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2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)

January 22nd, 2015 · 2 Comments

I have already covered the 2014 exploits of the Minister for Making Refugees Disappear vis-a-vis, especially, the poor Tamils. As I write, dreadful scenes are playing out in one of the regional Australian centres for the infliction of misery where we imprison people without the slightest involvement of the judiciary who have done not the slightest legal wrong in conditions of the utmost secrecy justified by a ‘war’ which is not a real war.  Wonder where we got that model from!

There are advantages in having private contractors at the beck and call of the Minister for Making Refugees Disappear do the dirty on the poor bastards fleeing terror and horror in an extra-territorial malaria-infested island in a desperately poor nation where violent thugs who don’t like gay or sub-continental or middle eastern refugees much abound.  For example, the Solicitor-General advised the government that Gillian Triggs, Chair of the government’s own Human Rights Commission, and Emeritus Professor at the University of Sydney, cannot investigate complaints about the trashing by Australians of the human rights of poor bastards going mad in sub-standard jails staffed by private security guards instead of public servants.  There was no rush that I heard about to plug this alarming alleged loophole in her governing statute.

2014 saw MP Andrew Wilkie ask the International Criminal Court to investigate Tony Abbott and Scott Morrison and in fact the whole cabinet for crimes against international law in their treatment of refugees.  I have no idea what the outcome of that was.

Reza Berati was killed — murdered in all likelihood — on Manus Island.   There were candle-lit vigils.  The place was staffed, in part, by kids who were on the island 3 days after answering an ad at uni without an interview, without sending a CV, without any training, and thinking they were in for a pleasant tropical holiday camp experience.

A former secretary of the Law Institute of Victoria, and before that a partner at a commercial Melbourne law firm, Rob Cornall, wrote the report into Mr Berati’s bludgeoning.  Mr Cornall was secretary of the Attorney-General’s department in the Howard Government (in which capacity he publicly asserted that there was no substance to allegations that Mamdou Habib was tortured, an increasingly unlikely proposition given the revelations referred to in an earlier post of the US Senate Intelligence Committee).  He also previously reported on allegations of rape being tolerated in the Manus Island prison, finding that there was nothing in them, and hosed down an SBS report in a manner which did not find favour with the whistleblower behind it, Rod St. George (see this interesting article by Marni Cordell).  Mr St. George could hardly be accused of being an anarchist pinko lefto: he was just a career prison officer who took a job in the tropics.  (So too Scott Kilburn, another whistleblower who used to be in the armed forces.  Absolutely ordinary middle-class Australians speaking out in outrage at the cruelty of the offshore prisons and the application of the government’s refugees policy there.)

Mr Cornall reported without any adverse comment an eye witness account, which obviously remains to be tested in court should anyone ever be charged with the gentle giant’s brutal death. Mr Cornall reported the person who identified himself as an eye-witness as saying:

‘when he [that is, Mr Barati] was trying to come upstairs, he [that is, a Salvation Army employee] hit him twice with a very long stick, and at the door of the room, when he was trying to come upstairs he further fell down. When he fell down, more than 10 officer [sic.] passed him and all of them, they kicked him in his head.  I know these officers by their face.  If you have the face of those officers who work that night, I can recognise all of them, it was including PNG locals, PNG guards and Australian expats.  … the last one, one of the PNG locals [name redacted], the man [name redacted], he put a very big stone at his head.’

This report of this ex-bureaucrat favoured by the government to write investigative reports became the most accepted account so far of what happened. But Mr Cornall  was at pains to point out that he was anxious not to interfere with the PNG police’s investigation and so did not purport to make findings about what happened, explaining that he was just passing on what the person who identified himself as an eye-witness told him for what it was worth.

Mr Berati’s skull was actually cracked right open.  Doctors tried frantically to intubate him so that he could breathe despite the blood pooling in his throat.  The doctor could not see what he or she was doing because of the amount of blood.  The doctor slit Mr Berati’s throat and put the tube in through there.  But, as was inevitable, Mr Berati died.  I would not be surprised if that poor doctor, terrified by the rioting, sweltering in the relentless heat, far away from medical civilization, stricken with remorse, nauseous from the suffering unfolding in the still-warm body his or her hands were inside is now suffering a post-traumatic stress disorder.

Another refugee’s throat was slit in the rioting which was being suppressed at the time of the poor man’s bludgeoning. Somehow he survived a 10 to 12 cm horizontal incision.  Another lost an eye.  Another was shot.  Many were bashed.  Others bought immunity by providing cigarettes to the attackers, a detail of the utmost pathos. And it is inconceivable that a great deal of psychiatric injury was not sustained by everyone, including the poor prison guards.

The Minister for Making Refugees Disappear observed that if the refugees had not rioted, then the possible murder would not have occurred. The Prime Minister said, soon after, ‘You don’t want a wimp running border protection.’  Lawyers might say that if the government had not erected a jail on a remote island off the PNG mainland, substantially failed to process the refugees’ application for recognition, and told the refugees that they were staying in PNG even if the government agreed that they were refugees in an effort to dragoon them into volunteering to go home (a lie workers were reportedly forced to tell on threat of being removed from the island according to yet another whistleblower), and staffed it with security guards, there probably would not have been a riot. After all, when was the last time you heard about an inmate being hacked, kicked, and then bludgeoned to death by professional prison guards employed in an Australian prison located in Australia?  In fact there was an option of resettlement in a fourth country (i.e. not the country from which refuge was being sought, not Australia, and not PNG) but workers were told to tell even those seeking refuge from persecution on the basis of their homosexuality that they would be resettled in PNG, where sodomy is a crime and homosexuality reviled.

Perhaps the most extraordinary aspect of the whole thing is the allegation reported by Julian Burnside QC in delivering the address on the occasion of winning the 2014 Sydney Peace Prize of extraordinary irregularities in the investigation of Mr Berati’s homicide, allegations which were angrily denied by the Minister for Making Refugees Disappear and which I heard no more about. Whatever the truth of those allegations, there is an interesting detail in Mr Cornall’s report.  The eye-witness he quoted had initially said he would give a statement to the PNG police if his lawyer could be present, but the Department for Making Refugees Disappear refused for some time to pay for the lawyer to come to New Guinea (see the report to the government, at fn 79).  One might think the airfare to be a relatively small expense in order to get eye witness testimony while it was fresh, and that this reticence is suggestive of limits to the urgency of the government’s anxiety to get to the truth.  Compare, for example, the $82,000 the government paid Mr Cornall for the report, and the $94,000 they paid him for the earlier sexual abuse review.

In his address, Mr Burnside also quoted from a sworn witness statement of a person who identified himself as an eye witness:

‘J … is a local who worked for the Salvation Army. … He was holding a large wooden stick. It was about a metre and a half long … it had two nails in the wood. The nails were sticking out …  When Reza came up the stairs, J … was at the top of the stairs waiting for him. J … said ‘fuck you motherfucker’ J … then swung back behind his shoulder with the stick and took a big swing at Raisa, hitting him on top of the head.  J … screamed again at Reza and hit him again on the head. Reza then fell on the floor … I could see a lot of blood coming out of his head, on his forehead, running down his face. His blood is still there on the ground. He was still alive at this stage. About 10 or 15 guards from G4S came up the stairs. Two of them were Australians. The rest were PNG locals. I know who they are. I can identify them by their face. They started kicking Reza in his head and stomach with their boots. Reza was on the ground trying to defend himself. He put his arms up to cover his head but they were still kicking. There was one local … I recognized him … he picked up a big rock … he lifted the rock above his head and threw it down hard on top of Reza’s head. At this time, Reza passed away. One of the locals came and hit him in his leg very hard … but Reza did not feel it. This is how I know he was dead. After that, as the guards came past him, they kicked his dead body on the ground …”

Julian Burnside is a wonderfully unexpected spanner in the government’s work to push the suffering of poor people fleeing their homes out of view, but we almost take him for granted these days.  There were two other particularly wonderful spanners in the works who deserve mention.

First, a PNG judge, Justice David Cannings, just wonderfully initiated an investigation of possible human rights abuses of his own motion into the Manus Island jail, a possibly unique jurisdiction of PNG judges. His Honour is the ‘track manager’ for the Human Rights track of the Supreme Court.  The PNG executive  sought to enjoin him in a PNG court from proceeding, alleging that he was biased.  Twice. The PNG court’s decision remains reserved, after all this time.

Secondly, Mark Isaacs published a truly beautiful book about his experiences in the jail for refugees on Nauru when he answered an ad from the Salvation Army and went to work there. As a sop to left-wing enclaves of Australia like Melbourne, the Gillard Government brilliantly installed the Salvation Army into the jail (See?  Nothing like Guantanamo!  How bad can it be with the Salvos on the job?), tossing them $75 million to keep them quiescent.

His job was to liaise with the prisoners and he and his colleagues had in all likelihood a unique opportunity to get to know them.   I recommend The Undesirables unreservedly.  It is a pleasure rather than a duty to read, if it is appropriate to talk of taking pleasure in accounts of men being broken until their dignity is historical.

Isaacs decided to tell the truth in a case in Nauru in which Julian Burnside QC and Jay Williams from Sydney were prominent, and in which Wilson Security staff proposed to give evidence that the refugees were walled in only for their own safety (preposterous propaganda, again) and were free as far as the jailers were concerned to leave, but could not because of the terms of their Nauruan visas.  Isaacs’s courage to blow the whistle grew from there.

It is a measured and calm yet angry book by a young man who, by his own account, knew little about refugees in Australia not long before he went to Nauru and so was a blank slate.  It is imaginatively written, quite likely exquisitely edited, and provides human stories about individuals (including many a Tamil) whose names were unforgiveably (and incredibly for a government which must have been anxious to avoid analogies with Gitmo) substituted with numbers.  Reading it, I realised, that even I, impervious as I try to be to government propaganda, had been affected by the brutalising depiction of the refugees by the government’s spin doctors.  When Isaacs described a refugee he worked with as one of the most beautiful people he had ever met, there was a moment’s incredulity in my mind, provided by propaganda’s triumph.

And this account by a Tamil of what life was like for every Tamil in Sri Lanka in the years after the war helped me to understand why Tamils (or Hazaras, for like reasons) would flee even if no specific persecution was being directed at them:

‘It is very dangerous there.  In Sri Lanka, the Sinhalese are the majority.  They do not speak Tamil and we do not speak Sinhalese.  If you go to hospital or police, they do not speak Tamil.  If you have a complaint with a Sinhalese man, they listen to the man they can understand.  Imagine going to the shop and people don’t understand you.  They take the business.  Stop the Tamils from making money.  If you do not have money, you cannot have power.  In every region the police count the Tamils.  If you leave, they know . When you come back, they know. It is very dangerous to return there.  If I do I will go to jail.  Maybe I will be shop in jail.’

 Isaacs continued:

‘I was starting to understand that prejudice and oppression didn’t necessarily mean fear of death or physical violence.  It was a constant feeling of worthlessness.  Being a lesser person.  With no way of being able to change it except to escape and look for a place where you will be considered equal to all men.’

Not so long ago, 300,000 Tamils were interred in camps against their will.  One Bishop claims that nearly 150,000 Tamils are unaccounted for since the start of the civil war.  It is easy to see why being a Tamil after they lost the civil war would not be good.  800,000 Sri Lankan Tamils have left since the start of the civil war and they can’t all be economic migrants.

The Tamils are very unlikely ‘economic migrants’ as the Minister for Making Refugees Disappear claimed.  Much more likely, if in fact any particular asylum seeker does not meet the legal definition of being persecuted for a refugee convention reason, is that they are genuinely miserable people seeking freedom from oppression.  But most fundamentally, I think, even if you take the position that since there are 2.2 million Tamils left in Sri Lanka, it is simply not feasible to allow them all into Australia, the very least that we can do is acknowledge the dreadful situation they presently find themselves in and make that decision without the slightest sanctimoniousness, fully acknowledging that we would make the same trip if placed in the same position and with due apologies that we find ourselves unable to assist at this moment.  Of course that would be difficult because the government would then have to give credence to the proposition that the Tamils had been ill-treated, which runs counter to government propaganda, and we suck up to the government so that it can stop the Tamils from getting here in the first place.  These kinds of ugliness compound upon each other.

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Tags: Human rights and international law · Uncategorized