Local human rights lawyers have launched two class action lawsuits alleging that Australia’s offshore detention regimes demonstrate negligence amounting to crimes against humanity and torture.
Just a day after the government successfully filibustered proposed changes to medical transfers from Nauru, George Newhouse (principal solicitor at the National Justice Project) filed two separate statements of claims at the High Court: one on behalf of all refugees and people seeking asylum detained on Nauru, and a second for a group on Manus Island.
With Julian Burnside and Shanta Martin acting as counsel, Newhouse argues that the government owes the combined 1,300 people detained offshore a duty of care, as demonstrated by 2013 memorandums of understandings and subsequent administrative arrangements with the Nauran and Papua New Guinean governments. Further, he states, Australia has breached this duty by treating group members in a manner that constitutes one or more crimes against humanity, as defined the International Criminal Court and adopted by Australia under Section 268 of the Criminal Code, specifically:
- Imprisonment or other severe deprivation of physical liberty (s268.12)
- torture (s268.13)
- persecution (s268.20), and
- other inhumane acts (s268.23).
Newhouse alleges that the government has also breached the definition of torture under s274, which relates to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
But while the statements of claim allege that Australia’s duty of care extends to taking reasonable steps to prevent crimes against humanity, criminal charges could not be filed against the government because, under section 268.121 of the Criminal Code, crimes against humanity cannot be prosecuted except with the written approval of the Attorney-General.
Instead, both actions will be issued under Australia’s civil laws relating to duty of care, and will seek injunctions against a continuation of Australia’s tort of negligence. This will, in effect, seek the transfer of refugees and people seeking asylum from Nauru and Papua New Guinea to safety, and request damages for people who have been injured by the alleged negligence.
“Essentially the crimes against humanity and the allegation of torture both fall within the intentional infliction of harm, which is a category of negligence law that is well understood,” Newhouse told Crikey. “So if you intentionally harm someone, that is a recognised tort or a recognised category of negligence.”
“We’re talking about people’s confinement and their conditions of confinement, their accommodation, the fact that they have been placed in unsafe locations without appropriate medical care, inadequate food and water, poor sanitation, [and] unhygienic conditions.”
The memorandums of understanding contain an even greater list of allegations relating to both group members and other detainees’ experiences over the past five or more years, the full extent to which cannot be fully condensed here. Allegations in the Nauru action’s “imprisonment” claims can be summarised as, but not limited to, the following:
- Arbitrary, indefinite detention in tents, barrack-style buildings, or small, hastily constructed dwellings where living conditions led to poor health, “with high rates of diarrhoea, mosquito-related illnesses, vaginal fungal infections and dizziness”
- Physical, sexual and psychological abuses in Regional Processing Centres and the broader Nauran community as cited in The Guardian’s 2016 Nauru Files and multiple government inquiries
- Systemic mental distress amongst detainees, as evidenced by people cutting themselves, sewing their lips together, voluntary starvation, asking guards to give them poison, yearning for death, attempting or participating in suicide
- The denial of proper protection, legal, translation and mental and physical health services, and
- Harm intentionally and/or knowingly against members “for the purpose of intimidating or coercing a third person, being a person who is considering boarding a boat to seek asylum in Australia”.
Allegations of “torture” relate largely to alleged physical and sexual abuse, physical pain, and mental suffering. “Other inhumane acts” relates to living conditions and withheld medical treatment. “Persecution” relates to the government’s justification for said conduct “as part of a systematic attack directed against a civilian population”.
These actions have been filed in the High Court, because of the recently implemented section 494AA of the Migration Act that strips other courts of their jurisdiction in matters relating to asylum seekers, however it is expected the matter will be remitted to the Federal Court.
The National Justice Project has previously negotiated or secured court orders for a number of individual cases throughout the year, including more than those of a dozen sick children and, in one case, a woman pregnant who needed a termination after being raped on Nauru.
NJP’s most recent legal actions follow separate allegations of crimes against humanity lodged at the International Criminal Court, a compensation case for Manus detainees the government settled last year, and two recent reports on the current mental and physical health of people on Nauru and Manus.
A spokesperson from the Department of Home Affairs told Crikey, “as these cases are before the courts it would be inappropriate to comment further”.
Fantastic. At last. Hopefully this ‘money for the wealthy’ obsessed government will finally be made to support these people in a way that is consistent with the values of compassion & caring for other human beings, especially those who are much more vulnerable than our well paid politicians. I feel embarrassed & ashamed of the behaviour of our so called ‘representatives’.
At last! Finally a group of Australians with no fear of the ballot box, who are legally savvy (very) and who have the guts to oppose the bastardry on Manus & Nauru. Julian Burnside’s involvement offers hope.
No fear of the ballot box and no fear of they or their families drowning at sea either
Oh please, fear for the lives of asylum seekers is *not* even remotely a motivation for this governments treatment of boat arrivals.
Run the Tony Burke line like a good apparatchik.
Things you won’t see from human rights lawyers. Class actions against the Chinese government for the million plus Muslims being held in what are effectively reeducation camps.
Ohhhh look over theeeeere don’t look over here….
Just because Chinese people treat the Uigers badly doesn’t let the Australian government off the hook.
Also, how do you know that Chinese human rights lawyers aren’t doing the things you mentioned? Oh that’s right.. you just made it up.
Message written on your Chinese produced phone or computer right.
What a pathetic response Tony.
The merit in what they are doing is not lessened because there are other injustices in the world.
Crimes Against Humanity is clearly demonstrated by the frenetic purposeleness displayed by collective OZ Governments in toeing the fossil fuel vest interest groups in NOT addressing HUMANITY’s GREATEST THREAT ie catastrophic climate change which is currently affecting billions, including economic denting $BN’s off GDP globally, and which will only increase to the point of unliveabilty of this planet – if the STATUS QUO remains. Show leadership – Show a just transition to Renewables now.
So putting innocent lives at the mercy of people smugglers and their unseaworthy boats is ok by the human rights brigade. Hanson Young and her shameful “accidents happen” mindset has gripped a wider audience than I ever thought possible
Oh spare me your phony compassion. There are more humane & cheaper ways of dealing with asylum seekers than imprisoning & torturing them on remote islands, turning their boats around or sending them back to the very danger they fled from in the first place.
No John, it isn’t one or the other – gulags punishing legitimate asylum seekers for legitimately arriving on our shores seeking asylum or mass drownings. There don’t have to be drownings. Now that the boats are claimed to be mostly stopped or being turned back the smugglers are bringing refugee claimants in by air in unprecedented numbers. Look at this: https://thenewdaily.com.au/news/national/2018/12/09/record-number-asylum-seekers-peter-dutton/
If we actually had properly established means of evaluating the claims of asylum seekers before they reach Australa and granting entry where appropriate the problem now faced by our bloated, poorly run so-called Home Affairs Department might be a lot less challenging.
The trouble is, there are literally tens of millions of asylum seekers in the world with legitimate claims for asylum.
Australia can’t accept them all – one way or another, some have to be accepted and others rejected.
That’s true. The number in Indonesia trying to get through to Australia, though, has never been beyond thousands. And as you will see if you read the report I linked in my comment, under the present government the number claiming asylum has reached unpredentedly high levels, the difference being that the claimants are now coming by air.
“unpredentedly” – small keyboard, thick fingers usually compensated for by predictive text. Not this time. “unprecedentedly.”
One of the crimes recognised at Nuremberg was “collective punishment” – visited upon group A because of acts by group B to dissuade group C – pour effrayer les autres.
Are you proud to be defending such an obscenity?