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.
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.
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;
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.
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.
The High Court will hear the application on May 23.
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?
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.
It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle.
One would think the death of an Iranian man last week and the self-immolation of a Somali woman would be huge news, putting a great deal of pressure on the government as we move towards the election to outline an exit plan for Nauru.
But in the campaign the future of those on Nauru will be something neither side will be anxious to talk about.
Manus Island hit the headlines recently when the Papua New Guinea government announced, following a judgment of its Supreme Court, that the centre there will close.
Australian and PNG officials are now in negotiations that Australia hopes will find a way to keep the centre going. In a Tuesday statement the two governments said they’d continue “to work together on a road map”, meeting “regularly in the coming weeks”, which suggests the matter is being pushed safely beyond the election.
The government and the opposition are bipartisan on offshore processing. When it arises, the issue plays in favour of the Coalition, but it is not one Malcolm Turnbull seems naturally comfortably with. For political reasons Labor obviously tries to avoid it. That means the government isn’t being held to serious account – despite efforts by the Greens – in the way it is on much more minor matters.
In her valedictory speech on Wednesday, Labor MP Melissa Parke described the present system as “a festering wound that is killing off people and eroding our national character and respect”. Some in Labor are deeply unhappy and a few have been recently vocal about the ALP’s approach, but most don’t want the boat rocked.
As for the Liberals, those who used to speak up for asylum seekers have either left the parliament or gone quiet.
Amid his Wednesday media round of budget questions Turnbull was asked whether he ever thought he’d be defending keeping people in a position where they were so desperate they were killing themselves.
Turnbull sympathised with “the mental anguish that many of them are in … we grieve for them”, before swinging into the mantra that to keep our borders secure, people who sought to come to Australia by boat couldn’t be allowed to settle here.
Pressed on their future, Turnbull said the people on Nauru could move around there (it is an open centre); those on Manus judged to be refugees could settle there. There were also third-country options, while non-refugees were being encouraged to go home.
There was a hint of blame, when he suggested many had been led to believe they could end up being admitted to Australia.
Immigration Minister Peter Dutton has taken up a shovel to lay blame, bluntly heaping it on the activity of advocates. In a Tuesday statement on the Somali woman, Dutton said it was “of grave concern” she would “resort to such an extreme act of self-harm”.
“I have previously expressed my frustration and anger at advocates and others who are in contact with those in regional processing centres and who are encouraging them to engage in behaviours they believe will pressure the government to bring them to Australia. These behaviours have intensified in recent times, and as we see, have now turned to extreme acts with terrible consequences.
“Advocates and others who proclaim to represent and support the interests of refugees and asylum seekers must hear a clear message that their activities and these behaviours must end.”
In parliament on Wednesday, the Greens’ Adam Bandt challenged Dutton with a highly provocative question. “Aren’t you just showing pure cowardice by blaming the advocates helping the vulnerable, instead of accepting responsibility for your actions?” Bandt asked, then added: “Can’t we do better than this Labor-Liberal policy of not drowning, but burning?”
It was Manager of Opposition Business Tony Burke who jumped up to declare this was deeply offensive to all MPs. Bandt had to withdraw his “burning” line.
Dutton’s allegation must be deeply offensive to many advocates. More to the point, it is a cop-out – responsibility for what has become, in academic jargon, one of those “wicked problems” has to lie with the government.
Desperation and apparently extensive mental health problems mean the situation on Nauru is only likely to get worse. Having people there indefinitely is not a viable proposition. A workable strategy is needed, which also keeps the Australian border secure.
One of the debates of the coming campaign should be the search for practical answers. But it is a debate the government and opposition are not prepared to have, and nor are the media willing or able to give them a hard enough time to force them into it.
It’s a case study in how interests and circumstances conspire to push some issues off-stage in an election.
For those yet to see this inspiring piece of economic policy/politics from Australia, or perhaps you just want to see it again (for some reason), here is the Australian 2016 budget being delivered by Scott Morrison.
In the weeks before Anzac Day, a flurry of news stories emerge mobilising Australians to remember the Anzacs. We see in them familiar references to “The Diggers”, with their virtues of mateship, sacrifice and courage, and the “birth” of the nation at Gallipoli. As Kevin Rudd said in 2010,
All nations are shaped by their histories, their memories and their stories.
When we retell a story, we actively choose which parts to retell. Our present day positions, our politics, our families and our environments all have considerable bearing on these choices.
Such choices of representation also apply to nation-building narratives, which are then used for the political purposes of the day – such as John Howard’s use of the “Anzac myth” to support military interventions in Afghanistan and Iraq.
We call this process of choice the “politics of memory”. Generally, it supports a resoundingly masculine dominant Australian folklore – encompassing bush mythology, a pioneering spirit, sportsmanship, larrikinism, and mateship. It’s populated by characters such as Ned Kelly, the “jolly swagman” of Waltzing Matilda or Crocodile Dundee.
When “we” as a nation remember Anzac, we simultaneously forget significant parts of the story not commonly represented. Influencing this (selective) forgetting is an implicit whiteness.
As anthropologist Ghassan Hage argued in his book White Nation, despite the emphasis placed on multiculturalism in Australia,
the visible and public side of power remains essentially Anglo-White.
Our critical analysis of Anzac-related literature, news media and popular symbols revealed that cultural diversity and multiculturalism receive only tangential attention.
This is not merely chance. Reports commissioned for the Department of Veteran Affairs preceding the centenary of Anzac identify “multiculturalism” as a risk and issue to consider in planning for the centenary, and as a “potential area of divisiveness”.
Significant events, like Anzac Day, are opportunities to reiterate an approved narrative of war-centred nationalism – and vigorously disparage any form of critique that might arise.
Examples of non-conformance to collective Anzac narratives are rare, but they do occur. A particularly visible debate arose out of the film The Water Diviner (2014), directed by and starring Russell Crowe. While focusing on Gallipoli, the film offers an account that foregrounds a Turkish perspective on the campaign.
The film triggered the ABC’s Radio National History Podcast, released in 2015, to ask the question: “Is The Water Diviner … redefining our ANZAC legend?”
Another prominent example is former SBS reporter Scott McIntyre, who was stood down for tweeting controversial views about Anzac Day:
McIntyre’s dismissal shows that, in the midst of the well-supported and popular Anzac narrative, contested and not-so-salubrious parts of the story aren’t tolerated and get little public airtime. Indeed those who deviate from the narrative line are vilified.
The Australian government ensures that the nation remembers Anzac each year by marking the event with a collective commemoration. As a settler society, collective remembrance is an important government function. But how, what, where and why we remember should be relevant to our geographically disparate and culturally diverse populace.
For many years the hard lines drawn around Anzac memory excluded recognition of Indigenous involvement in WWI, even in official commemorations.
Returned Indigenous soldiers encountered considerable discrimination. They were excluded from early attempts to commemorate military service and the war dead; forgotten in the war memorials; denied the right to participate in Anzac Day marches, and refused access to veterans’ benefits and entry into RSLs.
Since the 1990s, a number of attempts to commemorate Indigenous war service have occurred, contributing to what historian Peter Cochrane calls a “new inclusiveness”.
These early efforts tended to materialise on the margins: a plaque to Indigenous war service erected on public land behind the Australian War Memorial by a private citizen in 1993; a commemoration in Burleigh Head National Park inscribed in 1991; and an Australian War Memorial travelling exhibition, Too Dark for the Light Horse, that toured Australia in 1999 and 2000/1.
More recent demands have more successfully permeated the politics of Anzac memory, resulting in Indigenous memorials in shared spaces. These include the Torrens Parade Ground memorial in Adelaide, completed in 2013 and commonly referred to as Australia’s first memorial to all Aboriginal and Torres Strait Islander servicemen and servicewomen.
Another is the sculpture Yininmadyemi – Thou didst let fall, created by Indigenous artist Tony Albert for the City of Sydney and installed in Hyde Park in 2015.
Shifting political agendas have also facilitated greater inclusion of Turkey into dominant Anzac memories.
Historical media research by Catherine Simpson details this movement from “foe” to “noble Turk”, culminating in a nationally celebrated, government-constructed, friendship.
Similar questions can be raised about the inclusion of other national groups. We’ve seen a rising interest in researching, for example, German, Irish, Russian or Chinese “Anzacs” who were fighting on the Gallipoli peninsula. Soldiers of many nationalities have been present with Australian troops in numerous conflicts, including Gallipoli, Kokoda and Vietnam.
Research has shown that Australians born here are more likely to prioritise Anzac as a key marker of national identity than other Australians.
This finding is not surprising. Indeed, much cultural and political work is invested in positioning Anzac as tantamount to Australian identity.
While the Anzac story was produced in colonial White Australia, Australia today is vastly different in demographic terms and is made up of people whose histories increasingly lie elsewhere. Australia has invested significantly in multicultural policy and committed to creating an inclusive nation.
What happens when Australians do not, or cannot, identify with the Anzac narrative genealogically or nationally? What happens if we simply do not want to participate?
Should Australians not born here be expected to “inherit” the Anzac narrative unequivocally, and exactly how would that happen? And does not identifying with Anzac really equate to being un-Australian?
Like others who have also questioned Anzac’s centrality, we think that there is much to celebrate in Australia’s diversity.
Despite discordance, we live in a nation that has a mandated political commitment to diversity.
In the current global climate of fear of difference, isn’t that commitment – to being a country of people from diverse countries – worth commemorating?
Cardinal George Pell returned this week to the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to the Ballarat and Melbourne case studies.
Giving evidence over the course of four days, via video link from Rome, Pell modified slightly his previous public positions. But, fundamentally, he insisted that he knew little, and fulfilled his duties in relation to what he did know.
On several occasions, counsel assisting the royal commission suggested that Pell’s claims to be ignorant of child sex offending in various contexts was implausible. If everyone around Pell knew, how could he not have known?
One of the most important lessons we have learnt from Pell’s appearance is the church was – and still is – in a state of denial. It is in denial about the harms of sexual abuse, and about the adequacy of its responses to allegations of abuse.
Being in denial is a curious thing. In denying something, you implicitly admit that there is something to deny.
The late sociologist Stanley Cohen examined this phenomenon in his last book. Cohen argued that we have myriad techniques of keeping disturbing knowledge at bay: there are many ways of not knowing.
The simplest is literal denial. We saw plenty of this from Pell. He repeatedly said that he never knew of allegations of abuse; that he never heard rumours of Gerald Ridsdale’s offending when they shared a presbytery in Ballarat.
Even less plausibly, Pell claimed that advisors and colleagues deliberately kept information from him. As journalist David Marr wrote, Pell was apparently:
… hoodwinked decades ago by an archbishop, a bishop, his colleagues and even the Catholic Education Office.
A more nuanced way of avoiding knowledge is interpretive denial. This involves keeping knowledge at a distance by accepting a fact but giving it a different interpretation.
So, when questioned about his time as a consultor in Ballarat, Pell insisted that paedophilia was never mentioned in discussions of why priests were being moved unexpectedly between parishes. Many of his fellow consultors knew that child sex offences had been committed, and “homosexuality” may have been mentioned as the reason for the priest’s removal.
But Pell, incuriously, chose not to see the possibility that the homosexual conduct may have been intergenerational. He asked no questions, and admitted:
It was a sad story and of not much interest to me.
The most disturbing form of denial on display in Pell’s four days of testimony, however, is implicatory denial: a refusal to see the legal and moral implications that follow from information.
Pell went to great lengths to explain that, in almost all cases, he did everything that was appropriate to his role at the time. He was repeatedly challenged by counsel assisting and the commissioner, Peter McClellan, that a priest might have a moral responsibility that exceeds the literal duties assigned to their role. But Pell rejected this proposition:
He has a moral responsibility to do … what is appropriate to his position.
Pell claimed that in his positions as priest, consultor and auxilliary bishop, he did all that was appropriate to his position. He simply reported any allegations that he thought were plausible to his superiors. That they neglected their duties was not his responsibility.
Pell may be right that that the lion’s share of blame for the gross miscarriages of justice being examined by the royal commission should be laid at the feet of his dead and dying former superiors. But what is also emerging is graphic evidence of the dysfunctionality of Catholic governance on this issue.
As my research has shown, Roman Catholic canon law – ironically – has the oldest and most clearly articulated legal provisions for the prosecution of sexual offences against children. Yet the enactment of these provisions is entirely in the diocesan bishop’s hands.
A diocesan bishop has a fundamental conflict of interest in the discipline of clergy in their diocese. He is simultaneously responsible for the pastoral care of the priest and for their punishment. This contravenes a basic principle of natural law – that no-one should be a judge in their own case.
If church authorities had believed the children’s allegations, investigated them and kept records of those investigations, it is possible that offending priests could have been removed and disciplined. Instead, allegations were regarded as implausible, offending priests’ denials were believed, and records were destroyed.
And where allegations were too stark to be denied, the gravity of the offending was denied, and priests were sent for “counselling” and relocated.
It is evident that Archbishop Frank Little and Bishop Ronald Mulkearns neglected their responsibilities and even contravened canon law in their dealings with sexually offending clergy. But Pell’s claims to have fulfilled his moral responsibility in the face of this dysfunction ring hollow.
Pell chose to keep knowledge of his fellow priests’ offending at bay and allowed his superiors’ neglect and malpractice to continue. After the exposure of this legal dysfunction and moral cowardice, we can expect the royal commission’s recommendations will include changes to Roman Catholic governance and canon law.