Tide turning on boat people bastardry

Jan 23, 2024
Hands of migrants emerging from the waves of the sea asking for help.

A day I have long prophesied, and for which I have been yearning may be at hand. It’s a pity that the Albanese government does not really deserve a place at any celebrations, and may indeed, try to frustrate them.

The tide is turning for our boat people policies, and Australia’s shameful treatment of several thousand men, women and children fleeing war and oppression, some of it created by us, in the Middle East and Afghanistan. The overwhelming proportion were found to be genuine refugees, but, thanks to our policies, successive Australian governments, starting with the second Rudd government, tried to prevent them ever getting any right to live in Australia. Instead these people were placed in concentration camps on Nauru and Manus Island, and treated with conscious and deliberate cruelty as a way of sending a message to other asylum seekers that there was no point in trying to enter Australia by boat.

Many of those, including children, who suffered long term harm from their incarceration are now suing the Australian government. Not surprisingly, the Commonwealth has been trying to deflect blame for failing to meet its legal and moral responsibilities onto others.

First of all it denied any responsibility at all, saying that a section of the Migration Act precluded any sort of action “relating to the detention of a “transitory person” based on the status of the person as an “unlawful non-citizen”. But in 2021 the High Court rejected this as a barrier to an action in our courts for breach of duty of care.

The Australian government has blamed, and tried to pass on any liability to the governments of Nauru and Papua New Guinea, whom Australia paid to look after and keep the refugees, subject to Australia’s always paying the bill. To no-one’s great surprise, it appears that some of the money thus paid out was diverted into the pockets of officials of these governments.

It blamed, and tried to pass on liability to its own subcontractors, corporations to whom it had paid billions of dollars to operate camps, provide security and supervision of inmates, provide education services for children and adequate health care for all. These companies did this work under the close supervision of resident officials of the Australian department of home affairs, who had ready access to all documents generated by the subcontractors, or people to whom the subcontractors had further contracted their duties. Moreover, all of these parties were under close contractual requirements to provide regular, often daily, reports of any incidents.

It blamed the lawless actions of local employees, and sometimes as well, the corrupt or incompetent investigation, prosecution and enforcement of local laws by the local police and justice authorities. This was in spite of the fact that the work of these authorities was being assisted by Australian Federal Police officers – who had full access to operational records – and was paid for by Australia.

Home affairs blames everyone but itself for failures to protect inmates. Its excuses will no longer work.

Home Affairs blamed people working for non-government agencies for stirring up trouble, for creating expectations that could not be met, and for attempting to inform the public about the cruelty and abuses occurring. Ministers, including Scott Morrison and Peter Dutton blackguarded the NGO staff. When their attacks were disproved, they blamed officials for faulty advice. Ministers and Home affairs officials rarely attempted to correct the record, or to behave in public to defend the rights and dignity of inmates.

The department also attempted to prevent any person working within the system from disclosing to the public any information they obtained while there. This included knowledge of illegal or improper treatment being consciously ignored by the local authorities or by their bosses in Canberra. Even when accurate information emerged from legal representatives of inmates, it would usually be blandly denied in Canberra, or the information would be parsed and qualified in ways that cast doubt on the motives and actions of the victims and their representatives. Successive governments were delighted to have it said that they were stopping boats, but always squeamish about details of the conscious cruelty, institutional abuse and medical, psychological and physical neglect emerging.

Even now, litigation on behalf of victims is being hampered by continuing confidentiality obligations, even (until court orders are made) to courts and lawyers for victims. Some of the restrictions make it a breach of the criminal law to disclose information. These restrictions, generally, are in place not to protect the rights and privacy of concentration camp inmates, but to protect officials and subcontractors from legal responsibility for their actions.

And lastly, of course, the Australian government often attempted to blame the victims themselves. Sometimes it was for predictable frustrations and reactions to the daily cruelties being meted out under the eyes of Australian officials. At other times it involved doing anything effective about the risk of abuse, assault and sexual assault, and other crimes, from other detainees, or from others in the camps, including Australian nationals and officials.

The indignities visited on inmates was worse because Australian politicians and bureaucrats went to extraordinary lengths to make sure that mistreatment, neglect and abuse took place away from any form of external scrutiny. Reporters, other than completely tame propagandists for the system, were denied visas by the captured foreign governments, at Australia’s behest. The department fought hard to resist and delay any efforts to obtain information through FOI legislation. Agency public relations structures were focused not on telling the truth or informing the public about what was occurring, but on containing and controlling what the public was told, and partisan propaganda for the policies and ministers behind them.

Officials, right up to departmental secretary level participated in stunts designed to show that boat voyages would resume if there were the slightest relaxation of the policy. Mike Pezzullo, head of home affairs, has been found to have breached the public service code of conduct by creating an improper channel to senior politicians in which he lobbied for the policies, and against potential ministers likely to soften them. But other officials, and not only in home affairs, actively participated in programs designed to dehumanise victims, to plant the idea that in their numbers were yet-to-be-detected terrorists and potential political extremists, criminals and paedophiles, and people who were simply making their stories up.

Canberra officials treated with deep suspicion any reports of abuses in the camps. 

Pretty much as a part of the same policy home affairs officials based in Canberra treated with absolute suspicion, and, often, conscious delay, any reports suggesting that any inmates should be brought to Australia for medical treatment not available where they were. This often involved laypeople re-interpreting or second guessing medical reports, openly voicing suspicions that some were “trying it on” when they wanted abortions, sophisticated obstetric care, or high-level psychiatric or psychological care.

Not all of these are alleged in individual actions now in the system. Each depends on its own facts. But the thrust of the actions involves claims that the Commonwealth had sufficient control and assumed responsibility for the care and living conditions of detention centre inmates at Nauru. Officials knew of the risk of harm to particular inmates and inmates generally. The applicants’ dependence on the Commonwealth gave rise to common law duties of care.

A case resolved with an undisclosed settlement on Wednesday was about the duty of care to a young girl to prevent her from suffering psychiatric injury, and physical and emotional child abuse. It was said that she was at obvious risk, and that measures taken to protect her fell well short of the duty.

In the case in question the victim was a 10- year old girl in 2017 when she was sexually assaulted by an adult man who had been drinking with her father earlier. She had first arrived at Christmas Island as an eight-year-old in 2013, with her father and her brother, but not her mother. The mental health of her father, originally a strict non-drinker, had sharply deteriorated in concentration camp conditions; he began drinking heavily, and on some occasions, camp management removed the children from his care. But their interventions were not sufficient to prevent the sexual assault, or some of its long term consequences. She began to suffer from a major depressive and post-traumatic stress disorder, including serious mood disturbances, behavioural changes, recurrent distressing nightmares, bedwetting and anxiety when going out in public. She largely ceased attending school and withdrew from the community, having been subject to teasing about the assault and her bedwetting, and because she felt humiliated and ashamed.

The cases have been settled after negotiations, and the court has made orders against disclosing the terms of settlement. This is in part because giving some details might disclose to the Commonwealth aspects of general plaintiff strategies in future contested cases. These are class actions organised by Maurice Blackburn Lawyers, and the girl was represented by Tom Brennan SC.

In the pleadings, the Commonwealth denied responsibility for day-to-day operations at the camp – sue Nauru, it effectively suggested. It denied that any Commonwealth officer knew of the risk to the plaintiff, or that the Commonwealth was responsible for medical, psychological and psychiatric services, or welfare and support services while at Nauru. It denied any duty of care. Indeed it said the imposition of a duty of care “would be incompatible with the statutory duty to take unauthorised maritime arrivals to processing centres such as Nauru under the policy.” That it has now settled the matter may suggest it has abandoned these defences, but there is no guarantee they will not be raised again in further cases.

Nobody reading this could pretend that they did not know of the systemic maltreatment of asylum seekers, and of routine abuses of their human rights. Many cases have been reported over the years, and none has had any impact in moderating the severity of the treatment, or the apparent determination of successive governments (including, sadly, the Albanese government) that the regime continue.

Indeed, the answer to those who have criticised the policy over the years has been that the broad policy and conditions are known to the general public, and that they have been broadly endorsed by successive elections over the past decade. I am regularly reminded of this by correspondents, as if public indifference to what happens regularises or makes such abuses legal.

Millions, perhaps billions, may be paid out in damages to victims of the system. The perpetrators thought they had legislated their own complete immunity.

Thus, it can be said, both the legislature and executive government have ratified the system, with popular support. Indeed, they can be said to have done so repeatedly.

What has now happened is that the judiciary – the third arm of government, one in no way beholden to the legislature or the ministry and bureaucracy – has finally stepped in to protect the rights of people who have come to our shores in search of refuge from war, persecution and oppression. Past governments, and an enthusiastic bureaucracy, may have done all that they could do to deprive such people of rights, including seeking to prevent any right of access to the courts. In matters of human and constitutional rights, however, courts cannot be bound or compromised by laws or practices authorising impermissible actions within its jurisdiction. No efforts by bureaucrats or ministers to remove immigration decisions from the supervision of the courts will succeed, because scrutinising officials for abuses of power is what courts do. Some judges will no doubt think that a judge’s duty to intervene is greater when the victim is relatively powerless before the might of the state.

A flood of litigation before the courts fundamentally changes the game, if game it can be called. It may well become like the Robodebt disaster, where damages of over $2 billion have had to be paid to victims of Commonwealth maladministration and a manic political desire by politicians and public servants to demonise Australians in receipt of welfare money.

It is one of the worst – and as yet not fully resolved – scandals of bad government since federation. Successive court decisions against those involved in our boat people policies will inevitably change perspectives of the secretive and abusive ways of the system. And, perhaps, also draw attention to its comprehensive mismanagement in any terms.

Sooner or later, the public will be looking very critically at the cost to taxpayers. I should not be surprised at verdicts of over $2 million to some people terribly assaulted, and over $1 million for those left neglected and generally abused indefinitely. Some of those seeking accolades for “stopping the boats” may be seen in a different light when their dog whistling and encouragement of cruelty is seen to have aggravated damages. For a decade some of the worst offenders thought they had insulated themselves forever against any legal liability or accountability. Not only have they failed, but the new scrutiny will forever change public assessments of their character and reputation.

Or at least we hope so. But, alas, the government’s panicked, cowardly and disorganised reaction over the past few months to the High Court’s decision about indefinite detention of asylum seekers suggest that Labor will not lightly abandon policies it knows to be popular, even when it knows they are inhumane and in breach of human rights law.

Indeed if the government takes advice from Home Affairs and Attorney-General’s, we can probably expect efforts, bound to be ultimately unavailing, to re-legislate explicit rejection of any right by boat people of access to the courts. It won’t work and it will compound the liability of the Commonwealth. Citizens have been all too passive about this. It is one thing for people to have views about immigration, or our international duties to displaced people. It is another altogether to be morally complicit in the practical bastardry of these shameful abuses.


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