Manus Island Settlement is Not the End of the Story

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15 June 2017

On Wednesday 14th June 2017 the Australian government settled a class action brought by Slater and Gordon solicitors on behalf of 1905 refugees and asylum seekers detained on Manus Island Papua New Guinea. Of that initial number, 829 men remain held on the island.

The settlement came on the morning of what was anticipated to be a six-month long trial. There were expected to be 200 witnesses, whose pre-trial statements detailed allegations of systemic violence, sexual abuse, and inadequate medical treatment leading to injury and death. A later amendment to the pleadings alleged unlawful detention, of which more below. Security guards at the detention centre had murdered one inmate, an Iranian refugee Reza Barati.

The government agreed to pay $70 million in compensation to the plaintiffs, plus their legal costs, making a total bill for the taxpayer likely in excess of $100 million.

The Human Rights Director of Getup, Matthew Phillips, described the settlement as “hush money.” It is a judgment difficult to disagree with.

By settling the case, the government has avoided months of testimony that would have disclosed in excruciating detail the extent to which successive governments have defied international law and engaged in punitive conduct toward detainees. The policy objective was both to encourage the detainees to leave the Manus Centre for an uncertain future in third countries such as Papua New Guinea and Cambodia, and also to deter others from seeking asylum from Australia.

It needs to be noted that both arms of the policy are in violation of international law, and specifically, Conventions such as the Human rights convention and the Refugee Convention and Protocol that Australia has signed and ratified.

Documents leaked from the Department of Immigration and Border Protection disclosed that the policy of abuse, negligence and cruelty was deliberate and systematic. The objective was to make an example of the detainees, thereby discouraging others from following in their wake.

Graham Thom, Amnesty International’s refugee coordinator, described this policy as “beyond belief.” Again, it is a judgment difficult to disagree with.

The settlement was made without a concession as to liability by the government. The Minister currently responsible for Immigration and Border Protection, Peter Dutton, said that “the government strongly refutes and denies claims made in these proceedings.” To borrow a well-known phrase from the late Mandy Rice-Davies, ‘he would say that, wouldn’t he?’

To the average onlooker, paying out $100 million in compensation and costs looks awfully like an admission of liability, regardless of the wording of the terms of the settlement.

One does not have to rely on the views of the bystander however, or even the execrable Peter Dutton, to make a judgment on the government’s conduct and liability in this matter. Two independent judgments had already been passed on Australia’s sorry record in the field of abuse of persons with legitimate right to have their claims for asylum considered fairly and promptly.

The first of these was the 2016 report of the UN special rapporteur on the rights of migrants, Francois Crepeau. M. Crepeau’s report noted, inter alia, that Australia’s policies of treating boat-borne asylum seekers differently were a clear breach of international law. Some of the country’s migration policies, he wrote, “have increasingly eroded the human rights of migrants, in contravention of international human rights and humanitarian obligations.”

The current use of offshore detention, he said, “was unprincipled and unlawful.” M. Crepeau’s report listed more than 30 specific recommendations, including enacting a Bill of Rights or its equivalent that would have the capacity to override ordinary legislation. Australia is almost unique among developed democratic nations in not having such a protection for its citizens and others who come into contact with the government or its agencies. The government has simply ignored this, like all of M. Crepeau’s recommendations.

The second independent assessment of the Manus Island detention centre was in the unanimous judgment of the Papua New Guinea Supreme Court in April 2016. That court ruled that the detention of asylum seekers on Manus Island was both unlawful and unconstitutional.  It was following this ruling that the ground of unlawful detention was added to the plaintiff’s statement of claim.

The Australian government also largely ignored that judgment. The matter came back before the Supreme Court in March of this year when the Chief Justice of the Court ruled that the centre had been “closed” by the technicality of redefining it as a ‘naval base.’ The court found that the PNG government had complied with the ruling by allowing the men to leave the centre during the day. This piece of legal sophistry did not affect the men actually living there, except insofar as they had the ability to leave the centre during the day. Regardless of the Court’s rulings, the Australian Department of Immigration and Border Control still listed the Centre as being operational.

In a perfect world, the responsible Australian Ministers, including Turnbull and Dutton would be brought before the court for contempt.

Despite the settlement in the latest proceeding, the future of the remaining 829 refugees remains unclear. Even if some of them clear the hurdle of the United States’ ‘extreme vetting’ pursuant to the shabby deal negotiated between Turnbull and Obama, the fate of the balance will have to be determined before the actual real closing of the Manus Centre in October this year. The most likely result will be their transfer to Australia’s other hellhole, Nauru Island that by no definition could be considered either an improvement or a solution.

On the track record of successive governments, it would be unwise to assume that a humanitarian or even legal outcome consistent with our obligations under international law will be achieved.

Notwithstanding this damaging record, of which the latest settlement is further proof of an unconscionable policy, Australia is continuing its campaign for a seat on The UN Human Rights council for the 2018-2020 period. The only word that comes to mind in this context is chutzpah, perfect though it is as a description of this government’s attitude, does not even begin to compensate for the sustained insult to the person’s affected by the policies of successive governments.

The repair to Australia’s battered reputation for its lengthening history of abusing or ignoring international law may take more time than this current government has left.

*Barrister at Law and geopolitical analyst. He may be contacted at joneill@qldbar.asn.au

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