SPENCER ZIFCAK. The Black Hearts Behind Australia’s Offshore Detention Policy

So, the Australian Government has settled a class action brought by asylum seekers detained on Manus Island for $70,000,000. Apparently, the settlement was reached because the Government was fearful of the evidence and stories of official abuse that would have emerged over some six months should the action have been litigated in court. Lawyers in the case estimated that more than 70 witnesses would have been called and 200,000 documents examined. Afraid of the findings, the Government caved in at the door of the Court. 

The terms of and the reasons for the settlement are likely to remain confidential. But, as it happens, the UN’s Special Rapporteur on the Human Rights of Migrants had delivered his report on Australia’s refugee policies to the UN General Assembly just days before. The content of the report provides a wide open window to the persistent cruelties that the Abbott-Turnbull governments have inflicted on largely innocent people through offshore detention. It’s worth taking a look at what the rapporteur, Francois Crepeau, had to say.

Crepeau began his survey positively. He noted the high number of refugees who came to Australia pursuant to the Government’s general resettlement program and praised the humanitarian program through which 18,750 refugees would be admitted from 2018. He singled out for commendation the special Syrian refugee program that had provided 12,000 additional places for people displaced from that country as a result of its terrible conflict.

In contrast to these exemplary resettlement policies, he then turned his attention to the securitization and punitive character of Australia’s offshore detention regime. The intention of that regime, he remarked, is to punish unauthorized maritime arrivals so as to act as a deterrent to others who may follow them. But it is plainly contrary to international human rights law to punish a person solely to discourage another.

The Special Rapporteur noted the differential treatment of asylum seekers who arrived by boat and those who came by plane. Boat people were sent to Manus or Nauru. Aeroplane arrivals were not. He pointed out correctly that this distinction is unjustifiable under international refugee law. That is because the distinction amounts to discrimination on the basis of a criterion – the mode of arrival – that has no connection to an application for protection.

Those sent to Manus and Nauru suffered grave consequences not inflicted upon others who sought refugee status here. Crepeau noted that these included arbitrary, mandatory and prolonged detention, indefinite separation from family, and no access to permanent residence or citizenship. Offshore detainees experience their treatment as punishment for crimes not committed.

In October 2016, 410 people (306 men, 55 women and 49 children) were detained on Nauru and 823 people (all men) were detained on Manus Island. Australian taxpayers pay the equivalent of US$400,000 per person per year to keep refugee applicants offshore. The cost of keeping a person in community detention in Australia is $90,000 per year.

The policy of mandatory detention leaves no space for the individual circumstances of each applicant for protection to be considered or for applying the appropriate procedural safeguards applicable to people deprived of their liberty.

The average time in offshore detention was 454 days. The Special Rapporteur, however, met several detainees whose detention period had exceeded 7 years. He wrote that:

Prolonged and indefinite detention has a profound effect on migrants’ mental health and well-being, with many cases reported of self-harm, post traumatic stress disorder, anxiety and depression. It is not the right environment for often already traumatised people. Those who live detention after a long period of time continue to suffer from low self-esteem, which takes from them the opportunity to rebuild their lives.’

The Special Rapporteur joined several other UN reviewers in concluding that such conditions constituted cruel, inhuman and degrading treatment within the terms of the International Covenant on Civil and Political Rights, an international treaty to which Australia is a party and whose terms it has undertaken to uphold.

Just as bad, Crepeau described what he called the ‘securitisation’ of immigration detention centres. In other words, they were now being run like prisons, although detainees had committed no crimes. A ‘garrison mind set’ had developed within the private security firms contracted to run the centres. There had been increased violence from guards, particularly during transfers. Systematic handcuffing, aggressive language and brutalities had become the norm.

There were accounts of rape and serious sexual assault of female detainees by security guards, by service providers, by asylum seekers themselves or by members of the local population. But no independent investigation mechanism had been set in place, making the life of women in the island detention centres unbearable. Countless examples of physical attack, verbal abuse and theft had been reported. No one was being held to account.

Mental health issues had become rife. Post traumatic stress, anxiety and depression were cited as the most common phenomena. Large numbers of refugees and asylum seekers were on a constant diet of sleeping tablets and anti-depressants. Children also suffered from serious mental distress and self-harm. They too lived on anti-depressants.

Crepeau summarized his findings concerning offshore detention in this way:

“Considering that this situation is purposely engineered by Australian authorities to serve as a deterrent to potential future unauthorized maritime arrivals (‘we stopped the boats’), considering the incredible hardship that most of these asylum seekers and refugees have already endured in their countries of origin, and considering that Australian authorities have been alerted to such serious issues by numerous reports from international organisations such as the United Nations and international civil society organisations, Australia’s responsibility for the physical and psychological damage suffered by these asylum seekers and refugees is clear and undeniable.”

And what has the Minister of Immigration, Peter Dutton’s response to such findings been? On the positive side, he settled the Manus Island class action. That’s cost us $90,000,000 including legal expenses. On the negative side, he did what we have come to expect – blamed everyone else.

It was Kevin Rudd and Julia Gillard’s fault for failing to secure our borders. That of course misses the point that the Special Rapporteur’s report covered the period 2012-2016 during which, for the most part, the Abbott-Turnbull governments have been in charge.

Then Dutton blamed the plaintiffs’ lawyers. He dismissed Slater and Gordon as an ‘ambulance chasing law firm’. He asserted that the firm had been a significant donor to the Labor party, as if that explained anything. Tony Abbott condemned the judges. ‘We’ve got a judiciary that takes the side of the so-called victim rather than the side of common sense’. ‘The so-called victim’. In the light of the evidence of continuous trauma, brutality and abuse, that phrase is a travesty.

They haven’t listened. They don’t care. They are conscienceless. The suffering and the violations continue.

The lead plaintiff in the class action encapsulated the present situation aptly:

This case is not just about me, it is about every person who has been trapped on Manus Island. I left my home in Iran in 2013 because of religious persecution and I came to Australia seeking peace but I was sent to Manus which was hell. I was in pain every minute of every day and I cried every night until I had nothing else. The way we were treated at the Manus Island detention centre was degrading and cruel, but, sadly, many of my friends are still there. Our voices have never been listened to but today we have finally been heard and I hope everyone’s suffering can now be over as quickly as possible”

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Acting President of Liberty Victori



Spencer Zifcak is a former President of Liberty Victoria.

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4 Responses to SPENCER ZIFCAK. The Black Hearts Behind Australia’s Offshore Detention Policy

  1. Avatar michael schell says:

    Both major parties must share the blame for this travesty of Off-Shore Detention.
    However, neither seems to have the moral strength to admit that what they have done or are continuing to maintain is WRONG! This “policy” needs to be rectified and the appropriate “penance” carried out to make amends for the harm they have inflicted on innocent people in the name of the Australian people. To reverse the shameful contradiction of the values proclaimed in our National Anthem, our Parliament needs to work courageously and decisively to truly Advance Australia FAIR!
    Stop the blame game and the secrecy that surrounds this issue – bring these asylum to Australia – we owe them at least this much belated compassion and protection!

  2. Avatar Alan Nosworthy says:

    This can be reframed as savings and cutting the fat. $100m odd and Dutton et al can slope out the back door without thought of an apology or explanation as opposed to ongoing outlays of approx$1Billion per year to continue in the same shameful manner. I do hope that the plaintiffs are spared the indignity of being further resettled in Trumps U.S.A. where the paltry reparations will not go far to healing the trauma which was inflicted in our name.

  3. Avatar Jim KABLE says:

    On an absolutely personal level I will not be satisfied that any justice has been done until Tony Abbott, Scott Morrison and Peter Dutton – and other bureaucrats and those profiteers with investments in the inhuman security companies who at the gulag face administered the abuses and murders – have been hauled before the courts and made to answer for their crimes against humanity. Until they have been sentenced – their heirs and successors denied their inheritances which must be re-directed to these hundreds and thousands so mistreated by their inhumanity – I shall not be happy. And further – that the tiny sums now to be disbursed be increased at least 30-fold – I will never forgive the Australian governmental system for its callousness and selfishness! Never! The guilt – the stench which now hangs over this LNP mob – with some encouragement from the ALP, too – I don’t entirely excuse them – has severely tarnished our national reputation! These bastards must pay and pay back in order to restore that name!

  4. Avatar paul frijters says:

    Yes, the inhumanity of the treatment these asylum seekers get is shocking, and the brutalising effect of the denials and obfuscations by senior politicians is bad for our own culture.

    What to do about it though, given the Australian public’s overwhelming support for any policy, no matter how brutal and in contravention of international law, that discourages the oppressed of this world to come to Australia in droves?

    One way to go is to openly accept the wish of the Australian public over the demands of current international law. This would mean abandoning the relevant international treaties and openly declare a discouragement policy, such as shooting anyone who comes by boat to claim asylum. It would be draconian by the standards of current international law, but it would be clear and, I suspect, popular with the voters. In the long run, it is more humane than what we do now and I think this is almost inevitably where economic realities will lead us to, but the requirement to openly give up the claim that Australia follows international law would seem a high hurdle.

    Another way to go is to accept the logic of international law and its ultimate consequence for those who have supported the breaking of it: to declare most Australians as violators of international law (because our votes and taxes made the situation possible and encouraged it) and issue international arrest warrants for most of us. Since the logic of international law makes several other populations into criminals as well though (there are so many wars that populations have supported by their taxes and votes!), this should be seen for what it is: silly. International law is not truly the law that we live by or could live by. Mostly, it is a wish-list that we like to pretend we live by. Now and then that pretense costs us.

    Yet another way to go is to accept international law, but not its retrospective consequences, and henceforth follow that law, even if it does lead to a flood of millions of people looking for protection or a better life in Australia. This might be what adherents of humanism hope for, but I hope they are not holding their breath.

    Another option is to change international law such that it becomes near meaningless when it comes to the protection of the rights of asylum seekers or other migrants. Both the legal profession and the self-image of many countries is in the way of this, so it is not easy to see how this could happen anytime soon.

    Finally, the politicians can muddle on, caught between the two impossible constraints of wishing to be a signatory to international law whilst deterring a flood of unwanted migrants by running some kind of torture camp for those we have not deterred.

    Can I buy shares in Slater and Gordon? I unfortunately expect them to be busy for quite some time.

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