By Dr George Venturini*
Grande finale (continued)
Gone was the memory of a great Australian, Dr. Herbert Vere Evatt, QC, who had co-written with Mrs. Eleanor Roosevelt “Art. 14 (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution” of the Universal Declaration of Human Rights (1948), then as well as now forgotten along with all treaties and conventions on human rights signed by Australia thereafter. Dr. Evatt was the President of the General Assembly of the United Nations when it adopted the Declaration.
Others would not be so forgetful, though. There are at present four complaints before the International Criminal Court against Australian ministers on the ground of crimes against humanity.
The first submission is by Ms. Tracie Aylmer. It is dated 16 May 2014 and calls for the arrest and prosecution of Tony Abbott, Scott Morrison as Minister for Immigration and Border Protection, as well as the Assistant Minister for Immigration and Border Protection Michaela Cash, the Minister for Foreign Affairs Julie Bishop for the international crimes against humanity which have been perpetrated whilst vulnerable people were held in detention.
In January 2015 Ms. Aylmer was informed by the I.C.C. that the case she submitted was under consideration and that if, subsequently, a decision is made to prosecute, investigations based on evidence already received will commence. (Morrison and Abbott named in International Criminal Court …’).
On 22 October 2014 Andrew Wilkie, the Independent Member of Parliament from Tasmania, assisted by lawyer Greg Barns, wrote to the I.C.C. Prosecutor, inviting her to initiate a proprio motu investigation of the activity of Prime Minister Abbott and all the nineteen members of his Cabinet, including Scott Morrison as Minister for Immigration and Border Protection, as well as the Assistant Minister for Immigration and Border Protection Michaela Cash, the Minister for Foreign Affairs Julie Bishop, the Former Chief of the Defence Force General David Hurley, and the Commander of Operation Sovereign Borders Lieutenant General Angus Campbell. General Campbell had presided over the ‘militarisation’ of customs services.
Mr. Wilkie’s letter called on the I.C.C. prosecutor to activate Art. 17(2) of the Rome Statute establishing the I.C.C. in relation to all onshore and offshore processing. The submission alleged that the Australian Government committed atrocities in breach of Art. 7 (Crimes against humanity) of the Statute – those crimes having been committed against asylum seekers. (Asylum seekers: Andrew Wilkie takes Australia to international criminal court’).
On 26 March 2015 the Lawyers weekly carried the news that prominent barrister Julian Burnside QC had approached international lawyers to support his appeal for the I.C.C. to investigate Prime Minister Tony Abbott and Minister for Social Services Scott Morrison, formerly the Minister for Immigration and Border Protection, as responsible for mistreatment of asylum seekers arriving by boat and as guilty of crimes against humanity.
Mr. Burnside said that he was preparing a communiqué to the I.C.C. and was hoping that lawyers with international reputations might be prepared to lead the charge. He had in mind Geoffrey Robertson QC and his chambers colleague Ms. Amal Clooney.
The Human Rights Commission’s Forgotten Children Report and the subsequent Moss Review, which highlight human rights abuses on Manus Island and Nauru, would form part of the evidentiary substrata of Mr. Burnside’s communiqué, but he would not pretend to do the I.C.C.’s investigation himself.
While naming Abbott and Morrison as the “two most recent candidates”, Mr. Burnside said that “this sort of conduct has been going on since 2001, arguably before.”
“Scott Morrison is probably the worst of the worst, [but] he’s not the only one and I would not wish this to be seen as a partisan attack on the Coalition” he pointed out.
Mr. Burnside said that Australian politicians could possibly be found guilty under Australian law, since one of the conditions of joining the I.C.C. was to absorb the provisions of the Statute of Rome into domestic legislation.
However, prosecution under the relevant sections of the Commonwealth Criminal Code would require the consent of the Attorney-General. “I don’t think that George Brandis is going to go out of his way to give this a push along. Where the activity you are concerned about is a matter of government policy the prospect of a local prosecution falls to zero.” he said. (‘Burnside calls for Clooney’s help to make pollies face ICC).
On 8 July 2015 the Refugee Action Collective of Victoria filed a communiqué for the Office of the I.C.C. Prosecutor. It contains a notice of intention to request the I.C.C. to investigate and act against Tony Abbott, Prime Minister of Australia, Scott Morrison, former Minister of Immigration and Border Protection, Peter Dutton, Minister of Immigration and Border Protection, and George Brandis, Attorney-General.
This submission, by far the more detailed of the four, exposes “policies and treatment of asylum seekers who attempt to find protection in Australia, and [pursued by] the Abbott Government, [as being] in clear violation of international law as codified in covenants to which Australia is a voluntary signatory. In particular, under the 1951 U.N. Convention and Protocol Relating to the Status of Refugees, Australia is obligated to offer protection to asylum seekers and refugees who arrive in Australia, regardless of means of arrival.” The complainants invoke the application of Art. 7 of the I.C.C. Statute.
The submission also makes reference to Art. 14 of the 1948 Universal Declaration of Human Rights, as proclaiming: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” It points out how “The Australian government also ignores the standards of human rights as set in the Rome Statute, the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child.
The submission, clearly articulated along eleven points, and well documented, charges and, with a view to aiding the investigation and possible prosecution, relies heavily on the concept of judicial notice. Judicial Notice is defined by the Australian Law Reform Commission Report 102, February 2006, Section 144, as: “common knowledge [which] covers facts, both local and general knowledge, which are so widely recognized that requiring proof of them would be a superfluous exercise”. And further “while matters of common knowledge falling within s. 144 need not be proved formally, parties to a proceeding are not precluded from leading formal evidence of such matters.”
The complainants add for good measure that they “are aware that the [I.C.C.] has the choice of either a narrow or broad interpretation of the concept of judicial notice, and they urge the court to apply the latter, given that much of what is alleged is common knowledge in Australia and is much resented by both humane and expert opinions.”
Refugee Action Collective charges that the Abbott Government has repeatedly brushed off a number of extremely damning reports – both domestic and international – which emphasise the brutality of the offshore detention system. These include: the 2015 ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment’, submitted to the U.N.’s Human Rights Council by Juan E. Méndez, the 2015 ‘Review into recent allegations relating to the conditions and circumstances at the Regional Processing Centre in Nauru’ (otherwise known as the ‘Moss Report’), commissioned by former Minister for Immigration and Border Protection, and the 2014 report ‘Forgotten Children: National Inquiry into Children in Immigration Detention 2010’ by Professor Gillian Triggs, President of the Australian Human Rights Commission. Such reports have amply condemned the Australian Government for its cruel and unlawful detention of children, women and men who have committed no crime.
Tightly written and cogently argued, the submission is signed by Peter Farago, a distinguished retired academic. (‘RAC submission to the International Criminal Court’).
On 7 September 2015, the second anniversary of the Abbott Government, the Opposition did not miss the opportunity to mark the occasion, highlighting in ninety seconds the achievements of the Abbott Government, with Jason Clare, the member for Blaxland, delivering a savage gift in Parliament:
“It is a big day today. Today the Abbott Government turns two, and hasn’t it been a terrific two years?
The deficit is up. Debt is up. Unemployment is up. Taxes are up. The number of flags at press conferences is up.
They have cut $ 50 billion from hospitals. They have cut $ 30 billion from schools. Last year they tried to cut the pension. They also tried to introduce a tax to go to the doctor. This year they are still trying to jack up the cost of university degrees.
They declared war on wind farms and the ABC. And they have even doubled the cost of their second-rate version of the NBN.
But that is not the best of it: the Attorney General George Brandis told us that ‘people have a right to be bigots’. The Treasurer Joe Hockey told us that ‘poor people don’t drive cars’. The Minister for Agriculture Barnaby Joyce threatened to kill Johnny Depp’s dogs – poor old Pistol and Boo. Prince Philip got a knighthood. The Speaker got a helicopter. And the Prime Minister ate an onion – or two – apparently.
What a cracking government we have got here.
You know that taste you get when you bite into an onion? That taste is the taste that has been in the back of the mouths of the people of Australia for the last two years, having to put up with this hopeless, hapless, divided, backward-looking government.” (House of Representatives (Hansard), No. 13, 2015, 7 September 2015, Statements by members, Mr. Clare (Blaxland) (13:29), pp. 2199-2000.
Tomorrow: Testing the thesis
* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.
Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.