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Evidence shows crimes committed by our government on Nauru and Manus

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Refugee children take part in protest on Nauru. (Image courtesy radionz.co.nz/)

Evidence of crimes committed by the Turnbull Government on Manus and Nauru is compelling, say Greg Barns and Anna Talbot from the Australian Lawyers Alliance. 

IT IS beyond doubt, given what has been said and written about Australia’s treatment of asylum seekers on Manus Island and Nauru, that many of these people are being tortured or subjected to cruel, inhuman and degrading treatment. 

The latest leaked UNHCR report about Nauru notes that it

'... appears that PTSD and depression have reached epidemic proportions.' 

And that the UNHCR

'... anticipates that mental illness, distress and suicide will continue to escalate in the immediate and foreseeable future.'

The question is, can the perpetrators of this policy of systemic mental and physical abuse be subjected to Australian criminal law? 

The Commonwealth Criminal Code Act contains a number of offences dealing with deliberate ill-treatment. The catch-in relation to many of these offences is that any investigation, let alone prosecution, must be sanctioned by a politically partisan figure, the attorney-general.

First, a word about jurisdiction. Canberra likes to pretend, when it suits it, that it has no responsibility for the thousands of desperate men, women and children it has detained on Nauru and Manus Island. However, the reality is that Australia has a duty of care to asylum seekers in those detention centres. This duty has been confirmed courts in Australia and Papua New Guinea. It was Australia that put these people there, it is Australia that contracts with service providers like Wilson Security and Broadspectrum (and its successors) to run the centres, and it is Australia that pays the bills. In any event, when it comes to crimes against humanity, the arm of Australian law extends beyond our shores.

So, what are the possible breaches of Australian criminal law that the actions and orders of ministers, departmental officials from Immigration and Border Protection and service provider personnel might amount to?

Firstly, there is section 268.12 of the Criminal Code. See below:

That section makes it an offence, punishable by up to 17 years imprisonment, for a person to intentionally arbitrarily deprive a person of their physical liberty in circumstances where the detention is part of a widespread of systematic attack directed against a civilian population.

Asylum seekers and refugees are a civilian population. They are not engaged in any battle, other than the battle to preserve their own lives and to live a life free from persecution. 

The incumbent Minister for Immigration Peter Dutton, his predecessor Scott Morrison, and arguably the members of the Abbott and Turnbull cabinets as a whole, have intentionally detained any person who tried to, or succeeded in reaching Australia by boat. Individuals are not charged with any offence and there is no date set for their release.

The vast majority have been found to be refugees. It seems the purpose of this detention is to act as a deterrent for others who might seek our help. This is inherently arbitrary.

The second possible crime is that of torture which is set out in the next section – 268.13. See below:

It is an offence, punishable by up to 25 years imprisonment, to intentionally inflict upon any person, as part of a widespread or systemic attack directed against a civilian population, 'severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the' person charged.

It is clear that people detained on Nauru and Manus Island experience severe mental – and often physical – pain. The Nauru Files, released by The Guardian in August this year, presented a clear picture of endemic despair on Nauru. Actual self-harm, including suicide attempts, occur on a regular basis. Threats to self-harm, including killing oneself or ones loved ones, are a weekly occurrence. Children were overrepresented in the reports released. One child cut her own wrist. She was sad because all of her friends were leaving and she did not want to be left in the detention centre without them. Other children have drunk cleaning fluid, refused food and swallowed screws and rocks. Sexual harassment and assault are also commonplace, posing a clear threat to mental and physical wellbeing.

While there has been no equivalent to the Nauru Files for Manus Island, it is clear conditions are just as bad. We regularly learn about asylum seekers being violently bashed by locals. Last week, an asylum seeker had rocks thrown at his head, causing a deep gash which will leave scarring on his face. He is worried about infection now, a man died of septicaemia in 2014 as a result of a simple infection going untreated and being allowed to fester. Two other men were beaten with an iron bar and robbed in August. We only know of that because a human rights lawyer happened to be there on the day.

Ministers, bureaucrats and service providers will argue that they have no intention to knowingly inflict severe physical or mental pain or suffering on this civilian population. While they may not be directly causing the injuries, they are well aware of the harm caused by their operations on these islands. They have been provided with voluminous material from doctors, health professionals and others about the impact that detention on Nauru and Manus Island is having. Yet they continue to do nothing. The very act of detention, in the face of overwhelming evidence of pain and suffering, indicates that torture and ill-treatment is being committed.

Only last week, the UNHCR said that that service providers and government officials simply dismiss the issues of abuse raised as unsubstantiated. When they visited Nauru, they were not surprised that 88 per cent of asylum seekers and refugees were assessed as suffering from depression, anxiety or post-traumatic stress disorders. These are among the highest rates of any population in the world, but predictable given the conditions in which these people live.

There is simply no doubt that there is mounting evidence of a number of historic and continuing prima facie cases of offences against the Commonwealth Criminal Code by ministers of the Australian Government, departmental officials who administer Manus and Nauru and the service providers who run them. The question is: Why isn’t the Australian Federal Police doing something about it?

Because, one surmises, under section 268.121 of the Criminal Code the attorney-general has to provide his or her consent to proceedings brought against person for allegedly breaching the severe deprivation of liberty or torture provisions. Interestingly, the AFP could arrest, charge bail or remand in custody anyone who they alleged has committed either of these offences before the attorney-general gives consent. But which AFP commissioner would have the courage to do that?

The requirement of consent of the attorney-general is farcical and shows that politicians and bureaucrats are highly unlikely to ever see a court room, no matter how compelling the evidence against them in relation to Manus and Nauru. While, in theory, the attorney-general should be above politics when it comes to exercising consent discretion, it has unfortunately been decades since this nation has had an AG with that quality.

But the bottom line is this: there is serious and compelling evidence that the crime of torture and forcible deprivation of liberty has been, and is, being committed by our government and its service providers. It is shameful that the roadblocks to providing the potential victims with justice are so entrenched.

You can follow Greg Barns on Twitter @BarnsGreg, Anna Talbot @annactalbot, and Australian Lawyers Alliance @AustLawAlliance.

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