Explainer: the medevac repeal and what it means for asylum seekers on Manus Island and Nauru

Jacqui Lambie has made a secret deal with the Coalition government to secure the repeal of medevac.
AAP/Lukas Coch

Alex Reilly, University of Adelaide

After much negotiation, the government has secured the repeal of the medical evacuation law – known as “medevac” – after making a secret deal with Senate cross-bencher Jacqui Lambie.

So what does this mean for those held in offshore detention?

Understanding the numbers

The number of refugees and asylum seekers in Nauru and Manus Island peaked at 2,450 in April 2014 (1,273 on Manus and 1,177 on Nauru) and has been dropping ever since. As of this week, about 466 asylum-seekers and refugees remain offshore – 208 on Papua New Guinea and 258 on Nauru.

Of the nearly 2,000 who are no longer in offshore detention, 632 have been transferred to the United States, 17 died in detention, mainly due to suicide, several hundred have been deported after their claims had been rejected, or after returning “voluntarily” with financial assistance from the Australian government. Of these returnees, 33 have been reported dead.

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Read more:
Explainer: how will the ‘medevac’ bill actually affect ill asylum seekers?

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In addition, the majority of those who are no longer on Nauru and PNG have been transferred to Australia for medical treatment. Prior to the Medevac law, 1,246 people had been transferred to Australia for medical reasons, including accompanying family. “Less than a handful” of these were returned to Nauru or PNG. The most recent return was on April 15 2018.

The number of medical transfers jumped dramatically from 2017-18, when there were 35 transfers, to 461 from July 2018 to the passing of the medevac law in February 2019. Since then, a further 288 were transferred under the earlier system of approvals.

According to Senates Estimates, between March 2 2019 when Medevac became law, and October 21 2019, 135 refugees and asylum seekers from Nauru and PNG have been transferred for emergency medical treatment under this process.

Why has there been such a focus on medevac?

The primary failure of the policy of removing asylum seekers to Nauru and PNG for processing has been the inability to find permanent resettlement options for those who are found to be refugees under the UN Convention.

Having ruled out resettlement in Australia, the government has scrambled to find other countries to take in the asylum seekers. In 2016, then-Prime Minister Malcolm Turnbull was fortunate to find President Barack Obama open to a resettlement arrangement, which he subsequently convinced Donald Trump to honour.

But this has been the only option on the table. There was an aborted deal with Cambodia, and a small number have been resettled in Canada through private sponsorship. The government inexplicably refused an offer from New Zealand to resettle 150 refugees each year, concerned they could then enter Australia via New Zealand.

With limited prospects for resettlement, and the mental health of those on Nauru and PNG always vulnerable and quickly deteriorating, medical transfers have been an important strategy. The increasing number of people transferred for medical reasons is a result of the escalating medical emergency.

Prior to medevac, transfers were at the discretion of the minister. When the minister refused a medical transfer to Australia, people were forced to challenge the exercise of the minister’s discretion in the courts.

After protracted legal actions, Australian courts routinely ordered the minister to transfer people for urgent medical treatment to fulfil Australia’s duty of care to people in offshore places. Medevac replaced this cumbersome process with a medical assessment by two doctors that was reviewed by an independent health advice panel. The minister maintained the power to refuse a transfer on security grounds.

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Now that the medevac law has been repealed, people will once again rely on ministerial discretion for a medical transfer. One would expect that most, if not all, of those remaining on Nauru and PNG will eventually make an application for a transfer. This is because spending up to six years in these places with limited facilities, and an indefinite timeframe for their detention, will eventually undermine the mental health of even the most robust of those who remain.

Recent figures released by the Department of Home Affairs suggest there are currently 418 applications for a transfer out of the remaining 466 people remaining offshore.

The tragedy is that these applications will not be assessed on purely medical grounds, and are likely to be long and protracted.

Repeal of medevac and the end game for offshore detention

The government’s repeal of the medevac law will do little more than delay transfers of the last remaining refugees held offshore. We may never know the conversations between the government and Jacqui Lambie, but perhaps she was persuaded that there was value in the government maintaining its uncompromising line on asylum seekers arriving by boat, while medical transfers continue unabated.

The majority of those now in Australia as a result of a medical transfer live in alternative places of detention while they access medical treatment. In time, the only realistic option is to grant these people a visa to stay in Australia. This should happen quietly, while the government maintains its firm but unrealistic line of no one ever being resettled in Australia.

These people can then become part of the Australian community, adults can find work, children can go to school. If this happens, there will be no resumption of boats arriving from Indonesia, and we can be rid of the blight of offshore detention.

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

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Three charts on: what’s going on at Manus Island

There are few options left for the asylum seekers remaining on Manus Island.
Marcella Cheng/The Conversation, CC BY-NC-ND

Mary Anne Kenny, Murdoch University

Tensions at the Manus Island Regional Processing Centre remain high after the centre was officially closed on October 31 this year and handed back to the Papua New Guinea government.

Reports are that there are still around 420 people in the now-defunct regional processing centre who are refusing to move to recently built transit centres in Lorengau. However, these numbers shift on a daily basis as men move in and out of the centre.

CC BY-ND

The United Nations High Commissioner for Refugees (UNHCR) recently said that:

The abrupt ending of services and the closure of the regional processing centre needs to involve the people who have been in this regional processing centre for years in a very vulnerable state… It is really high time to bring an end to this unconscionable human suffering.

How did we get here?

The offshore processing of asylum seekers who came to Australia by boat recommenced in 2012. At that time, single adult men were sent to Nauru and families with children and some adult men were sent to Manus Island in PNG.

However, since July 2013 only adult men were transferred to Manus and all the asylum seekers there today are male. (And families with children, single women, couples and some single men are on Nauru).

Since July 2013 a total of 1,523 people have been transferred to Manus from Australia.

When the Manus processing centre closed on October 31, there were 690 people in the facility.

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The number of asylum seekers on Manus Island has slowly reduced over the years as people have either accepted packages to return to their country of origin, been deported from PNG, been resettled in the US or temporarily settled in PNG. Six others have died.

The population has reduced over time.

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Why was the Manus Regional Processing Centre closed?

On April 27 last year, the PNG Supreme Court ruled that the detention of the asylum seekers on Manus Island was unconstitutional.

After the decision was made the PNG government said that those at the centre were free to come and go from the processing centre.

It was not until April 2017 that the Australian government and the PNG government announced publicly that the processing centre would close on October 31.

All of the service providers (including health providers) and Australian government officials left the centre on October 31 this year and the centre was supposed to be reoccupied by the PNG Defence Force from November 1.

What are the options for those left on Manus?

According to the Australian government, those who have been found by PNG authorities to be refugees have the following options:

• resettle in PNG;

• wait in PNG for possible resettlement in the US;

• transfer to Nauru to wait for possible resettlement in the US; or

• return to the country from which they had fled persecution.

Resettlement of refugees in PNG has been slow and problematic with few people opting to leave the processing centre to live elsewhere in PNG.

The UNHCR has raised concern about just how “voluntarily” refugees can return to the country from which they fled.

Since the US resettlement deal was announced about a year ago, 516 refugees from Manus have been referred to the US for resettlement.

Reviews of their cases and interviews are underway. Only 25 have been resettled so far. However, it is up to the US as to how many they will take and it is unclear when the next refugees will be transferred to the US.

Currently, it is clear the majority want to wait to see if they will be offered resettlement in the US. Refugees remaining in the processing centre have been offered alternative accommodation at East Lorengau Refugee Transit Centre (for up to 400 people) and West Lorengau House (for up to 300 people). Whether these facilities can in fact house this many men is as yet unclear.

The UNHCR is urging against the forced movement of refugees and asylum seekers to these centres from the processing centre.

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The men who have been found by PNG authorities not to be refugees have been offered supported accommodation in Lorengau (Hillside House).

However the PNG government expects them to eventually make arrangements to return home voluntarily or they will be deported.

Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

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

UN slams Australia’s human rights record

The UN committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country.
AAP

Anna Cody, UNSW and Maria Nawaz, UNSW

Last night, the United Nations Human Rights Committee released its recommendations from its review of Australia’s compliance with a key human rights treaty, the International Covenant on Civil and Political Rights.

The committee harshly criticised Australia for failures in key areas. These included the treatment of refugees, Indigenous rights and inadequate protection of human rights, including the lack of a national human rights act.

What is the UN Human Rights Committee?

This is the treaty body for the International Covenant on Civil and Political Rights. The committee is made up of 18 independent human rights experts. Its key functions are to:

• monitor and review state parties’ compliance with the treaty; and

• decide complaints made by individuals against state parties.

What did the committee say about Australia’s human rights record?

The committee noted areas in which Australia’s record had improved. These included the establishment of the Parliamentary Joint Committee on Human Rights and the introduction of protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.

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Read more: With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights

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The committee also commended Australia for its commitment to ratifying the Optional Protocol on the Convention against Torture.

However, concerns far outweighed improvements in human rights.

The rights of refugees

The committee widely criticised Australia’s refugee policy for breaching Australia’s human rights obligations under the convention.

It raised concerns about refoulement (the forcible return of refugees to their home countries), mandatory detention, Operation Sovereign Borders and offshore detention. This includes the recent closure of the Manus Island Regional Processing Centre.

The committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country. It emphasised the need for detention to be used to assess individual risk, not as a general deterrent. It also found that Australia has “effective control” over the detention centres on Nauru and Manus Island.

The rights of Indigenous people

The committee expressed concern about disproportionately high (27%) Indigenous incarceration rates. It recommended that measures such as mandatory sentencing and imprisonment for not paying fines be repealed.

The committee further recommended that Australia provide adequate funding to the National Congress of Australia’s First Peoples, and consider constitutional change to reflect the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples.

As it has done before, the committee urged Australia to establish a national reparations scheme for members of the Stolen Generation.

The rights of lesbian, gay, bisexual, transgender and intersex people

The committee roundly criticised unnecessary medical interventions on intersex people, particularly intersex infants and children. It recommended that the requirement for Family Court authorisation for second-stage hormone treatment for young people diagnosed with gender dysphoria be removed.

Barriers to gender and sex recognition on documents were also criticised.

The committee took a strong stance on the same-sex marriage postal survey. It stated that:

resort[ing] to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method.

The committee recommended that the Marriage Act be amended, regardless of the outcome of the postal survey.

The rights of women

The committee noted the endemic nature of violence against women, and the disproportionate impact this has on Indigenous women and women with a disability. It recommended that Australia increase its efforts to prevent all forms of violence against women.

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The committee again raised concerns about the involuntary sterilisation of women and girls with intellectual and cognitive disability, and recommended that Australia abolish this practice.

The human rights framework

As in previous reviews, the committee recommended that Australia introduce a comprehensive national human rights act to give effect to the human rights protections in the covenant.

It also recommended that federal anti-discrimination laws be strengthened to ensure effective protection against all forms of discrimination. It specifically noted the lack of federal protection against discrimination on the basis of religion.

The committee criticised previous attacks by politicians on the Australian Human Rights Commission and recommended that Australia respect the independence of that body.

Where to from here?

The release of these recommendations comes at a crucial time for Australia, which last month won a seat on the UN Human Rights Council.

The council is responsible for strengthening the promotion and protection of human rights, and for addressing human rights violations around the world.

Council members must demonstrate their willingness to improve their domestic human rights situation. To claim legitimacy in human rights on the world stage, Australia needs to demonstrate a genuine commitment to human rights at home.

Under the committee’s follow-up procedure, Australia must explain how it will implement selected recommendations within 12 months. The committee’s selected recommendations focus on Australia’s treatment of refugees.

Australia was criticised at the review for a history of “chronic non-compliance” with committee recommendations. The challenge for Australia will be to engage positively with the recommendations and urgently implement substantive change to promote and protect human rights.

A good starting point would be a national human rights act, to fully incorporate Australia’s international human rights obligations into law. Furthermore, Australia should reconsider its response to the Referendum Council’s recommendation of an Indigenous voice to parliament.

Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW

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

Manus detention centre closure sparks safety fears for refugees

AAP

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

On Tuesday, the Australian government will close the Manus Island regional processing centre in Papua New Guinea. Arguing that they have no safe place to go, nearly all 742 remaining residents are refusing to leave.

The closure is likely to generate resistance and potentially violence. Tensions continue to build between refugees, local residents and PNG authorities.

Manus – the story so far

The Howard government established the Manus Island and Nauru centres in 2001 as part of the Pacific Solution. Originally, offshore processing was characterised as a short-term response to an influx of asylum seeker boat arrivals.

However, over time, offshore processing has become cemented as a central strategy to prevent asylum seekers reaching Australian territory by boat. The government has argued that offshore processing is necessary to disincentivise dangerous and exploitative people smuggling.

In practice, by preventing the access of asylum seekers to territory under Australian jurisdiction, the government has severely curtailed the rights of vulnerable people. Asylum seekers detained offshore lack access to proper refugee protection and judicial review mechanisms, and are denied basic rights guaranteed under international law.

Australia’s treatment of refugees has been condemned by the international community. Mandatory and indefinite offshore detention contravenes Article 9 of the International Covenant on Civil and Political Rights. This provision protects people from arbitrary detention and upholds their right to liberty and security.

Human rights abuses have been documented in the Manus and Nauru centres. They are overcrowded and provide insufficient medical and psychiatric support.

There have also been documented cases of physical and sexual abuse at the hands of centre security. The poor mental health of many detainees, evidenced by attempts at self-harm and suicide, exposes the mental toll of inhumane living conditions and uncertainty about the future.

In April 2016, the PNG Supreme Court found that the arrangement between PNG and Australia to establish and maintain the Manus centre was unconstitutional. Under PNG law, the government had no power to infringe the right to liberty of the detainees.

As a result, in August 2016, the Australian and PNG governments announced that the Manus centre would close.

Over the past 14 months, Australia has attempted to move detainees from Manus through a range of means. The most prominent strategy has been an agreement with the US to take up to 2,000 people currently in detention on Manus or Nauru and ineligible for transfer to Australia.

This deal became infamous through a controversial leaked phone conversation between Prime Minister Malcolm Turnbull and US President Donald Trump. To date, a reported 20 people have been resettled in the US via this process.

The closure, and what’s next for the Manus detainees

On October 19, Australian immigration authorities warned detainees that the Manus centre would be closed on October 31. Those remaining were advised to leave before essential services were withdrawn.

The centre is now without electricity and water supplies are soon to be cut. Protective fences are being removed. Broadspectrum, the private company contracted to manage the centre, will hand control to the PNG Navy.

Over the past month, the centre has been progressively dismantled and detainees have been forced into overcrowded conditions. The minimal medical and psychiatric support has been removed and detainees are forced to share scarce amounts of food and sanitary resources.

Those remaining on Manus have been given three options by the Australian government.

• Those who have been assessed as refugees may move to a temporary settlement in Lorengau town or transfer to the Nauru centre. The longer-term resettlement path for these people is unclear.

• Detainees have the option of returning to their country of origin.

• The third option is to seek more permanent settlement in PNG or a third country.

The response from refugees, Manus Islanders, and human rights advocates

Each of these options has been condemned as potentially harmful or dangerous.

Refugees cannot be legally returned to their country of origin, where they may face a risk of persecution. To return a refugee to a place where their life or freedom is threatened is to violate the obligation of non-refoulement.

Further, people can be rendered stateless by efforts to return them to their country of origin, even in the case where they have not gained protection as refugees. For example, Iran will not accept the return of nationals who have sought asylum elsewhere.

The proposal to relocate detainees to Nauru does nothing to resolve their precarious situations. It is unsurprising that this option has not been embraced by detainees.

The most immediately pressing risks, however, arise with the local movements of detainees on Manus Island. Iranian journalist and asylum seeker Behrouz Boochani reports that those remaining in the centre are determined not to move to Lorengau town.

The fear is that their arrival will be met with violence from the local community. An aggressive response would not be unprecedented given the history of interactions between refugee and local populations.

In 2014, Lorengau locals attacked the Manus centre, killing one refugee and injuring 77. In recent months, local people have warned detainees:

If you come to Lorengau we will be forced to attack you.

The governor of Manus Island, Charlie Benjamin, has threatened to block the resettlement. Benjamin says the Australian government never consulted the community as to the resettlement and have started construction of the new accommodation facility without prior approval.

The UN High Commissioner for Refugees’ regional representative, Thomas Albrecht, condemns Australia for abdicating its responsibility and putting the onus on the refugees to improve their situation:

Having created the present crisis, to now abandon the same acutely vulnerable human beings would be unconscionable.

With the Manus centre closed, those remaining lack security wherever they are. Considering that PNG sailors attacked the camp in April this year, firing at detainees and buildings, the PNG Navy can hardly be considered an alternative source of protection.

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Closure sparks human rights crisis

Extra PNG police are stationed on Manus in anticipation of the closure.

The UNHCR has warned of a “humanitarian emergency”. Human Rights Watch has urged Australia to send the Australian Federal Police to Manus in order to protect refugees and mitigate conflict.

At the 11th hour, the Australian government remains immovable. Recently elected to its first term on the UN Human Rights Council, Australia’s practice in relation to asylum seekers who travel by boat remains an unaddressed blight on its human rights record.

Australia also wears massive economic costs to maintain the policy of mandatory offshore detention for boat arrivals. An estimated A$150-$250 million will be committed to housing those remaining on Manus for 12 months following the closure, with no clarity about what happens next. And another $70 million in damages were recently awarded to Manus detainees against the government.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

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

First refugees to leave for the United States

Michelle Grattan, University of Canberra

About 50 refugees from Nauru and Manus Island will leave in the next week to ten days for resettlement in the US.

This is the first batch under the deal the Turnbull government struck with the Obama administration, which US President Donald Trump has reluctantly agreed to honour – although the number that will be taken is unclear.

Immigration Minister Peter Dutton said the processing of other people was continuing, and further decisions by US authorities were “expected in due course”.

The government is providing minimal detail of those who have so far passed the Americans’ “extreme vetting” and been approved to go, saying it is up to the US to do that.

It has been reported that the Manus group includes refugees from Sudan, Somalia, Pakistan, Bangladesh and Myanmar. They were told to be ready to leave on Sunday for Port Moresby.

Malcolm Turnbull said this batch of departures came half and half from Nauru and Manus.

Turnbull said: “there are many that are being vetted, but it is entirely up to the United States as to how many are taken”.

The refugee deal was the subject of the now-infamous telephone conversation between Trump and Turnbull early in the year, in which Trump railed against the arrangement but Turnbull prevailed on him to take people, although the number was left vague.

Turnbull said Trump had reservations about the deal “to say the least. But nonetheless, he is honouring that commitment made by his predecessor.”

“It’s a sign of the strong relationship between the United States and Australia, and I want to thank the United States and President Trump for honouring that commitment,” he said on Wednesday.

The initial deal was for the US to take up to 1,250 refugees. There are 868 people in Papua New Guinea of whom 679 have been found to be refugees; Nauru has 1,124 people, with 994 of them having been found to be refugees.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

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

$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.

However, 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.

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.

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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:

• forcible deportation, due to their expulsion from Australia and transfer to Manus Island, contrary to international law;

• arbitrary and indefinite detention, due to Australia’s “no advantage” principle, in a country that lacks the legal safeguards or competence to adequately protect or process asylum seekers;

• torture (an international crime that can never be excused), inhumane and degrading treatment;

• rape and other crimes of sexual violence;

• denial of fundamental human rights, particularly a fair hearing and legal representation;

• murder (notably the violent killing of Reza Barati in February 2014), grievous bodily harm, assault and robbery; and

• unlawful death, false imprisonment, trespass and negligence.

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”.

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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.

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

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

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