SPENCER ZIFCAK. Offshore Processing: The New Legal Attack.

Feb 22, 2019

Two new legal actions designed to put an end to Australia’s policy of offshore processing have just landed at the High Court of Australia. In a novel twist, the cases will not depend on the High Court’s interpretation of the Migration Act. Nor are they constitutionally founded. Instead, the National Justice Project, the law firm representing detainees, is arguing that the Commonwealth has acted negligently. The negligence, it is said,  is constituted by crimes against humanity committed by Australian authorities against refugees in the immigration detention camps on Manus Island and Nauru.

The cases are class actions brought on behalf of all the refugees and asylum seekers on Manus and Nauru respectively. In the Manus case, there are three lead plaintiffs. The first plaintiff is a Kurdish refugee from Iran who arrived in Australia on 23 July 2013. The second is a Kurdish refugee from Iran who arrived one day later. The third is a refugee from North Sudan who arrived on 17 October 2013. All three arrived by boat, were taken by force to the island and have been imprisoned there ever since.

The memorandum of understanding (MOU) entered into by Australia and PNG which established offshore processing is central to an understanding of the case. The MOU was signed in 2012 and updated in 2013. The key provisions are these.

The Commonwealth agreed to bear all the costs associated with the construction, maintenance and management of the detention facilities. It agreed that it would conduct all its activities in accordance with the Australian Constitution and all relevant domestic laws, including in particular the Commonwealth Criminal Code. It agreed further that each and every detainee would be treated with dignity and respect, and in accordance with relevant international human rights standards.

The National Justice Project contends that the Commonwealth has been in serious breach of the latter two commitments. In particular it has not conducted its management and control of the Manus and Nauruan detention facilities in accordance with Australian law.

The Commonwealth Criminal Code 1995 criminalises certain crimes against humanity recognised in international law. These include:

  • Imprisonment or other severe deprivations of liberty.
  • Severe deprivation of a person’s rights under the International Covenant on Civil and Political Rights. These include freedom from cruel, inhuman or degrading treatment, freedom from arbitrary arrest , the right to take a case before a court if deprived of liberty, the presumption of innocence, freedom of expression, and freedom from national, racial or religious discrimination.
  • Inhumane treatment i.e. treatment engaged in intentionally that causes great suffering, serious injury to body or to mental or physical health.

The argument is that the Commonwealth government has committed each of these crimes offshore.

As to the Commonwealth’s agreement pursuant to the MOU to treat each detainee with dignity and respect and in accordance with relevant human rights principles, the plaintiffs rely, among other things, upon six independent and parliamentary inquiries conducted in Australia concerning the treatment of refugees and the conditions in which they are detained. Each inquiry has found that the circumstances of detention have resulted in physical or psychological harm to hundreds of detainees including to children. Reliance may also be placed upon numerous reports from the UN Human Rights Council, UN Human Rights Treaty bodies, and UN Special Rapporteurs that have provided damning evidence of inhumane treatment and conditions.

The list of violations and harms is well known but is shocking nevertheless. It includes:

  • Violence, assault and physical and sexual abuse of detainees by security guards or other detainees.
  • The absence of sufficient security to ensure that detainees were not attacked by local residents. Such attacks have been frequent and have included rape and bashings.
  • Severe mental stress caused by the indefinite nature of detention and the lack of any hope for the future.
  • High levels of diagnoses of severe mental illness including psychosis, depression, post-traumatic disorder, and chronic anxiety.
  • High levels of self-harm and actual and attempted suicide, including by children.
  • The absence of, or refusal of, effective medical treatment for serious injury and illness.
  • Refusals by PNG, Nauruan and Australian officials to transfer detainees to Australia for urgent medical treatment.
  • Lack of adequate food and water; the provision of sub-standard food dotted with mosquitos, worms and flies baked into bread and meat; and long waits in queues without any certainty that sufficient food would be provided to meet the demand once the last detainees reach the front of the line.
  • Poor sanitation, hygiene and sewage blockages.
  • Overcrowded accommodation with four detainees imprisoned in rooms 2 by 2 metes square.
  • Torture constituted by the combination of all these factors.

At all times the Commonwealth has been aware of these human rights abuses but has done nothing to address or alleviate them.

The MOU clearly imposed a duty of care upon the Commonwealth to ensure the health and wellbeing of those it had detained on the islands. The duty of care required the Commonwealth to ensure that serious harm did not come to detainees, where the Commonwealth was reasonably able to control and avoid such abuses. The duty of care included a duty to take reasonable care to prevent detainees from being subject to treatment which may include a crime against Australian law.

The argument is that the Commonwealth is in breach of its duty of care. This is because what has been done to refugees offshore constitutes crimes against humanity contrary to the relevant provisions of the Commonwealth Criminal Code.

Should anyone doubt that this is the case, I recommend that they purchase a copy of Behrooz Boochani’s literary prize winning  book. The book describes horrendous examples of all the mistreatments specified, during his detention on Manus Island for the past six years. It is one of the finest prison narratives I have ever read.

Accordingly, if the Commonwealth has breached its duty of care, its treatment of detainees amounts to negligence. The plaintiffs in the case, represented by the National Justice Project, therefore, have sought an injunction to restrain a continuation of the negligence. If the action succeeds, it means that the refugees now held offshore should be brought back to Australia.

One last matter. If the crimes alleged have been committed, why then are they not being prosecuted? The answer is that crimes against humanity as set down in the Commonwealth Criminal Code cannot be prosecuted except with the written permission of the Commonwealth Attorney-General.

 Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University. He is a former President of Liberty Victoria.

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