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The legality of off-shore detention

In 2002 Australia, along with more than 80 other nations, acceded to the Rome statute by which the International Criminal Court was created.  The court is the first permanent court ever established with jurisdiction to try war crimes, crimes against humanity and crimes of genocide regardless of the nationality of the perpetrators and regardless of the place where the offences occurred.

As part of the process of implementing the International Criminal Court regime, Australia introduced into its own domestic law a series of offences which mirror the offences over which the International Criminal Court has jurisdiction.  So, for the first time since Federation, the Commonwealth of Australia now recognised genocide as a crime and now recognises various war crimes and crimes against humanity.

Pearl 1a LLLLLLLIt is startling to consider that, until October 2002, genocide was not an offence against Australian law.

The Australian Criminal Code now recognises various acts as constituting crimes against humanity.  Two of them are of particular significance in the context of our treatment of people who come to Australia seeking asylum.  They are as follows:

“268.12   Crime against humanity – imprisonment or other severe deprivation of physical liberty

1.    A person (the perpetrator) commits an offence if:

(a)   the perpetrator imprisons one or more persons or otherwise severely deprives one  or more persons of physical liberty; and

(b)   the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and

(c)   the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 17 years.

2.    Strict liability applies to paragraph (1)(b).

(The Covenant referred to is the International Covenant on Civil and Political Rights, the ICCPR.)

The elements of this offence are relatively simple:

  1. The perpetrator imprisons one or more persons;
  2. That conduct violates Article 9 of the ICCPR;
  3. The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

Australia’s system of mandatory, indefinite detention appears to satisfy each of the elements of that crime.  Australia imprisons asylum seekers: until 2013, we imprisoned them principally in Australian detention centres.  Since then we have taken them, by force and against their will, to Manus Island (part of PNG) or to Nauru (an independent republic in the Pacific, with a population of about 9,500 people, and a land area 2 square kilometres smaller than Tullamarine airport in Melbourne).  The United Nations Working Group on Arbitrary Detention found that our mandatory detention system violates Article 9 of the ICCPR.  The government’s conduct is intentional,  and is part of a systematic attack directed against those who arrive in Australia without papers and seek asylum.  They can readily be regarded as “a civilian population”.

A careful analysis of the criminal code therefore suggests that senior ministers of the Australian government, specifically Mr Dutton and Mr Turnbull are guilty of crimes against humanity by virtue of their imprisonment of asylum seekers.  The prospect of their being prosecuted is remote, because the Federal Attorney-General  (presently Mr Christian Porter) has an effective veto on the laying of charges under these provisions.

But whether they are charged with these offences or not may not matter.  The important point is this:  an increasing number of people are raising their voices against Australia’s system of mandatory indefinite detention of asylum seekers.  They assert that the system is morally wrong.  Unfortunately, the debate generally stalls when the protagonists are unable to agree about moral norms.

Arguably things changed a couple of years ago when the courts of PNG and Nauru declared their detention centres unconstitutional.  PNG and Nauru have constitutional safeguards of human rights, so people sent to those countries by Australia are no longer “detained” in the strict sense.  They are, in principle, free to move around the island to which they were taken.  But that is only part of the story.  They are not welcome in either country: the locals are extremely hostile to them.  They stay in the place they have been taken to for fear of trying to move freely in the population.

In April 2016 Omid Masoumali committed suicide on Nauru.  He and his family had been taken to Nauru after landing in Australia seeking asylum.  They had been assessed in Nauru as refugees, but no one could tell them where (or when) they would be resettled.  Immigration Minister Scott  Morrison had sent a video to the detainees on Nauru, telling them coldly and bluntly that they would never be resettled in Australia.  Omid Masoumali was so horrified by the prospect of living on Nauru for an indefinite number of years among hostile Nauruans that he doused himself in petrol and set himself alight.  He died two days later.

In PNG, asylum seekers who have been assessed as refugees are given very limited rights of movement around the country: they are allowed on Manus Island and in Port Moresby, but hardly anywhere else.  PNG and Nauru have had very little luck finding a safe place for the refugees they are warehousing for Australia.   New Zealand has made several offers to resettle them; Australia has conceded that it is entirely a question for New Zealand and PNG (or Nauru) respectively.

But Minister Dutton publicly warned them of the trade implications of any arrangement they might make.  Even allowing that subtlety is not Mr Dutton’s strong suit, the point could hardly have been made more clearly.

The argument against mandatory detention (here or offshore) takes on a new complexion when it is seen that the system very likely amounts to a crime against humanity.  Those who support mandatory detention on whatever grounds appeal to them may find it harder to justify the fact that our Government is engaged in crimes against humanity judged not only by the standards of the international community but by the standards of our own legislation.

So, there’s the surprising news: our politicians not only betray Australia’s sense of decency, they are criminals as well.

  • Julian Burnside AO QC is an Australian barrister,human rights and refugee advocate.

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