For $70m, government gets off lightly, but settlement still highlights responsibility for Manus



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$70 million is tiny sum in the scheme of the federal government’s expenditure to manage asylum seekers who arrive by sea.
AAP/Eoin Blackwell

Alex Reilly, University of Adelaide

The federal government on Wednesday reached a settlement with 1,905 detainees on Manus Island for A$70 million. The settlement was agreed immediately before a trial was due to begin in Victoria’s Supreme Court. The case alleged the Commonwealth and its detention centre contractors, G4S and Transfield, had breached a duty of care owed to the plaintiffs in relation to their detention, and falsely imprisoned them between November 2012 and May 2016.

The decision to reach a settlement can be read in several ways.

It would first seem to be a stunning admission by the Commonwealth that it did owe a duty of care to the detainees, and that it breached this duty through its detention practices.

Alternatively, it may be read as a strategic decision by the Commonwealth to reduce the political damage it believed would be caused through a protracted trial (predicted to be six months). This damage was likely to be exacerbated by the court’s decision to allow proceedings to be streamed live.

A small price to pay?

Compared to the federal government’s expenditure to manage unauthorised maritime arrivals – $1.078 billion in the 2015-16 financial year, and more than $800 million in 2016-17 – $70 million is a tiny sum.

And $70 million – an average of about $36,000 per detainee – might seem a small price for the Commonwealth to pay for the litany of allegations of mistreatment detailed against it in the statement of claim. These included:

  • failure to provide adequate toilet facilities;

  • contaminated meals;

  • inadequate and delayed medical treatment; and

  • illegal detention.

This mistreatment was connected to the death of three detainees, and the serious injury of many more.

The class action brought the issues to a conclusion in a more timely fashion than individual actions could have done. But given the extent of the harm to each individual, the settlement amount for each person is likely to be significantly lower than they might have received in an individual claim.

The action was only peripherally about the money, though. The case provided a platform to lay bare the ugly reality of conditions in detention and the role of the Commonwealth and its contractors in producing and sustaining those conditions over many years.

A new way to hold government to account

In this case, private litigation was able to play a significant role in holding the government to account in an environment in which traditional accountability mechanisms fail to cut through. There are several reasons for this.

First, the case was able to produce new information about conditions on Manus Island. Once the class action was on foot, it provided a platform for expert witnesses and detainees to testify to conditions in detention free from the constraints of other types of investigation. It provided access to sensitive documents, such as the detail of government contracts with detention centre operators.

In contrast, the Australian Human Rights Commission only investigates detention abuses on Australian territory. And it is difficult for NGOs to investigate conditions in the detention centres. They need permission from governments to visit centres, and findings in their reports are easily denied by governments.

As a result, the best information on conditions in detention is through reports of those working in the centres, or through leaked documents.

As Slater and Gordon lawyer Andrew Baker said following the settlement, the case provided a strong reminder of the role the legal system can play in:

… holding governments and corporations accountable.

The case may herald the beginning of a period in which the Commonwealth will be forced to account for its offshore detention policy through protracted legal action.

What remains unclear is how many Manus Island detainees opted out of the action, and are thus free to bring individual claims. In light of the government’s decision to settle the claim, detainees outside the class action – and detainees on Nauru – may look to bring individual actions for negligence and false imprisonment against the Commonwealth.

If the treatment of these people was particularly bad, and they manage to reap a significant compensation settlement, this may open alternative pathways to settle in Australia. They might, for example, be able to apply for an investor visa, which requires a $1.5 million investment in a state or territory upon nomination.

There are no doubt many obstacles to such an application. This includes the ability to meet the health requirements for the visa – which might be compromised due to the applicants’ treatment in detention – or understanding Australian values, which may well seem very confusing to those subjected to offshore detention.

The ConversationHowever, that such an application could even be contemplated highlights the perversity of Australia’s treatment of asylum seekers. It brings into shocking relief the distinction drawn between the same person as an asylum seeker and as a migrant with the means to invest in Australia’s economy.

Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

This article was originally published on The Conversation. Read the original article.

How Dutton comes out of dispute about Manus claim goes to the question of character


Michelle Grattan, University of Canberra

Peter Dutton has put his credibility in the frame by sticking to his claim about the role of an incident involving a young boy in triggering the Manus Island disturbance that saw Papua New Guinea defence personnel fire shots at the detention facility. The Conversation

Dutton’s well-publicised but strongly disputed allegation will be tested by the investigations being done by the PNG defence and police authorities, while Senate estimates in a few weeks should also provide a chance to probe it.

Dutton is a former policeman, which is just one reason why he should be held to the highest standards of accuracy in making a claim.

How Dutton comes out of this dispute about facts is particularly important, because it goes to the character of the conservative Liberal from Queensland who is touted as a possible future leader.

In notable contrast to the obvious tensions between Malcolm Turnbull and Treasurer Scott Morrison, the prime minister and his immigration minister are walking in lockstep. Dutton is at the heart of Turnbull’s attempt to win voters’ support with tougher policies on foreign workers and citizenship.

When Dutton last week was asked on Sky what he knew about the Good Friday violence he said: “There was difficulty, as I understand it, in the community. There was an alleged incident where three asylum seekers were alleged to be leading a local five-year-old boy back toward the facility and there was a lot of angst around that, if you like, within the local PNG community.”

Pressed on why there was this angst, he said: “Well because I think there was concern about why the boy was being led, or for what purpose he was being led away back into the regional processing centre. So I think it is fair to say that the mood had elevated quite quickly. I think some of the local residents were quite angry about this particular incident and another alleged sexual assault.”

But Manus Province police commander David Yapu rejected this version. He told Fairfax the boy, who he said was aged about ten, had been given fruit in the centre about a week before the violence.

“Then Wilson Security had to intervene and get him out from the centre. That had nothing to do with the latest incident involving soldiers,” Yapu said. “The child incident is unrelated.”

Earlier Yapu was reported to have said the soldiers’ drunken rampage was retaliation following a clash between navy personnel and asylum seekers who were playing soccer in the navy base.

When it was put to Dutton on Sunday that what he’d said wasn’t true, he retorted: “It is true. And the briefing that I’ve had is particularly succinct and clear … I can give you the facts in relation to it or you can take the Twitter version.”

Reference to “the Twitter version” was an obvious attempt to denigrate the alternative account. But that alternative came in the form of direct quotes from a local police commander.

Dutton told interviewer Barrie Cassidy that “there are facts that I have that you don’t”. Pressed on the source of his information he said: “I have senior people on the island. We also have obviously significant contacts with the governor and people of Manus.”

Let’s hope that the evidence-gathering speedily produces “the facts”, whether those facts contradict or back Dutton.

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Ministers should not be allowed to slip away from taking responsibility – as former immigration minister Morrison did over his wrong claims against Save the Children personnel. On the other hand, if Dutton is so certain he’s got the right story, he has every interest in seeing the proof out in public to back it.

Meanwhile at the weekend US Vice-President Mike Pence reiterated that the Americans will stick by the deal the Turnbull government did with the Obama administration to take refugees from Manus Island and Nauru. But Pence didn’t miss the opportunity to again register the Trump administration’s unhappiness with the deal. The honouring “doesn’t mean we admire the agreement,” he told his news conference with Turnbull.

Pence cast the honouring in firmly alliance terms: “The decision to go forward I think can rightly be seen as a reflection of the enormous importance of the historic alliance between the United States and Australia,” he said.

“And whatever reservations the president may have about the details of agreements reached by the prior administration, we’ll honour this agreement, out of respect for that enormously important alliance.”

The firm message-behind-the-message seemed clear: don’t forget we’re doing you a big favour.

Newspoll postscipt

Labor leads the Coalition 52-48% in Newspoll, compared with 53-47% three weeks ago. The Coalition’s primary vote remains at 36% in the poll, published in Monday’s Australian, while Labor has slipped from 36% to 35%, and the Greens from 10% to 9%. Pauline Hanson’s One Nation remains at 10%.

Malcolm Turnbull’s net satisfaction has improved from minus 29 points to minus 25; while Bill Shorten’s net satisfaction has gone from minus 22 to minus 20.

https://www.podbean.com/media/player/jw7bg-69e505?from=yiiadmin

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

High Court asked to declare Manus detention illegal as 859 detainees seek their day in court


Amy Maguire, University of Newcastle

A writ of summons was registered in Australia’s High Court on Wednesday on behalf of 859 detainees at the Manus Island detention centre. This is a class action initiated against Australia, Papua New Guinea, the two countries’ immigration ministers, PNG’s attorney-general and the companies that administer the centre.

The detainees want the High Court to use its original jurisdiction in judicial review of their transfer to and detention on Manus Island. They seek an injunction to prevent their removal to Nauru or elsewhere until the court hears the matter.

Recent background

This action follows the PNG Supreme Court finding that the detention on Manus Island is unconstitutional. The PNG Constitution contains a Charter of Rights that strictly limits the circumstances under which people may be deprived of liberty.

As Australia forcibly transferred the detainees, they were not responsible for their own unlawful entry to PNG. Therefore, no constitutional exception could permit their legal detention.

Following the Supreme Court decision, PNG Prime Minister Peter O’Neill announced the Manus Island centre would close. He asked Australia to “make alternative arrangements for the asylum seekers”.

O’Neill’s Australian counterpart, Malcolm Turnbull, said Australia would not accept the detainees. Australia’s immigration minister, Peter Dutton, described them as PNG’s responsibility.

Basis for the claim

The detainees argue their detention is illegal on international, constitutional, administrative and civil law grounds. They are asking the High Court to declare that their detention constitutes:

What are the detainees seeking?

The detainees request relief via the ancient writ of habeas corpus. They want to be brought before the High Court so its judges can determine whether their detention is legal.

The detainees hope the court will then issue a writ of mandamus. This would order the government to bring them to Australia to process their refugee claims.

Finally, the detainees seek a writ of prohibition, to prevent their transfer to any other place until the case has been decided and their claims assessed.

The detainees are seeking damages and costs. They may also take action in PNG for compensation. A PNG legal representative of many detainees estimates that up to A$1 billion could be owed.

This action echoes earlier high-profile claims, like the Tampa case. In such cases, human rights lawyers seek to vindicate the rights of asylum seekers who lack access to Australian courts due to their forcible offshore detention.

Other advocates have sought the aid of international courts. They argue Australia’s actions against asylum seekers who seek to arrive here by boat inflict crimes against humanity.

The High Court will hear the application on May 23.

Australia’s human rights problem

Around half of those detained on Manus Island have already been assessed to be genuine refugees. Yet most remain in detention, in part because their safety is at risk if they leave the centre.

The refugees would not face the same level of risk were they to be resettled in Australia. Yet PNG law has offered more substantial rights protection to them than Australian law.

The stark contrast between Australian and PNG law is in the relative degree of formal protection for human rights. Whereas PNG has a Charter of Rights enshrined in its Constitution, Australia lacks constitutional protection. Its government has rejected legislative protection for human rights.

Though Australia professes deep commitment to human rights standards in its foreign relations, it refrains from entrenching these international norms domestically. This position reflects a cultural attitude that the Australian “fair go” is sufficient protection against the excessive use of government power.

The experiences of Indigenous peoples in Australia before the law put the lie to this belief. And if adequate human rights protections are not the universal experience of people in Australia, what hope for asylum seekers who lack access to Australian courts and are demonised in public discourse?

Hope for success

The most recent High Court action challenging Australia’s offshore detention arrangements in Nauru failed. The court found the government was acting in accordance with its constitutional and legislative powers.

However, the majority of judges did regard Australia as bearing at least some responsibility for the detention of asylum seekers in Nauru. This may undermine the government’s argument that detainees on Manus Island are PNG’s sole responsibility.

This new action’s distinguishing feature is a request that the High Court use its universal jurisdiction for the first time. The detainees argue that Australia has no legal power to forcibly deport and arbitrarily and indefinitely detain asylum seekers in torturous, inhuman or degrading conditions without legal rights.

If the claim succeeds, it will entirely undermine Australia’s inhumane practices in relation to “those who come across the seas”.


Amy Maguire thanks Jay Williams, barrister-at-law of Frederick Jordan Chambers, for providing the original writ of summons used to initiate this action in the High Court.

The Conversation

Amy Maguire, Senior Lecturer in International Law, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Hundreds of Asylum-Seekers Are on Hunger Strike Over Australia’s Resettlement Plan


TIME

Nearly 700 detainees, or almost two-thirds of those held in an Australian offshore detention center on Papua New Guinea’s (PNG) Manus Island, are on hunger strike to protest Canberra’s plan to permanently resettle them on the island.

The hunger strike comes in the wake of a vow by Australia’s recently-appointed Immigration Minister, Peter Dutton, that Manus Island detainees would “never arrive in Australia,” reports the Sydney Morning Herald.

During the past week, hundreds of detainees have abstained from food, and some from water, over the government’s plan to move them to the nearby town of Lorengau. As many as 14 have sown their lips together, the Herald says.

Visiting Australian medical staff and refugee rights groups say that health facilities on Manus Island center are not equipped to handle the hunger strike.

“They don’t have the capacity to handle a hunger strike of even one tenth of that size,”…

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Australian Politics: 1 August 2013






Australian Politics: 30 July 2013





Australian Politics: 29 July 2013


The ALP asylum seeker policy appears to be a winner with Australian voters overall, with Kevin Rudd now being favored over Tony Abbott to deal with asylum seekers. However, the Pacific region isn’t impressed.

For more visit:
http://www.theaustralian.com.au/national-affairs/immigration/arrogant-png-solution-a-shock-to-pacific-nations-says-fiji/story-fn9hm1gu-1226687594296





Australian Politics: 28 July 2013


Prime Minister Kevin Rudd has made a surprise visit to Australian troops in Afghanistan.

For more visit:
http://www.skynews.com.au/topstories/article.aspx?id=891398

The link below is to an article from a foreign news site that reports on Australia’s current asylum seeker policy and that of the opposition – it would appear to have some Coalition influence concerning some aspects of the report.

For more visit:
http://www.wnd.com/2013/07/australia-illegals-not-welcome/

Prime Minister Kevin Rudd has stated that the Papua New Guinea asylum seeker policy may take months before becoming an effective deterrent for illegal arrivals.

For more visit:
http://www.theaustralian.com.au/national-affairs/immigration/png-solution-could-take-many-months-to-work-kevin-rudd/story-fn9hm1gu-1226686998109

For more on the asylum seeker debate in Australia visit:
http://www.themonthly.com.au/blog/richard-cooke/2013/07/25/1374721635/bogans-and-boat-people-pt1

The link below is to an interesting piece on Tony Abbott:
http://www.themonthly.com.au/issue/2013/july/1372600800/waleed-aly/inside-tony-abbotts-mind

Can the ALP win the upcoming election – the polls suggest it is a possibility.

For more visit the link below:
http://www.themonthly.com.au/blog/roy-morgan-research/2013/07/23/1374538622/morgan-poll-alp-would-win-federal-election

Australian Politics: 27 July 2013


The Gonski reforms for education in Australia continue to cause problems for the ALP, with several states and territories refusing to sign up. The links below are to articles covering stories on some of the states that refuse to sign up.

For more visit:
http://www.theaustralian.com.au/national-affairs/education/nt-rejects-federal-schools-deal/story-fn59nlz9-1226686542820
http://www.watoday.com.au/wa-news/no-deal-barnett-refuses-to-budge-on-schools-20130726-2qpji.html