High Court challenge to offshore immigration detention power fails



File 20170816 17651 r6ze2y
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.

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



File 20170805 2386 1c7mqui

AAP/Eoin Blackwell

Amy Maguire, University of Newcastle and Jason von Meding, University of Newcastle

What is the point of international co-operation in matters of shared concern? According to the UN Charter, its founding member nations were determined to achieve overarching societal progress based on human rights.

Excerpt from the UN Charter.

The international legal system of the UN era continues to attempt, with mixed success, to promote these goals.

Within intricately connected global systems that produce ever-more complex problems, a framework for international co-operation is essential. The international legal system, however imperfect, must be maintained as a bulwark against the wholesale pursuit of domestic political interests.

Yet our belief in the efficacy of this system is challenged when the stark reality of international power relations is laid bare. It seems the more insight we have into what happens behind the scenes, the harder it becomes to convince the sceptical that international law has either legal or normative power.

On Friday, The Washington Post published a leaked transcript of a now-infamous phone call between the then newly elected US president, Donald Trump, and Australia’s prime minister, Malcolm Turnbull.

The shocking conversation reveals that the deal for the US to accept some of those asylum seekers currently detained offshore – a key feature of the Australian government’s effort to close its offshore detention centre on Manus Island – imposes no obligation on the US beyond “going through the process”. According to Turnbull:

… the agreement … does not require you to take 2,000 people. It does not require you to take any.

Trump made it abundantly clear that he did not see either the US national interest or his personal popularity being served by upholding the agreement:

… boy that will make us look awfully bad. Here I am calling for a ban where I am not letting anybody in and we take 2,000 people. Really it looks like 2,000 people that Australia does not want and I do not blame you by the way, but the United States has become like a dumping ground.


Further reading: Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


Trading lives in a ‘refugee swap’

The deal between Australia and the US remains mired in confusion almost a year on. Australia committed to resettling some Central American refugees currently in Costa Rica, as part of a US-led program.

Soon after, Turnbull announced an agreement with the Obama administration that would see the US resettle perhaps 1,250 refugees currently detained on Manus Island and Nauru.

The transcript confirms that Trump was resistant to inheriting what he described as a “rotten deal”:

I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.

Turnbull sought to reassure Trump he could sell the agreement to the US public as consistent with his campaign promise to tighten immigration controls.

Turnbull emphasised his and Trump’s shared identity as businessmen and represented the “deal” as a business transaction that ought to be upheld, at least formally:

Please, if we can agree to stick to the deal, you have complete discretion in terms of a security assessment. The numbers are not 2,000 but 1,250 to start. Basically, we are taking people from the previous administration that they were very keen on getting out of the United States. We will take more. We will take anyone that you want us to take. The only people that we do not take are people who come by boat. So we would rather take a not very attractive guy that help you out then to take a Noble [sic] Peace Prize winner that comes by boat. That is the point.

Despite Trump’s reluctance, US immigration officials have conducted some screening interviews with refugees on Manus Island. However, these were suspended mid-run and the officials withdrew to the US, once it was announced that the US’ annual humanitarian refugee quota had already been fulfilled.

Those detained have been told that interviews will resume and that resettlement in the US is still on the table. However, whether the Trump administration ever had any serious intention to be party to a resettlement solution is now in doubt, as is Turnbull’s commitment to anything more than a domestic political win.

On Manus Island, the leaked transcripts arrived amid heightened tensions. Protests have been ongoing since Tuesday, when water and power services were withdrawn in the largest compound. Local police, detention centre guards and reportedly the Australian Federal Police are attempting to remove those deemed “prisoners” by Trump – something that Turnbull, perhaps tellingly, did not dispute.

//platform.twitter.com/widgets.js

This latest insight into the international game of trading unwanted human beings compounds the frustration and sense of injustice that those trapped in Australia’s offshore detention system are experiencing.

Proof that Australia fails to see the humanity of refugees

Turnbull’s position appears to be that the people detained on Manus Island and Nauru are “good” and deserving of protection somewhere, but that his domestic political environment demands they must be treated like criminals.

In the call, Turnbull repeatedly refers to the people imprisoned on Manus Island and Nauru as “economic refugees”. This pernicious framing is consistent with government messaging about “boat people” and “queue jumpers”.

In reality, no refugees are accepted on economic grounds under Australia’s rules. It is disingenuous of Turnbull to make such an inference about those detained in offshore detention, considering that almost 90% of those on Manus Island have been assessed as bona-fide refugees by both Australia and the UNHCR.

Turnbull’s indifference to human suffering is chilling, surprising even Trump:

We should do that too. You are worse than I am.

When two of the most powerful men in the world conspire to inflict further harm on some of the world’s most vulnerable to satisfy domestic agendas, we truly need to question whether the goals of the international community as constituted in the UN are being upheld by our elected officials.

Dehumanising refugees and treating them as the problem avoids any serious consideration of why people are displaced. This is where the international community should be working together.

The ConversationAdopting a punitive approach to those seeking protection not only goes against international law, but it is an insult to those that uphold Australia and the US as leading beacons for human rights and freedom.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Jason von Meding, Senior Lecturer in Disaster Risk Reduction, University of Newcastle

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

Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


Asher Hirsch, Monash University

The Washington Post’s leaked transcript of a January phone call between President Donald Trump and Prime Minister Malcolm Turnbull highlights the failure of Australia’s deal with the US to take refugees from offshore processing centres on Nauru and Manus Island.

It also reveals Turnbull’s desperation not to let people who came by boat settle in Australia.

The refugee deal was made in the dying days of the Obama administration. Trump, upon assuming office, tweeted his dismay over it:

//platform.twitter.com/widgets.js

Here are a few of the key issues revealed in the leaked transcript.

Turnbull: ‘You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you.’

Turnbull’s comments highlight a key fault with the US deal.

Throughout the call, Turnbull reiterates that the only obligation on the US under this deal is to consider taking refugees. Trump asks:

Suppose I vet them closely and I do not take any?

Turnbull responds:

That is the point I have been trying to make.

The transcript highlights concerns that the deal could end up with the US deciding not to take any refugees from Manus Island and Nauru. A key question for the Turnbull government is what its plan is for the rest of the people left to languish indefinitely.

The harms of offshore processing are well known. Accommodation standards, facilities and services in the detention centres remain well below international standards. There have been consistent and alarming reports of abuse (sexual and otherwise). There has been one murder and six other deaths from inadequate medical care in offshore detention centres.

Turnbull: ‘We will then hold up our end of the bargain’

During the conversation, Turnbull highlighted that in exchange for the US taking people from Manus Island and Nauru:

We will then hold up our end of the bargain by taking in our country 31 [inaudible] that you need to move on from.

This is a reference to the commitment the Turnbull government made in 2016 to resettle in Australia an unspecified number of Central American refugees currently residing in a camp in Costa Rica. This aspect of the deal still remains unclear, with the transcript “inaudible” during this key moment.

Although the Turnbull government strenuously denied the deal was a “people swap”, it has been cast as a quid-pro-quo arrangement, whereby the Australian government can publicly maintain its unwavering commitment to an offshore detention policy that is no longer sustainable.

Turnbull: ‘The people – none of these people are from the conflict zone. They are basically economic refugees from Iran, Pakistan and Afghanistan.’

This statement highlights either wilful ignorance or blatant deceitfulness by Turnbull in an attempt to sell our responsibility to the US.

The Department of Immigration and Border Protection’s statistics show that of the 2,235 people on Manus Island and Nauru who have been assessed, almost 80% have been found to be persecuted refugees.

The term “economic refugee” is also a misnomer. Those found to be refugees are people fleeing persecution, based on who they are or what they believe.

By telling Trump these people are “basically economic refugees”, Turnbull also misrepresents the ongoing persecution and conflict that people from these countries are experiencing daily.

Trump: ‘What is the thing with boats? Why do you discriminate against boats?’

Trump raises a good point about Australia’s “discrimination against boats”.

The UN Special Rapporteur on the Human Rights of Migrants has highlighted Australia inhumane and discriminatory policies directed at boat arrivals. This includes mandatory and prolonged detention, as well as indefinite separation from families, restrictions on social services, and no access to citizenship.

Trump: ‘I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.’

Trump’s insistence that the people detained by Australia on Manus Island and Nauru “are bad” – which Turnbull did not contest – demonstrates the disdain and lack of understanding common to both the Australian and US governments with respect to forced displacement.

The notion of immigration detention being akin to “prison” underscores the punitive nature of the Turnbull government’s approach to people desperately seeking asylum – a description Turnbull fails to rebut.

Trump’s repeated attempts to draw a link between genuine refugees and terrorism are deeply troubling. ASIO Director-General Duncan Lewis has said no such link exists. In Australia and the US, both the media and the government have used this misleading narrative to justify the persecution of refugees and asylum seekers.

What next?

Ultimately, the transcript reveals that Australia maintains control and power over the centres – essentially highlighting that Manus Island and Nauru are Australia’s responsibility.

As Turnbull said:

They have been under our supervision for over three years now and we know exactly everything about them.

As Australia maintains responsibility for these people, we must ensure their safety and dignity. As the transcripts reveal, the US deal may amount to nothing.

The ConversationA decade ago, the Howard government faced the same question of what to do with hundreds of refugees on Nauru and Manus Island who had nowhere else to go. John Howard eventually realised the only option was to bring them to Australia. Turnbull must do the same – and quickly.

Asher Hirsch, PhD Student, Monash University

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

Turnbull’s promise to Trump: ‘You can count on me’


Michelle Grattan, University of Canberra

We’ve known for months the content and tenor of that explosive January phone call between Donald Trump and Malcolm Turnbull about the refugee deal, but this week’s leak of the transcript to The Washington Post provides crucial detail and nuance.

It also opens the exchange to two interpretations, which quickly fed into the domestic political battle.

You can read the conversation as showing Turnbull playing the strong leader, bringing measured argument and, despite constant provocation, an even temper to trying to have Trump honour the deal Australia made with the Obama administration to take refugees from Manus Island and Nauru.

Or you can observe Turnbull as the rather desperate supplicant, with the domestic political importance of the deal being his overwhelming concern.

It’s obvious Trump was only minimally across the agreement’s terms, under which the United States had agreed to take up to 1,250 refugees.

He exaggerated the numbers, referring to 2,000, even saying he’d heard 5,000. They had to be “bad” people – they were “in prison”.

He found it difficult to get his head around the boat issue. “What is the thing with boats? Why do you discriminate against boats?” Maybe that questioning wasn’t as strange as it sounds, in light of Turnbull declaration that “we would rather take a not very attractive guy that help[s] you out than to take a Nobel Peace Prize winner that comes by boat”.

Above all Trump was preoccupied with how accepting the agreement would make him look.

Turnbull suggested a way to square away the contradictions in his situation. But the president wasn’t countenancing such spin, refusing to concede he could present the deal as consistent with his just-announced exclusionist policy.

“This shows me to be a dope”, he said, in a not unrealistic assessment.

“This is going to kill me. I am the world’s greatest person that does not want to let people into the country. And now I am agreeing to take 2,000 people.”

In their excruciating exchanges, Turnbull extracted the president’s reluctant agreement to honour the arrangement. But agreement to what exactly?

As Turnbull put his case, he seemed to shrink the deal to be little more than the Americans having to simply put the refugees through a process.

Asking Trump to “hear me out”, Turnbull said: “The obligation is for the United States to look and examine and take up to and only if they so choose – 1,250 to 2,000”. (Elsewhere he clarified it was 1,250.)

“Every individual is subject to your vetting. You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you. The obligation is to only go through the process.”

In fact the deal “does not require you to take any”.

Turnbull’s minimising the US’s obligation is particularly important in light of the fact that so far not one of the refugees has been moved, and now the American general refugee quota is full – delaying any departures until October at the earliest. After the agreement was confirmed by the new administration, the timetable has been tortoise-like.

Turnbull’s desperation is obvious in the conversation. “This is a very big issue for us, particularly domestically,” he said at one point, and at another, “I am asking you as a very good friend.

“This is a big deal. It is really, really important to us that we maintain it. It does not oblige you to take one person that you do not want”.

Turnbull sought connection with the then-new US leader by referencing their common business backgrounds. Trump might relate to that, though the irritated president said he respected Turnbull but was sure “you have brokered many a stupid deal in business”.

Turnbull described himself as a “highly transactional businessman like yourself”.

His case to Trump was pitched in blatantly transactional terms. He referenced the Central Americans Australia had agreed to take, making it clear it was a quid pro quo for the Manus/Nauru arrangement – something he’d previously denied. If necessary Australia would take more people – “anyone that you want us to take”.

He stressed the deal required Australia “to do a number of things for the United States”.

At the end, after an angry Trump refused to talk about Syria and North Korea and was just determined to get off the phone – “I have had it” – came this exchange:

Turnbull: “Thank you for your commitment. It is very important to us.”

Trump: “It is important to you and it is embarrassing to me. It is an embarrassment to me, but at least I got you off the hook. So you put me back on the hook.”

Turnbull: “You can count on me. I will be there again and again.”

Trump: “I hope so.”

Turnbull was undesirably fulsome in declaring he’d be “there again and again”, especially given the nature of this president.

This is even clearer in retrospect – Trump’s capriciousness and his administration’s dysfunction has only increased in the months since the phone call.

One expects Trump will not forget he is owed for the favour he sees himself having done in endorsing the deal.

“I will be there again and again” may go down as the Turnbull equivalent of “all the way with LBJ (Harold Holt) and “we’ll go a Waltzing Matilda with you” (John Gorton).

The government’s challenge is to position itself with this difficult administration in a way that keeps the alliance strong but does not compromise Australia or its values. To be in Trump’s debt is unfortunate; for Turnbull to make what sounds like a gushy if vague pledge is unwise.

The ConversationOne final thing. When Trump described the earlier reports of the call as “fake news” and Turnbull, sitting beside him in New York, agreed, they were both lying. We knew it at the time, but the transcript has provided an effective lie detector.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Sorting out what happened in UNHCR and government talks on refugees important for credibility of both sides



File 20170725 23039 1ugkkmf
The government says its position has always been that none of those on Manus Island and Nauru would ever be allowed to come here.
Darren England/AAP

Michelle Grattan, University of Canberra

The fracas between the United Nations high commissioner for refugees (UNHCR) and the government over whether Australia agreed to settle a handful of the Manus Island/Nauru boat people with family here goes to questions of fact and humanity.

UNHCR claims it consented to facilitate the Australia-US resettlement deal, reached late last year, “on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there”.

The government says its position has always been – as it has consistently said publicly – that none of those on Manus Island and Nauru would ever be allowed to come here.

It should be possible to get to the bottom of what was said in the multiple meetings the UNHCR had with the government. Presumably each side, and certainly the Australian bureaucrats, would have taken notes. These should be produced. Or perhaps information will be dragged out eventually in that very useful inquisitorial forum, Senate estimates.

Asked whether Immigration Minister Peter Dutton had given an assurance, Volker Turk, UNHCR’s assistant high commissioner for protection, told the ABC on Monday: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”

One can imagine how, anxious to get UNHCR involvement, Dutton and officials might have let the impression be left that cases would be considered – when they had no intention of looking favourably at any of them.

Maybe this is too Machiavellian – but the record should clarify. It is important for the credibility of both the UNHCR, which made the claim in a very tough statement, and the government that what happened be made clear.

Then there is the substantive question. We are talking about very few people – some 36 identified so far with a humanitarian claim and links to Australia, according to the UNHCR.

Whether the UNHCR or the government is right about the tenor of their conversations, surely in the cases of these people, it is not asking too much to expect Australia to take them in, regardless of the policy.

Dutton and colleagues default to the standard line, conjuring up the prospects of a fresh armada if any exceptions are ever made.

When the US deal was announced there was much tough talk from the government about strengthening the iron cordon of vessels patrolling around Australia in case there was a try-on from the people smugglers.

Does anyone seriously think that cordon isn’t up to the task of discouraging any fresh attempt if we let in three-dozen needy people with relatives here?

Remember that John Howard’s Pacific solution, which stopped the boats, saw some 705 of the 1,637 detained in Manus Island and Nauru between 2001 and 2008 resettled in Australia.

It’s hard to avoid the conclusion that the government exaggerates the threat for political purposes.

In case this be seen as just being “soft” on border protection, let me say that I believe the policy of turning back boats has been justified. Offshore processing had its place in that policy, but it is a step far too far to say now that we couldn’t keep the border secure if a few special cases were allowed to come to Australia.

One wonders if Dutton, Malcolm Turnbull or other ministers are ever troubled in their consciences, as they enjoy their own families, about what they are doing to the lives of children on Nauru or young men on Manus Island.

It’s as if the government buys its own propaganda, which subtly or not-so-subtly demonises these people – a majority of whom are found to be refugees – essentially suggesting they are criminals, as in Foreign Minister Julie Bishop’s comments on Tuesday.

“If people seek to arrive illegally, if they pay criminal smuggling networks, they will not be resettled in Australia,” she said. Bishop, of all people, knows that the story of seeking asylum is more complicated and involves the question of rights, with “unauthorised” arrivals being the appropriate term.

The row with the UNHCR sits uncomfortably with Australia’s campaign to win membership of the UN Human Rights Council, for which the vote is in October. The council’s remit is “the promotion and protection of all human rights around the globe”. But Bishop, who has been advocating for Australia’s candidature as she travels the world, on Tuesday was confident of success.

Leaving aside the contretemps with the UNHCR, some eight months after the announcement of the US deal none of the people from Manus Island or Nauru has moved to America.

We know that Donald Trump hates the Obama-era deal – under which the Americans agreed to take up to 1,250 refugees – though he has said he will honour it.

We know that the Americans are doing their own “extreme vetting” of the refugees.

We know that the US has already filled its refugee quota for the year ending September, so these people are pushed into the following quota, which starts October.

What we don’t know is how hard the Turnbull government is working to persuade the US administration to meet the agreement as soon as possible.

Turnbull makes much of he and Trump both being businessmen. Well, this can be thought of as a contract, and it is time the contract’s terms were met.

The ConversationWe have a special relationship with the US and that should be called upon. The people should be gone by Christmas, at the latest.

Michelle Grattan, Professorial Fellow, University of Canberra

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



File 20170724 28293 1mgcx0c

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.

//platform.twitter.com/widgets.js

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.

//platform.twitter.com/widgets.js

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.

UNHCR accuses government of breaching undertaking over refugee cases



File 20170724 11666 x4yf1z
Filippo Grandi urged an immediate end to Australia’s offshore processing of refugees.
Martial Trezzini/EPA

Michelle Grattan, University of Canberra

The United Nations high commissioner for refugees (UNHCR), Filippo Grandi, has accused Australia of breaking its word by refusing to allow refugees on Manus Island and Nauru with family in Australia to settle here – a claim denied by Immigration Minister Peter Dutton.

In a strongly worded statement on Monday, Grandi said that last November the UNHCR “exceptionally” had agreed to help with the relocation of refugees to the US, when the Turnbull government struck a deal with the outgoing Obama administration.

“We agreed to do so on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there,” Grandi said.

But “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 the United States,” Grandi said.

This meant some people with serious medical conditions or who had had traumatic experiences such as sexual violence could not receive the support of close family members who are living in Australia, he said.

“To avoid prolonging their ordeal, UNHCR has no other choice but to endorse the relocation of all refugees on Papua New Guinea and Nauru to the United States, even those with close family members in Australia.”

A spokesperson for Dutton responded to Grandi’s statement by saying the government’s position “has been clear and consistent” – people transferred to regional processing centres “will never settle in Australia”.

On the ABC’s 7.30, Volker Turk, the UNHCR’s assistant high commissioner for protection, elaborated on the claim.

He said the UNHCR went into its facilitation role “after long discussions with Australian government officials”.

“We had a lot of meetings with the government, including myself with the minister of immigration in November,” he said.

“There was no doubt in our mind – and this is what we put forward to the minister at the time – that we would present to him cases that are compelling humanitarian, with close family links to Australia. We were hoping that, indeed, Australia would consider them favourably within the discretion that the minister has at his disposal.”

Pressed on whether Dutton gave any assurance that he would actually allow those people to resettle in Australia, Turk said: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”

“Of course we went into this agreement on the understanding that, indeed, Australia would be part of the solution for a handful of compelling humanitarian cases with strong family links in Australia.”

Only 36 people had so far been identified with such links, he said.

On the basis of the understanding that it had the UNHCR “presented these compelling cases”, Turk said.

Grandi said these vulnerable people who had already had four years in “punishing conditions” should be reunited with their families in Australia. This would be the “humane and reasonable” course.

“The Australian government’s decision to deny them this possibility is contrary to the fundamental principles of family unity and refugee protection, and to common decency,” he said.

Grandi said Australia’s offshore processing policy “has caused extensive, avoidable suffering for far too long”.

“Four years on, more than 2,000 people are still languishing in unacceptable circumstances. Families have been separated and many have suffered physical and psychological harm,” he said.

The UNHCR has referred more than 1,000 refugees to the US over the past eight months. A further 500 people are waiting for the outcome of their refugee claims, being processed by authorities in PNG and Nauru. The American deal provided for the US to take up to 1,250.

US President Donald Trump made it clear in his much-publicised phone conversation with Malcolm Turnbull that he hated the deal, though he has said he will honour it.

But so far no-one has been settled. The US, which is doing its own assessments, has been slow, and now America has filled its much-reduced refugee program for the year ending September. This has stalled any prospect of departures until the new year starts in October.

Meanwhile the Manus centre is due to close on October 31, and authorities there are trying to push people out of it.

Asked on Sky on Sunday whether there was any circumstance under which the government would allow some people to come to Australia, Dutton said: “People will not be coming to Australia … the government has said it consistently”.

He said this consistent position had been part of the reason for the success in stopping the boats. “We’ve taken the people-smuggling model away from the people smugglers. People don’t believe that they can get to Australia by paying their money and if that fails then we will see a recommencement of boats.”

Pointing to the earlier 1,200 drownings at sea, Dutton said that under the Coalition’s “Operation Sovereign Borders we’ve not seen a single death at sea”.

Grandi said the UNHCR fully endorsed the need to save lives and prevent exploitation by people smugglers.

“But the practice of offshore processing has had a hugely detrimental impact. There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.”

He urged an immediate end to Australia’s offshore processing and for it to offer solutions to its victims “for whom it retains full responsibility”.

Independent MP Andrew Wilkie tweeted:

//platform.twitter.com/widgets.js

The ConversationLabor called on the government to release the details of the US-Australia resettlement agreement, including any side deal made with the UNHCR.

https://www.podbean.com/media/player/4arpi-6d25f9?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



File 20170614 11089 p87c5r
$70 million is tiny sum in the scheme of the federal government’s expenditure to manage asylum seekers who arrive by sea.
AAP/Eoin Blackwell

Alex Reilly, University of Adelaide

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

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

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

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

A small price to pay?

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

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

  • failure to provide adequate toilet facilities;

  • contaminated meals;

  • inadequate and delayed medical treatment; and

  • illegal detention.

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

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

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

A new way to hold government to account

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

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

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

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

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

… holding governments and corporations accountable.

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

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

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

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

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

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

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

How we can help refugee kids to thrive in Australia


Karen Zwi, UNSW

When we think about refugee children’s health, we tend to assume bad news. But refugee children are highly resilient. This means they can thrive, mature and develop despite poor circumstances, and can adapt despite severe and long-term hardship.

Our newly published research is the first of its kind to track the long-term health of newly arrived refugee children in Australia.

We showed which children tend to do well in the community, and the factors that predict this. We also give evidence for what Australia can do to help all refugee children thrive in the longer term.

Who are these refugee children and their families?

Between May 2009 and April 2013, a total of 228 refugee children under 15 years, who were granted refugee status under Australia’s humanitarian program, arrived in our study area. We followed 61 of these children for three years. None of them had been detained for any length of time, as they had been granted refugee status overseas and flown to Australia.

The children were on average six years old, with equal numbers of boys and girls. They came from south-east Asia (46%), Africa (33%) and the eastern Mediterranean (21%) regions (as defined by the World Health Organisation).

When they arrived, 30% of children were living in a family with one parent absent (almost always the father).

Many parents had high levels of education (20% had university or trade qualifications) and had been employed before coming to Australia; only 6% had no education and 20% reported unemployment in their home countries.

What physical and mental health issues did we see?

We checked the children’s physical health when they arrived and their development and social-emotional well-being over the next two and three years after settling in Australia.

Refugee children have well known physical, mental and developmental health issues, and our research supported this.

Iron and vitamin D deficiency were the most common conditions we saw. Only a few children had infectious conditions needing treatment.

After two and three years in Australia, most parents said their child had good access to primary health care and visited their GP every one to four months. About half the children had visited a dentist.

About a quarter of young children had developmental delay (mostly delayed speech and language) at the start, but all had caught up by their third year in Australia.

However, children’s social and emotional wellbeing was most strikingly affected by their refugee experiences. After two years of being in Australia, over 20% of children were experiencing emotional symptoms (such as sadness or fear) and/or peer problems (like difficulties making friends).

But by year three, these problems had decreased to below 10%, no different to the general Australian population, illustrating their resilience.

Which children do well and not so well?

Many studies have highlighted factors that make it more likely for refugee children to have poor health and well-being. These include economic and social conditions related to where people come from and where they settle.

We cannot change certain factors before children arrive, like pre-migration violence. But we can change factors once they’re here. In fact, research suggests post-arrival factors have a bigger impact than pre-arrival factors on refugee well-being.

Post-arrival factors that lead to poor outcomes include: time in immigration detention, exposure to violence post-migration, family separation, poor mental health of carers, negative school and peer experiences, perceived discrimination, parental unemployment, fall in socio-economic status and financial stress.

The most common stressful life events children and families experienced in our study were changes in the child’s school and home, parental unemployment, marital separation and financial stress.

For instance, single parent families became more common (38%) three years after settlement, largely due to marital breakdown; almost all families were receiving government financial benefits and living in rented accommodation two and three years after settling; half of the families had a weekly income under A$800, about 30% below the average weekly income in Australia; and unemployment was high (by year three, only 12% of parents were employed, mainly in semi-skilled and unskilled jobs).

Refugee children with stable accommodation tend to do better than those forced to move home multiple times.
from shutterstock,com

Researchers have also identified factors linked with better outcomes and resilience, and that increase the chance of good health and well-being.

These include living close to the family’s own ethnic community and having external support from the general community.

In our study, most families (more than 80%) knew someone in Australia before immigrating and felt supported by either their own ethnic (more than 73%) or the general community (more than 63%). Most parents said Australians displayed tolerance towards people of other religions, cultures and nationalities (more than 78%), although several volunteered anecdotes of their perception of discrimination related to property rental.

What can we do to make a lasting difference?

By addressing the factors that predict poor health and enhancing those that predict a good outcome, we can make a significant difference to refugee children’s lives.

Our research and others’ shows what policymakers and governments can do to help refugee children thrive in Australia. We need to:

  • integrate children and families into host communities
  • support families to stay intact
  • provide stable settlement with minimal relocations
  • support children’s education
  • support parents’ employment
  • ensure access to health, social and economic resources
  • reduce post-migration exposure to violence and threat, including detention, racism and bullying.

The ConversationIf these recommendations are implemented, it is very likely refugee children can realise the resilience they bring with them to Australia.

Karen Zwi, Paediatrician and Associate Professor, UNSW

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

‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation



File 20170523 8917 5agxdi
Peter Dutton’s condemnation of those he terms ‘fake refugees’ is prejudicial.
AAP/Mick Tsikas

Amy Maguire, University of Newcastle

The federal government has set an October 1 deadline for 7,500 people who arrived in Australia by boat between 2008 and 2013 – but who have not yet lodged claims for refugee protection – to apply for a visa or face deportation. The Conversation

Immigration Minister Peter Dutton declared “the game is up” for “fake refugees”.

‘Illegal maritime arrivals’

The first sentence of Dutton’s media release reads:

The Turnbull government has today set a deadline for thousands of Illegal Maritime Arrivals (IMAs) who flooded into Australia under the previous Labor government to prove they are genuine refugees and owed protection by Australia.

This statement reinforces prejudicial tropes that successive governments have used to demonise people seeking asylum in Australia. The subjects of the government’s announcement are not “people”, “individuals”, “human beings” – or even “asylum seekers”. Instead, they are “illegal maritime arrivals”.

These seemingly non-people did not “travel to” or “arrive in” Australia. Instead, they “flooded into Australia”.

They are the latest group to suffer from the shameful practice of setting human beings apart from others in the community: they are another class threatening peril and menace.

Fake refugees?

Dutton’s condemnation of “fake refugees” is prejudicial. It suggests those people now subject to his deadline must not have genuine protection claims – or they would have been lodged already.

Yet Department of Immigration statistics show people who travel to Australia by boat without a valid visa, seeking asylum, are more likely to be genuine refugees than people who travel by air with a visa and seek asylum on arrival. Over the years, between 70% and 100% of people arriving by boat have been assessed as eligible for refugee protection.

For example, people from Afghanistan have been the most likely to seek asylum in Australia by boat for many years. In this group, between 2008 and 2013, upwards of 95% were found to be refugees and granted protection visas.

The experience of lodging an application for protection

The people subject to Dutton’s announcement are part of a group known as the “legacy caseload”. These are people who have been living for some time in the Australian community in a state of legal limbo.

This state of limbo was imposed when the then-Labor government stopped processing protection visa applications for people who had arrived by boat. This bar on applications operated from 2012 until the Coalition government began to permit some members of the group to initiate applications from 2015. However, the bar on applications was not fully lifted until late 2016.

Dutton’s assertion that the 7,500 people now faced with a very short deadline for application have “failed or refused” to apply for protection unfairly suggests that sufficient time has already been afforded.

The prejudicial effect of this claim is worsened by Dutton’s parallel statement that the people in question are a drain on the public purse:

Many are residing in Australia on government funded support which last year cost the Australian taxpayer approximately $250 million in income support alone.

Dutton’s announcement also fails to mention that the Department of Immigration is unable to process the volume of asylum claims currently lodged, or that an arbitrary deadline for applications from people in the legacy caseload group will force many to apply without proper legal assistance.

Community legal centres around Australia have thousands of clients on their books awaiting assistance with protection claims. The complex process requires the completion of 184 questions and a detailed written statement, and many applicants will require translation. All ought to receive legal advice.

The latest development imposes undue stress on an already extremely vulnerable community. Only three months ago, some members of this group received letters from the Department of Immigration, threatening the withdrawal of Medicare and work rights if they failed to lodge applications within a tight deadline.

That many – if not all – of this group were on waiting lists for legal assistance is seemingly no longer sufficient to explain why they have not yet lodged protection applications.

//platform.twitter.com/widgets.js

Is Australia committed to human rights or not?

Late last week, Foreign Minister Julie Bishop officially launched Australia’s bid for a 2018-20 seat on the UN Human Rights Council. Bishop described Australia as the standout candidate for this position because:

… we are arguably the most successful, the most diverse, multicultural society on Earth.

We have long embraced those fleeing conflict and persecution, and those in need of humanitarian support.

If elected to serve on the council, Australia intends to work collaboratively with all of our international partners towards fulfilling the goals set out in the UN Declaration of Human Rights – we will listen to your concerns. We will work with you.

It is impossible to determine the genuine extent of Australia’s commitment to human rights by juxtaposing Bishop’s claims with Dutton’s announcement. Article 14 of the Universal Declaration of Human Rights requires Australia to protect the rights of all people seeking asylum:

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

Article 33 of the UN Refugee Convention prohibits the return of a refugee to a risk of persecution:

No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Yet the imposition of the October 1 deadline for applications from those in the legacy caseload group imposes an arbitrary limit on the time available to seek protection. It suggests the government is willing to violate its international legal option not to deport people who may have genuine claims for refugee status.

Refugee advocates will feel compelled to challenge the deadline in the courts, if the government seeks to deport people who have not had adequate opportunity or support to complete protection applications. This would open yet another front of government spending to support a policy and practice that violates Australia’s human rights obligations.

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.