JURIST Guest Columnists Anna Talbot and Greg Barns discuss the asylum seekers on Manus Island, establishing that there is no doubt under international law that the people being detained there are being tortured, and what legal tactics the government has used to hide its actions…

Amnesty International published a report last week arguing that the treatment of refugees and asylum seekers on Nauru and Manus Island “amounts to torture under international law” [PDF]. The Turnbull government, despite the overwhelming evidence to support that proposition, adamantly denies the reality. There is no escaping, however, the fact that Australia is torturing vulnerable people.

Despite the government’s dismissal of the Amnesty report, the fact is that the legal concept of ‘torture’ is the appropriate term to use when it comes to the mistreatment of asylum seekers and refugees on Manus Island and Nauru.

Under the UN Convention against Torture, to which Australia is a party, torture is defined as the deliberate infliction of severe pain or suffering of a physical or mental nature, for reasons including intimidating or coercing the person or a third party, with the consent or acquiescence of a public official.

This definition is clearly being met in the context of Australia’s offshore processing centres. The Nauru Files, published by the Guardian in August, are the latest in an ever-growing mountain of evidence of the despair asylum seekers and refugees endure in these benighted places. Suicide attempts, self-harm, statements made by children and adults that they do not want to live, they would like to kill themselves, they do not see the point in eating, drinking or living: this is the evidence of the depths of mental and physical suffering that the Australia’s policies inflict on individuals.

Inflicting this despair is clearly deliberate. We are told that it is essential that claims for asylum are processed in these conditions to stop the boats — to stop people drowning at sea. This is the stated policy of the government. The purpose element of the definition of torture is also clearly met: this severe pain or suffering is inflicted to show people who are being persecuted in other countries, who might be thinking about asking Australia for help, that we will not help them. Australia will harm them. To make that point, Australia will warehouse them on remote Pacific Islands.

There are no exceptions to the fundamental prohibition against torture under international law. Not in international armed conflicts, domestic insurgencies or to prevent atrocities. It is definitely not permitted to torture people to discourage others from asking for help.

It might be argued that Australian ministers and officials are not personally inflicting the torture. That does not excuse them. As the list of successful prosecutions of defendants at the International Criminal Court has demonstrated, it is enough that policies and instructions are devised and issued by politicians and their advisers.

Worse still is the fact that, having been caught out breaching international law, the Australian government does not mend its ways. Instead it takes steps to hide its wrongdoing from the world. The Australian Border Force Act passed last year by both the Coalition and the Australian Labor Party (ALP) provides for prison sentences for workers who reveal what they see at work in immigration detention facilities. In the face of a High Court challenge mounted by Doctors for Refugees, the government has exempted some health care professionals from the more draconian elements of this Act. The fact remains though that secrecy appears to be the priority, over respect for fundamental rights.

The Department of Immigration has also stopped reporting self-harm and other evidence of despair to the regulator, Comcare. Comcare, the Commonwealth workplace regulator, has jurisdiction over the detention centres on Nauru and Manus Island.

Documents released to the Australian Lawyers Alliance (ALA) under freedom of information laws show that reports of incidents made to Comcare have reduced dramatically in the last year.

In June this year the ALA released a report outlining the health and safety concerns that exist in immigration detention, both offshore and onshore. This report relied on over 1000 incident reports filed by the Department of Immigration and Border Protection with Comcare between July 2013 and June 2015, which clearly identify the Department as the body with responsibility under the Act on Nauru and Manus Island. There were 209 incidents of self-harm reported by the Department, 49 assaults and three sexual assaults, over the two years under investigation. While the report provided evidence that these types of incidents had been under-reported, it was important that at least some of the incidents were scrutinised by an external agency.

In the year to June 2016, however, the Department’s reporting of incidents dramatically reduced. Only 144 incidents were been reported across the immigration detention network. Of the 33 incidents involving Nauru and Manus Island, none related to self-harm or sexual assault. There were just five assaults reported.

This drop in reporting does not indicate that safety in immigration detention has improved. There is too much evidence to the contrary. The government may be seeking to evade scrutiny by reducing record-keeping. If so, this is simply more evidence that ‘torture’ is occurring; that the government is consenting and acquiescing to severe pain or suffering by not even recognising it as a health or safety issue and reporting it to the regulator as required by law.

Anna Talbot is Legal and Policy Adviser with the Australian Lawyers Alliance. She has previously worked as a solicitor assisting survivors of abuse and torture and as an advocate at the United Nations for Amnesty International.

Greg Barns is an Australian Barrister and is the Australian Lawyers Alliance spokesperson for asylum seekers, criminal justice and human rights.

Suggested citation: Anna Talbot and Greg Barns, Hiding torture beyond borders: Australia and offshore asylum processing , JURIST – Hotline, Nov. 07, 2016, http://jurist.org/hotline/2016/11/Talbot-Barns-Australia-Asylum.php