Paying people smugglers might be disgusting, but it's in the same category as paying Afghan warlords to keep the peace or paying double agents for intelligence about foreign nations, writes Michael Bradley.

It seemed so simple. Did Australian authorities pay cash to Indonesian people smugglers as an inducement to turn their boats around? "No" was the answer from Immigration Minister Peter Dutton and Foreign Minister Julie Bishop, and they should know. End of story.

Except the Prime Minister seemed to know something they didn't know, because he has refused to answer the same question about eight billion times. Now the entire ministry, including Dutton and Bishop, are uniformly chanting "stop the boats" in answer to every question.

Meanwhile, today the Opposition has suddenly gone from high moral dudgeon to a narrow focus on whether Dutton is a liar (as if both major parties don't have that as a principal qualification for the office of Immigration Minister). Was Labor paying people smugglers too when in office? Oh, says Immigration spokespuppet Richard Marles, it'd be a crime for us to say.

Great. Our Government and Opposition in concert yet again on the ever-widening field of so-called national security, determined that the one thing we can't handle is the truth.

On the other side of this issue there is a lot of hysterical shouting about the commission of crimes by the Government, including bribery and treason. And, accordingly, there have been demands for somebody's head. Because that's what passes for reasoned commentary in Australia these days - an endless succession of "gotcha" moments as we catch out the sub-par humans we've elected to office telling lies.

It's obvious enough there's a major issue here, but it's actually quite a tricky one. We'd be well served by talking about it with some honesty and dispassion.

Let's assume that ASIS has been paying money to people smugglers. There are two dimensions to this, ignoring the base politics. First, is it illegal? Secondly, is it in the Australian national interest?

Section 73.3A of the Commonwealth Criminal Code makes it an offence to provide material support or resources which aid a person to engage in the crime of people smuggling. It carries heavy penalties - 10 years' imprisonment and/or a fine of $170,000. Obviously, this provision wasn't designed to catch the payments to people smugglers, and I am not as confident as some others that it does.

Paying smugglers to go back certainly turns a short round trip into a nice little earner for them, but the s 73.3A offence requires that the payment "aids" the offence of people smuggling, which means organising or facilitating the unauthorised entry of people into a country. The question of whether a crime is being committed may turn on the technical issue of where exactly the payments are being made - in Indonesian or international waters. If, for example, ASIS was standing on the dock in Indonesia paying smugglers to never set sail, then that couldn't be said to be aiding people smuggling; it would be absolutely discouraging it. Yes, we would be actively funding the ability of people smugglers to profit from human misery by giving them a cash incentive to defraud asylum seekers, but that isn't a crime.

Is it bribery then? No. There is no material financial or other benefit being sought, just the furtherance of government policy. Treason? No. And no, it isn't the crime of materially assisting an enemy to engage in war with us.

As it happens, I don't think a crime has been committed, but we're only speculating until we know the facts (which will be never).

That leaves the question of whether this is good policy. Is it in Australia's national interest that we pay people smugglers to turn around? My instinctive reaction was to say no, but on reflection that's mostly based on my revulsion at the depths which our government is prepared to plumb in pursuit of its policy of preventing asylum seekers from reaching Australia.

I concede that I'm in the minority in that regard. More importantly, the policy itself, in the absolute sense, isn't necessarily a bad one. It's just that it can't be effectively implemented without resort to measures which are morally bankrupt and which debase us as a society.

However, suppose that Australia's national interest is well served by stopping the boats, as most Australians accept. Paying people smugglers is a practically effective tool in that pursuit. It is hypocritical and immoral, given that it will ensure that the smugglers stay in business and it will ensure that more asylum seekers lose their life savings, but it should work.

In passing judgment on the practice, we should also place it alongside some other activities in which our government engages: paying cash to Afghan warlords to keep the peace while they cultivate opium and commit crimes against humanity; paying double agents and buying intelligence about foreign nations.

There are plenty of examples of stuff that is done in the shadows by our security agencies, directly in pursuit of what is at the time honestly perceived to be Australia's national interest.

That's not to say that it's acceptable that we should have no means of finding out about these things, or holding to account those who undertake them if they have overreached legitimate executive authority or broken the law. Nor is it to say that it's right. I think that paying people smugglers is disgusting, but it pales against the institutionalised torture of humans still being conducted within our onshore and offshore detention camps.

Strangely, this scandal turns out to be a neat encapsulation of the moral void into which we've fallen. We shouldn't be here at all.

Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm.