Bomana Prisoners

Bomana Prison Vigil
A Lotus Flower and Butterfly, the Australian Refugee Activists vigil on Bomana Prisoners

Analysis of how Australian Border Force had committed the crime of assault on Bomana Prisoners.
NSW Crime Act 1900

Being an ordinary citizen -- i.e. I'm not a lawyer nor judicial officer -- I have sometime wondered how a situation of ordinary person(s) confronting with a Government Department or Corporation may looks like in a court room. Of course, I am talking about person(s) suing a Government/Corporation and vice versa. Interestingly, things may look a lot simpler, if you were to follow the M68/HCA discussions [#1]. In Common Laws, a Government or Corporation would be considered or be treated just like another "person". In M68 judgment:

Para. 363 .... the word "person" engages s 2C(1) of the Acts Interpretation Act 1901 (Cth), which provides that: "In any Act, expressions used to denote persons generally (such as 'person', 'party', 'someone', 'anyone', 'no-one', 'one', 'another' and 'whoever'), include a body politic or corporate as well as an individual."

Again in Para. 44, explained:

"Were it necessary to resolve the meaning of "a person or body", resort could be had to s 2C(1) of the Acts Interpretation Act 1901 (Cth), by which "person" is to be taken to include a body politic. In any event the "body" referred to in s 198AHA(1) is apt to include the Executive government of a country through which arrangements would be made. The arrangements spoken of must include international arrangements which would be effected with the government of a regional processing country."

So, therefore, in a Court of law, we are to consider the ABF (The Government Department) as the "person" which is responsible for the "assault" that have been apprehended by Bomana Prisoner(s).

A more closer definition might be found in NSW Crime Act of 1900 [#3], Section 33 & 54, "grievous bodily harm" with intent. Probably, s33(1)b. "causes grievous bodily harm to a person".

MEANING OF COMMON ASSAULT

For reference of "assault" within Australian Criminal Laws, we can follow the Judicial Commission of NSW URL [#2]. The Laws as well as the practice for sentencing appeared to be 'very strict' and judges appears to have taken 'complex factors' in consideration of cases. Remember, these details are best to leave to competent lawyer(s), but those who taking on case(s) must understand the general directions.

On [50-050], A common assault (s 61) was given as:

=> "Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”.

=> An assault may be established by proof of either physical contact (battery), or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence"

First part; "assault .. not occasioning actual bodily harm" means person(s) being "threatened with harm". That would be liable for two years jail terms.

Second part: "an act which intentionally .. causes .. person to apprehend .. unlawful violence", may be applicable on the scenario of the ABF act of "omission to process asylum applications" had resulted Bomana#53 unlawful violence (detention). Such criminal act will attract a much longer jail terms, of course.

On [50-040] it explains, the other factors that may be taken into account on assault cases. There are (i) Extent and nature of injuries; (ii) Degree of violence (iii) Intention/mental element.

On Bomana#53, the extent and nature of injuries are the physical detention, consequent privations in detention and -- its not a far fetched conclusion -- resultant involuntary refoulement that may threatened person(s) life and liberty.

Friends, keep on researching and gathering evidence on Bomana53# cases, and do browse the updates on aus4iccwitness URLs.

Cheers, NetIPR

NSW Crime Act 1900
[#3] http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s33.html
NSW Judicial Guide
[#2] https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/assault_wounding_offences.html
M68 Case, HCA Judgment.
[#1] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
Bomana Page
http://www.aus4iccwitness.org/node/78

In recent Saturday Paper update on Manus and PNG [#2], the additional 60 'negatives' are being threatened by ABF to sent to Bomana Prison, unless they signed in for self repatriation. Technically, such threat has been made to "withdraw" a valid PNG visa on them, which will cause the PNG-ICA to arrest and detain these person(s). This conduct itself may tantamount to crime, of which the ABF authorities have threatened to injure those "negatives" person(s). This crime by ABF will compound with the other criminal conduct which caused the detention of 53 asylum-seekers, who were being in Bomana Prison.

THE CRIME OF OMISSION

As for the Bomana#53, the ABF as the agents/representatives of Australian Immigration, had refused to make assessment on these person(s)' claim for asylum; And the ABF is insisting that PNG-ICA authorities are to make assessment on all those asylum claims. I found that, on both of these conducts, ABF may have criminal responsibility.

Firstly, the ABF refusing to make assessment on Bomana53# person(s) claim for asylum tantamount to ABF in conducting an act of "omission". This is because, according to Australian Migration Legislation of 1958, Division 8, Subdivision B, Amendment 198AB Sub Section (ii) [#1]:

".. the [regional processing] country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; "

The Australian Immigration and ABF, therefore, had provisions in that legislation of which, they (ABF) themselves can make an assessment. So therefore, when the asylum seeking person(s) are specifically requesting the assessment to be made directly by the Australian Immigration, the ABF refusal to comply such request tantamount to omission; an omission to perform their duty.

Again, with Bomana53#, that omission is made by ABF with a proper intent to cause asylum seeking person(s) to injure (cause detention), this tantamount to criminal assault.

THE CRIME OF DECEPTION

Here we're, being told now and then, or through by the media otherwise, that the PNG-ICA (or Nauruan) authorities can 'lawfully make' assessment on the application for refugee status of UMAs, in accordance with International Refugee Convention. Further more, so it says, those person(s) assessed on PNG there should be "resettle" on PNG. These statements are also found to be the lies and deceptions.

On prima facie considerations, it is doubtful that UMA person(s) being removed to PNG or Nauru by Australian Immigration can go under any "lawful assessment" by PNG/Nauru and be recognized as "proper refugee" in accordance with International Refugee Convention. Such a process could only take place, to my ways of thinking, only by the approval of UNHCR. Although Australia (1954), PNG (1986) and Nauru (2011) are all signatory to the International Refugee Convention, there appears 'no substance' in making the refugee assessment, without proper consent of refugee status claimants, by PNG or Nauruan authorities under their own Government-to-Government MOUs with Australia. It would tantamount to 'rewriting' or 'making substitution' of the International Refugee Convention. Remember, this is a very questionable practice and I have not seen anywhere of legal precedents.

One obvious deceptive claims, often made through by mass media, is that those person(s) being assessed to be refugees must "resettle" in PNG. The Government of Papua New Guniea had signed the Refugee Convention in 1986, but with seven reservations where the refugees on its territory are not allowed to 'work','study' and 'resettle'. I'll be keen to get evidence if the Australian ABF officially given notification to those asylum seeking person(s) assessed by PNG authorities to "resettle" there. That will be another ABF crime of negligence and causing personal injuries to those refugees.

As we all aware, the High Court has already ruled that the "Regional Processing Amendments 198", is for the sole purpose of processing asylum claims. We are seeing the ABF (Executive Branch of Government) has been over stepping that purpose, making omission on discharge of duty it owed to asylum seekers, and exerting pressure on asylum seekers to return without due processes. Whether we call them UMAs or aliens, whether they be in Australia or in the territory of PNG, they are NOT "outlaws". The High Court judges in the case of Chu Kheng Lim (1992) notably said:

"Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision."

On Bomana53#, the ABF conduct with regards to UMAs in PNG is clearly unlawful and without judicial mandate. Remember, for crime such as this, the local law enforcement, such as AFP, may be called upon to act.

Also remember, this Bomana53# crime is just a subset of the super crime, the crime of enslavement.

Friends, we are onto really busy times ahead, keep watching updates on this URL. And pray for those outside Bomana Prison as well.

Cheers, NetIPR.
Australia Migration Act of 1958 (full)
[#1] http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/index.html
Saturday Paper report on PNG/Manus
[#2] https://www.thesaturdaypaper.com.au/news/politics/2019/11/09/risking-life-png-limbo/15732180009058

Friends, we (activists) should certainly look into the HCA judgment of M68/2015[#6], since the Bomana53# situation, in one way or another, will likely end up at the High Court. There are a few casenotes discussing this M68 judgment and they can be instructive for the first run. The M68 case relevantly discusses about the detention of UMA, and the lawfulness of such detention. The Bomana53# parallels with that detention situation. Because, at the time the judges made deliberation on M68 (3/2/2016), there were some political myths that existed in favours of the offshore detention regime. As of today, those political myths no longer exist, especially with the purpose of offshore processing.

PURPOSE OF OFFSHORE PROCESSING

In M68 judgment [#6], their Honours (French CJ, Kiefel J and Nettle J & majority) said that:

"46. ..... The nature and duration of that action, including participation in the exercise of restraint over the liberty of a person, is limited by the scope and purpose of s 198AHA. Section 198AHA is .... for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose. If the regional processing country imposes a detention regime ... the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing. .... If, upon a proper construction of s 198AHA, the section purported to authorise the Commonwealth to support an offshore detention regime which went beyond what was reasonably necessary for that purpose, a question might arise whether the purported authority was beyond the Commonwealth's legislative power with respect to aliens."

With Bomana53#, the authorities -- the PNG-ICA [in form] and Australian Government [in substance] -- have detained these individuals, not for the purpose of processing but to coerce a self repatriation (the Refoulement) [#1]. This is not allowed by s 198AHA ( provided that it is a valid Australian law). The process of which Australian Government withdrawing the PNG visa of those individuals, which imposed upon them without their consent in the first place, consequently causing the PNG-ICA to detain these individuals, has been unlawful and should be considered as an "assault".

Keep in mind that above Para 46[#6] qualification applied, also, to entire offshore processing regime.

IS SECTION 198AHA A VALID LAW ?

There has been a more serious and involving deliberation (Para 375-412 ) made by Gordon J on whether the s 198AHA is a valid law under Australian Constitution. Her Honour's line of thinking was that s 198AHA had been enacted retrospectively, in order to support the Government-to-Government MOUs, which signed by using the Executives' non statutory powers. There are no other valid constitutional heads supporting s 198AHA, excepts the external affairs powers, and that s 198AHA found to have contravene the Constitution:

"410 Unwarrantable interference with an individual's liberty is not authorised and is to be prevented. Here, the interference with an individual's liberty by the Commonwealth was no longer warranted once the person's removal to Nauru was complete. To the extent that the detention by the Commonwealth of the Plaintiff on Nauru was no longer warranted, it may be, at least in Australian law, a tortious act. ....

"411 For those reasons, although the external affairs power in s 51(xxix) can be relied upon to support s 198AHA to implement the MOU, s 198AHA is invalid because it impermissibly restricts or infringes Ch III."

WORTH EFFORTS INVESTIGATING ON M68

As I said before, our activist community and public at large do have the knowledge gaps in relation to laws and Constitution. As for activist community, investigating into these original HCA documents can bring a lot of benefit for us. These documents are far more accurate than any media reports etc .. and they can be used directly when communicating to the government and other international bodies. Further, we will find that the deliberations by Bell and Gageler in this document have been very instructive and educational as well.

In respect to Bomana53# detention, we can certainly say that the Australian government have acted extralegal and extrajudicial manners.

Regards, NetIPR.

Radio NZ/ Refoulment
[#1] https://www.facebook.com/eyesonoffshore/posts/2398742103728721

M68 Case, HCA Judgment.
[#2] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf

M68/2015 Casenotes:
David Hume/M68
https://auspublaw.org/2016/02/plaintiff-m68-2015/
Asher Hirsh/M68
https://asherhirsch.com/2016/02/03/short-summary-plaintiff-m682015-v-min...

One would wonder why the Australian Government has been reluctant to contest the Compo court challenges. To this, we might need to look into the High Court judges' determinations of the offshore issues in a bit more details. Just as an example, look at the case of young African refugee woman on Nauru, who wishing to make a safe and lawful abortion in 2016. We all know about her story and will not be repeated here. The Government's position, recorded in the Judgment [#5]

"Para. 12. The Minister denies the existence of a duty of care to the applicant. He also says ..... contends that if there is a duty of care and an apprehended breach of it, the courts are powerless to grant the applicant injunctive relief..... the Minister contends that the proceeding should be dismissed" (S99 [#5])

On Minister's denial of the existence of duty of care on refugee woman, the Judge Bromberg has made following remarks. As you can see, having been labelled in Australian Migration Laws and public media as "unlawful", "unauthorised", "transitory" person have "no bearing whatsoever" for other laws or the High Court!

"3. The applicant arrived in Australia on 17 October 2013 having travelled by boat from Indonesia to Christmas Island. On arrival .... the applicant was designated an “unlawful non-citizen” and therefore an “unauthorised maritime arrival” ....... Upon her removal from Australia, the applicant became a “transitory person” within the meaning of s 5 of the Act. She was detained in a detention centre in Nauru between 19 October 2013 and 11 November 2014. On being recognised as a refugee she was released from detention and is awaiting resettlement. She has no independent means. She has been and remains dependant on the Minister for food, shelter, security and healthcare."
"4. Despite the nomenclature used by the Act to describe her, the applicant remains entitled to the protection of Australian law. Principally, that is because the Minister is bound by the law and, as my reasons explain, the Minister and the applicant are parties to a relationship recognised and enforced by the law out of which legal rights and obligations flow." (S99 [#5])

There was another case, known as M68/2015 [#6] where the High Court judges had, at length, made determination on the lawfulness of refugee detention on Nauru. This case was about Bangladeshi woman, whom Australian Government brought to Nauru in 2013 as "unlawful non-citizen" for immigration detention. The Government again argued, of course, that Bangladeshi woman has "no standing" before the court; and that the woman has been detained by Nauru and not Commonwealth, etc..etc.. . The judges replied:

"Para. 235. A party who has been detained in custody has standing to question the lawfulness of that detention even .... The interference with the liberty of that person is sufficient to confer standing to seek a declaration of the legal position from a court even though no other legal consequences are said to attend the case. And even though it may be unlikely, as a practical matter, that the arrangements under which the detention was effected will be applied in the future, it is difficult not to be "impressed with the view that really what is at issue is whether what has been done can be repeated."
"236 Accordingly, the plaintiff has standing to the extent necessary for the determination of the matter as to the lawfulness of any restriction on her liberty procured or funded by the Commonwealth."(M68 [#6])

My guess is that the Australian High Court may have already covered issues on offshore processing regime. Generally, we -- refugee activists and the general public -- are not quite aware them, simply because of the knowledge gaps. It may be worthwhile to look into those documents, trying to seek answers, particularly in connection with the case of Bomana53#.

In the case of Bomana53#, the media reports PNG ICA has arrested those men. But how ? Regardless of what media or Home Affairs would say, these men were being transported to PNG by the Australian Government; and the Australian Government have arranged the valid PNG visa for them. Now, are they claiming these men had "no visa"? Was there any legal authority for Home Affairs to withdraw -- or imposed in the first place -- their PNG visa ? Was it been a case of the arbitrary arrest and detention of these men ? Probably S99/M68 judgments might be given us some guidance as to those questions. Cheers, NetIPR.

https://www.facebook.com/groups/1648810632007956/permalink/2386284181593...

S99 Case, Bromberg Judgment.
[#5] http://www.aus4iccwitness.org/legal-resources/20160506_bromberg-judgment...
M68 Case, HCA Judgment.
[#6] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf

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