Why gag doctors in detention centress? What are we hiding?

Here is a link to a good article in the British Medical Journal, written by David Berger.

On 20 May 2015, the Australian Parliament passed the Border Force Act.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. The Act does not come into force until 1 July 2015, so until then no-one is bound by its restrictions.

Section 42 of the Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers. The service providers include IHMS as well as the companies which then operated the detention centres.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

In any event, an employee of Transfield or Wilson Security or IHMS is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

This represents a drastic gagging of Australians and others who work in the refugee detention system.  Presumably the government is aware that bad things are happening in Australia’s detention system, and it is keen to suppress any information about what goes on.  This is consistent with a long-standing ban on juournalists entering detention centres.  It is consistent with Nauru imposing an $8,000 application fee if a journalist wants to apply for a visa to go to Nauru: the fee is not refundable even if the visa is refused.

In short, Australia is doing everything it can to conceal its iniquitous mistreatment of asylum seekers.

What is happening in detention centres, both in Australia and offshore, is profoundly damaging to the health of people held there.  It takes about 12 months’s detention to drive people to hopelessness and despair. That is when they start suffereing serious mental problems.  It is when they start harming themselves.  And it is important to remember that boat people have NOT COMMITTED ANY OFFENCE by coming to Australia as they have.  They are NOT ILLEGAL.  They are NOT CRIMINALS.

It is no great surprise to learn that if you lock up an innocent person indefinitely, they will eventually break.  That is Australia’s dark secret: we are deliberately destroying people by detaining them indefinitely in shocking conditions.  And the government is anxious to ensure that information about what we are doing does not get out, because they know most Australians would be appalled if they knew the truth.

Every Federal MP who voted for the Border Force Act, and every Federal MP who supports the continued hard line on boat people deserves the contempt of the nation.

But there is still hope, despite the miserable quality of our Federal MPs.

The restriction on disclosure found in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a worker in a detention facility genuinely believed, on reasonable grounds, that facts he or she learned while employed by a service provider represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.  If the Immigration Department did not share that view and prosecuted the person, the prosecution would provide a useful showcase in which all the details of all the inquities in our detention system would be exposed.  Bring it on!

People smuggling: our Government is committing crimes

A lot has been said about whether our government paid people smugglers to return asylum seekers to Indonesia.  The evidence clearly suggests that it did.

Tony Abbott refused to deny that Australia had paid people smugglers, and said we would do whatever it takes to stop the boats.  Here he is on the Neil Mitchell programme on 3AW on 12 June 2015:

“Mitchell: These allegations that Australia paid people smugglers to turn back the boats – did it happen or not?
Abbott: Well, Neil, we don’t comment on operational matters but we are determined to ensure that illegal boats don’t get to Australia and we will do whatever is reasonably necessary to protect our country from people smuggling and from the effect of this evil and damaging trade that cost lives.
Mitchell: But surely we wouldn’t pay people smugglers, they’re criminals?
Abbott: Well, what we do is we stop the boats by hook or by crook, …”

“Mitchell: I don’t know about the relationship with Indonesia. They’re saying today they’re shocked by the allegations we paid people smugglers. Are we at least investigating whether it happened?
Abbott: Neil, I want to say to you and your listeners that I am proud of the work that our border protection agencies have done. I really am proud of the work that they’ve done and they’ve been incredibly creative in coming up with a whole range of strategies to break this evil trade …
Mitchell: Will we investigate whether it happened?
Abbott: As I said by hook or by crook we are going to stop the trade, we have stopped the trade, and we will do what we have to do to ensure that it stays stopped.
Mitchell: Will the Australian government investigate whether it happened?
Abbott: The short answer is the Australian government will do whatever we need to do to keep this evil trade stopped.
Mitchell: Including paying people smugglers?
Abbott: We will do whatever we need to do to keep this trade stopped because that’s what the public expects. …”

“Mitchell: Prime minister, will the Australian government investigate whether it happened?
Abbott: Um, Neil, what we are doing is saving life at sea. We are defending our national sovereignty, we are protecting our country from the evil trade of people smuggling and by hook or by crook we will do what is necessary to keep our country safe and to keep this evil trade stopped. …”

The Commonwealth Criminal Code makes people smuggling a criminal offence.  Here is an extract from the Criminal Code:

Subdivision A—People smuggling offences
73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Summarizing it, the elements are that you facilitate the entry of a person into a country where they are not a citizen and they do not go through ordinary entry procedures.

Paying people smugglers to take asylum seekers back to Indonesia appears to satisfy each element.

But even if money was not paid, we have been piling asylum seekers into orange lifeboats to return them to Indonesia.  That satisfies the definition of people smuggling even more clearly.  And the government makes no secret about it.

The question all Australians should ask is this: should a government engage in criminal acts in order to give effect to a policy, regardless whethe the policy is good or bad, popular or unpopular?

Proper respect for the rule of law demands that a government should not engage in criminal conduct.

Cash for People Smugglers

A lot has been said and written about the recent story that Australian officials paid people smugglers to return their passengers to Indonesia.

If the story is true, and Abbott’s repeated refusal to deny it suggests strongly that it is true, then it is clearly a criminal offence.  Section 73 of the Criminal Code deals with the offence of people smuggling.

Section 73.1 provides:

“73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Fitting that to the probable facts: an Australian official pays smugglers to take refugees back to Indonesia; the official thereby facilitates the entry of the refugee into Indonesia; the entry does not comply with Indonesia’s rules for entry; the refugee is not a citizen or permanent resident of Indonesia.

On the same analysis, providing refugees with lifeboats and pushing them back to Indonesia is people smuggling, and simply pushing their boat back to Indonesia might also be people smuggling.

Our government speaks of people smuggling as if it only applies when Australia is the intended destination.  That is simply not so.

Tony Abbott, Scottt Morrison and Peter Dutton have described people smugglers in powerfully unflattering terms (“scum of the earth” etc) but they were describing themseves.

Interestingly, only the Attorney-General can bring a prosecution for the offence of people smuggling (section 73.5), so don’t hold your breath.

Gillian Triggs, John Basikbasik, and politicians who play God

The President of the Australian Human Rights Commission, Gillian Triggs, was attacked again in the Senate for her report in June 2014 concerning John Baskibasik.  For more on the political attack on Gillian Triggs, see this article in the Guardian Australia.

Basikbasik had been convicted of the manslaughter of his wife, and was sentenced to 7 years prison.  He served his term of imprisonment. But he is refugee and was in Australia on a protection visa. The Minister of Immigration cancelled his visa because of his conviction. Once his prison term was up, he was put in immigration detention, because he is a non-citizen who does not have a visa. He has been in immigration detention for 8 years on top of the prison sentence of 7 years.

He can’t be returned to his country of origin, because he is a refugee and would face persecution there.

The Commission’s report included the following observations:

44. Anyone with Mr Basikbasik’s personal history and custodial background would be likely to require support to re-integrate into the community. There is no information before me to indicate that the Commonwealth considered whether any risk which Mr Basikbasik posed to the community could be mitigated by a management plan to assist with his rehabilitation or by a requirement to reside at a specified location, with curfews, travel restrictions or regular reporting. It does not appear that it was necessary to detain Mr Basikbasik in an immigration detention centre.
45. Given the material before me, I find that Mr Basikbasik’s ongoing detention in an immigration detention centre is arbitrary within the meaning of article 9(1) of the ICCPR.

The Commission reported that holding him in detention for 8 years after he had served his term of imprisonment involved a breach of his human rights. The report noted that the Minister had not considered a less restrictive mode of detention and recommended that he receive $350,000 in damages. Under section 35 of the Australian Human Rights Commission Act, the Commission has power to make such recommendations, although it cannot order compensation.

Abbott said the commission’s ruling that Basikbasik “be released” was “pretty bizarre” and demonstrated “extremely questionable judgment”. The social security minister, Scott Morrison, said the decision was “absolute nonsense”. The immigration minister, Peter Dutton, said suggestions that “wife killers should be released back into the community with a cheque from the taxpayer are so far removed from the public view, it is just offensive”.

It is a pattern we have become accustomed to: Ministers of the Crown making foolish, misinformed comments about their political targets.

Mr Abbott’s comment was simply wrong: the Commission did not recommend that Baskibasik be released. Mr Dutton’s comment was misinformed and either foolish or dangerous. It depends on the unstated assumption that a person convicted of a serious offence should be held in detention for life, regardless of the sentence imposed by the Court. It depends on the assumption that a person’s right to be released when their prison term has been served should be capable of being trumped by the unsupervised decision of the Immigration Minister.

Most people would agree that Basikbasik’s offence was a very serious one. Most people would also agree that, once a person has served the term of imprisonment imposed by a Court, they should be released. Most people would find it uncomfortable to think that a person’s effective sentence could be converted to life imprisonment by the simple act of a Minister cancelling that person’s visa.