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Manus Nauru Julian Burnside
Julian Burnside QC, men protesting on Manus Island in 2017.

Local human rights lawyers have launched two class action lawsuits alleging that Australia’s offshore detention regimes demonstrate negligence amounting to crimes against humanity and torture.

Just a day after the government successfully filibustered proposed changes to medical transfers from Nauru, George Newhouse (principal solicitor at the National Justice Project) filed two separate statements of claims at the High Court: one on behalf of all refugees and people seeking asylum detained on Nauru, and a second for a group on Manus Island. 

With Julian Burnside and Shanta Martin acting as counsel, Newhouse argues that the government owes the combined 1,300 people detained offshore a duty of care, as demonstrated by 2013 memorandums of understandings and subsequent administrative arrangements with the Nauran and Papua New Guinean governments. Further, he states, Australia has breached this duty by treating group members in a manner that constitutes one or more crimes against humanity, as defined the International Criminal Court and adopted by Australia under Section 268 of the Criminal Code, specifically:

  • Imprisonment or other severe deprivation of physical liberty (s268.12)
  • torture (s268.13)
  • persecution (s268.20), and
  • other inhumane acts (s268.23).

Newhouse alleges that the government has also breached the definition of torture under s274, which relates to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

But while the statements of claim allege that Australia’s duty of care extends to taking reasonable steps to prevent crimes against humanity, criminal charges could not be filed against the government because, under section 268.121 of the Criminal Code, crimes against humanity cannot be prosecuted except with the written approval of the Attorney-General.

Instead, both actions will be issued under Australia’s civil laws relating to duty of care, and will seek injunctions against a continuation of Australia’s tort of negligence. This will, in effect, seek the transfer of refugees and people seeking asylum from Nauru and Papua New Guinea to safety, and request damages for people who have been injured by the alleged negligence.

“Essentially the crimes against humanity and the allegation of torture both fall within the intentional infliction of harm, which is a category of negligence law that is well understood,” Newhouse told Crikey. “So if you intentionally harm someone, that is a recognised tort or a recognised category of negligence.”

“We’re talking about people’s confinement and their conditions of confinement, their accommodation, the fact that they have been placed in unsafe locations without appropriate medical care, inadequate food and water, poor sanitation, [and] unhygienic conditions.”

The memorandums of understanding contain an even greater list of allegations relating to both group members and other detainees’ experiences over the past five or more years, the full extent to which cannot be fully condensed here. Allegations in the Nauru action’s “imprisonment” claims can be summarised as, but not limited to, the following:

  • Arbitrary, indefinite detention in tents, barrack-style buildings, or small, hastily constructed dwellings where living conditions led to poor health, “with high rates of diarrhoea, mosquito-related illnesses, vaginal fungal infections and dizziness”
  • Physical, sexual and psychological abuses in Regional Processing Centres and the broader Nauran community as cited in The Guardian’s 2016 Nauru Files and multiple government inquiries
  • Systemic mental distress amongst detainees, as evidenced by people cutting themselves, sewing their lips together, voluntary starvation, asking guards to give them poison, yearning for death, attempting or participating in suicide
  • The denial of proper protection, legal, translation and mental and physical health services, and
  • Harm intentionally and/or knowingly against members “for the purpose of intimidating or coercing a third person, being a person who is considering boarding a boat to seek asylum in Australia”.

Allegations of “torture” relate largely to alleged physical and sexual abuse, physical pain, and mental suffering. “Other inhumane acts” relates to living conditions and withheld medical treatment. “Persecution” relates to the government’s justification for said conduct “as part of a systematic attack directed against a civilian population”.

These actions have been filed in the High Court, because of the recently implemented section 494AA of the Migration Act that strips other courts of their jurisdiction in matters relating to asylum seekers, however it is expected the matter will be remitted to the Federal Court.

The National Justice Project has previously negotiated or secured court orders for a number of individual cases throughout the year, including more than those of a dozen sick children and, in one case, a woman pregnant who needed a termination after being raped on Nauru.

NJP’s most recent legal actions follow separate allegations of crimes against humanity lodged at the International Criminal Court, a compensation case for Manus detainees the government settled last year, and two recent reports on the current mental and physical health of people on Nauru and Manus.

A spokesperson from the Department of Home Affairs told Crikey, “as these cases are before the courts it would be inappropriate to comment further”. 

Peter Fray

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