Government’s Manus settlement a loss for transparency and accountability

By David Donaldson

Thursday June 15, 2017

CHRISTMAS ISLAND – AUGUST 3: Suspected asylum seekers arrive at to Flying Fish Cove, Christmas Island, after being intercepted and escorted in by the Australian Navy, on August 3, 2013. (Photo by Scott Fisher/Getty Images)

Reading through the accounts of murder, attempted suicide, sexual assault, child abuse and lack of access to medical treatment at the Manus Island detention centre, it’s little wonder the government chose to settle the class action against it out of court and compensate 1905 asylum seekers and refugees held at the facility.

Immigration Minister Peter Dutton says it’s a “prudent outcome” that avoids “an anticipated six month legal battle that would have cost tens of millions of dollars in legal fees alone, “with an uncertain outcome”. The government has made no admission of liability, and indeed “strongly refutes and denies” the claims made, but you have to wonder why you’d agree to what is reportedly the largest human rights class action settlement in Australian history — $70 million in compensation as well as covering the full $20 million in legal fees — if you could defend yourself successfully.

Yet the government must also be glad it won’t have to face the inevitable publicity of a long trial determining claims of negligence and false imprisonment on the part of the Commonwealth and contractors G4S and Broadspectrum (formerly Transfield) that would have seen refugees, doctors and security guards giving evidence.

“Setting the direction of the ship of state is not a solitary exercise, but requires varied perspectives and deliberation.”

Settling before the case is heard is a lost opportunity for public accountability and the chance to learn from a policy that has damaged and even ended lives.

Transparency and public debate are the grist in the mill of democracy. An open hearing would have provided the opportunity to further examine the manifestly inadequate conditions Australia is subjecting people to. Setting the direction of the ship of state is not a solitary exercise, but requires varied perspectives and deliberation. Testimonies about the conditions endured in the camps are an important and under-represented element informing how we go about treating these people in the Commonwealth’s care.

This openness is also needed to hold governments accountable for the things they do — even if that’s paying a contractor to hold thousands of people in a foreign jurisdiction indefinitely under the guise administrative “processing” of their claims for refugee status. Indeed, the government’s agreement to pay the compensation demonstrates the falsity of the claim detainees are the responsibility of Papua New Guinea, not Australia.

Acting to stop this case before open hearings is not the first casualty of an antipathy to transparency. The government’s invocation of “on water matters” to stamp on just about any effort to access information about the offshore detention system is an extraordinary affront to the notion of democratic accountability. We have little choice but to accept at face value government claims to have stopped the boats, and have no way of knowing whether people are still dying while trying to reach Australian waters — ostensibly one of the key reasons for stopping the boats.

Under the Australian Border Force Act, teachers, social workers, lawyers and others who publicly disclose abuse or negligence in the centres face two years in jail.

Of course, despite such efforts there is already a huge amount publicly known. We know detainee Reza Barati was murdered by guards at the centre. A rock was dropped on his head. We know from leaked incident reports that there have been plenty of cases of sexual assault and self harm. The class action statement of claim, running to over 150 pages, sets out the plaintiffs’ case in great detail.

It’s all there. It’s public already. In 50 years’ time we won’t be able to claim no-one knew. But what gets attention gets done.

And although lead plaintiff Majid Kamasaee said he was glad the voices of those who had suffered “degrading and cruel” treatment were finally being heard, around 800 of the claimants are still there.

Even if ethics are not yet pushing governments to work out a better ways, circumstances mean things have to change. The Manus centre is due to close on October 31, after it was found to be unconstitutional by the Supreme Court of Papua New Guinea. It was already difficult to convince contractors to take on the very risky operation of these centres, and will only be harder now that liability to multi-million dollar payouts has been confirmed.

A thorough airing of the many failings of the system could have helped the process of learning from our mistakes and allowed for a serious reconsideration of what is being done in Australia’s name. Yet again transparency and accountability are the victims of political expediency.

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