Cruel, and no deterrent: why Australia’s policy on asylum seekers must change


Alex Reilly, University of Adelaide

The Coalition’s election victory on May 18 had an immediate psychological effect on the refugees on Manus Island, with reports of several people attempting suicide.

Two class-action lawsuits currently before the High Court allege “torture”, “persecution” and “other inhumane acts” in Australia’s offshore detention centres. This action follows an action for damages in 2018 that the federal government settled for A$70 million, effectively admitting that the claims of mistreatment were well-founded.

The Iranian-Kurdish journalist and poet Behrouz Boochani, who has been detained on Manus for six years, has borne witness to a cruel system in his book, No Friend But the Mountain. Written secretly on a mobile phone, the book has won a swag of major Australian literary awards.




Read more:
Book Review: Behrouz Boochani’s unsparing look at the brutality of Manus Island


As a result of the testimonials of Boochani and others, the terrible conditions on Nauru and Manus are well-known. There are regular reports of physical and mental illness due to unsanitary conditions, cruel treatment and hospitals with no capacity to deal with the extent and severity of the health crisis among the refugee populations.

These reports reinforce the underlying cruelty of subjecting innocent human beings to indefinite and arbitrary detention in the first place. And to what end?

There is no justification for offshore detention

For many years, there has been no justification for the detention of asylum seekers on Manus and Nauru.

The original justification of deterring others from making the dangerous journey from Indonesia to Australia carries no weight. The point has been well and truly made that attempting to reach Australia by boat is a futile exercise. In the words of the allegations in the class action, the journey will result in years of:

…arbitrary, indefinite detention in tents, barrack-style buildings, or small, hastily constructed dwellings where living conditions lead to poor health […] physical, sexual and psychological abuses, [and] systemic mental distress.

The government claimed that the medivac law passed in February risked a new wave of boat arrivals and spent over A$180 million reopening the Christmas Island detention centre in preparation for new arrivals. The government has since committed to closing Christmas Island again. The expense involved in this political exercise is staggering, with absolutely no benefit to the taxpayer.

There has also been no new wave of boat arrivals. Deputy Prime Minister Michael McCormack revealed Thursday that a boat from Sri Lanka had been intercepted near Christmas Island this month. However, the details of who was on board, and why the boat was in Australian waters has not been made publicly available.

There will always be the occasional refugee boat arriving Australian waters for a variety of reasons, but it is important to distinguish these isolated occurrences from a reigniting of the people-smuggling trade.




Read more:
Australia’s government failed to stand up for press freedom after Nauru barred ABC journalist


It’s high time the government ceased linking detention on Manus and Nauru to stopping the boats. The evidence does not stack up. As I, and others, have argued previously, the experience during the Howard years suggests that simply the possibility of offshore detention is a sufficient deterrent.

When the government settled asylum seekers on Nauru in Australia and New Zealand from 2002-04, without dismantling the offshore detention regime, asylum seekers did not begin arriving by boat.

Most asylum seekers in Indonesia are registered with the UNHCR and are waiting for resettlement through the UNHCR process. Their situation is admittedly desperate. Nonetheless, when interviewed after the passing of the medivac law, asylum seekers in Indonesia testified that they did not see taking a boat to Australia as an option.

It’s important to remember that asylum seekers have done nothing wrong in seeking our protection. Australia is a signatory to the UNHCR Refugee Convention, which establishes a responsibility to protect people who arrive on our border seeking protection. If offshore detention can be justified as deterrence at all, it must surely be kept to the bare minimum, in the context of our protection obligations.

Long-term detention is simply cruel and rightly labelled a “crime against humanity”.

Alternatives to detention

If there is even a remote possibility of a boat arriving in response to resettling refugees from Manus and Nauru in Australia and New Zealand, the government has many deterrence strategies at its disposal.

One novel strategy that avoids the need for offshore detention is Labor’s 2011 Malaysia arrangement. The deal was a simple one. In exchange for the transfer to Malaysia of 800 asylum seekers who arrived in Australia by boat, Australia would provide financial assistance to Malaysia and resettle 4,000 UNHCR-recognised refugees on top of existing commitments to resettle refugees from the region.




Read more:
Refugees and asylum seekers in Malaysia: the good, the bad and the unexpected


An important part of the arrangement was that those asylum seekers returned to Malaysia would not be penalised, and would be provided with housing, the right to work, and access to education for children.

The arrangement would act as an effective deterrent to people taking a boat to Australia to seek asylum because their expensive and dangerous journey would just result in their return to Malaysia. The Malaysia arrangement had the benefit of refocusing Australia’s response to asylum seekers and drawing in our neighbours to a regional response.

It’s critical that the Australian government take a new direction in refugee policy and move beyond its tired and false rhetoric of deterrence as a justification for detaining refugees on Nauru and Manus.The Conversation

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.

Australian-Chinese author’s detention raises important questions about China’s motivations



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Is the arrest of Yang Hengjun part of a series of retaliatory measures by the Chinese government?
PEN America

Tony Walker, La Trobe University

The arrest of an Australian-Chinese citizen in China for unspecified reasons is the last thing Australia needs at a sensitive moment in the reset of a relationship that has chilled over the past two years.

But whether it likes it or not, Canberra is being drawn into a broader controversy over China’s detention of foreign nationals on grounds that are opaque and at the mercy of an unpredictable Chinese justice system.

The arrest last weekend of author and diplomat Yang Hengjun raises the question of whether he has become part of a pattern of retaliatory measures by a Chinese government that finds itself under stress from within and without.




Read more:
Huawei executive’s arrest will further test an already shaky US-China relationship


At this stage it has not been revealed why Yang, a critic of China’s Communist Party, has been detained. On a previous visit to China in 2011 he was arrested and released without charge. He described that episode as a “misunderstanding”.

What should concern Australian officials is that Yang will find himself lumped with other foreign nationals from countries that may have displeased China and therefore become hostages to a wider diplomatic game.

Beijing’s initially muted response to Australia’s decision to exclude, on security grounds, the Chinese technology behemoth Huawei from building its 5G network may have disguised more intense displeasure.

In the case of the arrest late last year of two Canadian nationals on accusations of “endangering national security”, it is hard to place any other interpretation on their detention than that they are pawns, even hostages, in a broader conflict.

Diplomat Michael Kovrig and businessman Michael Spavor were arrested following the detention in Vancouver of the chief financial officer and daughter of the founder of Huawei, pending her extradition to the United States.

Huawei executive Meng Wanzhou.
AAP/EPA/ Maxim Shipenkov

The US Justice Department is bringing charges against Meng Wanzhou for violating sanctions against Iran.

Her case is highly sensitive and enmeshed in a complex US-China relationship scarred by an ongoing trade dispute. In all of this, Canada, in its response to a US extradition request, finds itself the target of Chinese reprisals.

In the case of the unfortunate Canadians ensnared in a diplomatic argument that originated in Washington, a Chinese saying could be applied:

Kill the chicken to frighten the monkey.

In this case, Canada is the “chicken” and the United States is the “monkey”.

Whatever China’s tactics are in all of this, the arrest of the Canadian nationals on national security grounds represents a very serious development. The ripples from it are spreading as more and more countries become alarmed at China’s resort to what could be described as hostage-taking to protect – or advance – its interests.

One lesson might be that if a country, or a company for that matter, finds itself in a dispute with China, then advice to its nationals or employees should be to steer clear of the People’s Republic.

China’s behaviour in this latest stage would hardly seem to correspond with respect for a rules-based international order.

What can be read into these worrying developments is that under pressure, the Chinese regime is adopting a more combative approach to dealing with its foreign policy challenges as its size and reach brings it into conflict with the United States and its allies.

A slowing Chinese economy is adding to pressures on a regime whose tenure depends on maintaining employment and countering unrest.

Above all else, the issue of “stability” preoccupies China’s leaders, who are familiar with the chaos that has swept the country in its long history.

In Beijing this week, President Xi Jinping expressed his concerns about a difficult period ahead for China as it grapples with challenges at home and abroad.

Speaking to officials he warned of a “black swan” event, in which China might be obliged to deal with unexpected developments that threw it off its course. This included what he called a “grey rhinoceros event” – a reference to known risks that are ignored until too late. He said:

In the face of a turbulent international situation, a complex and sensitive environment, and the arduous task of reform… We must be highly vigilant against “black swan” and “grey rhinoceros” incidents.

These sentiments are hardly surprising given the challenges China faces in transforming its economy from an investment-led to a demand-driven model in a slowing economic environment. But they do suggest a higher-than-usual level of anxiety in Beijing in this latest period.

In the years since China began opening up to the world in the late 1970s, it is hard to identify a period that is more challenging for a hard-pressed Chinese leadership. One possible exception is a period in the early 1990s when the country struggled with inflationary pressures and risks of a hard economic landing from a retrenchment in government spending.

The difference between now and then is that China’s economy then was a fraction of the size it is today. Ripples from a Chinese slowdown were hardly felt beyond China’s shores.




Read more:
Australia and China push the ‘reset’ button on an important relationship


Today, the effects of a slowing Chinese economy will have an impact across the globe. This is not least in Australia, one-third of whose exports in goods and services are bound up in a trading relationship.

Australian official cautiousness over the detention of an Australian-Chinese national is explained by a desire not to elevate a dispute with Beijing beyond what is necessary.

Foreign Minister Marise Payne has joined her Canadian and other colleagues in expressing “concern” over the detention of the two Canadians in apparent retaliation for the detention of the Huawei official.

If it transpires that an Australian-Chinese citizen has been similarly detained, Payne will have to go beyond simply expressing concern in solidarity with the Canadians.

In defence of their nationals, including a third individual whose sentence of 15 years for drug smuggling was converted to a death penalty, Canadian Prime Minister Justin Trudeau and Foreign Minister Chrystia Freeland have been outspoken.

What should now be clear is that expectations of China becoming a benign power are mistaken. These latest episodes are proving to be a lesson in dealing with a country that is no longer “hiding its capacities” and “biding its time”, as former paramount leader Deng Xiaoping advised.The Conversation

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

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

The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge


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Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship.
Joel Carrett/AAP

Sangeetha Pillai, UNSW

This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce changes to Australia’s citizenship-stripping laws. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.

What are Australia’s current citizenship-stripping laws?

In 2015, Australia introduced one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:

  • Conduct-based citizenship deprivation: In certain circumstances, a citizen outside Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does not need to be convicted of an offence to lose citizenship in this manner.

  • Conviction-based citizenship deprivation: The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of particular national security offences, and sentenced to at least six years’
    imprisonment. This is generally the only way in which people within Australia can be stripped of Australian citizenship against their will.




Read more:
Proposals to strip citizenship take Australia a step further than most


Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless.

Dutton has said that the existing citizenship-stripping laws have been used to deprive nine people of their Australian citizenship. Very little information on the circumstances of these deprivations is available. However, it is clear that at least six of these instances involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.

What changes would the proposed laws introduce?

The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.

Changes to the dual citizenship requirement

If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint media release from the offices of Morrison and Dutton states:

The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.

A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the law of the foreign country concerned.

Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the recent referrals of multiple federal parliamentarians to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.

A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a plausible argument that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation.




Read more:
Government’s own ‘freedom commissioner’ Tim Wilson questions citizenship plan


On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents signatory countries from depriving people of their nationality if it would render them stateless.

Australia has signed up to an international agreement not to render people stateless.
Shutterstock

Where a person inside Australia is deprived of Australian citizenship they become vulnerable to removal from Australia, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even indefinite.

Changes to the minimum sentence for conviction-based deprivation

The government’s media release also says:

The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.

An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.
Marius Becker/dpa

Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a risk of falling foul of the Constitution.

The more limited current legislation was ultimately arrived at following an inquiry by the Parliamentary Joint Committee on Intelligence and Security. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.

In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:

We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.

As the Law Council has stated, this justification is not nearly strong enough.The Conversation

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

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

High Court challenge to offshore immigration detention power fails



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The decision reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.
AAP/Eoin Blackwell

Amy Maguire, University of Newcastle

The High Court has today rejected a claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country.

This means the Australian government had and has the power to establish and maintain its offshore immigration detention facility in Papua New Guinea, despite detention of asylum seekers there violating PNG law.

Background to the decision

The case commenced in May 2016. The initial application was a class action seeking relief on international, constitutional, administrative and civil law grounds. The court later permitted the plaintiff to file an amended application on more limited grounds.

The sole current plaintiff is an Iranian man, taken into Australian jurisdiction while on board an asylum-seeker vessel in July 2013. He was transported to Christmas Island, detained, and categorised as an “unlawful non-citizen”. In August 2013 the plaintiff was transferred to the offshore immigration detention facility on Manus Island.

The plaintiff claims to be a refugee but has not participated in the assessment process in PNG. He does not want to be settled there as a refugee due to fear of reprisals after giving eyewitness testimony at the trial of those convicted for the killing of Reza Barati. He has not been officially detained since around May 2016, but feels effectively detained due to the hostile environment outside the grounds of the detention centre.

The case decided today responded to the decision of the PNG Supreme Court in the Namah case. That court found that Australia’s detention of asylum seekers on Manus Island violated PNG law.

Unlike in Australia, PNG has constitutional human rights protections. These forbid the deprivation of personal liberty in most cases where a person has not committed a crime.

PNG announced the detention centre would close. Its prime minister, Peter O’Neill, asked Australia to make other arrangements for all asylum seekers still on Manus Island. No such arrangement has yet been made for the plaintiff in this case. He cannot be forcibly returned to Iran, as Iran refuses to accept involuntary returns.


Further reading: How a charter of rights could protect Australians’ fundamental freedoms


What was the High Court asked to determine?

The court was asked to determine whether the Australian government has power under the Constitution to do the things it has done to the plaintiff (and many others).

The Namah decision prompted most of the questions put to the court. They tested whether Australia could validly make and continue its arrangements for offshore processing and detention of asylum seekers on Manus Island, in light of the Supreme Court decision that those arrangements violate constitutional rights protections in PNG.

At the hearing in May 2017, Chief Justice Susan Kiefel asked the plaintiff’s barrister how the Namah decision could bear on the court’s interpretation of the Australian government’s powers under the Migration Act. Those powers are defined by the act and must be interpreted according to the Australian Constitution.

The plaintiff argued the Constitution should be read to imply a limitation on governmental power. Specifically:

That the power is to be used for a legal purpose, meaning a purpose legal where it is exercised, where it has effect.

The PNG Supreme Court found it was illegal for Australia and PNG to bring in and detain asylum seekers on Manus Island. The plaintiff therefore argued that Australia was exercising its powers for an illegal purpose.

The plaintiff’s barrister, Tom Molomby, continued:

… it is somewhat internally contradictory to regard the Australian Constitution as establishing a rule of law for our nation, yet capable of giving power to committing acts in other countries which are contrary to the law of that nation.

The court was also asked to consider whether Australia’s statutory powers to do things necessary for regional processing of asylum seekers in PNG depend on whether those things are legal under PNG law.

The plaintiff argued that:

The agreements being beyond power in Papua New Guinea, they were also beyond power in Australia. There is no power to make an agreement with a party that does not itself have power to make the agreement. There can be no power to perform an impossibility.

The High Court’s reasons

The full bench of the court decided unanimously to reject the plaintiff’s application. The judgment noted that the plaintiff was not able to cite any authority in prior case law or the text or structure of the Constitution for the arguments made.

On this basis, the court concluded that:

… there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country.

The court further decided the plaintiff had misunderstood the significance of the Namah decision in the context of this application. According to the court, this decision said nothing about the PNG government’s capacity to enter into an arrangement with the Australian government to establish or maintain the detention centre.

The PNG Supreme Court decision found that the bringing in, detention and treatment of asylum seekers on Manus Island violated constitutional rights protections in PNG. But it did not mean the PNG government acted beyond power in agreeing its arrangement with Australia.

The High Court rejected the plaintiff’s claim that the Australian government’s statutory power, under the Migration Act, depended on whether relevant actions were legal under PNG law. The court relied on an earlier decision that related to offshore immigration detention in Nauru.

According to the court in that case:

The lawfulness or unlawfulness of executive government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.

The bigger picture

This judgment is one in a series that demonstrates the lack of human rights protections in Australian law. It again reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.

However, cracks continue to widen in Australia’s punitive system of mandatory offshore detention for asylum seekers who travel by boat. The agreement Australia had with the US to transfer refugees there from Manus Island remains in doubt.

The lack of interest in the people at the heart of the dilemma was starkly revealed in the leaked transcript of the now-infamous Donald Trump-Malcolm Turnbull phone call.


Further reading: Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation


Earlier this week, Liberal MP Russell Broadbent broke ranks with the government, calling for Australia to take responsibility for detained refugees who do not find resettlement in the US. Broadbent spoke out against the prospect of indefinite detention for people who have not committed any crime.

The ConversationAfter today’s decision, the responsibility to bring Australian law and practice into line with international legal obligations remains squarely with the government. The High Court has not found justification to intervene.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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

UN condemnation and a sports boycott: Australia again called on to end offshore detention



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EPA/Nyunt Win

Amy Maguire, University of Newcastle

On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.

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Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.

There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.

No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.

The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.

Australia again criticised for offshore detention

Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.

Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.

The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.

The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.

Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:

UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.

This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.

Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.

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The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.

Fruitless attempts to force compliance?

The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.

When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:

Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.

Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.

However, as I wrote last week, there is a disjuncture between Australia’s policy and practice on asylum seekers and its bid for a seat on the UN Human Rights Council. Continued international critique of mandatory offshore immigration detention undermines Australia’s standing.

Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.

The ConversationInstead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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

Offshore detention: Australians have a right to know what is done in their name


Johan Lidberg, Monash University

How did one of the world’s most-successful multicultural countries made up of refugees and immigrants end up harming children who came to us seeking protection and help? One of the answers to this question is secrecy.

Successive Australian governments, both Labor and Coalition, have dehumanised refugees and kept Australians in the dark about what really goes on in the offshore detention centres on Nauru and Manus Island.

The cornerstone of the strategy is to limit public access to information. The policy started by the Rudd Labor government in 2013 has been put into overdrive by the Abbott and Turnbull Coalition governments.

There are three pillars to the secrecy strategy:

  • outsourcing the centres to other sovereign nations;

  • outsourcing the centres’ operations to private contractors; and

  • imposing a gag on current and former detention staff through the Border Force Act.

Outsourcing detention

Australian journalists have found it very difficult, bordering on practically impossible, to obtain visas to visit Nauru. Applying for a media visa for Nauru comes with an A$8,000 fee – which is non-refundable even if the application is rejected.

The only journalists to be granted visas in the last two years filed stories that did not properly investigate or challenge the Nauruan and Australian governments’ versions of the situation for refugees.

This means the two governments directly and indirectly control who is allowed onto the island to tell the refugees’ stories of how they are treated. This leads to speculation that serves no-one – not the refugees nor the Australian government nor the public.

The second issue with outsourcing refugee processing to another country is that neither Nauru nor Papua New Guinea has Freedom of Information (FOI) laws. This means an important journalistic tool is missing when it comes to seeking information.

This, combined with the poor FOI history of Australia’s Department of Immigration and Border Protection (and its predecessor), which have repeatedly blocked and delayed requests, makes obtaining raw and unspun information about offshore refugee processing a time-consuming and frustrating task.

Outsourcing to private contractors

Wilson Security is contracted to provide security in the offshore centres.

The 2010 amendments to the federal FOI Act significantly strengthened the requirement on government agencies to obtain information from a private contractor when asked to do so.

However, contracting out adds another layer of complexity to using FOI effectively. The practical consequences are longer processing times, delays and the increased possibility of the contractor claiming the information can’t be released due to commercial-in-confidence issues.

The Border Force Act disclosure offence

In July 2015, the Australian Border Force Act came into force. Its controversial disclosure offence section extended the questionable Australian tradition of limiting public servants’ right to public speech and participation in public debate.

The section effectively stops current and former staff, including those from volunteer organisations such as Save the Children, speaking out about conditions in refugee detention centres.

It is nigh-on impossible to see how this gag section can be in the public interest. But it is easy to see how it is in the government’s political interest.

What are the consequences?

The consequence of the fortress of secrecy built on these three pillars is that Australians don’t know what is being done in their name on Nauru and Manus Island.

It also means the refugees are dehumanised. Suffering children and families become numbers instead of human beings.

Every one of the nearly 1,300 refugees currently on Nauru and Manus has heartbreaking and crucial stories to tell. If Australians were allowed to hear and see those stories, the centres would have been closed a long time ago.

If offshore detention is to continue, the Australian government should:

  • stop outsourcing to private contractors. The Department of Immigration and Border Protection should run the centres to allow for proper accountability;

  • be completely transparent about the centres’ operations. Redact personal information, but publish as much as possible, including incident reports;

  • facilitate access to the centres for journalists and members of the public; and

  • scrap the gag section on detention centre staff, current and former, in the Border Force Act.

We don’t need a Senate inquiry or royal commission to figure out what needs to be done. More than enough evidence is available thanks to the Nauru files, former detention centre staff sharing their experiences, and the Australian Human Rights Commission’s report on children in immigration detention. The government must do the decent and right thing by the refugees and the Australian public.

The Conversation

Johan Lidberg, Senior Lecturer, School of Media, Film and Journalism, Monash University

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.

Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?


Joyce Chia, Monash University and Asher Hirsch, Monash University

The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.

Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?

While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.

So what is this case about anyway?

The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.

The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.

Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.

This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.

The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.

  • First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.

  • Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.

At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.

This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.

How did Nauru’s announcement change the case?

Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.

As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.

The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.

That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.

Circumventing the courts

From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.

Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.

For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.

The Conversation

Joyce Chia, Lecturer (Sessional), Monash University and Asher Hirsch, Tutor, Monash University

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