New Zealand Law Society - Australian actions on Nauru amount to torture, says report

Australian actions on Nauru amount to torture, says report

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Australia must be held accountable under international law for the human rights violations endured by asyslum-seekers and refugees trapped on Nauru, a report by Amnesty International says.

"The Government of Australia's 'processing' of refugees and asylum-seekers on Nauru is a deliberate and systematic regime of neglect and cruelty, and amounts to torture under international law," it says.

The report, Island of Despair: Australia's 'processing of refugees', is based on research which includes interviews with over 100 people in Nauru and Australia.

"The Government of Australia has isolated vulnerable women, men and children on a remote place from which they cannot leave, with the specific intention that these people should suffer harm. As the evidence presented in this report has demonstrated, harm has indeed ensued - it has been devastating and, in some cases, irreparable."

Amnesty International says the combination of refugees' severe mental anguish, the intentionally harmful nature of the system, and the fact that the goal of offshore processing is intended to intimidate or coerce others to achieve a specific outcome, means that Australia's offshore processing regime fits the definition of torture under international law.

It notes that the current Australian Prime Minister, Malcolm Turnbull, has maintained that the government of Australia must ensure that its offshore processing regime is harsh. It notes his comments in May 2014, as Communications Minister, when he said: "We have harsh measures [and] some would say cruel measures ... [but] the fact is if you want to stop the people-smuggling business you have to be very, very tough."

"Torture" definitions

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines "torture" as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

New Zealand's Crimes of Torture Act 1989 defines "torture" in similar terms. Australia amended the torture provisions in its Criminal Code Act 1995 in 2010 and "torture" is defined in a similar manner to the UN Convention. Division 274.3 requires consent in writing from the Attorney General for proceedings for an offence involving torture, where the conduct constituting the alleged offence occurs wholly outside Australia.

Amnesty report recommendations

Among a number of recommendations made in the report is for Australia to repeal section 42 of the Border Force Act 2015 and other legislation which Amnesty says is designed to silence people from disclosing human rights abuses. 

Other recommendations to the Government of Australia include:

  • End the policy of offshore processing and detention and permanently close the Refugee Processing Centres on Nauru and Manus Island.
  • Bring all asylum-seekers and refugees on Nauru and Manus Island to Australia immediately.
  • Ensure that all those who were granted refugee status on Nauru and Manus Island have the right to settle in Australia.
  • Do not block offers made by other countries to resettle refugees from Nauru or Manus Island.
  • Make full reparation to asylum-seekers and refugees for the harm they suffered since first being intercepted by the Australian authorities.
  • Legislate to end the detention of children for immigration purposes onshore and offshore.
  • End the policy of indefinite and mandatory detention of asylum-seekers who arrive in Australian territory without a visa.

The report is also very critical of the Nauru government, noting that Nauruan law does not conform with international human rights law and standards on the right to freedom of expression. It says the Nauruan government has also made it extremely difficult to access its territory.

Amnesty International says in 2014 and 2015 it unsuccessfully requested access to Nauru six times. It says a researcher who travelled to Nauru in July 2016, and who was not asked about their organizational affiliation when they completed entry formalities, was publicly called a "spy" and "secret agent" by Nauru's Minister of Home Affairs Charmaine Scotty.