(Image via //www.lawyersalliance.com.au)The Turnbull Government appears criminally liable for
health and safety in Regional Processing Centres, Nauru and
Manus, despite it repeatedly claiming otherwise. Max Costello reports. A NAURU asylum seeker burns himself to death. More sagas of past offshore cruelty and child sexual abuse and of recent rapes of women emerge. So who was – and is – legally responsible for this shocking state of
asylum seeker health and safety at Australia’s regional processing
centres (“RPCs”) on Manus Island and Nauru? The Abbott/Turnbull government, via Immigration spokespeople, Ministers Morrison and then Dutton,
had repeatedly claimed that the governments of Papua New Guinea and
Nauru are responsible for Regional Processing Centre health and safety. That claim, as we shall see, was a legal fiction. But for nearly
three years, such a "cloak of respectability" appeared to exist. Until half way through the 2016 federal election campaign. In June 2016, as millions of Australian voters were watching Prime
Minister Turnbull heading the Coalition’s election campaign parade –
marching shamelessly to the tune of Tony Abbott’s lonely hearts club
band – he was suddenly exposed, on this issue, as “the Emperor with no
clothes”. At that same instant, his suit-and-tie Immigration Minister
became a “potato with no jacket”. Like all illusionists, Abbott, Turnbull, Morrison and Dutton knew
that one day, the audience – the people of Australia – would see through
their deception. And so the four artful deceivers were just desperately
hoping and praying “Don’t let that day come until after the election on 2 July”. But it had already arrived. And they should have seen it coming. First there was the production, to a 2014 Senate Committee (about a Manus death), of the Immigration Department’s booklet, ‘Manus Island — a living and working guide’, issued to all Australians working at the Manus RPC. It refers on page 23 to the Work Health and Safety Act 2011 (Cth) (“the WHS Act”) – a law to ensure everyone’s health and safety at each Commonwealth workplace – then explains that:
‘Because the WHS Act applies extraterritorially, as workers, you will be required to meet your obligations whilst deployed.’
Each worker, it says, has an obligation
[under section 28 of the Act, to] ‘take reasonable care that his
or her acts or omissions do not adversely affect the health and safety
of other persons.’
‘The [Department’s] position is that the [Act] applies in full in
the context of Manus Island Regional Processing Centre and that the
Manus Island RPC satisfies the definition of ‘workplace’ for the
purposes of the WHS Act.’ - Comcare Inspector Report into the death of Reza Barati, 2014. Australian Government, Comcare, Inspector Report, Work Health and Safety Act 2011 (Cth), Relevant date: 18 February 2014, EVE00224256-0001, at 2.
This time, at last, the mainstream media (Fairfax’s Bianca Hall and Noel Towell) gave the WHS Act revelations some coverage. Thus the Department and Comcare were now on the public record – the
hard print publicly reported record – confirming that, under the WHS
Act, the Commonwealth/the Department, not the government of PNG or
Nauru, is responsible for the health and safety of Australia’s offshore
asylum seekers. And so it was that on 6 June 2016, the Turnbull government’s illusory
“cloak of respectability” simply vanished — disappeared, once and for
all. Only two months previously, “Emperor” Turnbull had been lecturing China about “the rule of law”, implicitly proclaiming his commitment to that lofty ideal. But as election day loomed, there he was, leading the campaign parade, exposed for all the world to see. Max Costello is a former WorkSafe Victoria prosecuting
solicitor and former sessional lecturer in Employment Law at Melbourne’s
RMIT University. He co-authored submissions on WHS Act issues to the
Moss review and the Senate Select Committee on Nauru abuses.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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UN accuses Australia of systematically violating torture convention
Tony Abbott reacts angrily to report criticising Australia’s
detention policies, saying Australians are ‘sick of being lectured to by
the United Nations’
Nauru children asylum seekers protest on Australia Day. The UN has found
that their detention breaches the Convention Against Torture.
Photograph: Supplied
Australia is systematically violating the international Convention
Against Torture by detaining children in immigration detention, and
holding asylum seekers in dangerous and violent conditions on Manus
Island, a United Nations report has found.
But the prime minister, Tony Abbott, reacted angrily to the scathing
findings, saying Australians were “sick of being lectured to by the
United Nations”.
The United Nations special rapporteur on torture, Juan Mendez,
has investigated allegations of torture and abuse of 68 countries, in a
report to be delivered to the UN Human Rights Council on Monday.
The section on Australia is concerned entirely with the treatment of asylum seekers in immigration detention.
“The government of Australia, by failing to provide adequate
detention conditions; end the practice of detention of children; and put
a stop to the escalating violence and tension at the regional
processing centre, has violated the right of the asylum seekers
including children to be free from torture or cruel, inhuman or
degrading treatment,” Mendez’s report said.
Two asylum seekers on Manus Island,
referred to as Mr A and Mr B, allege they were tied to chairs by
security staff and threatened with “physical violence, rape, and
prosecution for ‘becoming aggressive’” if they refused to retract
statements they had made to police about the murder of Reza Barati
during detention centre riots.
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Mendez’s report found those men’s rights were also breached.
“The rapporteur concludes that there is substance in the allegations
presented in the initial communication, reiterated above, and thus, that
the government of Australia, by failing to provide any additional
information or details of the investigation into Mr A’s and Mr B’s
allegations, has violated their right to be free from torture or cruel,
inhuman or degrading treatment.”
And Mendez found that two government amendments to immigration
legislation both risk violating international law prohibiting torture.
“The Migration and Maritime Powers Legislation Amendment ... violates the Convention Against Torture
because it allows for the arbitrary detention and refugee determination
at sea, without access to lawyers. The Migration Amendment (Character
and General Visa Cancellation Bill) violates the CAT because it tightens
control on the issuance of visas on the basis of character and risk
assessments.”
When asked about the report on Monday, Abbott said the UN’s
representatives “would have a lot more credibility if they were to give
some credit to the Australian government” for stopping dangerous boat
journeys by asylum seekers.
“I really think Australians are sick of being lectured to by the United Nations,
particularly given that we have stopped the boats, and by stopping the
boats, we have ended the deaths at sea,” the prime minister said during a
media conference in Western Australia.
“The most humanitarian, the most decent, the most compassionate thing
you can do is stop these boats because hundreds, we think about 1,200
in fact, drowned at sea during the flourishing of the people smuggling
trade under the former government.
“The best thing you can do to uphold the universal decencies of
mankind, the best thing that you can do to ensure that the best values
of our world are realised is to stop the boats and that’s exactly what
we have done.”
Asked again whether he accepted the UN’s findings about Manus Island,
Abbott said the conditions were “reasonable under all the
circumstances” and “all of the basic needs of the people on Manus Island
are being met”.
“Everyone’s needs for food, for clothing, for shelter, for safety are
being more than met, thanks to the good work of the PNG government, the
Australian government and the people who are running the centre,” he
said.
Abbott’s criticism of the UN follows his claim the Australian Human
Rights Commission, in particular its president, professor Gillian
Triggs, acted in a “blatantly partisan” way with its inquiry into children in immigration detention.
The immigration minister, Peter Dutton, has also been contacted for comment on the UN report.
The director of legal advocacy with the Human Rights Law Centre,
Daniel Webb, said the UN report confirmed that Australia’s offshore
processing policy was failing to meet basic human rights standards, and
that new legislation would risk further breaches of international law.
“Under international law, Australia can’t lock people up
incommunicado on a boat somewhere in the middle of the ocean. Nor can we
return people to a place where they face the risk of being tortured.
Yet these are precisely the powers the government has sought to give
itself through recent amendments to its maritime law.”
Australia relied on international law and to protect its own interests, Webb said.
“So it’s incredibly short-sighted for the government to start
thumbing its nose at the UN system just because it doesn’t like what
it’s being told.”
Ben Pynt from Humanitarian Research Partners said the government was
simply attempting to sweep torture allegations “under the rug”.
“The prime minister has attempted to discredit the special rapporteur
on torture in the same way as he attacked Professor Triggs, as biased
and disreputable. What he did not do is counter the evidence provided or
in any way attempt to disprove the allegations of torture, which the
global authority on torture found to be substantiated.”
The special rapporteur’s report addresses allegations of torture and
inhumane treatment in 68 countries. It criticises, as well, the United
States for holding a mentally ill man on death row for 30 years, and
raises concerns with the UK over several proposed deportations.
Papua New Guinea did not respond to inquiries from the UN over its handling of the Manus detention centre.
Australia is currently actively lobbying for a seat on the Human Rights Council, in the ballot to take place in 2017.
The foreign minister, Julie Bishop told Fairfax Australia’s bid was “consistent with our nation’s history of promoting and protecting human rights”.
“We abide by our international obligations and we are confident that
our experience and our commitment to human rights protection and
promotion makes us a strong contender for the UNHRC.”
Shadow minister for immigration Richard Marles described the prime minister’s attack as “absurd”.
“Instead of launching a cheap attack on the report’s author, Tony
Abbott should be providing an assurance that all the processing
facilities Australia funds are run in a safe, humane and proper manner.”
The last Labor government re-opened the Manus Island detention centre in November 2012.
the protection granted by a nation to someone who has left their native country as a political refugee.
“she applied for asylum and was granted refugee status”
“we provide asylum for those too ill to care for themselves”
“he appealed for political asylum”
dated:
an institution offering shelter and support to people who are mentally ill.
After watching last night’s Q&A I got an unexpected text from a friend.
“The numbers are only worse under Labor for children in detention
because Labor let more refugees in, right? Not that it is defendable”
the message read.
I had to give this some thought…
Yes I suppose there were more ‘irregular entries’ from 2008 onward
than there had been during the Howard years. By 2008 we were really just
starting to feel the shockwaves of a series of genocides in which
Australia had been complicit. The number of boat arrivals increased
under Labor, and with it the number of children in detention. And I
suppose a veritable tsunami of new boat arrivals from Afghanistan and
Sri Lanka also came as a supply-boom for a fledgling private prison
industry.
Australia has not dealt properly with refugees since the 1970’s.
The Fraser government achieved humanitarian outcomes for tens of
thousands of refugees from indo-china, in accordance with our
obligations under international law. Fraser, now 84, has cut ties with
his former political party and now champions the cause of refugee
advocacy. He was also the man behind the coup that took down the
Australia’s first and only autonomous government. Go figure. I’d take
Fraser for PM over any of the current crop (except perhaps Wilkie or
Wong.)
Stewart West, another octogenarian, served as Minister for
Immigration and Ethnic Affairs under Hawke. I heard West speak at rally
last year. He spoke passionately, recalling anecdotes of his work
abroad, particularly in central and south America. What echoes in my
minds ear still are these words: “In my day we didn’t have a problem
with refugees arriving by boat. We flew them here.” West resigned
shortly after Hawke introduced his policy of mandatory detention for
unauthorised arrivals. A man of integrity.
Hawke brought in mandatory detention. Keating Privatised it. Howard
offshored it. Rudd and Gillard tried to scale it back, proposing to
settle clients in “third countries”. Abbott opposed this because it was
Labor’s idea, and once in power imposed his final solution to the refugee problem by turning back the boats.
This instantly improved his polling, which was dutifully reported in
the Murdoch press and scored him countless cheap points among the
brainwashed and brainless masses.
One small problem with Abbott’s strategy is that according to every
legal entity, everywhere, seeking asylum is a human right, and
refoulement is illegal.
Australia now stands in breach of countless articles of international
law, and we haven’t actually done anything to fix the problem. We’ve
done nothing to address the plight of undocumented, homeless, stateless
people fleeing tyranny and persecution. What Abbott has done is given
billions of taxpayer dollars to corporate thugs and enlisted the armed
forces by executive order to make this someone else’s problem.
Meanwhile we have a ‘budget emergency’. I’m only crying because it hurts to laugh.
The boats have stopped coming now, or so we’re told, so I guess what
we do with the rest of the irregulars in detention now is a matter for
the Liberal party and their business interests to decide. (Tony
Shepherd, President of the Business Council of Australia, is the
former chairman of Transfield which operates the facility at Manus
Island, a U.S. styled private prison. Serco and G4S have also held
lucrative government tenders at various times to operate detention
facilities, along with Greg Sheppard, who runs the private security firm
Wilson Protective Services PNG Ltd. All Liberal Party donors.)
The reaction to the human rights commission’s report into the forgotten children
comes as no surprise. Investment by successive governments has boosted
supply in a market which now has weakeneing demand. I imagine Abbott at
this moment finds himself in quite a quandary. Clearly he hasn’t thought
the game through; else he would have announced something by now. My
guess is he probably never thought he’d get this far.
I suppose a government so committed to old world ideas about what a
‘family unit’ looks like would find the problem even more perplexing.
There are whole families in detention, we are told. In the example
reluctantly proffered by Mr Turnbull the father is a suspected security
risk, but his wife and 3 kids refuse to leave detention without him. I
shudder to think what a pallid chord the thought of broken families must
strike on Cory Bernardi and Eric Abetz’ god-fearing heart strings. One
conservative maggot troll tweeted something along the lines of “shame on
these unworthy refugees for using their children as bargaining chips.”
Meanwhile the same government which refused to spend $500m to
guarantee the future of car manufacturing in Australia and save 100 000
jobs (sorry to labour the point), are happy to hand over $2bn to the
private prison industry, which benefits the rest of us how, exactly? And
where does Labor stand on this? Or is this another matter of ‘national
security’ which has bi-partisan support?
Prime Minister Tony Abbott dismisses a damning Human
Rights Commission report into children in refugee detention, saying he
feels no guilt about their plight whatsoever. Human rights lawyer Joshua Dale says there needs to be complete overhaul of attitudes amongst Australia's politicians and their constituents.
IT IS with sadness, that one must now accept that the rights of
children in Australia, particularly so far as it concerns Australia’s
immigration policies, have fallen by the wayside.
There is now a common theme amongst Australian governments to dismiss
human rights issues when it concerns Australia’s detention facilities
and the treatment of their occupants.
Recently, the Australian Human Rights Commission under the guidance of its president, Gillian Triggs, has engaged in a national inquiry
into children in immigration detention. The report has now been
released, making 16 recommendations, including that all children should
be released from detention in the next four weeks and that a Royal
Commission into the treatment and detention of children should be
convened.
The Federal Government’s current approach to ensuring Australia’s
international obligations are upheld is by delegating authority to the Australian Human Rights Commission to investigate and advise.
Outside of the Human Rights Commission's recent findings, there
remains the question of how children or minors accused of people
smuggling are affected by current Government policies.
You may recall reports in 2012 and also 2013 where young Indonesian children, accused with people smuggling crimes, were detained in Silverwater Prison.
Many of these children came from impoverished backgrounds, in which
they were forced into operating vessels on the high seas where they
risked death, all for the purpose of being able to return what can only
be described as a dismal income to their families. Evidence submitted to a Senate Inquiry suggested that many of these individuals had very little knowledge as to whether or not they were, in fact, committing a crime.
When detained in Australia, many of these minors did not have any
identification or birth documents in their possession. In the absence of
identification data, their age was determined by the performance of a
wrist X-ray, which would then be examined for certain levels of
deterioration in the wrist, which could then estimate age of the minor.
Various studies had been in existence prior to the implementation of
law that allowed for age testing with the use of X-ray. These
anthropological studies concluded that there existed a significant
variation in findings and concluded that unreliable results concerning
bone ages had arisen. The conclusions generally were that the testing
methods did not accurately represent multi ethnic child populations.
For example, a study conducted in 2001 [Mora Et Al, “Skeletal Age Determinations in Children of European and African Decent; Applicability of the Greulich and Pyle Standards”, Paediatric Research
(2001) 50, pp624-628] indicated that African American children had a
greater bone age than those of European decent. The testing standards
made no allowances for differences in genetic make up in so far as it
affected bone age. As a result, the study rejected the adequacy of the
testing method and determined that new standards were thus required.
Despite this, the Australian Government continued to apply this
testing. Indeed, from September 2008 to January 2012, 208
people detained as members of smuggling crews who claimed to be minors
had been detained. After the result of X-ray testing, 86 of these
persons were determined to be adults, despite truly being minors. This
means, in effect, that Australia’s Government was advocating and
allowing the detention of children in adult prisons based on testing
that, anthropologically speaking, had been rejected almost a decade
prior.
A Senate inquiry ensued and a number of recommendations were
made. Whilst the Government generally accepted the recommendations
arising out of the majority report, it disagreed with all further
recommendations made by the Senate Committee, except for the funding of
Government funded legal agencies, such as Legal Aid, to assist
Indonesian minors detained and accused of people smuggling to return to
Indonesia in order to substantiate their age.
Of most concern regarding the outcome is that it took until 2013
before any amendments to crime regulations were made removing the use
of x-ray testing for age. Furthermore, the Human Rights Commission was
not consulted prior to implementing x-ray testing for age despite this
avenue being available to them.
There have remained ongoing issues arising from these events and this inquiry.
For example, there remains a significant issue for children detained
in circumstances where their age is not known, so far as legal
representation is concerned, particularly in relation to any criminal
proceedings arising from minors being detained on people smuggling
charges. Depending on how they plead to criminal offences, this can also
affect other recovery actions against the Government should there be
untoward treatment, such as detaining a minor in an adult prison and any
subsequent injury.
Furthermore, there is an ongoing fear that anyone pleading guilty to
such offences are doing so without adequate advice, legal
representation, or proper knowledge and understanding of the crimes in
which they are charged. Without ensuring this advice and access to a
proper defence it is clear that Australia will continue to advocate for
laws that allow for breaches of international treaties and procedural
fairness.
The point here is that there should be no excuse for delaying the
implementation of comprehensive rights based laws that advocate for the
rights of children. Nor should there be any politically motivated attack on a commission charged with protecting Human Rights in Australia.
What history confirms is that the current political landscape looks
to solve immigration and people smuggling policies with short term fixes
without implementing a longstanding agenda that creates a system
whereby Australia maintains its Human Rights obligations, yet maintains a
tough stance on people smuggling and national security issues.
Despite what the current government would have you think with their
mantra and partisan stance of “stop the boats”, this can be achieved by
ongoing consultation with Human Rights based groups, including the Human
Rights Commission.
From an international perspective, policies need to be shifted to
create a more collaborative approach internationally to shut down
illegal people smuggling operations. And more importantly, greater
education needs to be provided to the regions where the operators of the
boats that come to Australia are recruited.
Domestically, it seems that Australia is crying out for human rights
based legislation to be enacted to ensure that breaches of international
human rights are recognised at their earliest stage, not only by our
government when making laws, but also so that they are actionable should
they be breached.
It is clear there needs to be a complete overhaul of attitudes
amongst not only our members of Parliament but also their constituents.
There needs to be current and ongoing checks and balances and there
needs to be an underlying concern and motivation to ensure change not
only to minors held in detention centres but any minor that finds
themselves at the mercy of Australia’s current immigration policies.
I don’t think Tony Abbott understands what the Human Rights
Commission does. He probably doesn’t even understand the general concept
of human rights, as was evidenced in a radio interview this morning.
Yesterday, the Human Rights Commission called for a Royal Commission
into children in detention, following a long string of disturbing of
assault and self-harm.
But, what Tony Abbott said in response was simply disgusting.
Abbott said the Human Rights Commission ought to be “ashamed of itself.” He actually said that.
Should the Human Rights Commission be ashamed of itself for being a
voice for the voiceless? Or does he want them to feel ashamed of ruining
his policy agenda and making Australians aware of what is happening
under the watch of his government?
But then again, Tony Abbott doesn’t have compassion, like most of us
do. He doesn’t even see a problem with putting children in prisons when
they haven’t even committed a crime.
Abbott labelled the recommendation a blatant attack on his
government. Sure, that’s what it is – and rightly so. The Human Rights
Commission, and the rest of us have every right to attack the government
for human rights violations.
He seemed to think the most compassionate thing to do would be to
“stop the boats.” I’m not sure what compassion is exercised there in
stopping people fleeing persecution.
Abbott later went on to ask “where was the Human Rights Commission
during the life of the former government when hundreds of people were
drowning at sea?”
I think Tony Abbott is forgetting that it is a human right to seek
asylum. What human rights are being breached in allowing people to seek
asylum in Australia? Maybe he feels threatened by them, and feels his
human rights are being violated.
This government’s attitude aside, this report is horrifying. It is
most certainly compelling enough to warrant the establishment of a Royal
Commission. Further investigating is required. There is likely so much
we still do not know.
The most sensible thing would be to establish this Royal Commission. I
know this government hasn’t had much success in the past in using Royal
Commissions to score political points, but this is a Royal Commission
that would actually have meaning.
Under this government’s watch, children are attempting suicide. They
are harming themselves. They are being sexually assaulted. And all of it
could be avoided. What is going so wrong that is causing this? We need
to know.
If the policy is to remain the same (which I don’t think it should), at the very least, changes need to be made.
This government needs to find its heart, and listen to the Human
Rights Commission. They are the ones tasked with dealing with human
rights, not a prime minister who lacks compassion and empathy.
You can follow Torin Peel’s commentary and analysis on Twitter, @torin
For the second year in a row, Australia has made the international human rights shame list. Max Chalmers explains why.
Australia
first appeared on the international Human Rights Watch list last year.
We’re not only back on the list this year, but we’re even bigger human
rights abusers.
We were already being targeted for our abuse of asylum seekers, Aboriginal Australians and laws which prevent same-sex marriage.
But it’s our new counter terrorism laws that have ensured Australia remains on the list in 2015.
Human Rights Watch
is a “nonprofit, nongovernmental human rights organization made up of
roughly 400 staff members around the globe”. The group was established
in 1978 and it does not accept government funding. It’s staffed by human
rights professionals including country experts, lawyers, journalists,
and academics of diverse backgrounds and nationalities.
Here’s the five areas where Australia is most exposed.
1. Treatment of asylum seekers No surprises to see this one included in the list, with the Abbott
government overseeing new levels of brutality, building on Labor’s
disastrous decision to back a return to punitively focused offshore
processing. The report reflects on the poor conditions in detention, the
indefinite detention of refugees with adverse security assessments, and
the practice of using “enhanced screenings” on asylum seekers arriving
by boat, who are not provided with legal representation or the right to
appeal.
UN High Commissioner for Human Rights Zeid Ra’ad Al-Hussein is quoted
as critiquing Australia’s refugee policies for “…leading to a chain of
human rights violations, including arbitrary detention and possible
torture following return to home countries”.
The report also says the focus on offshore settlement had muted
Australia’s criticism of authoritarian regimes in Sri Lanka and
Cambodia.
2. Aboriginal incarceration An issue that is very slowly starting to be acknowledged by the
political mainstream, the report points to the oft quoted statistic that
Aboriginal and Torres Strait Islander Australians account for just 3
per cent of Australia’s population, but 27 per cent of the adult prison
population (and more than 40 percent of juveniles in detention).
The report also notes Aboriginal Australians continue to “die at
alarmingly high rates from treatable and preventable conditions such as
diabetes and respiratory illnesses”.
3. Disability Rights A shocking forty-five per cent of Australians with disabilities live
near or below the poverty line, according to the report, and a Human
Rights Commission inquiry found inadequate safeguards and poor access to
support.
In a blow for advocacy in the field, activist and comedian Stella Young passed away late last year, a short time after the ABC axed Ramp Up, a website dedicated to news and opinion for and from the disability community.
Oh, and Scott Morrison is now the Minister for Social Services.
4. Marriage Equality A policy long ago embraced by Britain’s Conservative Party and
broadly popular in Australia, it’s hard to imagine this change can be
resisted much longer, with Labor bumbling towards consensus on the
issue.
In the ACT, Labor introduced same-sex marriage laws, only to have
them overturned by the High Court after the Abbott Government intervened
immediately after the ACT laws were passed.
5. The squeeze on free expression The report focuses heavily on the new anti-terror laws, some of which
will be back before Parliament when the Christmas break comes to an
end. It criticises the “overly broad new offense” of ‘advocating
terrorism’ and laws restricting travel to “declared areas”.
Attention is also drawn to the pending data retention laws, which
would force telecommunications companies to retain metadata for a period
of two years to allow for ASIO access. And let’s not forget that if
journalists report on a special intelligence operation, they face up to a
decade in jail. There is no public interest exemption.
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