Who guards the guards in Abbott's Australia?

On 25 February 2015 the Abbott Government presented a bill to the House of Representatives titled Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015.

This bill seeks to amend the Migration Act 1958 to allow a private company under contract and its immigration detention centre management team to use reasonable force against any person or thing an authorised employee reasonably believes is necessary to protect the life, health or safety of any person or to maintain the good order, peace or security of an immigration detention facility.

The Abbott Government has given itself a ‘get out of gaol free’ card if any such use of force results in serious injury to or death of an asylum seeker being held in detention:

197BF  Bar on proceedings relating to immigration detention facilities

             (1)  No proceedings may be instituted or continued in any court against the Commonwealth in relation to an exercise of power under

                   section 197BA if the power was exercised in good faith.

             (2)  This section has effect despite anything else in this Act or any other law.

             (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (4)  In this section:

                   Commonwealth includes:

                     (a)  an officer of the Commonwealth; and

                     (b)  any other person acting on behalf of the Commonwealth.

The Explanatory Memorandum authorised by the Minister for Immigration and Border Protection, Peter Dutton, appears to extend this immunity from prosecution to include an authorised employee of the private company.

His explanationto Parliament on 25 February 2015 concerning the need for this bill included this statement:

In the absence of legislation, officers and staff of the detention services provider rely on common-law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm. The extent of this authority is, however, limited. Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for parliament to decide, not the common law.

On the other hand the Parliamentary Joint Committee on Human Rights considers that this bill engages and limits a number of rights, including the right to life; the prohibition against torture, cruel, inhuman or degrading treatment; the right to humane treatment in detention; and the right to freedom of assembly and worries that in relation to meeting human rights obligations under international law there may be inadequate oversight and control of private detention facilities by the Australian government.

The Australian Human Rights Commission submitted 9 recommendations to the Committee, including recommendations that: a) the Committee seek clarification from the Government as to whether it intends to authorise employees of contracted detention service providers to use lethal force and, if so, what controls and limits will be put in place to ensure that the right to life is adequately protected; b) private contractors use excessive force, both the contractors and the Commonwealth should be legally accountable; and c) new provisions be added after s 197BA(5) dealing with the limitations on the use of force in relation to children.

Further concerns were articulated in The Guardian on 16 April 2015:

The president of the Australian Human Rights Commission, Gillian Triggs, said the bar on proceedings would make it “virtually impossible” to bring forward an action, because of the difficulty of demonstrating bad faith in legal proceedings.

“Senior courts have ... explained the very high threshold that you must prove to demonstrate bad faith. It’s very hard to show a subjective intent of bad faith of a serving officer acting in the course of their employment,” Triggs said.

She said the language in the bill surrounding the scope of the powers “need to be significantly tightened up.”

Triggs added that if the powers were to be included into the Migration Act then the limits to the exercise of the power should also be clearly spelt out.

Gabrielle Appleby, associate professor at UNSW, said “the individuals authorised under this bill are not department officers, they are contractors”.

Appleby raised concerns about the training requirements for guards, which are not expressly set out in the bill and will instead be left up to the minister. The explanatory memorandum suggests the standards will be a certificate II in security operations, which are a base level training requirement for security operations.

“The determination by the minister is not a disallowable instrument. This means it’s not subject to parliamentary scrutiny,” she said.

While the Asylum Seeker Resource Centreissued a media release on 2 April 2015 which stated in part:

“These proposed laws will give officers in detention centres more power to use force than are granted to prison officers,” CEO Kon Karapanagiotidis said today. “They also introduce a subjective test where officers themselves get to decide if violence is warranted. When they do use excessive force, they will effectively be immune from legal action except in the rarest of circumstances. This virtually gives them the green light to use force without fear of repercussions. “There is no reasonable basis for granting broad, sweeping powers to authorised officers to use force indiscriminately. These laws are unnecessary and they are dangerous. “It is another example of the Government’s ongoing push for unchecked power when it comes to their treatment of asylum seekers.”

                                                                                                                                

There is legitimate cause for concern with regard to this bill, as excessive use of force is already an issue in detention centres.

The Age24 February 2015:

...a Fairfax Media investigation that revealed three reported attacks on detainees housed at the centre in December and January alone, and internal concerns among the workforce about a growing culture of brutality.

Confidential documents from within private security firm Serco, which runs the centre on behalf of the Australian government, detail incidents including a middle-aged Chinese woman allegedly being kicked in the stomach by a guard and a Sri Lankan man being punched in the face.

The Commonwealth Ombudsman has launched an inquiry into a third case in which several officers allegedly harmed a detainee who was handcuffed behind his back and held down on his stomach for 45 minutes. The Turkish national said he struggled to breathe and was denied repeated requests for water.

Fairfax Media this month revealed Serco sacked two of its guards after internal reviews into violent clashes at Maribyrnong.

Serco officers said the spate of attacks reflected a disturbing "prison camp" culture coming from hard-line managers, who were sanctioning the use of brutal force.

On Tuesday, the Australian Immigration Department confirmed new allegations raised against Serco guards were being "taken seriously and escalated through appropriate channels"......

Dozens of complaints have been lodged by inmates at the Maribyrnong centre in recent years, mostly about staff harassment and bullying. But insiders say physical assaults have become regular occurrences since Serco transferred a number of ex-corrections managers out of the prison system into the detention centre late last year.

One said detainees were being "literally bashed" and "viciously assaulted", while another described how senior staff were condoning the use of excessive force on volatile detainees......

The provisions of the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 12 May 2015.

Australian Immigration Minister Peter Dutton: a photo study in lifestyle contrasts

This is 109 Jefferson Lane, Palm Beach, Queensland. It is what is described as an investment property owned by the Australian Minister for Immigration and Border Protection, Peter Craig Dutton.

He reportedly purchased it for $2.32 million. In September 2014 the real estate agent described it as a lifestyle address that is simply unrivalled.

This is where many of the asylum seekers in his care live. None of this accommodation can be described as ‘a lifestyle address’.

All detention centre images were found at Google Images

Abbott Government advertising for new contractors at Nauru & Manus detention centres

In early 2014 the Abbott Government extended the Transfield Services* contract to cover both Nauru and Manus Island centres and this contract was reportedly worth $1.2 billion.

In February 2014 an asylum seeker was murdered in the Manus detention centre.

In May 2014 the Cornall report into the incident leading to his death and serious injury to other asylum seekers was handed to the government.

By November 2014 the Abbott Government was in possession of the Australian Human Rights Commission report on the treatment of children in these centres.

In September 2014 it was reported that inadequate medical attention on Manus Island resulted in the eventual brain death of an asylum seeker in a Brisbane hospital.

In December 2014 it was announced that International Health and Medical Services (IHMS) had received a contract renewal, to provide medical services on Nauru and Manus Island worth around $900 million over five years.

By January 2015 the Australian Department of Immigration and Border Protection had begun advertising these contracts on AusTender:

The Department of Immigration and Border Protection invites interested parties to submit Tenders in accordance with this Request for Tender for the provision of services in Regional Processing Countries. 

Services will be required to be delivered within the Regional Processing Centres on Nauru and Manus, Papua New Guinea, as well as limited services within the local communities of Nauru and Manus to support settlement activities for Refugees.  Potential suppliers will be able to bid for one or both service categories listed below.

The Request for Tender seeks responses in relation to two service categories. 

Service Category 1. Health Services, which includes:
(a) Health screening and assessment processes;
(b) Health promotion and education programmes;
(c) Management of mental health and public health risks;
(d) Medical escort services;
(e) Supply and management of medical equipment and pharmaceuticals;
(f) Environmental health services;
(g) Health advice services;
(h) Outreach health services; and
(i) Telehealth.

Service Category 2. Garrison and Welfare Services, which include:
(a) Programmes and Activities;
(b) Management of property of Transferees;
(c) Communication management;
(d) Management and maintenance of assets;
(e) Cleaning;
(f) Security and Incident Management;
(g) Catering;
(h) Environmental management;
(i) Logistics;
(j) Personnel accommodation;
(k) Transport and Escort;
(l) Complaints Management;
(m) Individual management of Transferees;
(n) Complaints and request management;
(o) Specialist care for vulnerable cohorts (infants, families with children, minors);
(p) Independent observer services; 
(q) Communication Management; and
(r) Business Services.

Further details of the Services are set out in the RFT documentation.

The current contracts for garrison, welfare and health services on Nauru and Manus expire on 31 October 2015.  New arrangements must be in place and fully transitioned by this date.

The euphemistically named regional processing centres are requiring new contractors it seems.

In March 2015 the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment was released and quickly followed by the Moss report on sexual abuse and sexual assault allegations at the Nauru detention centre.

So which company or companies are walking away from any further engagement in the Abbott Government's overseas detention centres?

  

Is it IHMS (or possibly a subcontractor) and Transfield's subcontractor Wilson Security? 

Has corporate greed finally been overridden by a need to protect their brands?

Or are the aforementioned contract details merely being advertised due to competitive tender requirements and the usual suspects will still be in place after October this year. 

* Transfield Services is in the process of rebranding the company as Transfield Holdings has served notice on the company to cease using the trademarked Transfield name and logo.
Industry super fund HESTA appears to be in the process of divesting itself of shares in Transfield Services in response to pressure from a section of its membership.

What the international legal system is hearing about Abbott's Australia

The West Australian 23 March 2015:

One of the nation's senior barristers, Julian Burnside, has started a campaign to convince the International Criminal Court to investigate Prime Minister Tony Abbott and former immigration minister Scott Morrison for crimes against humanity committed on refugees in offshore detention centres.

Mr Burnside, a Melbourne QC, told a Perth audience at the weekend he was trying to recruit high-profile international lawyers, including Amal Clooney, to conduct the investigation.

"If we got Tony Abbott, Scott Morrison and a couple of others in the dock at The Hague, the Nuremberg Defence ("I was only following orders") wouldn't work," Mr Burnside told a sold-out auditorium at the University of WA.

"I'm working on a plan to persuade the ICC to investigate the things that we are concerned about.

"I think the fact that an investigation was happening would have a real, chilling effect on their conduct.

"I'm trying to recruit (leading British barrister) Geoffrey Robertson and Amal Clooney."…..

ANDREW WILKIE Independent MP For Denison, media release 19 March 2015:

UN ADDS WEIGHT TO CASE AGAINST GOVERNMENT AT THE HAGUE

The Independent Member for Denison, Andrew Wilkie, and eminent human rights lawyer Greg Barns will be available to discuss the most recent correspondence with the International Criminal Court in regard to Australia’s non-compliance with the Rome Statute and crimes against humanity against asylum seekers.

In essence Mr Wilkie, in cooperation with Mr Barns, has drawn the Prosecutor’s attention to the damning findings in this month’s United Nations Report of the Special Rapporteur, Juan Méndez, on torture and other cruel, inhuman or degrading treatment or punishment.  He has also highlighted that the Prime Minster and his Cabinet have also repeatedly rejected the findings by the UN Human Rights Committee that the continued detention of refugees subject to adverse security assessments constitutes arbitrary detention.

Extracts of Mr Wilkie’s letter

           

``I wish to draw your attention to the findings contained in the United Nations Report of the Special Rapporteur, Juan Méndez, on torture and other cruel, inhuman or degrading treatment or punishment. The Report was released in Geneva by the Human Rights Council on 6 March 2015.

``In particular I respectfully draw the attention of the Office of the Prosecutor to the conclusions of the Special Rapporteur about the ongoing detention of 203 Sri Lankan asylum seekers and their incommunicado detention. I also note the Special Rapporteur’s conclusions about the impact of legislation drafted and introduced in the Australian Parliament by the members of the Cabinet of Prime Minister Tony Abbott. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and the Migration Amendment (Character and General Visa Cancellation) Bill 2014 are now Australian law.

``The Special Rapporteur concludes that the above legislation violates the rights of a group of persons, namely asylum seekers and migrants, to be free from torture and cruel, inhuman or degrading treatment.

``I would also like to take this opportunity to draw your attention to the Prime Minister’s response to this Report. In a public statement he said that “Australians are sick of being lectured by the United Nations, particularly given that we have stopped the boats and by stopping the boats we have ended the deaths at sea”.

``It is respectfully submitted that the Prime Minister’s comments in relation to the Report indicate a state of mind that is, at the very least, reckless as to whether or not breaches of the Rome Statute are occurring as a consequence of his and the Cabinet’s policies. The issue of intent is of course one for your office.

``The Prime Minster and his Cabinet have also repeatedly rejected the findings by the United Nations Human Rights Committee that the continued detention of refugees subject to adverse security assessments constitutes arbitrary detention.

``For instance recently their government failed to comply with, and missed by almost a year the 180-day deadline to respond, the Committee’s July 2013 ruling regarding more than 30 recognised refugees. These people were subject to indefinite detention without trial and the Committee recommended they be released and compensated.’’

Background

In October last year Mr Wilkie, in cooperation with Mr Barns, requested the Prosecutor at the ICC initiate an investigation in accordance with Article 15(1) of the Rome Statute.

Article 7 of the Rome Statute defines ‘crimes against humanity’ to mean acts such as deportation, imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law, and torture and other similar acts that are committed as part of a widespread or systematic attack directed against any civilian population.  Actions such as forced transfers to other countries, detention without trial, detention of children and conditions of detention clearly constitute breaches of Article 7.

``The actions of the Prime Minister and members of his Government against asylum seekers are criminal,’’ Mr Wilkie said.

Last month, Mr Wilkie provided the Prosecutor with a comprehensive brief on this matter.  The Office of the Prosecutor has replied that it is analysing the situation to decide if there is reasonable basis to proceed with an investigation.

A copy of the letter is attached.Andrew_Wilkie_MP_to_ICC_Prosecutor_19_Mar_2015.pdf

Communiqué for the Office of the Prosecutor regarding Mr Andrew Wilkie MP’s application relating to crimes...

Moss Report contains damming evidence concerning Australia's offshore regional processing centre in Nauru

Australian Prime Minister Tony Abbott’s cold-hearted response on 20 March 2015 to this distressing report:

"Occasionally, I dare say, things happen. Because in any institution you get things that, occasionally, aren't perfect…"

Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre i...

A petulant Australian Prime Minister spits his dummy in public - again

Australians are sick of being lectured to by the United Nations according to the petulant Prime Minister, Tony Abbott.

I rather think that what a great many Australians are sick of is this country being put in a position where it is in breach of international law.

I suspect many would also be critical of the Abbott Government's obvious reluctance to fully explain its actions to the United Nations (UN).

This is the section of the UN report, covering sixty-eight nations, that has the prime minister spitting his dummy in public.

The reader can decide if the following constitutes being "lectured to".

Excerpt from Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 6 March 2015:

Australia (a) JAL 27/03/2014 Case No. AUS 1/2014 State Reply: 26/05/2014 Allegations of indefinite detention of asylum seekers, detention conditions, alleged detention of children, and escalating violence and tension at the Regional Processing Centre.

16. The Special Rapporteur thanks the Government of Australia for its reply, dated 26.05.2014, to the present communication.

17. The Rapporteur welcomes the Government’s initiatives to investigate and review the events of 16- 18 February; however, he regrets that the Government has not to this date submitted, as announced in its initial reply, any substantive reply.

18. The Rapporteur hence finds that the Government, in its reply, does not sufficiently address the concerns, legal obligations, and questions raised in the initial communication, which prompts him to infer that the Government fails to fully and expeditiously cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, as well as to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).

19. In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.

(a) UA 08/07/2014 Case No. AUS 2/2014 State Reply: 10/07/2014 Allegations concerning the situation of two groups of Sri Lankan asylum seekers and migrants (203 in total), including a significant number of Tamils, and their incommunicado detention and imminent deportation to Sri Lanka by the Australian Government, in contravention of Australia’s non-refoulement obligations.

20. The Special Rapporteur thanks the Government of Australia for its reply, dated 10 July 2014, to the present communication.

21. The Rapporteur finds that the Government, in its reply, does not sufficiently address the concerns, legal obligations, and questions raised in the initial communication, which prompts him to infer that the Government fails to fully and expeditiously cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, as well as to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT). The Government in July 2014, stating that these matters were currently before the High Court of Australia. The Special Rapporteur has not received any communication since.

22. It has come to the attention of the Special Rapporteur that, as of the drafting of this report, the extradition of the two groups of Sri Lankan asylum seekers and migrants, has not taken place. The Rapporteur strongly urges the Government of Australia to protect the right of these 203 migrants to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT, and to refrain from deporting these individuals to Sri Lanka where they risk torture, thereby ensuring compliance with article 3 of the CAT.

(b) JUA 17/11/2014 Case No. AUS 4/2014 State Reply: 16/12/2014 Allegations concerning acts of intimidation and ill-treatment of two asylum-seekers, following their statements regarding the violent attacks against asylum-seekers, which allegedly took place between 16 and 18 February 2014 at the Manus Regional Processing Centre, and immigration detention centre located in Manus Island, Papua New Guinea, whose internal security is operated by a company on behalf of the Australian Government.

23. The Special Rapporteur thanks the Government of Australia for its reply, dated 16 December 2014, to the present communication.

24. The Rapporteur takes note of the information provided by the Government that the allegations concerning the ill-treatment of Mr. A and Mr. B are subject to domestic legal proceedings currently before the High Court of Australia. He welcomes the Australian Governments adoption of 9 out of the 13 recommendations in the report “Review into the events of 16-18 February 2014 at the Manus Regional Processing Centre”, that was released on 23 May 2014. In spite of the information supplied by the Government, its reply fails to inform the Rapporteur about the status and progress of the case concerning Mr. A and Mr. B.

25. The Rapporteur finds that the Government, in its reply, does not sufficiently address all of the concerns, legal obligations, and questions raised in the initial communication, which prompts him to infer that the Government fails to fully and expeditiously cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, as well as to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention Against Torture (CAT).

26. In the absence of sufficient information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide any additional information or details of the investigation into Mr. A and Mr. B’s allegations, has violated their right to be free from torture or cruel, inhuman or degrading treatment, as provided by article 1 and 16 of the CAT.

(c) JOL 17/11/2014 Case No. AUS 5/2014 State Reply: 23/12/2014 Allegations concerning the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and the Migration Amendment (Character and General Visa Cancellation) Bill 2014 which are reportedly being scrutinized by the Senate’s Legal and Constitutional Affairs Committee.

27. The Special Rapporteur thanks the Government of Australia for its reply, dated 23 December 2014, to the present communication.

28. The Rapporteur acknowledges the comprehensive account of the Government in response to the concerns, legal obligations and questions raised in the initial communication.

29. He takes note of the information provided by the Government that the Migration Amendment (Character and General Visa Cancellation) Bill 2014 and the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 passed both Houses of Parliament on 26 November 2014 and 15 December 2014, respectively.

30. Notwithstanding, the Rapporteur surmises that both bills put Australia at risk of violating the Convention Against Torture (CAT). The Migration and Maritime Powers Legislation Amendment, which has passed both the house and the Senate of Australia at this point, violates the CAT because it allows for the arbitrary detention and refugee determination at sea, without access to lawyers. The Migration Amendment (Character and General Visa Cancelation Bill violates the CAT because it tightens control on the issuance of visas on the basis of character and risk assessments.

31. The Rapporteur concludes that the Government of Australia, by failing to amend the provisions of the two bills to comply with the State’s obligations under international human rights law, particularly with regard to the rights of migrants, and asylum seekers, including children, has violated the rights of migrants and asylum seekers to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1, 3, and 16 of the CAT.

An open letter to Prime Minister Abbott and his coterie of knuckle-dragging fascists

This letter was reportedly sent to The Australian which appears to have declined to publish.

The Conversation January 2015:

We, the undersigned, are concerned about recent public criticism of one of Australia’s most respected independent public office-holders, Australian Human Rights Commission (AHRC) President Gillian Triggs. Below we comment on the relentless attacks, including from Prime Minister Tony Abbott, of her recommendation in the Basikbasik matter. In our view, they are based on a misunderstanding of the role of the commission.

Independent public office-holders are an important part of modern democratic societies. Their task is to ensure accountability for abuses of power by government. Their capacity to perform this role depends on their independence and ability to act impartially.

Independence and impartiality are undermined when a political leader publicly attacks holders of public office and when the media presents inaccurate accounts of the work of public institutions.

The Australian Human Rights Commission Act provides in Section 11(1)(f) that the commission has a function to:

… inquire into any act or practice that may be inconsistent with or contrary to any human right.

In the Basikbasik case, which has been at the heart of the recent criticism, the AHRC did not recommend that Mr Basikbasik be released into the community forthwith. Rather, the commission found that Mr Basikbasik had been held in detention for a total of 13 years – a six-year period of imprisonment following a criminal conviction, then a further seven years in immigration detention.

The commission found that the government had not established that continued detention after completion of sentence was necessary. It was therefore arbitrary and in breach of the human rights standards Australia has voluntarily accepted. The commission recommended that a less punitive form of community detention be found for Mr Basikbasik and that he be compensated for his lengthy arbitrary detention, in line with widely accepted national and international standards and precedents.

President Triggs has made clear that she respects the government’s right to reject her findings, including her recommendations. The government should likewise respect the commission’s role in investigating complaints and reporting its findings to the minister according to law.

If the government disagrees with the commission, providing a reasoned explanation of why it considers the commission’s reasoning or conclusions to be wrong as a matter of law would be the most constructive way of contributing to the discussion of the important and sensitive issues involved in this case.

In our view, the President of the Australian Human Rights Commission has carried out her duties under the Act with independence, impartiality and professionalism.

Signed by:

Professor Don Anton, Professor of International Law, Griffith Law School, Griffith University

Associate Professor Afshin Akhtarkhavari, Griffith Law School, Griffith University

Kevin Boreham, Lecturer, ANU College of Law, Australian National University

Professor Andrew Byrnes, Australian Human Rights Centre, Faculty of Law, UNSW

Professor Hilary Charlesworth, Centre for International Governance and Justice, College of Asia and the Pacific, Australian National University

Professor Holly Cullen, Faculty of Law, the University of Western Australia

Dr Alice de Jonge, Senior Lecturer, Department of Business Law & Taxation, Monash University

Professor Andrea Durbach, Director, Australian Human Rights Centre, Faculty of Law, UNSW

Emeritus Professor Judith Gardam, Law School, University of Adelaide

Professor Fleur Johns, Faculty of Law, UNSW

Professor Sarah Joseph, Castan Centre for Human Rights Law, Monash University

Professor David Kinley, Chair in Human Rights Law, Sydney Law School, University of Sydney

Professor Penelope Mathew, Griffith Law School, Griffith University

Professor Jane McAdam, Scientia Professor and Director, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Law

Associate Professor Adam McBeth, Faculty of Law, Monash University

Associate Professor Justine Nolan, Australian Human Rights Centre, UNSW Law

Professor Anne Orford, Michael D Kirby Professor of International Law, Law School, University of Melbourne

Professor Dianne Otto, Francince V. McNiff Chair in Human Rights Law, Director, Institute for International Law and the Humanities, Melbourne Law School

Professor Joellen Riley, Faculty of Law, University of Sydney

Professor Ben Saul, Professor of International Law, Faculty of Law, University of Sydney

Professor Tim Stephens, Professor of International Law, Faculty of Law, University of Sydney

Professor John Tobin, Melbourne Law School, University of Melbourne

Associate Professor Margaret Young, Melbourne Law School, University of Melbourne

Associate Professor Matthew Zagor, ANU College of Law, Australian National University

The strange maths of the Abbott Government is beginning to be noticed

Letter to the editor in The Sydney Morning Herald 29 December 2014:

According to the Herald, there were 62,000 illegal overstayers in Australia in 2014. In 2012-2013, overstayers included 44,800 visitors and 10,720 students, with the largest numbers from China, Malaysia, the USA and Great Britain.

According to the Refugee Council the total number of "boat people" in 2001-2013 was 38,593, of whom 18,119 arrived in 2012-2013. So much for being "swamped by boat people" from Afghanistan, Iraq, etc.

Imre Bokor Armidale 

Something to think about as the fortunate among us tuck into festive season dinners and open presents

The Guardian 11 December 2014:

For all the slogans and military operations, over 54,000 people have boarded boats across the Indian Ocean this year, with around 20,000 in just the two months of October and November. As much as Morrison may gloat, the boats haven’t really stopped.

The point you won’t see on any media release or hear at a doorstop press conference is this: even if people haven’t drowned on the way to Australia, they’ve still drowned. Because people fleeing countries in the region are still getting on boats……

According to the UNHCR report on Irregular Maritime Movements in South-East Asia, over 50,000 people set sail just from the Bay of Bengal area in January-November 2014. The smugglers operating in the region move people who are trafficked as well as those paying for passage outside of legal migration channels. The latter includes people such as ethnic Rohingya who do not have any nationality (and therefore no official travel documentation) and have a long history of persecution and discrimination by the Burmese government.

The UNHCR estimates that around 21,000 people have departed from the Bangladesh-Burmese maritime border in the two months of October and November 2014. About 10% were women, and around one-third of arrivals interviewed by UNHCR in Thailand and Malaysia were minors. The numbers for October 2014 are a marked increase (37%) from the year before. 

And not all the deaths at sea are merely from drowning, according to the report:

“One in every three interviewees said at least one other passenger on their boat died en route; one in every 10 said 10 or more people died on board. Deaths were attributed to severe beatings by the crew, lack of food and water, illness, and heat.”

Globally, around 350,000 people have risked it all by taking a boat this year. On 10-11 December 2014, UNHCR is hosting a meeting looking specifically at protection at sea. The non-governmental organisations taking part have recommended, among other things, that to implement effective protection and ensure safety at sea, it is vital to “address ‘route causes’ and ‘root causes’ of forced and dangerous migration”. 

UNHCR notes that these reasons for irregular movement include: conflict and war, protracted refugee situations, statelessness, the absence or inadequacy of protection systems, family separation, poverty and economic inequality.

What is notably absent from all the recommendations to “stop the boats” from these experts is deterrence, which in Morrison’s parlance is also known as “taking the sugar off the table”. This was of course the honourable minister’s reasoning last month for reducing the number of refugees Australia would resettle from Indonesia and banning those who registered with UNHCR in Indonesia after 1 July 2014 from ever getting to Australia.

Sweet though that poison may be (and poisonous is certainly how one can characterise the way Australia treats those who come across the sea), no refugee is paying a people smuggler for any sort of benefit other than getting the hell out of the hell they were in. 

                        

At the opening of the UNHCR meeting yesterday, the High Commissioner for Refugees António Guterres said, “You can’t stop a person who is fleeing for their life by deterrence, without escalating the dangers even more”…..

Australian Information Commission finds Department of Immigration and Border Protection unlawfully disclosed personal information of asylum seekers

Office of the Australian Information Commission, media release on Wednesday, 12 November 2014:

Department of Immigration and Border Protection unlawfully disclosed personal information of asylum seekers

The Department of Immigration and Border Protection (DIBP) has been found in breach of the Privacy Act 1988, by failing to adequately protect the personal information of approximately 9,250 asylum seekers. They have also been found to have unlawfully disclosed personal information.

The Office of the Australian Information Commissioner (OAIC) was notified by the Guardian Australia on 19 February that a ‘database’ containing the personal information of 'almost 10,000' asylum seekers was available in a report on DIBP’s website. DIBP removed the report from its website within an hour of being notified. The report was available on DIBP’s website for approximately eight and a half days.

The categories of personal information compromised in the data breach consisted of full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details, and the reasons why the individual was deemed to be ‘unlawful’.

‘This incident was particularly concerning due to the vulnerability of the people involved,’ said Australian Privacy Commissioner, Timothy Pilgrim.

The breach occurred when statistical data was mistakenly embedded in a Word document that was published on DIBP’s website. The report was accessed a number of times, and was republished by an automated archiving service.

Mr Pilgrim said that OAIC’s investigation found that DIBP was aware of the privacy risks of embedding personal information in publications, but that DIBP’s systems and processes failed to adequately address those risks. This meant that DIBP staff did not detect the embedded information when the document was created or before it was published.  

‘This breach may have been avoided if DIBP had implemented processes to de-identify data in situations where the full data set was not needed,’ he said.

This data breach also demonstrates the difficulties of effectively containing a breach where information has been published online, and highlights the importance of taking steps to prevent data breaches from occurring, rather than relying on steps to contain them after they have occurred.

‘I have made a number of recommendations about how DIBP could improve their processes, including requesting that they engage an independent auditor to certify that they have implemented the planned remediation. I have asked DIBP to provide me with a copy of the certification and the report by 13 February 2015’, Mr Pilgrim said.

The OAIC is still receiving privacy complaints from individuals affected by the breach. The OAIC has received over 1600 privacy complaints to date, and these complaints are on-going.

Media contact: Ms Leila Daniels 0407 663 968 media@oaic.gov.au

Background

As this breach occurred prior to 12 March 2014, the Privacy Commissioner’s powers under the Privacy Act 1988 were limited to making recommendations.

The full report can be accessed on the OAIC website: http://www.oaic.gov.au/privacy/applying-privacy-law/commissioner-initiated-investigation-reports/dibp-omi

Abbott Government to dismantle Australia's U.N. refugee convention obligations by enshrining a new 'right' for government to ignore the finding of any court in the land

Australia has been a state party to the United Nations 1951 Convention relating to the Status of Refugees since 1954, to the 1967 Protocol since 1973 and to the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1989.

Yet the Abbott Government is intent on nullifying the effect these conventions and protocol have on Australian domestic law and government policy.

The Age 6 November 2014:

If passed, The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill would effectively enshrine in law the mistreatment of asylum seekers and refugees who flee to our country to escape persecution, torture and death.

The legislation is the perverse creation of a Government prepared to tear up the rule of law for its own political ends. It bestows an unprecedented level of power on the immigration minister to make life and death decisions about individual refugee cases. It creates a regime where the chance of sending people back to a situation of grave danger, or even death, is a real possibility. 

It denies permanent protection to those found to be refugees, simply because of their mode of arrival to this country.  Even babies born on Australian soil to parents who arrived by boat will be denied protection, rendered stateless and detained offshore until being "resettled" in squalor and risk of attack on Nauru. We should rightly ask, if the government is prepared to be so cruel and give itself this much unchecked power over refugees, who's next?....

As well as circumventing Australian law, the bill also seeks to put the government above international maritime law, so it can send people on boats back to the country they're fleeing from, without any court oversight. 

Excerpts from the Explanatory Memorandum to The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill:

provide that the rules of natural justice do not apply to a range of powers in the Maritime Powers Act, including the powers to authorise the exercise of maritime powers, the new Ministerial powers and the exercise of powers to hold and move vessels and persons;

ensure that the exercise of a range of powers cannot be invalidated because a court considers there has been a failure to consider, properly consider, or comply with Australia‘s international obligations, or the international obligations or domestic law of any other country;

Excerpts from The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill: 

197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful  non-citizen.

(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:

the person is born in the migration zone; and

(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

5 (c) the person is not an Australian citizen at the time of birth.

Note 1: For who is a parent of a person, see the definition in subsection 5(1) 7 and section 5CA.

Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens).

Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.

Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

22A Failure to consider international obligations etc. does not  invalidate authorisation

(1) The exercise of a power to give an authorisation under a provision of this Division is not invalid:

(a) because of a failure to consider Australia’s international obligations, or the international obligations or domestic law of any other country; or

(b) because of a defective consideration of Australia’s international obligations, or the international obligations or

domestic law of any other country; or

(c) because the exercise of the power is inconsistent with Australia’s international obligations

Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).

22B Rules of natural justice do not apply to authorisations

(1) The rules of natural justice do not apply to the exercise of a power to give an authorisation under a provision of this Division.

(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.