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.

Nothing seems able to make Nauru asylum seekers an issue


Michelle Grattan, University of Canberra

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.

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The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

Australia: Budget 2016


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.

Brussels attacks: why do family members commit terrorism together?


Lazar Stankov, Australian Catholic University

It appears to be increasingly common that terrorist attacks not of the lone-wolf variety involve members of the same family.

Some of them, like the San Bernardino attack last December, are committed by married couples or romantic partners.

But quite a few recent terrorist atrocities – the Charlie Hebdo attack, the Boston Marathon bombings and now Tuesday’s Brussels attacks – have been perpetrated by siblings. So is there a link between within-family radicalisation and acts of terrorism? And is terrorism different from any other crime in this respect?

Family ties and the militant extremist mindset

Both genetics and environment are known to influence criminal behaviour. But the exact nature of these influences and their relative importance are still being debated.

It can be expected, therefore, that genes contribute to terrorist behaviour. But it is wrong to conclude that just because two individuals have a common genetic make-up, one will follow the other if the other becomes a terrorist. Instances of only one family member displaying criminal behaviour are very common.

Nevertheless, there may be environmental factors that contribute to and interact with genetics to cause terrorist behaviour. If so, one would expect to find more terrorist acts than other kinds of criminal acts committed by members of the same family. Family members share both genetics and environment to a greater extent than people in general.

Studies of the militant extremist mindset provide clues to why we can expect to find more siblings among terrorist cells. From the three components of this mindset, only one – “nastiness” – is directly linked to other varieties of criminal behaviour.

Violent criminals of any kind tend to strongly advocate harsh punishment of their enemies. For example, they are more likely than most people to approve of physical punishment for insulting one’s honour.

While both genetics and environment may be implicated in “nastiness”, the other two components of the militant mindset – “grudge” and “excuse” – represent environmental influences to a greater extent. These are usually the focus of recruiters.

An important component of radicalisation is a strong feeling that the group one belongs to is under threat from some other group – that is, the person feels a “grudge” of some kind. A common example is the feeling that the West has exploited and hurt “my” people, and this needs to be avenged.

Sometimes grudge is more general and not oriented towards a particular group. The person simply feels that this world is unfair and full of injustices.

“Excuse” is a dressing-up part of extremism. It relies on religious and ideological “higher moral principles” to justify the feelings of nastiness and grudge.

It follows from the nature of the militant extremist mindset that we can expect to find more siblings among terrorists. This is because such attacks tend to be carried out by people who are more ready for action and are prepared to be vicious in dealing with their enemies. This tends to be a shared characteristic of criminal family members.

Being raised together – and therefore being exposed to the same set of stories about the enemies and the same set of moral, ideological and religious reasons justifying their feeling of hate – is likely to contribute significantly to the same tendency.

And then there is a feeling of trust, due to a common upbringing and feelings stronger than typical camaraderie when you are doing something together with somebody who is close to you. Overall, it is likely that there will be more instances of siblings committing terrorist attacks.

From a security point of view, it may be reasonable to ask whether this tendency calls for a different approach to detection. There is currently an emphasis on internet-based radicalisation, rather than on person-to-person contacts. Family interactions diminish the role of the former and point to the need to maintain traditional policing methods.

The Conversation

Lazar Stankov, Professor, Institute for Positive Psychology and Education, Australian Catholic University

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

Brussels airport attacks are not just a matter of airport security


Ivano Bongiovanni, Queensland University of Technology

The deadly terror attack in Brussels has again raised the issue of safety and security at airports. But expanding the “security bubble” around airports might not be the best response.

Europe barely had the time to recover from the horror of the Paris attacks last November before another of its capital cities was hit at its heart, presumably by ISIS terrorists.

In a devastated Brussels, investigations are running at full speed and authorities are already flooded with questions about the vulnerability of their critical infrastructure.

Unfortunately, this refrain seems to resurface every time a terrorist attack achieves its goals.

Traditionally, governments respond to these events by setting higher security standards. In this sense, modern airports epitomise the significant improvements that have been achieved in security over the past decades, especially after the September 11 attacks in the US in 2001.

Screening

Security screening has proved to be an effective deterrent against acts of terror such as hijacking and bombing. Following a procedure that is typical of security risk management, the security bubble around the vulnerable element – in this case, the airplane – has been progressively expanded in order to keep malicious individuals out.

The sterile area in a modern airport is among the most secure places on Earth. However, the terminal buildings can still be threatened, such as when the Glasgow airport was hit by a vehicle ramming attack in 2007.

In the aftermath, more stringent regulations were put into place to prevent vehicles from getting too close to the terminal buildings. Thus the security bubble was further expanded.

Even so, in 2011 two suicide bombers managed to kill more than 30 people at Moscow’s Domodedovo airport by walking into the baggage claim area and activating their Improvised Explosive Devices (IEDs). This was an act strikingly similar to what just happened in Brussels.

Increase security?

What should be our response to the latest attack? In the next few days we will probably hear more requests for strengthened airport security. Some might argue for a further expansion of the security bubble in order to cover the check-in area or entrance of the terminal buildings.

Would that be an effective solution? I don’t think so, for three main reasons.

First, the costs associated with the implementation of such a security system would largely outweigh the benefits; the bigger the area, the more expensive its protection.

Second, the associated operational disruptions would require some time (and a lot of patience) to be contained. When the perceived threats are low, people tend to consider security measures as an annoyance rather than a safeguard. Most of time, security awareness is not an ingrained mindset.

Third, and most important, the effectiveness of this new security system would still be questionable. Expanding the bubble would just move its boundaries outwards, with no guarantee that a new attack won’t happen on its edge.

For example, if security were increased before reaching the check-in at the airport, that might cause crowds to gather outside the main doors, and this would present a new target for terrorist attack.

So expanding the bubble would be just another symmetric response to an issue that has proven highly asymmetric.

This last point, in particular, emphasises that the Brussels’ airport attacks are not just a matter of airport security. They involve the need to reconsider our perception of modern security risks.

Where people gather

Airport security works very well these days. The problem is that, especially in some countries, any gathering involving more or less large crowds is a vulnerable target for terrorist attack.

Sport events, public transport, concerts, and even the queue in front of a museum, constitute a potential target for malicious individuals.

This requires governments to adopt a different approach to security. Security management needs to be performed at an asymmetric level, penetrating our societies and engaging terrorists at the individual level.

Random security checkpoints, enhanced intelligence networks and additional investments in street-level security technologies are some examples of asymmetric countermeasures that should be strengthened.

Technology, in particular, seems to be a powerful ally in our fight against terrorism. Especially when technological development is associated with the reduction of security costs.

The Conversation

Ivano Bongiovanni, PhD Candidate in Airport Safety and Security; Sessional Academic in Strategic Management, Queensland University of Technology

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

Brussels attacks show just how desperate Islamic State has become


Ben Rich, University of New England

Islamic State (IS) was quick to claim responsibility for bombings at two major transportation hubs in Brussels on Tuesday that left at least 30 people dead.

With attacks like these, the group is seeking to sow fear among its enemies, maintain itself as the forerunner in the global jihadi brand war with al-Qaeda, and maintain the veneer of organisational vigour and vitalism it established with its stunning victories in Syria and Iraq in 2014.

But while the Brussels bombings may have wreaked carnage, they have failed to replicate IS’s triumphalism of 2014. Although not an intuitive conclusion, the attacks are in reality indicative of the group’s growing decline and desperation.

The imperative of now

Motivations behind the bombings are likely to be found in the tactical and strategic strains currently being exerted on IS and its wider global network.

The recent arrest of Paris terror attack suspect Salah Abdeslam in Brussels was likely seen as an existential threat to IS-linked cells inside Belgium. The perception of a breach may have driven planners to accelerate operations, for fear that the European authorities could employ critical intelligence gained from Abdeslam to disrupt future attacks.

Such a ticking clock may explain why the terrorists opted for a crude dual-bombing in place of a more sophisticated and co-ordinated hybrid assault similar to that undertaken in Paris in late 2015.

At a broader level, the attacks may also be linked to the immense pressures placed on IS by an array of local, regional and international actors. Collectively, the actions of Russia, the US, Iran, Turkey and many other players have translated into a loss of around one-quarter of the group’s territory over the last year.

Kurdish and Iranian-backed Shi’a militias have, in many cases, actively routed the group from its territorial holdings over the last year. Thanks to Iranian and Russian backing, the Syrian army is also exerting increasing pressure on IS. The Syrian army has made recent advances in areas such as Tabqa and Palmyra, signalling a significant shift in the regime’s willingness and capacity to combat IS.

All this has served to dispel much of IS’s mystique and the viability of its mission. In 2014, the group’s emir, Abu Bakr al-Baghdadi, could point to IS’s many and exceptional successes to make the case that it was clearly on track to establishing its Islamist utopian ideal. Such apparent evidence in turn allowed the group to garner legitimacy, support, and recruit new members.

Today, such successes are few and far between. Some are now questioning whether IS will even be a significant insurgent player in the Syrian conflict by 2017.

Terror, weakness and desperation

As IS stunned the world with its blitzkrieg across eastern Iraq in 2014, there was little need for it to conduct attacks outside the Middle East. Its apparent success and superiority over its local rivals was more than enough to draw large amounts of external support and recruits for its cause.

But as IS has weakened over the past two years, its popularity and freedom of action have become increasingly constrained within its immediacy. In such circumstances, insurgent groups often seek to strike outside their own borders as both a punitive measure and a demonstration of strength to potential supporters.

This was precisely Somalian terrorist group al-Shabaab’s logic when it assaulted Kenya’s Westgate mall in 2013. This story echoes much of what IS is experiencing now.

Under increasing pressure from an African Union occupation force that included large contingents from the Kenyan army, al-Shabaab found itself pushed from its seat of power in Mogadishu into Somalia’s south. Unable to mount a serious offensive on the occupiers, the group opted to strike in Kenya itself. This sent a message that Kenya could not expect to safeguard its own territory as long as it engaged in such perilous dalliances abroad.

As pressure has grown on IS, it has become increasingly inclined toward this strategy – from Saudi Arabia to Lebanon to Turkey to France, and now Belgium.

We can only expect more such attacks as IS continues to decline and lash out. Some will invariably foil the various security establishments arrayed against them.

But, it is crucial to remember that this type of terrorism is aimed at sowing discord, chaos, suspicion and divisiveness among the multicultural societies it targets. In doing so, IS is seeking to create the conditions in which its message finds more willing supporters among those disenfranchised by such division.

The Conversation

Ben Rich, Unit Co-ordinator in Politics, University of New England

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