (12:18; 31:12-13), feast together (12:18) and teach one another (6:7). The thriving of families and their stability is the cornerstone of a just and stable society in Old Testament ethics.[11]

Issue 3: Excise the Australian mainland from the migration zone

The new regional agreement relies upon previous legislation. In May 2013 the Australian Government passed a law to excise the entire Australian mainland from the migration zone. This step allows the Australian Government to circumvent their legal obligation to offer a home to refugees seeking asylum within the country. The Refugee Convention, to which Australia is a signatory, requires signatory nations to offer refuge to those seeking refuge from persecution within their borders who satisfy certain criteria as a ‘refugee’. This legislation sidesteps that requirement by stipulating that, even though Australia is a signatory state, the Australian mainland doesn’t count—it is as if the refugees never arrived! Australia is the first signatory to the Refugee Convention to take such a step, and if other countries followed there would be little protection left for vulnerable people fleeing persecution.

Deuteronomy’s protection for vulnerable people includes a relentless insistence upon just legal processes. Clever legal practices that leave vulnerable people helpless are expressly forbidden in Deuteronomy.

Justice, and only justice, you shall follow, that you may live and inherit the land that the Lord your God is giving you. (Dt 16:20)

‘Justice’, for Deuteronomy, must be defined carefully: justice does not only refer to ‘strict legal justice’, but also to the protection of the most vulnerable.[12] The preceding verse acknowledges the ever-present tendency of those in power to act for their own self-interest: 

You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe... (Dt 16:19)

In Deuteronomy, laws and legal systems are for the protection of the most vulnerable, and legal machinations that promote the interests of the wealthy at the expense of vulnerable people are an abomination to God. Thus this legislation that sidesteps an agreed responsibility toward asylum seekers represents legal manoeuvring that is reprehensible in light of Deuteronomy’s legal ethics.

Issue 4: All asylum seekers are removed to PNG

Under the RRA all asylum seekers arriving by boat will be sent to PNG with the intention that ‘genuine’ refugees be resettled there—none of these people may settle in Australia. Yet there are serious questions about whether PNG is a secure place for refugees. In a letter to the former Minister for Immigration Chris Bowen, the United Nations High Commissioner for Refugees, Antonio Guterres, has expressed seven serious reservations regarding PNG as a suitable place for asylum seekers.[13] As refugee advocate and lawyer David Manne has said, ‘All the independent evidence points to PNG being … a place where there is widespread and pervasive violence, including against women, and serious and ongoing daily human rights abuse.’[14] Indeed PNG is a country from which people flee daily, as refugees (the author is friends with a refugee claimant from Port Moresby).[15]

Consistent with the ‘no advantage’ policy that preceded it, the RRA seeks to intentionally make life difficult for asylum seekers in order to deter people from arriving in Australia by boat. In contrast, Deuteronomy’s inclusive feasting practices seek to bless and enrich the lives of strangers seeking a home. Highlights of Israel’s annual calendar are the harvest feasts of Weeks and Tabernacles (Deuteronomy 16:1-17). Twice a year the extended family, along with the Levite, stranger, orphan and widow who share life with them, travel to the sanctuary for joyful feasting! These feasts are to be supremely joyful! And the stranger is richly included. At these feasts, as food and drink is shared, the stranger becomes ‘family’ with the Israelites with whom she celebrates.

Issue 5: Questionable claims: ‘it would save lives’

Given the claimed motivations for the new policy announced on Friday, July 19th, it would appear that either the policy is badly informed, or the claims disingenuous. The Prime Minister, Kevin Rudd has used fine humanitarian rhetoric: ‘The sight of asylum seekers being exploited by people smugglers is appalling.’ And: ‘Australians have had enough of seeing asylum seekers dying in the waters… They have had enough of people smugglers profiting from death.’[16] Yet there are good reasons to think that the proposed solution is not the best way to avoid people dying.

First, as Erin Wilson has recently pointed out, refugees arriving by boat are often fleeing life-threatening situations, and may make a decision that risking death on a boat trip to Australia is better than risking death by remaining in their country of origin.[17] True care for these people would be to provide them with a home.

Second, the Government has funded offshore detention centres with money originally earmarked as aid for developing nations—to the tune of three billion dollars over four years. Wilson has argued that this seems inconsistent with the Government’s stated goal to preserve human life.[18]

Third, all asylum seekers arriving by boat will be sent to PNG and as discussed above, independent assessment has declared PNG unsafe for asylum seekers.

Fourth, regional pathways to refugee status are very limited in the Asia-Pacific, and genuine efforts to care for refugees will prioritise collaboration between nations in order to provide reliable and consistent access to processing and settlement. A government that genuinely desires to care for refugees will prioritise such constructive collaboration. Such efforts would effectively reduce the number of people arriving by boats,[19] yet this is not part of the new policy.

It may be that the government genuinely believes that the new policy is the best way to save lives and undermine the boat trafficking operations. If that is the case, it would seem that they are deeply misguided.

Another possibility is that the ‘saving lives’ language is ‘spin’, and about that Deuteronomy is clear. Across cultures, it is common for powerful people to cloak injustice with rhetoric of righteousness. Such ‘righteous’ rhetoric disarms critique—and vulnerable people may be left helpless. Yet the third commandment forbids this kind of dishonesty:

You shall not take the name of the Lord your God in vain (Dt 5:11).[20]

The third command extends beyond improper use of God’s name to improper use of God’s authority—and it includes pretending that unrighteousness actually has God’s approval.[21] The prophet Isaiah observes the elite in his time attempting to sanctify evil with ‘righteous’ rhetoric:

Woe to those who call evil good and good evil, who put darkness for light and light for darkness (Is 5:20).

Concluding reflections – what is the significance of Deuteronomy’s ethics of radical welcome for today?

In response to these critiques of the new asylum seeker policy one may reply: isn’t it valid for Australia to pursue national interest? Anticipating this reply, I quote at length from my article concerning refugee issues in the present Canadian context:

Yet is it not valid for a nation to pursue national interest? And does not nationhood entail such goals? And might not national interest entail the exclusion of refugees, perhaps for the sake of Canada’s wealth or internal stability? I reply that nationhood today, as back then, implies principles about ensuring the security of co-nationals and defending the interests of the nation, but it need not entail the unjust exclusion of others, and Deuteronomy shows that it SHOULD not entail such unjust exclusion. Certainly, Canada should protect itself from violence, both internal and external, but it is only an unjustifiably selfish nation-statism that thinks Canada has a right to do this in ways that excludes the vulnerable on its doorstep. And it is only a deeply problematic political theory or political theology that seeks to defend such an approach.[22]

I think that this reply fits the Australian context as well.

Yet a further question remains: how shall we ‘move’ from Old Testament ethics to Christian application? While it is common for Old Testament ethics to be conceived of solely as ‘declared law’—that is, that the law’s content and authority are derived from their coming from the mouth of Yahweh who speaks from Sinai—it is helpful also to conceive of biblical law as deriving from and reflecting an immutable law that is woven into the fabric of creation. Both law and wisdom share an ‘underlying and often tacit presupposition of a ‘carved’ creation order’.[23]

This is seen for example in Genesis 9:6 where the value of human life is embedded in the creational theme of humanity bearing the image of God.[24] It may be seen too in a way of speaking which Barton has termed, ‘cosmic nonsense’. The prophet Amos likens injustice to an insane inversion of the natural order:

Do horses run on the rocky crags? Does one plough there with oxen? (6:12)

For Amos, injustice ‘cuts against the grain’ of the creation order, diminishing the flourishing of life.[25]

Our examination of Deuteronomy’s ethics concerning the stranger then forces us to ask: what fundamental ethical commitments are displayed here? What principles are evident reflecting God’s intention for the world and humanity in creation? Deuteronomy’s ethic of radical welcome displays a creational intention that all people would have a home, a place in which they can live and thrive. It also reflects the principle that God has given generous gifts to humanity, and that God’s prior generosity must lead humanity into lives of generosity for the sake of the other. (See for example Gen 1-2; Dt 15:4; Mt 6:25-34; 2 Cor 8:13-15; 9:8-11.)

The tenor of Scripture is that this dynamic applies not only to the covenant people of God, but to all of humanity. God is generous to the righteous and the unrighteous (e.g. Mt 5:45). And biblical law addresses all of humanity (e.g. Dt 5:8; 9:5; Mic 4:2). ‘‘It is simply affirmed and assumed that the Torah and its commands pertain to all of creation and thus to human persons.’[26] The Scriptures call human society to practices of welcome and generosity, reflecting God’s intention for creation and leading to the flourishing of life.

The Christian hope is that this flourishing is secured in the death and resurrection of Christ, who died so that this world, now groaning under sin’s curse, might be redeemed in every aspect. Christ rose as the firstfruits of this world, renewed. In this hope the church is called to live as a signpost to the restorative reign of Christ, calling attention to Christ’s life-giving reign, in life, word and deed.

Australian refugee policy is out of step with Christ’s design for human flourishing. The parochialism, legal manoeuvring, questionable rhetoric and lack of generosity evident in current policy are roundly condemned by the ethics of Deuteronomy. A way forward, consistent with both international Conventions and a biblical ethic of welcome, is to prioritise regional collaboration, as the UNHCR suggests, collaboratively dealing with organised criminal networks and ensuring protection and reliable processing for asylum seekers. Meanwhile maritime arrivals to Australia should be treated with dignity and respect, living within the community as their claims are processed. At the same time Australia should heed the UNHCR’s recommendation for greater collaboration in order to minimize deaths at sea.

A generous welcome for asylum seekers may be costly—for now the world is shot through with imbalances and dysfunctions and justice doesn’t come easily. Yet all those who cherish this book, as a part of sacred Scripture, ought to both live and advocate for a radical welcome for vulnerable people who seek a home in Australia.

[1] This article is the Australian companion to a similar article analyzing recent Canadian refugee legislation: Mark Glanville, ‘Ancient Laws and New Canadian Refugee Legislation: Evaluating Bill C-31 in Light of the Book of Deuteronomy’, Refuge Vol.29, 2013 (forthcoming).

[2] Ger can have other nuances in other places of the Old Testament.

[3] Mark Glanville, ‘Immigration, Refugees, and the Old Testament’. Read the Old Testament for Public Life Today ed. R. O'Dowd (Cardus, 2011), pp30-33.

[4] Deuteronomy Chapter 7 articulates a doctrine of herem, a firm rejection (lit. devoting these things to Yahweh) of both things and people that are associated with religious contamination. 

[5] Erin E. Goheen Glanville, ‘Storied Displacement, Storied Faith: Engaging Church-Based Activism in Canada with Refugee Fiction and Diaspora Studies’. Open Access Dissertations and Theses. Paper 7225, 2012, p198.

[6] UNHCR, ‘Global Trends’. Accessed July 23 2013. Australia comes 22nd calculated per capita. Refugee Council of Australia, ‘Australia's Refugee Response Not the Most Generous But in the Top 25’. Accessed July 23 2013.

[7] Paul Power, ‘Middle East Provides an Impressive Lesson in Hospitality’. Accessed July 17 2013.

[8] Deb Whitmont, "Doctor says Manus Island a 'disaster' for children". Accessed Aug 7 2013.

[9] Paul Power, ‘Detention of Children no Longer a Last Resort’. Accessed July 17 2013.

[10] Glanville, ‘Ancient Laws’, op.cit.

[11] This point is made in Christopher J. H. Wright, God's People in God's Land: Family, Land, and Property in the Old Testament (Eerdmans, 1990).  

[12] See Deuteronomy 10:17-18; 24:17-18.

[13] Antonio Guterres,

[14] Bianca Hall  Hall and Jonathan Swan, ‘Rudd Slams Door on Refugees’. Accessed July 23 2013.

[15] The Government’s own Department of Foreign Affairs and Trade issues a series of warnings to travellers to PNG: ‘We advise you to exercise a high degree of caution in Papua New Guinea because of the high levels of serious crime.’ Australian Government Department of Foreign Affairs and Trade, "Papua New Guinea". Accessed July 29 2013.

[16] Kevin Rudd, ‘Address to the Nation’.

[17] Erin Wilson, ‘That They May Have Life’. Accessed July 17 2013.

[18] Ibid.

[19] Guterres, op.cit.

[20] Certainly the Australian government is not claiming to do anything in God’s name. Yet any person who cloaks unrighteousness with righteous rhetoric is guilty of breaking the third commandment, for whether acknowledged or not, God’s holy name is ever associated with justice and truth (see Mic 3:11-12).

[21] Patrick D. Miller, The Ten Commandments (Westminster John Knox, 2009), pp68-69.

[22] Glanville, ‘Ancient Laws’, op. cit.

[23] Craig Bartholomew, Ecclesiastes (Baker Academic, 2009), p91.

[24] John Barton, ‘Natural Law and Poetic Justice in the Old Testament’, JTS Vol. 30, 1979, pp1-14.

[25] Ibid.

[26] Walter Brueggemann, Theology of the Old Testament (Fortress, 1997), p455.

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