The Australian Government has contravened numerous international laws, protocols and conventions regarding the hijacking, kidnapping and illegal and indefinite detention of refugees (see Appendix). Recently the Papua New Guinea courts ruled that the detention of refugees on Manus Island on behalf of Australia was illegal and that the detention facility should be closed down. The Australian Government is currently contravening that ruling too by refusing to act on it. Meanwhile in Australia lawyers have begun proceedings against the Australian Government, alleging “Crimes Against Humanity”, again in relation to the detention of refugees on Manus Island. The same contraventions of international protocols and conventions apply to those refugees being detained on behalf of the Australian Government on Nauru. It is important that Australian citizens are aware of the laws by which their Government can be prosecuted (in addition to prosecution via the International Criminal Court). Below is an outline of the two pieces of Australian legislation that provides for such prosecution. There is no reason why other parties – NGOs, for example – should not add their names as parties to such a prosecution or why that prosecution can not be extended to the detention of refugees on Nauru (or a similar but separate case be lodged). Either way, the current impasse must be dealt with.
There are two federal statutes in Australia that refer to proceedings involving crimes against humanity:
- Criminal Code Act 1995 (Cth), available at http://www.comlaw.gov.au/ComLaw/ Legislation/ActCompilation1.nsf/0/5423704BFDAC4386CA2576EA00129CE7/$file/CriminalCode1995_WD02.pdf.
See page 313:
The relevant provisions in this legislation were inserted by the International Criminal Court (Consequential Amendments) Act 2002, available at http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/640800730D340CE5CA256F7100563577/$file/0422002.pdf.
- International Criminal Court Act 2002 (Cth), available at http://www.comlaw. gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/FA56268B62FE5347CA256F7100563077/$file/0412002.pdf.
The Criminal Code Act 1995 provides that Australian courts can have jurisdiction in cases involving crimes against humanity, even if the offenses are also crimes within the jurisdiction of the International Criminal Court (Criminal Code Act 1995 § 268.1; see also International Criminal Court Act 2002, § 3(2).). The relevant offenses are set out in §§ 268.8 to 268.23 of the Code.
- Jurisdiction is available whether or not the offense was committed in Australia (Id. §§ 268.117(1) & 15.4).
- However, the Attorney-General must give permission for charges to be brought under these provisions (Id. §§ 16.1 & 268.121).
- There can be no double jeopardy where a person has already been tried for the same offense in the International Criminal Court (Id. § 268.118).
The International Criminal Court Act 2002 sets out the procedural requirements relating to Australia’s cooperation with, and provision of assistance to, the International Criminal Court.
The Australian Government has obligations regarding several international treaties to ensure human rights are respected and protected. These 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. As a party to the Refugee Convention, Australia also agreed to ensure that asylum seekers who meet the definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.
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.
Under the International Covenant on Civil and Political Rights (ICCPR) articles 6 & 7, Australia also has an obligation not to send someone to a place where their life may be in danger or where they may be subject to cruelty or inhumane treatment. If it is shown that asylum-seekers are subjected to cruelty or inhumane treatment at Nauru or Manus Island then the Australian Government would be in breach of the convention.
In March 2015 the United Nations Special Rapportuer on Torture found that various aspects of Australia’s asylum seeker policies violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The findings from the Special Rapporteur, Juan Mendez, were formally submitted to the UN Human Rights Council. The UN report found that Australia’s indefinite detention of asylum seekers on Manus Island, the harsh conditions, the frequent unrest and violence inside the centre and the failure to protect certain vulnerable individuals all amount to breaches of the Convention.
The report also found that the recent amendments to the Maritime Powers Act, which give the Government unprecedented powers to detain and return asylum seekers intercepted at sea, violates the Convention.
“Under international law, Australia can’t lock people up incommunicado on a boat somewhere in the middle of the ocean. Nor can we return people to a place where they face the risk of being tortured. Yet these are precisely the powers the Government has sought to give itself through recent amendments to its maritime law,” commented Daniel Webb of the Human Rights Law Centre (HRLC).