National Justice Project principal solicitor George Newhouse filed two class actions on 7 December with the High Court of Australia, claiming the federal government’s treatment of asylum seekers and refugees in offshore detention amounts to crimes against humanity and torture.
The two separate lawsuits relate to the around 1,200 detainees still being held in offshore detention. One case is on behalf of those who were sent to Nauru and the other represents those asylum seekers now at the East Lorengau refugee transit centre on Manus Island.
Comprised of human rights lawyers from the National Justice Project, the legal team behind the class actions is being led by Julian Burnside QC. It asserts that the Australian government has breached its duty of care in detaining these people in deplorable conditions on these islands.
The legal team will further argue that in subjecting the detainees to these conditions the government has perpetrated crimes against humanity, as well as torture and inhumane acts, as defined by the International Criminal Court and contained within section 268 of the Criminal Code Act 1995 (Cth).
Torture as deterrence
The launch of the lawsuits came a day after the Morrison government stalled on passing an independents’ bill in federal parliament that would have provided doctors with the authority to have seriously ill people detained in offshore detention transferred to Australia for medical treatment.
Prime minister Scott Morrison accused the opposition of “wanting to weaken Australia’s border protection policies and strong border protection programs”, after the Labor Party threw its support behind the medical transfer legislation.
Since October last year, the courts have ordered the government transfer over 130 people due to their urgent need for treatment, while most of the people being detained on Nauru and Manus have already been given refugee status and found to have a legitimate claim to asylum.
Yet, despite all this, the Coalition government continues to argue that the people left on these islands – some of whom have been there for almost six years – should remain in offshore detention to act as a deterrent to others who might be contemplating coming to Australia by boat.
Twilight of the offshore regime
Under the Coalition’s watch,twelve people have died in offshore detention, including from murder, untreated conditions and suicide. Indeed, a week after the suicide of Fariborz Karami on Nauru last year, home affairs minister Peter Dutton warned the nation against any acts of compassion.
However, as awareness over the inhumanity of the offshore detention regime has been increasing, the Australian public’s opposition to it has also been growing. This was evidenced with the campaign to get the children off Nauru. Today, only a small number are left on the island.
And now if successful, the National Justice Project’s class actions could bring about an end to the ongoing detention of these people on these islands, as well as provide just compensation for those who’ve been harmed by the Australian government’s negligence.
Sydney Criminal Lawyers spoke to human rights lawyer George Newhouse about the Australian government’s acts that constitute crimes against humanity, how these offences will be argued under civil law and what he thinks about the Coalition’s claims of deterrence.
Firstly, you’ve filed two class actions claiming that the Coalition’s treatment of the asylum seekers and refugees on Manus Island and Nauru amounts to crimes against humanity and torture.
Mr Newhouse, what sort of treatment and actions are you claiming amount to inhumane acts and torture?
There are a number of matters that we point to. First of all, the arbitrariness of their imprisonment and the severe deprivation of physical liberty. The fact that they’re being denied proper medical assessment and treatment.
The inadequacy of the security and protection provided to the asylum seekers. We’ve seen riots and deaths as a result.
One of the other issues is the inadequacy of food and water that has been provided to asylum seekers. And their accommodation and the unhygienic environment in which they have to live.
So, what’s your main line of argument based upon? And what is the ultimate outcome you’re seeking?
The ultimate outcome is we’re seeking orders that the government cease treating the asylum seekers in that way. In other words, desist from the conduct that is actually causing the harm.
The best comparison for the basis of the claim is the crime of assault, which is an intentional tort and has a remedy both in criminal and civil law.
Likewise, torture and inhumane conduct is a breach of international law and can also be a crime. But, it’s also the intentional infliction of harm.
We would draw an analogy between the way the law treats assault with the way that the asylum seekers are being treated on Nauru and Manus Island.
In other words, they’re being intentionally harmed by the Australian government for an improper purpose that being the deterrence of other asylum seekers coming to Australia by sea.
Julian Burnside is counsel on these cases. He put forth mid-last year that since 2002 all Australian prime ministers and immigration ministers – with the possible exception of Chris Evans – have committed crimes against humanity, under section 268.12 of the Criminal Code, in relation to their treatment of asylum seekers.
However, you’re not trying to have government ministers prosecuted under the criminal law. Why is that?
I’m sure we would if we could. But, that requires the attorney general to sign off on such criminal proceedings. And this is highly unlikely for political reasons.
Therefore, Julian has turned to the civil law for some form of remedy for the asylum seekers on Manus and Nauru.
So, you’re pursuing this under the nation’s civil laws relating to duty of care. Can you outline what these provide?
The common law recognises that there is a duty on all individuals, organisations and government not to intentionally harm others. That is recognised. And it has been recognised for centuries.
But, because Australian does not have a bill of rights, there are very few legal mechanisms that individuals can use to seek relief.
How do you respond to the government’s argument that people in offshore detention should stay there as they’re deterring others from coming to Australia?
The government is entitled to implement a policy of deterring people from coming to Australia by boat. They are not entitled to harm those individuals once in the care and custody of the Australian government.
You can have this policy, but once you have these people in your care and custody, you can’t harm them. And you can’t knowingly harm them.
The cases have been filed with the High Court, because section 494AA of the Migration Act 1958 prohibits proceedings against the Commonwealth in relation to asylum seekers in other courts. But, the cases are expected to be remitted to the Federal Court. Why is that?
I don’t like to talk about a case that is currently before the High Court. But, what I can say is, it’s the practice of the High Court to remit matters where facts are in contention to the Federal Court.
Bill Shorten has said that a Labour government wouldn’t close down Australia’s offshore detention centres. Mr Newhouse, do you have hope that in the lead up to the election Labor will shift its position on offshore detention to a more favourable one?
No. I don’t. The position of the Labor Party is really clear. There’s a hair’s breadth of difference between the two parties on this issue. And I don’t expect any major policy announcements before the next election.
However, I do believe from the statements that have been made by the leader of the opposition that there is a clear intention on the opposition’s part to treat the asylum seekers more compassionately and with appropriate levels of care.
And lastly, support for the government’s policy of offshore detention is declining amongst the public. But, there are still around 1,200 people being held on these islands. Where do you see this all heading?
Opinion polls show that Australians support a policy of deterring asylum seekers from arriving on our shores via sea. That majority does not extend to treating asylum seekers cruelly or inhumanely.
Australians will not tolerate treating individuals, particularly women and children, inhumanely and cruelly. And that is what is going on in the offshore gulags on Nauru and Manus Island.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.