Australia and refugees: new Govt law leaves direct action as only option

Refugees on Manus Island

Last weekend the AMA (Australian Medical Association) threw down a gauntlet when it agreed at its annual conference to defy the new Border Force Act, which threatens imprisonment to doctors and other professionals – indeed, anyone – who reports on abuse – health or otherwise – of asylum-seekers or refugees held in detention by Australian authorities. An article by eminent barrister Julian Burnside QC, castigating the Australian Government’s policy on the detention of refugees, was published today. The Australian press – often accused of being slow off the mark to criticise government policies – are now openly challenging the Border Force Act. But there can be no real change unless citizens act decisively on this matter – see two suggestions for direct action in section 5 (below).

LATEST: Report by Save the Children employee on sexual assault on children held at Nauru detention centre: http://www.scribd.com/doc/267738214/Viktoria-Vibhakar (32 cases cited).

1. Moral responsibility

Under the heading of  “secrecy and disclosure provisions” the new law – which was given assent on 20 May and comes into effect in July – basically says that releasing information about the conditions of refugees and asylum-seekers is only permitted by the secretary of the department responsible for detention centres and threatens imprisonment for anyone leaking or reporting abuse.

Reporting abuse is, of course, a moral and ethical duty – not just for professionals, such as doctors, teachers, social and aid workers, but for anyone. It’s interesting that the Australian Government has made such reporting mandatory when it comes to child abuse in Australia, but has excised this duty when it comes to refugees or asylum-seekers.

On May 28, possibly timed to coincide with the AMA conference, the BMJ (British Medical Journal) published an article, “Refugees: time for moral leadership from the Western democracie “, a damning indictment of the Abbott Government’s policy on refugees.

At the AMA conference a motion was passed requesting the Government review the law as a matter of urgency. It also called for the law to exempt medical practitioners who disclose, in the public interest, failures in healthcare delivery in immigration detention centres, from prosecution. Dr Richard Kidd said the legislation presented a threat to whistleblower doctors working in detention centres.

2. Challenging the law

Needless to say, this ridiculous law should be wiped off the statute book. Lawyer George Newhouse commented: “There is no justification for this iron curtain which has been placed around immigration detention other than that the Commonwealth doesn’t want Australians and the rest of the world to know about the abominations that are taking place under their watch. This is all about the minister wanting to cover up the government’s mistakes, which go as far as murder and sexual abuse, including child sexual abuse, [under its watch].”

Unless this law is repealed, as a result of the wave of criticism over the last couple of days, it will need to be challenged in the courts, alongside challenges in the international courts regarding Australian policy on the detention of refugees. The latter in particular will take time and even if one or more legal bodies find against the Australian Government there is no guarantee that Government will concede its errors.

3. The detention centres

The two offshore detention centres for asylum-seekers and refugees trying to enter Australia are on Manus Island (Papua New Guinea) and Nauru. Just under 1000 persons are detained on Manus Island and a similar number on Nauru. Transfield Services manage both the Manus Island and Nauru detention centres as part of a $2bn contract (renewed only a weeks or so ago). Three weeks ago executives from Transfield faced a grilling from an Australian Senate Inquiry regarding conditions, including sexual assault of detainees, at both detention centres.

The conditions in these detention centres are atrocious – hence the new law prohibiting the reporting of such conditions: it’s all about cover-up, avoiding embarrassment, etc. Indeed, in April it was revealed that the Australian Government had known for almost 18 months about the physical and sexual abuse of women and children at Nauru detention centre, but had done nothing about these abuses (so contradicting the Government’s argument that the best way to report wrongdoings is via official channels).

4. Australia and international law

In March of this year Australia was accused of systematically violating the international Convention Against Torture by detaining children in immigration detention, and holding asylum seekers in dangerous and violent conditions on Manus Island, a United Nations report found. Also, it should be noted that the Australian Government does not respect the international standard on protecting refugees of “non-refoulement”, which is a UN principle prohibiting expulsion to a country where they could face violence or prison.

The Australian Government has obligations under various international treaties to ensure that the human rights of refugees and asylum-seekers are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). These rights include the right not to be arbitrarily detained. Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.

In an article by Dr Michael Gliksman in Australian Medicine (journal of the Australian Medical Association) he states: “The Australian Government is obliged, as a signatory to the UN Convention Relating to the Status of Refugees, to provide the same standard of health care to detainees as is available to the general population. There can be little doubt Australia is in breach of that Convention.”

5. Direct action

1. In many ways the new law unworkable. Leaked information can be published anywhere, not just by Australian publications. The Australian Government can not stop the truth getting out and that Mr Abbott is hoping it can is more a reflection of his vanity (and stupidity). As for those who are in a position to report on these conditions, or on the abuse of those detained, they have the opportunity to do so anonymously, if they so choose, via several  facilities. Wikileaks has one such submissions facility; other secure facilities are available with selected news publishers, including Guardian Australia via its SecureDrop. (Note the advice given on those sites on how to use these facilities and the precautions that should be taken). Here is a complete list of sites that host such a facility. Also, there are several sites that offer more general security advice for sources (encryption, messaging, use of phones , use of Tor, etc) – here’s one.

2. Currently the Australian navy takes responsibility for interdicting boats carrying refugees heading for the Australian coastline. The navy interdicts these boats both outside and within Australian waters. An earlier law that excised the Australian coastline means that even if a boat carrying refugees reaches Australia the navy will detain those refugees and transport them to the offshore detention centres. However, the Australian navy has no legal standing on the open seas: in international waters, Australian law does not apply. But there is nothing to stop any citizen or group of citizens or private or aid organisation from taking action and rescuing refugees at sea in international waters. An obvious example, here, is that of the magnificent work of Medicins Sans Frontieres (MSF) in collaboration with Migrant Ofshore Aid Station (MOAS) in the Mediterranean. Australians could organise a similar rescue operation. If the Australian navy tried to stop such an operation, it would be in contravention of international law. The problem, of course, is where to take the rescued refugees. A role for the UN…?

See also:
Australian Government threatens doctors with prison if report abuse of refugees
‘Peoples’ refugees’ rescue flotillas (Mediterranean-style) the LEGAL option for Australia
Iranian beaten by Manus Island detention guards
Report on Manus Island detention centre by G4S whistleblower
Amnesty International on the Manus Island detention centre
Rohingya refugees: Mediterranean rescuers prepared to assist once resources expanded
Amnesty International barred from Nauru detention centre