OFFSHORE DEATHS, DETENTION SLAVERY AND ICC LEGAL CONTEXTS

On this page: The legal analysis of Australia's offshore detention slavery. It also provides a practical step-by-step guide to bring perpetrators to justice ...Updated regularly. ...

I. Rumours of Offshore Slavery
and ICC Legal Contexts
[Broadcast On: 6/3/2021]

To ordinary Australians, the crime of slavery is unimaginable and its actual occurrence has never been heard of. Historically, the practice of slavery had been outlawed on each of Australian Colonies since 1840, long before the Federation has come into being in 1901. Also, there appeared to have never really been a successful prosecution for slavery crime within Australian legal history. Only as recently as in 2008, Australia encountered one "novel" slavery case of Wei Tang, a brothel owner in Melbourne, and the conviction for slavery crime been upheld by the High Court [#9]. In any case, the Australians by and large are aware that slavery meant a serious crime and it attracts severe penalty.

RUMOURS OF OFFSHORE SLAVERY

Because of such severity have been attached to the crime of slavery, I would adopt the word "rumours" so as to appropriately address the situation pertaining to the offshore detention slavery. I'll be using this word "rumours" in the same context as to in recently published ADF Afghan War Crime Report [#1]. As we all came to know, the allegations at ICC about the Australian SAS soldiers killing of non-combatant Afghan civilians had been for quite some times there now. The Australian Defense Force (ADF) took note of those allegations in March 2016, and appointed Judge Advocate Major General Paul Brereton to investigate those matters. Throughout his report, Judge Brereton used the word "rumours" as is on (p.264, [#1]):

1. This Inquiry is not about what some might call breaches of discipline, such as misuse of alcohol, or inappropriate personal relationships. Its subject matter is rumours, suspicions and allegations of what are commonly known as ‘war crimes’, and in particular the killing or mistreatment of noncombatants, or persons hors de combat (‘out of the fight’, and thus entitled to protection from attack), in contravention of the law of armed conflict.

In above paragraph, we can see how a professional judge would carefully categorise raw information on 'war crimes' into "suspicions", "rumours" and "allegations". Only when the rumours of criminal conducts are being substantiated with reliable facts and evidence; and then, put them together before competent authorities, such as ICC, that would become "allegations".

From what I've gathered, Judge Brereton had concluded his investigation in early 2018 and had already tabled with ADF. No doubt, the Defense Minister and Government had been dragging their feet to taking action on that report. The report was finally made public in November 2020, and the ADF stood down its 13 alleged SAS service men to face trials in a civilian court [#2]. My understanding of that process is that, these service men had been stood down, not exactly because of they'd been already found out to be guilty. But in order to establish someone is being guilty of crime, there must have to be an open and independent fair trial, and must prove "beyond any reasonable doubts". The Judge therefore had recommended a civilian trials instead of military tribunals as:

For multiple reasons, the Inquiry recommends that any criminal investigation and prosecution of a war crime should be undertaken by the Australian Federal Police and the Commonwealth Director of Public Prosecutions, with a view to prosecution in the civilian criminal courts, rather than as a service offence or in a service tribunal.

What we -- refugee activists -- can learn from this ICC inspired war crime inquiry are the procedures, the application of ICC Consequential Amendments Act (2002 Cth) and its jurisdictional implications. I would invite all our friends to study Chapter 1.10 of that report which we can make further reference in our discussions [#1].

FAYSAL AHMED AND CASES OF OTHER DETENTION SLAVES

In recent months, we've been alerting to the public on the delays of coronial inquest onto the death of Faysal Ishak Ahmed in 2016. Even if the inquest were to start today, the long delays already had had represent the Commonwealth and Queensland Governments omission to do their duties.

We -- the refugee supporters -- are quite mindful that the government will not initiate a process that might reveal incriminating evidence for itself. Recent release pattern on medevac refugees, detainees hastily granted BVEs and released just before court hearing dates, would be one example [#4]. Another example is the LNP Government's 2017 payouts on Manus Island class action [#5]. In this case, the government appears to fear such civil proceedings may reveal criminal evidences, which may then leads to criminal charges.

It is plausible that the ideation for detention slavery had been developed within LNP rank-and-file and Australian business elites during 2013 election campaign. To my observation, the LNP Government's offshore enslavement process was marked by PM Tony Abbott inducting former Transfield Chief into his offices on October 2013. The process appeared ended in August 2018 with the departure of PM Malcolm Turnbull. During this period, various legislative and regulatory regimes had been applied to restrict the detainee's personal liberty. Denying access to medical care, which is primary cause of offshore deaths and, also one of the indicating evidence for slavery.

II. Australian Slavery Laws
and Jurisdiction
[Broadcast On: 14/3/2021]

Friends, in this instalment of discussion, I first shall introduce the applicable slavery laws of Australia. Then, by closely following Judge Brereton's Afghan War Crime Report [#1], I shall proceed my discussion on the crime against humanity enslavement law jurisdictions. This discussion on detention slavery will most likely to become numerous and fairly lengthy. I have therefore taken efforts to place in an easy to find live-update URL here [#8]. Do keep connecting there.-- NetIPR.

SLAVERY LAWS IN AUSTRALIA

Australia is the signatory to International Convention to Suppress the Slave Trade and Slavery (1926) and Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) [#10, #11]. Australia implemented these Slavery Treaties in the Criminal Code Act 1995 (Cth), Division 270 -- Slavery and slavery-like offences. When it comes to slavery cases, the Australian judges and lawyers will firstly look into these laws, like that in 2008 Slavery case [#9] of Wei Tang the Melbourne Brothel Owner, in order to find out whether any slavery offence had taken place.

The main definitional texts of 1926 Slavery Convention is rather short and concise; the Article 1 states:

(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised."

This definition for slavery has been adapted in the Australian Criminal Code Act 1995(Cth) as [#12]:

270.1 Definition of slavery: For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person."

Australia has also incorporated the 1998 Rome Statutes with International Criminal Court (Consequential Amendments) Act 2002 (Cth) [#13], where Division 268 is the relevant section in Criminal Code Act 1995 (Cth). As for the definition of slavery:

268.10 Crime against humanity--enslavement
(1) A person (the perpetrator ) commits an offence if: (a) the perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons (including the exercise of a power in the course of trafficking in persons, in particular women and children);

We may, in fact, notice that a slight difference in the definition of slavery in Australian Criminal Code Act (1995) Division 270.1 and Article (1) of 1926 Slavery Convention, where "status or condition of a person over whom ..." in the 1926 Convention was replaced by "condition of a person over whom ....". This does reflect that, Australia in all its territories long since 1840, the slavery had already been outlawed. It therefore against the laws in Australia for a person to legally owns another person, and that no "status" as such would be required to be included in 270.1 (See HCA discussion details in [#9]).

In Division 268.10 in crime against humanity, there is a clause ".... ownership over one or more persons". This is indicative of the slavery crimes may be committed against more than one person, or a group of persons. Further qualifications had been given in the crime against humanity enslavement was that '... widespread or systematic attack directed against a civilian population'. The Division 268.10 does therefore address the slavery crimes being committed in a large scale.

We may also have noticed by comparing three legal texts, i.e Article (1) 1926 Slavery Convention and Criminal Code Act 1995 Divisions 270.1 and 268.10, there is one common phrase that appeared which precisely is "... exercises any or all powers attaching to right of ownership over person..". This phrase presents the legal thrust of slavery law, which is not only concise but also appear to address all aspects of slavery. In this phrase, the words "powers" and "ownership" are to be taken as ordinary, i.e. everyday, meanings [See #9].

The laws of slavery, in fact, are trying to address the cases of perpetrator(s) holding human persons in control and exploiting that persons for pecuniary gains. To note here, not all types of control on human persons with exploitation are being considered as slavery. Only the extreme types of control being exerted upon persons, that combined with exploitation may be considered as slavery.

So also, in the legal definition of slavery, we will notice that there were nowhere mentioning of our common understanding about slavery: "persons get controlled with chains" or "living extremely poor in deprived conditions, and being exacted of harsh labor" for they are just "telltale signs of slavery". Not to be discouraged though, as we may just read normally onto this legal texts ".. exercises any or all powers attaching to the right of ownership ...", we would get certain sense for slavery that "Person/perpetrator have been treating the other person(slaves) as if he/she/they(perpetrator) owned". For the moment, this amount of understanding about slavery would be suffice enough that we will be discussing the detention companies and ABF treating and manipulating the offshore asylum-seekers as if they "owned".

BRERETON WAR CRIME REPORT AND DIVISION 268 ICC LAWS JURISDICTIONS

As regards offshore detention on Manus Island and Nauru, the most challenging aspect for supporters and lawyer groups alike, thus fur, had been the 'jurisdictional boundary'. Whilst Broadspectrum/IHMS/ABF are all Australian owned and based, the legal complaints on abuse and mistreatment that taken place in offshore detention camps cannot be raised in Australian courts due to limitation on geographical jurisdictions. At its best, the Australian courts could only establish that the ABF owed duty of care on those offshore asylum-seekers, as has been in the land mark case of S99/2016 [#6]. With the ICC slavery laws, however, Australian Courts, in principle, will have full jurisdiction to act upon any slavery complaints that took place offshore. This information is extracted from recent Afghan War Crime Report and, I follow the discussion closely on Chapter 1.10 of Judge Brereton's Report [#1].

LEGALLY PARALLEL SITUATION FOR MANUS ISLAND-PNG AND NAURU

We all are now aware how the ICC inspired Afghan war crimes inquiry came into being, the release of Brereton report [#1] and its outcomes [#2]. In summary, the rumours of Australian SAS soldiers killing Afghan civilians, i.e. violation of ICC War Crime, within the territory of Afghanistan had been investigated by an Australian judge, and those soldiers are now being tried at the Australian Federal Courts. Normally, we may not expect ordinary crimes -- such as negligence, assault, tort and even murder -- committed by Australian nationals in the other territory (sovereignty) can be readily tried in the Australian courts. Normally, for ordinary crimes that took place in another jurisdiction, such as Afghanistan, the active laws for that place of crime must have to be observed. This principle has been known in law as 'lex loci delicti' (see Para. 158 [#6] S99/2016).

Apparently, ICC War Crimes and the Crime Against Humanity are no ordinary crimes. For 'humanitarian crimes', a truly universal jurisdiction need to be considered and that the Australian national courts can now apply the Australian laws onto those "Extra-territorial jurisdiction", where the alleged crimes have taken place in another sovereignty. In 2002, the Rome Statutes ICC Laws are incorporated in Division 268 of Australian Criminal Code Act 1995 (Cth). The implications for Division 268 ICC Crimes are spelled out in Brereton Report as (Pp. 267, [#1]):

Extra-territorial jurisdiction.
"13. .... offences under Division 268 of the Criminal Code are subject to what the Code calls extended geographical jurisdiction (Category D jurisdiction), which is the most extensive scheme of geographical jurisdiction available under the Code. Section 268.117 provides as follows:

"s 268.117 Geographical jurisdiction
"(1) Section 15.4 (extended geographical jurisdiction—Category D) applies to genocide, crimes
against humanity and war crimes.

"14. Category D jurisdiction is defined as follows:
"s 15.4 Extended geographical jurisdiction—category D
"If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
"(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
"(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia."

The Crime Against Humanity Enslavement (Slavery), the Division 268.10, therefore apply to extended geographical jurisdiction.

LEGAL PRECEDENT OF AFGHAN WAR CRIME TRIALS

In June 2017, when I first raised offshore detention slavery issues with ICC [#7], I obviously was not aware that such extended jurisdiction 'really' applied to the ICC Laws. Nor there were any legal precedents in Australia for applying ICC Laws in such extended jurisdiction. In this respect, the Judge Brereton's Afghan War Crime report and the legal precedent that set forth in Australia are not only the 'game changer' for community activists like us; But also for the professional lawyers and judges, such extended jurisdiction and application of ICC Laws would be "new and novel". As for those of us, the community activists who have had no formal legal training, we can confidently taken in the concept of "ICC Laws with Extra-territorial jurisdiction", because Judge Brereton had already read out those laws within Afghan War Crime Inquiry report [#1].

CURRENT CONCERNS ABOUT MEDEVAC EVACUEES AND THOSE AT OFFSHORE (TO BE CONTINUED .. later)

[Friends, there have been broad range of issues that needed to be discussed as regards detention slavery. The application of slavery laws on offshore detention; The possibility of LNP Government subduing Medevac Evacuees (cover-up crime) are just to mention but the few. As for the State Government of Queensland delaying coronial inquests, I've just heard the "rumours from grape-vines" that, for Faysal Ishak Ahmed, a pre-inquest conference will likely to be in June 2021, with the inquest hearing may be held before December 2021. Anybody who in this FB list have direct contact to NJP lawyers, please inform them (I have had no contact with them). For myself, I have no plan to make any submission to Queensland Coroner's Court. Cheers, NetIPR]

III. Legal Basis for
Offshore Detention Slavery
[Broadcast On: 4/4/2021]

Friends, in previous note, we have seen that the definition of slavery that agreed upon by the 1926 International Slavery Convention, i.e. Art.1(1), "... exercise any or all powers attaching to the rights of ownership over a person ..", has been incorporated into Australian domestic legal order via Division 270 of Criminal Code Act (Cth, 1995). That definition of slavery has been incorporated, once again, with Division 268.10 ICC Consequential Amendment Act (2002), as a measure to prohibit the crime against humanity of enslavement. We've also learned that -- thanks to the Judge Brereton's Afghan War Crime Report [#1] -- this Division 268.10, the crime of slavery will have an extended jurisdictions for the Australian domestic courts. So therefore, when the slavery crimes purportedly committed by Australian entities and personnel are in concerned, we'll be able to raise matters without any geographical restrictions, be that crime taken place either in Manus Island of PNG or in the Republic of Nauru.

In this discussion, we shall find out whether the Commonwealth Government's offshore asylum-processing practices can constitute slavery. In identifying slavery, we would look at the Div. 270 a bit more details and keep our discussions as practically close to this Code as possible.

EXPLOITATION AS MOTIVE

The slavery is ultimately about exploitation of person(s) held under control. It is the type of control over a person, which significantly reduce his/her individual liberty or autonomy; and ultimately, that this control is maintained through coercion or violence. Whilst perpetrator(s) is exerting control tantamount to possession, that enslaved person has been exploited typically for pecuniary gains.

When looking at Australian example of slavery incidents, the 2008 case of Wei Tang would come into mind [#9]. Ms Wei Tang, the brothel owner of Melbourne suburb of Fitzroy, had paid AUD$ 20,000 on each of 5 of her sex workers brought in from Thailand. These women arriving with valid Australian visa of various guises, and they were asked to work for total amount of AUD$ 45,000. Whilst these women could work off their debts in less than a year ostensibly as illegal immigrants, Wei Tang to make her profits. The High Court of Australia upheld the slavery conviction for Wei Tang [#9]. Clearly, her profit motives had led to this exploitation of workers.

The same profit motives drive current offshore asylum-processing regime. For each asylum-seeker processed offshore, the detention companies charged an amount of AUD$ 573,000 per Person per Annum [#7]. Since the asylum-seekers were being held in third world countries of PNG and Nauru, and been housed in the squalid accommodations, these detention companies no doubt have been making obscene profit. Just to understand that amount of our tax payers monies in current Australian socio-economic settings: A commonly unemployed Australian person would be living under AUD$ 18,000 per Annum; And a lower paid scale full-time worker, like myself, can earn AUD$ 50,000 per Annum. For a total of more than 2000 asylum-seekers [#15], the offshore detention companies are therefore making multi-billion dollar profit, which is enough to buy any level of influence from LNP government and Labor opposition alike. The hush money that flowed from the detention companies back into the Commonwealth politicians is just a matter of public speculations, so to speak.

EXPLOITATION EVEN "BLIND" COULD SEE
The campsite on Manus Island of PNG: The Transfield Services P/L was contracted to provide the "garrison and welfare" services to offshore asylum-seekers, with the rate of AUD$ 573,000 per person per annum. According to Commonwealth Auditor General's 2016 report (Para. 2.27-2.29 ), such unusually hight costing has been derived from the rate of Transfield in providing services to the Australian Defence Force personnel.

Typically though, the courts will unlikely venture looking into any graft or bribery allegations, if any, in the slavery cases. What really matter here is the establishment of the fact that there's undeniable profit motive in offshore asylum-processing regime.

ENSLAVEMENT AND SLAVERY, FORMS AND MANIFESTATIONS

The enslavement means intentionally placing or maintaining a person in a condition in which any or all of the powers attaching to the right of ownership are exercised over that person. When we look a bit details at Criminal Code Act (Cth, 1995) Division 270 - "Slavery and slavery-like conditions", we can find 270.1A forms of "coercion" are defined as (a) force;(b) duress;(c) detention;(d) psychological oppression; (e) abuse of power;(f) taking advantage of a person's vulnerability. We can also find the description for "exploitation" as when perpetrator's conduct is resulting a person in conditions of (a) slavery, or a condition similar to slavery; (b) servitude; (c) forced labour; (d) forced marriage; (e) debt bondage. The "exploitation" and "coercion" are key words for identifying slavery. Thus, in Wei Tang slavery case [#9] for instance, she had "(coercion: f) taking advantage of her sex workers' vulnerability" under the form of "(exploitation: e) debt bondage".

We can see that, for the offshore asylum-seekers, the listed forms of coercion above, only "(c) detention", could have been disputed for the considered period of Oct-2013 to Aug-2018. This is because, the Commonwealth government had been assiduously defending its position on detention. All other forms of coercion are within public records, of course.

When turn into exploitation, the offshore asylum-processing as such isn't a recognised form. We must therefore have a proper look into the definition of slavery within the Code (exploitation: a), of which " the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised". In order to interpret this legal syntax, follow the instructions from the writings of Prof. Allain of QUB [#14].

The rights of ownership are listed as: 1) The right to posses; 2) The right to use; 3) The right to manage; 4) The right to the income of the thing; 5) The right to the capital; 6) The right to security; 7) The right or incidents of transmissibility; 8) The right or incidents of absence of the term; 9) The prohibition of harmful use; 10) Liability to execution; and 11)Incident of residuarity. Anyone (perpetrator) controlling another person by coercion, and then exercised any one of such rights over that enslaved person will found to have committed the crime of slavery.

On the emergence of new forms of slavery related exploitation, the international practice is [see Chapter 3, #14]:

... the definition of slavery as first elaborated in the 1926 Slavery Convention remains the normative understanding of what is considered slavery in international law. Through the considerations of both the League of Nations era and through the work of the United Nations, a picture emerges of the content of the definition of slavery, based on a consideration of the substance of a practice versus its form. In other words, it is not enough to call a practice debt bondage or child soldiering; instead one must look past what it is called (thus the form), and look to individual cases and what is actually taking place. If the substance of the practice manifests the exercise of any or all of the powers attaching to the right of ownership, then a case of slavery is present.

NEW FORM OF SLAVERY

We may now reconciled with our common community misunderstandings about slavery that I've mentioned in previous posting. Things like "forced labour" or "debt bondage" are just the forms of slavery; not slavery itself. In other words in plain English, we can say that "the slavery has taken place in the form of forced labour" or "..in the form of debt bondage". For our current considerations, we can say that "the slavery has been taken place in the form of offshore asylum-processing".

To prove the existence of slavery, however, we must look directly into the substance of individual cases and establish whether there are "deprivation of personal liberty", "diminution of autonomy" or "loss of personal freedom" as a result of someone or something ("the perpetrator") has been exercising powers attaching to the right of ownership over that individual ("enslaved person").

NEXT STEP ON THRESHOLD OF SLAVERY

We've expanded in Div. 270.1A of Criminal Code Act (Cth, 1995), the definition on form of exploitation "(a) slavery, or a condition similar to slavery;". To be consistent with the Articles of 1998 Rome Statute of International Criminal Court, and to be considered under the ICC jurisdiction as crime against humanity, the alleged slavery offence must have proven to be most severest of its kind. We look into that question in the next posting. -- Cheers, NetIPR.

IV. Slavery and
ICC Legal Threshold
[Broadcast On: 11/4/2021]

In previous note (4/4/2021), we've established that the Commonwealth Governments' offshore asylum-processing practices can be considered as a form of slavery. This task is done by expanding the forms of exploitation "(a) slavery, or a condition similar to slavery;" within the Criminal Code Act (Cth, 1995), Division 270.1A , in consistent with main clause of primary legal text "exercise of any or all powers attaching to the rights of ownership over a person". Here, we can see that the Australian law not only criminalise the "slavery" proper, but also "condition similar to slavery"; all of these are being considered as unacceptable forms of exploitation of human person(s). This also reflects Australia as State party observing treaty obligations governed, not only by The 1926 Slavery Convention, but also The 1956 United Nations Supplementary Convention on Slavery, of which the latter one aimed at suppressing globally of the "Institutions and Practices similar to Slavery".

SLAVERY AS A THREAT TO PEACE AND SECURITY OF MANKIND -- ICC ENSLAVEMENT THRESHOLD

For the ICC 1998 Rome Statute, Article 7.1(c) enslavement, the narrower definition for slavery has been adapted. The 1998 Statute focuses on the "slavery" proper and left out "... practices similar to slavery". Therefore, the ICC only have the mandate to exercise its jurisdiction on the "slavery" proper but not on the "practices similar to slavery". By "slavery" proper, it would mean that there must be the proof of the perpetrator "exercising of any or all powers attaching to the rights of ownership" over (enslaved) person(s). Then and only then, the ICC would have the mandate to exercise its jurisdiction, in accordance with the "Principle of Complementarity". Alternatively, by only such a proof was found, the Australian incorporated ICC law, The ICC Consequential Amendment Act 2002 as the Division 268.10 of Criminal Code Act (Cth, 1995), could come into force. Therefore, the required ICC legal threshold for enslavement is the proof of perpetrator exercising any or all powers attaching to the rights of ownership over (enslaved) person(s).

THE ROME STATUTE 7.1(c),7.2(c) AND THE ICC ELEMENTS OF CRIME 7.(1)(c)

Having noted the legal limitations for the ICC enslavement law, there is also additional cautions that must be taken into account on interpreting the ICC Element of Crime 7.(1)(c) [see Chapter 6, #14]. This caution is arising from a slight discrepancy between the legal texts of the Statute 7.2(c) and the Element of Crime 7.1(c), which both read:

The Rome Statute 7.2(c)
‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

The Elements of Crime 7.(1)(c)
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

After comparing legal texts of The Rome Statute 7.2(c) against The Elements of Crime 7.(1)(c)1, the essential guide here is "NOT TO INTERPRET" the additional clause, i.e ".. by imposing on them a similar deprivation of liberty", on its own as it appeared in The Elements of Crime. The interpretation for that clause must reinforce the main clause " exercised any or all of the powers attaching to the right of ownership over one or more persons" [#14]. The most likely objective is, in doing so, limiting ICC to considering for the proper "slavery", that similar to historic 'chattel' slavery. In modern day contexts, it may translate to the cases of perpetrator exercising powers attaching the rights of ownership over persons in a comprehensive manner.

SLAVERY AND AUSTRALIAN LEGAL LANDSCAPE

Interestingly, when Australian courts considered the first slavery case of Wei Tang in 2008, the ICC treaty was already signed as of 2002. When Wei Tang's slavery case reached to HCA [#9] , the three great judges had given their opinion. The Chief Justice Gleeson, the decision majority had agreed to, and Justice Hayne had given concurring opinion. Justice Kirby, one of the well known human rights supporting judge, had given a dissenting opinion, mainly in relation to the procedural aspects, that there should be a re-trial in accordance with Appeal Court decision. In all other matters, Justice Kirby is agreeing with CJ Gleeson. Justice Kirby did mention about the Division 268.10, and said the slavery as crime against humanity is a serious matter. It is well worth revisiting that HCA judgement on the issues the Courts and Judges had faced at that time [#9]. What I understood is that the slavery law as Division 270 was in its barest form at that time; later the Parliament had made few legislative amendment to include debt bondage etc..

In any case, the Australian Courts and Judges are well equipped, now a days, in determining the slavery cases. We will also need the ICC actions and UN supports, due to the fact that the offshore detention slavery had taken place on Nauru and PNG.

Our offshore asylum-seeker friends have remained in precarious situations; some of them were free with BVEs and other still being in detention. Wherever you are now, do keep informed yourself about the developing situations; the brothers who have good English should share knowledge and information to others who have not; do keep close in contact with the lawyers you trust; and your days for justice must come !

THE NEXT STEP

This note, and probably previous one, is quite technical. Our next step is to identify perpetrators conduct that showing up as exercising powers attaching to the rights of ownership over offshore asylum-seekers.

Cheers, NetIPR.

WEIRDO ICC REPLY LETTER ON FEB 2020 ?

A Weirdo ?(sic) diplomatic -- reply from ICC in February 2020.

[ Discussion Note, 4th Apr 2021 ] Friends, you might remember last year around this time, Feb/Mar 2020, many people who put forward complaints to ICC, i.e. Hon Andrew Wilkie amongst them, have received reply letters. I myself, too, received a reply letter of which the contents, at the first readings, are kind of looking weird considering reputation of the Court. Firstly, I did never mentioned about the offshore incidents in 2001 (remember Tampa?); and reply letter addressed nearly all the Rome Statute Article 7 Crime Against Humanity Options (7.1 e,f,d,k) and then said not quite on the footing the ICC could acted upon [check with Rome Statute of 2002 ]. Isn't that too weird ? In my communication made to ICC in June 2017 (OTP-CR-220/17), I did specifically referred the Article 7.1(c) Enslavement. The ICC letter certainly didn't addressed directly to my "enslavement" concerns, but keep saying like, "...reported relevant conduct, based on the information available, it did not appear to the Office that any other acts constituted crimes within the jurisdiction of the Court....." Keep reading on, last two paragraphs in letter just said:

Accordingly, the Prosecutor has determined that there is no basis to proceed at this time. Nonetheless, consistent with article 15(6) of the Statute and rule 49(2) of the Rules of Procedure and Evidence, this decision may be reconsidered in the light of new facts or information.

Article of Statute 15(6) said: " If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence."

Rule and Procedure of Evidence 49(2): "2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence."

The way I see it, the ICC-OTP is not ruling out possibility of 7.1(c) enslavement -- that's why deliberately keep out that item in the contents of their reply letter -- just arguing that other matters (d,e,f,h,k) weren't quite relevant in this case. I think, that may be ICC ways of saying the direction I've put forward in "7.1(c) enslavement" can be interesting one; ICC could neither confirm nor deny it; but ICC needs more information !!!

At that time in Feb/Mar 2020 I received letter, I feel I'm not fit to release that ICC reply letter to the public. As you know, we've been quite busy: the Covid-19 pandemic was in full swing; Medevac detainees' mystery was unresolved; and I myself, not being a lawyer and only been a volunteer community activist, cannot see in which way the prosecution forces might have to be coming in and where any further evidence could be gathered. Of course, this is before ADF Afghan War Crime report has got published in November 2020. That report prepared by Judge Brereton [#1] definitely is the "game changer" in all aspects for us the activists.

You can read full ICC reply letter in PDF, which is uploaded here . -- Cheers, NetIPR.

V. Freedom as
Antithesis to Slavery
[Broadcast On: 25/4/2021]

Friends, in previous posting (IV. 11/4/2021), we have noted the difference in legal texts for enslavement in ICC Rome Statute, i.e. 7.1(c),7.2(c), and the secondary legislation, the Elements of Crime, 7.1(c)1. These legal texts are being incorporated into Division 268.10 of Australian Criminal Code Act (Cth, 1995), reproduced here as whole:

"268.10 Crime against humanity--enslavement
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons (including the exercise of a power in the course of trafficking in persons, in particular women and children); and
(b) the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"exercises any or all of the powers attaching to the right of ownership" over a person includes purchases, sells, lends or barters a person or imposes on a person a similar deprivation of liberty and also includes exercise a power arising from a debt incurred or contract made by a person."

When you look at in details, the Australian Criminal Code Div. 268.10(1)(a) is reflective of the Rome Statute 7.2(c), and 268.10(2) is to ICC Elements of Crime 7.1(c). I've been deliberately pedantic here because certain caution being made not to interpret independently of the legal text, "imposes..similar deprivation of liberty". This is due to the fact that ICC having narrow mandate to act upon only the cases of 'slavery' proper which are of similar to classic 'chattel' slavery.

FREEDOM TEST: CHATTEL VS DETENTION SLAVERY

As for historic chattel slavery, it is relevant to look at the antebellum era in United States, i.e time before American civil war 1861. During that time, the slaves were considered as property, legally owned by their masters. Matters for slaves were being governed by so-called the 'Slave Code'. In the antebellum era, slavery had already been institutionalised from the time of American revolution of 1775 [#21]. The black African slaves were segregated along racial line, and slaves were living as distinct community. For the black chattels, every aspects of life were being controlled by slavery. By comparing the situation of these chattel slaves to our asylum-seekers in offshore processing camps, one can measure the extent of deprivation of freedom and liberty of individuals.

(a) Control over the person: Slavery is all about control, i.e. severe control tantamount to possession, over persons. The chattel slaves were being controlled by laws and regulations, i.e. Slave Code, enacted by the governments (i.e. Antebellum South, US). In this case, known as de jure slavery, the slave-masters lawfully exercised the powers of the rights of ownership over persons.

For offshore asylum-seekers, they are also being controlled by the laws and regulations made by the governments (Commonwealth, PNG, Nauru). The enslavers do not legally own offshore asylum-seekers. Nevertheless, the enslavers (i.e. Commonwealth, Detention Companies) are able to exert control tantamount to possession over these asylum-seekers. In this case, known as de facto slavery, the enslavers are exercising powers attaching to the right of ownership over persons.

(b) Use of persons to gain profit: The chattels were used as plantation farm labourers where their owners extracted out the profit. The offshore asylum-seekers were not being used for such direct exaction of labour. However, the enslavers, i.e Commonwealth Government and Detention Companies, used them as immigration detainees and can still gain the profit. In order to secure profit, the enslavers necessarily required the offshore asylum-seekers being confined to specific geographical area, i.e. PNG and Nauru.

(c) Restriction on freedom of movement: The chattel slaves were not being held in detention, but their movement were being restricted ostensibly within the reach of their owners. They were allowed to moved around and go doing about their own daily chores; can have family and can even practice their own religion.

Our offshore asylum-seekers, whilst Australian government asserts are "not in detention", but are being confined to specific geographical areas in Manus Island, PNG and Nauru.

(d) Lack of legal status: The chattels had no rights to legal recourse in the events of ill treatment or any dispute against their owners. The offshore asylum-seekers also have had no practical pathways in taking legal actions against Commonwealth or the Detention Companies.

(e) Lack of personal autonomy, agency, freedom and liberty: Most critical issue for offshore asylum-seekers, as would be for those classic chattels, has been their inability to control their own future. The lack of personal autonomy can have much more severe impact upon the offshore asylum-seekers because their day-to-day affairs are being controlled by the detention settings. In comparison, the chattels of 1779-1860 in United States would have had much more freedom in managing their day-to-day affairs, which giving them a resemblance of normal human life.

When it comes to considering slavery in Australia -- especially identifying slavery like conditions -- ordinary people as well as the judiciary would necessary look to identifying the cruel and inhuman conduct by the perpetrators. This discussion will not focus on those types of treatments.

CONDUCTS CAUSING DEPRIVATION OF PERSONAL LIBERTY AND SLAVERY LAWS

In previous posting III, we noted that so as to prove the existence of slavery, we must look directly into the substance of individual cases and establish whether there are "deprivation of personal liberty", "diminution of autonomy" or "loss of personal freedom" as a result of someone or something ("the perpetrator") has been exercising powers attaching to the right of ownership over that individual ("enslaved person"). On the one hand, the statements of deprivation of liberty or loss of personal freedom will not be sufficient establishing slavery. To establish slavery, such loss of personal freedom and liberty must be described in terms of "[someone of something] exercising of powers attaching to the right of ownership" over that person. This point we've reach now would be the same as concurring opinion made by Hayne J of HCA in 2008 Wei Tang slavery case [#9]:

"159 ... because the [Australian Criminal] Code requires consideration of whether the accused exercised any of the powers attaching to the right of ownership, it will be important to consider the particular power that it is alleged was exercised and the circumstances that bear upon whether the exercise of that power was the exercise of a power attaching to the right of ownership. To ask only the general question – was a complainant "free" – would not address the relevant statutory questions."

To my observation, the offshore cases will found to be of 'de facto' slavery; and also where the Commonwealth ABF/DIBP did not directly exercise, in exception to few cases, the powers of control over the asylum-seekers. The Commonwealth have exercised the powers of control through contractors and other governments. This is in contrast to the simpler 'de facto' slavery cases, such as that of Wei Tang for example, where the relationship and the conduct between alleged perpetrator and that of alleged victim could easily be identified. Nevertheless, in this more complex offshore cases, the special consideration [#19] which taken into account of the 'assent of person' , that directed by Hayne J must be followed as our guide [#9]:

"149 One, and perhaps the most obvious, way in which to attempt to give practical content to the otherwise abstract ideas of ownership or possession (whether expressed by reference to subjection, dominion or otherwise) is to explore the antithesis of slavery. That is, because both the notion of ownership and of possession, when applied to a person, can be understood as an exercise of power over that person that does not depend upon the assent of the person concerned, it will be relevant to ask why that person's assent was irrelevant. Or, restating the proposition in other words, in asking whether there was the requisite dominion over a person, the subjection of that person, it will be relevant to ask whether the person concerned was deprived of freedom of choice in some relevant respect and, if so, what it was that deprived the person of choice...."

PATTERNS OF EXERCISE OF POWERS

The assent of person, notion of liberty and freedom are easier to comprehend and the lack thereof for an individual can be quickly identified. However, to describe such lack of freedom in terms of "exercise of powers attaching to the ownership" cannot always be straight-forward. This is because the cases are 'de facto' slavery, and the perpetrators, in our offshore asylum-processing, have had infinite resources to cover-up their track, they can be one step ahead :-) :-). Although for the keen observers, the traces of crime are still evident. We can now have a look back at two known cases in 2017 of deprivation of personal liberty, re-examine available information, whether it is viable to reconstruct in the ICC required form.

On mid 2017, Iranian child asylum-seeker Loghman Sawari ( thankfully, he's now in Australia )fled from PNG, attempted to apply for asylum in Fiji [see sec.27, #7]. Before he could filed any asylum application, he was arrested by 'Fijian police' and deported back to PNG. His desire to apply for asylum in Fiji had been thwarted, at least on the surface, not by PNG or ABF/DIBP. No doubt, coordinated between those three parties (Fijian police, PNG, ABF/DIBP), Sawari had been send back to confinement in PNG. One way to re-approach this case might have been to include Fijian police as accessory to the crime of enslavement, where PNG and ABF/DIBP are the principals. The three parties possibly exercised the powers attaching to the right of ownership, namely the rights to security (see III), over the person of Sawari. However, the critical information is still lacking as regards the extent to which ABF/DIBP and PNG authorities initially involved in obstructing Sawari's freedom.

On another case, in May 2017, a group of asylum-seekers at Nauru RPCs had written requests to the government of New Zealand, clearly expressing their desires to take up the resettlement offers [see sec.28, #7]. Whilst New Zealand cannot take all asylum-seekers in RPCs, the Australian government should have allowed, or even encourage, the asylum-seekers to exercise their liberty to apply for the resettlement in New Zealand. The Australian government since 2013, however, had been making political representations to NZ government that such offers cannot be accepted. Adding more details, this case can be reconstructed as Commonwealth exercising its powers on third party (NZ Government), so as to affects the rights of ownership, namely the rights to security, over this particular group of asylum-seekers. This conduct by Commonwealth can be termed, according ICTY chambers [#20], "assertion of exclusivity" and the power that exercised on third party directly affecting the right to security over this group of asylum-seekers.

On closely examining the Australian Criminal Code (Cth, 1995), the said conduct by Commonwealth Government fall directly within definition of slavery. This is because application of Australian Criminal Code (Cth, 1995) is inclusive of such conduct as criminal one. We can try reading the laws, step by step, following the HCA judgment on Wei Tang case [#9]. To prove a person guilty of slavery crime, the person 'intentionally' exercises (any) 'powers attaching to the right of ownership' over persons. In order for a person to be found guilty of committing slavery offence, his (act: conduct) as well as (the consequent of act: result of conduct), will be taken into account by the Criminal Code, equally the same (see below extracts).

(A step-by-step approach to checking whether a conduct may be considered as criminal act: Starts with Page 2 of #9):

270.3 Slavery offences;(1) A person who, whether within or outside Australia, intentionally: (a) .... exercises over a slave any of the other powers attaching to the right of ownership;

"Chapter 2 – General principles of criminal responsibility;
Part 2.1 – Purpose and application; Division 2.
2.1 Purpose; The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

Part 2.2 – The elements of an offence; Division 3 - General.
3.1 Elements; (1) An offence consists of physical elements and fault elements.

3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Further down on page 4 of [#9] explained what physical element (actus reus) means:
Division 4;
4.1 Physical elements
(1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code: conduct means an act, an omission to perform an act or a state of affairs.

NEXT STEP ON HEALTH/MEDEVAC

So far, I have shared underlying legal issues surrounding ICC Enslavement Law in Rome Statute. On next postings, we look into new area of the Commonwealth government violating the universal right to health of individual asylum-seekers, examine there has been any manifestation of the exercise of powers attaching to the rights of ownership over persons.

The rights to health, succinctly extracted by Google is:
"The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health. ... Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity."

VI. Medevac Obstruction
as Slavery Incident
[Broadcast On: 10/5/2021]

Friends, in previous note (V.), we compared the lack of personal freedom for historic chattel slaves with that of the offshore asylum-seekers. We've also taken the opportunity to review, in particular, on the case of a group of asylum-seekers on Nauru applying for resettlement that offered by the Government of New Zealand. In that case, we've observed that certain political coercion had been made by Commonwealth Government in order to suppress the asylum-seekers on Nauru seeking for their freedom. This is an incident of slavery where the Commonwealth Government had exercised one of the powers attached to the right of ownership, namely the right to security, over this group of asylum-seekers on Nauru. Here, in analogy with property ownership laws, the meaning of the term "the right to security" is to be taken as "an ability to be remained as owner if he/she so choose" [#22]. We can expect the perpetrators of offshore enslavement to hold the asylum-seekers on PNG and Nauru under their slavery scheme until perhaps they made enough pecuniary gains.

MEDICAL EVACUEES WITHIN OFFSHORE SLAVERY SCHEME

The asylum-seekers evacuated to mainland Australia for medical treatment do represent potent threats to offshore enslavement scheme. As we all are aware, the offshore processing as it stand since 2012 had been at a state of the Commonwealth Government acting beyond its authorised statutory powers, ultra vires, and the Commonwealth has acted in violation of UN Refugee Convention [#26]. The Government fears these issues being properly get internationalised or the issues been reaching directly to the High Court with appropriate legal contexts, especially in regards to its illegal asylum application processing. That would threaten not only the viability of entire offshore slavery scheme, but also destroy political legitimacy of incumbent LNP Government.

So therefore, on public front the Government is sticking to its propaganda of "no boat person would set foot on Australia", or not uncommon Home Affairs Minister saying "they (asylum-seekers) shall not get the outcome they seek". On the one hand at administrative front, the DIBP/ABF have made interventions, through its health services contractor International Health and Medical Services (IHMS), to obstruct the medical evacuation of the asylum-seekers who needed treatments in Australia. The IHMS was the sole contractor for offshore processing centres on Manus Island and Nauru during 2012-2018.

PRE 2014 DETENTION HEALTH CARE

As of 2011 under Labor Government, there were inquiries into health issues in detention. Then there was brief formation of an independent Detention Health Advisory Group (DeHAG). This independent group was replaced by non-independent Immigration Health Advisory Group (IHAG). By the time LNP Government came into power in December 2013, the detention oversight IHAG was also dismantled by the Abbott's LNP Government [#25]. The IHMS, as the sole contractor, therefore is taking directives from DIBP/ABF for its offshore operations since early 2014 [#23, #24].

In the last meeting of IHAG in August 2013, there were already suggestion to compromise health services provided to the offshore asylum-seekers [#23]:

"[AE_001]: At what was to be the last meeting of Ihag in August 2013, the issue was debated at length. An impasse was reached, says Newman. “The department at a very high level from secretary down argues the Australian government is not obliged to provide our standard of care to these people.” "

Therefore, the health care provided by IHMS at offshore processing camps had set to become substandard and ineffectual. This anecdotal evidence also suggests [AE_001], there was likelihood of the LNP Government making intervention on the care of individual patients since early 2014.

Notably, there are two types of DIBP/ABF intervention on patients under the care of IHMS:

1. Obstruction on medical transfer of patients to mainland Australia;
2. Rewriting medical records of patients, including removing those records.

These types of intervention on patient's medical procedures, had it been taking place on Australian soil, they will carry severe criminal liabilities for DIBP/ABF. The LNP Government had, therefore, been carefully covering up the DIBP/ABF offshore medical intervention and kept all departmental procedures in great secrecy. However, over the years by the efforts of numerous journalists and investigators, we can now establish with reliable pieces of evidence that such intervention on offshore processing camps have had taken place.

The pieces of evidence suggest, the DIBP/ABF at Minister and Departmental Secretary levels had given directives to intervene offshore medical transfers. The evidence disclosed are covering for period of 2015-2018, where Minister Peter Dutton and Secretary Michael Pezzulo were in charge of those positions. Attributions need to be made to these two persons accordingly.

To recap our main objectives: First, to establish beyond any reasonable doubt that the DIBP/ABF, through IHMS, have made intervention on health care procedures of asylum-seekers. Second, in so doing such intervention, to determine whether there were manifestations of DIBP/ABF exercising any or all powers attaching to the right of ownership over these asylum-seekers.

EVIDENCE, INCIDENTS AND ATTRIBUTIONS

A collection of publicly available evidence on the Australian Border Force (ABF) obstructing and interfering in health care procedures of asylum-seekers held on Manus Island and Nauru.

http://www.aus4iccwitness.org/evidence/

EVIDENCE OF DIBP/ABF OBSTRUCTING OFFSHORE MEDICAL TRANSFERS (2015-2018)

[PE_002] The LNP intention to obstruct medical transfer, as explained above, had existed since August 2013. The large-scale reduction in medical transfer, however, was observed as of 2015. The apparent fall in total number of medical transfer during financial year 2016 and 2017, despite expected increase in sickness of offshore asylum-seekers. This indicates a more coordinated effort by DIBP/ABF at high level to intervene offshore medical transfers after 2015.

[PE_003] In the meeting minutes of DIBP Support Group in December 2017, the Departmental Secretary had given directives in 2015 to limits medical transfer "only on life or death" situation (excerpt):"(24-Jun-2015) Secretary Directive stating 'unless there are compelling medical reasons, supported by second opinions, to do with life and death situations, or situations involving the risk of life time injury or disability, transfers to Australia should be avoided as a general rule and should in any event become increasingly rare.'"

[PE_004] In April 2016, in the HCA court case s99/2016, a young African refugee on Nauru who wanted to have abortion was sent to Pacific International Hospital in PNG. The pregnant woman had complex neurological condition and also suffering severe depression. The PIH did not have necessary medical equipment and it is time sensitive to have taken this medical procedure. Mr Nockels, First Assistant Secretary of DIBP, decided against bringing this woman to Australia, despite recommendations made by medical experts as well as IHMS (see 400-402 of evidence before the Judge). Mr Nockels had even set aside the Department's original directive for allowing those refugees who have 'compelling medical reason involving injury and disability' as 'exceptional circumstances', and sought to obstruct that pregnant woman reaching Australia. This evidence indicate that the superior order to obstruct overseas medical transfers being given by the Minister and DIBP Secretary had been undertaken where, in addition, the subordinate Mr Nockels implementation of the order exceeds top level instructions. (see s99/2016 judgment for details)

I do think these pieces of evidence (a couple of more I've found to be uploaded) deserve a proper (separate) public discussion. In any event, I'm categorising the pieces of evidence I found on public domains as:

AE = anecdotal evidence
PE = primary evidence
VE = verifiable evidence
SE = secondary evidence

Friends, do keep up with the updates on this site; our work has now increasing reaching more and more in-depth of DIBP/ABF secracy.

Cheers, NetIPR.

VII. Inalienable Right to Health
and Offshore Medevac Context
[Post-1: Broadcast On: 24/5/2021]

Friends, in previous note, we summarised briefly about how successive LNP Governments had interfered, through its sole contractor IHMS, in the process of medical doctors treating patients held in offshore processing centres on Manus Island and Nauru. The evidence gathered so far indicates the ministerial level order had been made to interfere offshore medical procedures; And that order had been followed up by rank-and-file of civil servants within DIBP. It indicates therefore that the State sanctioned violation of the rights of asylum-seeker patients had been taken place at the offshore processing centres. DIBP violation of rights may be readily agreeable. But for instance, when a doctor's request for medical movement was obstructed, precisely what kind of "rights" that had been violated ? And who's right -- the patient or treating doctor -- that had been violated ? And how these violation of rights can be seen in the context of enslavement. We'll explore these questions in common sense manner as well as in legalistic approach.

I would emphasize that, in so far as I can see, this may found to be a new area of analysis on human rights; where certain delineation need to be made between basic legal rights, mostly granted by governments, and the inalienable rights, that a human person has born with from birth.

THE INALIENABLE RIGHTS OF A HUMAN PERSON

Almost everyday, we routinely talked and think about social justice, equality and human rights for one and all. It seemed though, however, the inalienable (unalienable, natural) rights are being so much part of ourselves that there have been no need to even examine, or even think about those rights in normal circumstances. One such inalienable right has been your human agency: the freedom to think, freedom to plan and to take actions for your own future. Just to have a grapple on this concept of inalienable rights, lets consider again the situation of the group of asylum-seekers on Nauru which, in early 2016, sought to write to the Government of New Zealand for resettlement.

As we all know, the Government of New Zealand, from the time of Prime Minister John Keys in 2013, had made an offer to take 150 asylum-seekers par year from the offshore processing centres. That talk with NZ under Rudd/Gillard government had been set aside and be forgotten by the incoming LNP Government. Only in early 2016, some news coming out about that New Zealand resettlement offers again in the public. By that time, this group of asylum-seekers had already been languishing nearly 3 years in that "mouldy, dusty and sweltering hot" tents on Nauru.

For these asylum-seekers, I suppose, they had one option to stay-put on Nauru and wait for Australian side to resolve the issues. That alternative can be taken, in spite of the fact everyone knows that the Nauruan refugee protection is not genuine one and resettlement there is not a viable option. In any case, after having learnt about the NZ offers, the asylum-seekers consult with each others about the NZ option. Then, they have taken the liberty to apply for NZ offer. They took their action by humbly writing a letter to the Government of New Zealand to please consider their application.

Let us think for the moment about the kind of rights and freedom that have been exercised by one of these asylum-seekers. It starts with a person got being held up in a state of limbo, had been in a crucible personal moments so to say, and wondering day-in day-out about his own personal future. Upon receiving information about NZ offer, he had taken his liberty to communicate to the Government of NZ. It is very much justifiable exercise of his personal freedom. In fact, he is exercising his inalienable rights to make a plan for his own future, within given set of circumstances, and then carried out that plan.

We all have encountered, from time to time, the situations that need to plan for an alternative future, and try realising that plan. This kind of rights is inalienable to all of us. And such rights is also universal: regardless of who you are as a citizen of Burma, China or that of United States, we have all exercised this kind of rights, within the given set of social, cultural, political or economic environment.

One important question need to be asked: what if, that inalienable rights to set our own future been taken away from us ? We would all doomed to become the inanimate objects (property). The inalienable rights, therefore, is the one that is bestowed on every human being by the nature of birth. These inalienable rights include the right to think for oneself, the right to life, and the right to self-defense and they remain through every human’s lifetime. Inalienable rights, by nature, cannot be taken or given away, or transferred to another person, and those rights supersede governmental laws and cultural norms [#27].

THE INALIENABLE RIGHT TO HEALTH

In Australia, the commonly used term "rights to health" is necessarily meant for the "public rights to health", and may generally refers to equality or openness of access to health related resources. In this discussion, however, we would use the term "rights to health", specifically "right to manage health", as such is of an inalienable kind, transcended from a person's "right to life". It is self-evident that the right to manage your own health stemmed from your right to life and, therefore, is inalienable.

Whilst we may have the inalienable rights to managing our own health, we obviously cannot restore our health when we've got ill. For this task, we will need the help of our entrusted doctors. Because the rights to manage one's health by its virtue is inalienable, a patient cannot by default transfer those rights to the treating doctor. In legal terms, the patient must authorise, or given the consent to, some of those rights to treating doctor. On the part of treating doctor, he/she must respect the health rights of the patient. In addition, the treating doctor also has to observes the code of ethics which is being held since time immemorial to the medical professions.

On the next section, we shall look at an example of you -- as a person -- visiting your treating doctor, says your family GP. We'll examine what rights you may have to surrendered to your GP and to what extent your GP may exercise those rights. Firstly, we shall look at the allocation of those rights within simplest settings of you and your treating GP. Secondly, we shall cross check those allocation of rights with Australian specific medical code of ethics.

Friends, some of you might be aware; but it's necessary to tell you this again for clarification. I am a "Doctor", but not in the fields of medicine or treating of patients. I have "Doctorate" degree in the field of Theoretical Physics (long, long time ago) from Adelaide University; therefore I am qualified to be addressed as "Dr". When its comes to my own health or my medications, I am in much the same as struggling as with others. I'll continue sharing what I find quite recently about the ethical conducts of medical professions that has been balanced with patient's rights.

VII. Inalienable Right to Health
and Offshore Medevac Context
[Post-2: Broadcast On: 6/6/2021]

Friends, when I had visited my dentist for a major repair job last week, I'd remember a joke that we have about a clumsy dentist in Burma -- a true story in 1950s. A man went to dentist because of the toothache. The dentist read the X-ray scan in wrong ways and then extracted a healthy tooth from exact opposite side (Ouch!). The patient happened to be a famous writer in Burma, so he was able to record his ordeal in public. Lucky for me, my dentist is an Australian trained one, not clumsy at all and very professional. I am happy with the outcome.

ROLE OF MEDICAL PROFESSIONS IN SOCIETY

Seriously though, from all my encounters with the doctors, dentists, nurses and all those in the medical professions, here in Australia as well as of those whom I met in Burma, have given me the assurance that I can trust them without any reservation for my health needs. As times went by, my memory of their names and faces may have blurred, but their kindness and professionalism in care, and their ability to do difficult tasks before them have lasting impact on my mind. Whenever I'm in the hours of need, I feel assured that these medical professionals will accept me as an individual. Whoever you're a university professor or a cleaner; a convicted prisoner or a priest; a homeless or multi-millionaire, those in medical profession would see you simply as the "patient" under their care (a_). As the members of general public, we recognise these medical practitioner's specialised knowledge and skills, and we do held them in high regards for their professionalism.

Such universal trust that we have on the medical profession came not by mere accident. For over two millenniums, those practising in medicine had followed the so-called medical "Code of Ethics" (The Code, here after) in their conduct with patients [#28]. The Code instructs, for example, to consider the well-beings of the patient as the first priority (b_). The Code of Ethics also recognises the rights as well as responsibilities for both patients and treating doctors. As I've mentioned in previous section, the patient has an inalienable right to manage his/her own health and, as it will be seen, the doctors' Code of Ethics has accommodated those patient's rights within its guideline. In the following, I shall discuss how a patient and a doctor, in the process of treating the illness, negotiate with the patient's inalienable rights to manage one's own health.

LEGAL RIGHTS AND RESPONSIBILITIES FOR PATIENT

To the humanity, the role medical institutions (doctors, hospitals etc..), are as important as that of marriage and family. Our relationship with medical practitioners have been both social and contractual. A patient's visits to the doctor, therefore, is more than a social contact. As soon as the patient starts consultation with the doctor, the treatment process will form as a legally binding agreement, or an "implied contract", although neither parties would need to raise formally of its terms and conditions. Commonsense understanding of that agreement is when a patient needs to get treated for the illness-- mental or physical-- the patient has effectively authorise, or given consent to, the doctor to do whatever that may be necessary. The doctor, on the one hand, would treat the patient's illness to the best of his/her ability, in order to get the patient better. It is plain that a patient will not transfer the entirety of "right to life" to the treating doctor. The patient's authorisation for doctor is confined to treating specified illness.

THE PRIMARY ROLE OF PATIENT

In entire process of treatment, the patient retains primary responsibility to 'manage' his/her own health in accordance with inalienable rights to health (c_). By making consultation, the patient is authorising the doctor to 'help manage' the patient's health. The different roles of the patient in 'managing' and the doctor to 'help managing' that have in a treatment process were being reflected in the doctor's Code of Ethics [#28, Appendix to be followed on sub notes (a_ , b_ , c_ etc)].

(d_) from the beginning, a patient has the right to choose; and then the right to change his/her treating doctor at any time;

=> On this point, in any treatment for illness, the patient is primary stakeholder and, as such, that primary position of the patient has been recognised.

(e_) a patient has the right to withdraw from the treatment at any stage;

=> During initial consultation or at any stage in undergoing treatment, the patient can decide to withdraw from treatment. Normally, this situation might arise when the patient considered the treatment that he/she been undergoing has become ineffectual. This again reminds us that the patient had a substantive interest and the primary stakeholder for his/her own health.

(f_) In a more complex treatment which may require further diagnostics and hospital transfers, the doctor must inform the patient about treatment plan and take the consent on every stage of the treatment;

=> This is standard procedure of 'informed consent' taken from a patient, whenever change or variation in treatment plan, as the patient is primary stakeholder in the process.

(g_) the patient must be informed about his/her illness and explained about possible treatment plans;

=> This is to ensure there's an effective communication between professional (doctor) and lay person (the patient), who is primary stakeholder. Whilst patient cannot understand his/her illness in strict medical terminology, the doctor need to explain about this and the possible treatment plans in layman's language.

(c_) the patient must be encouraged to manage his/her own health;

=> A patient letting all decision making tasks to the treating doctor is irresponsible; So too the doctor making all decisions for the patient in a paternalistic manner. The patient, as primary stakeholder, must be encouraged to take interest in his/her own health, and participate in the decision making process.

FOR EXCEPTIONAL CIRCUMSTANCES

Whilst everyone has the right to manage one's own health, there may be exceptional circumstances where other may need to step in the role of managing a person's health. One such instance, obviously, is in an emergency situation where a patient having no capacity to make decision. In this case, the doctor, emergency worker or even the member of public must make appropriate decision.

(h_) The guardian of a child must manage the health of the child under his/her care.

=> When a person losses or having impaired capacity to manage his/her own health, the guardian, next of kin or even the community need to assume that responsibility. When a person suffering severe depression or falling into a state of delirium or simply lacking the ability to communicate, the others should have the right to manage that person's health.

SO MUCH IS COMMON AND NOTHING NEW

What we have discussed so far is re-affirming the point that a person has the primary responsibility for, and inalienable right to, managing his/her own health. In an event of illness, the person and his/her doctor will jointly manage that person's health. For all of us, these types of health related considerations are very much part of every day natural human activities, to which no one would ever need analysing. In the following section, we shall look at the impact of outside interference to this process.

PROFESSIONAL AUTONOMY AND CLINICAL INDEPENDENCE FOR DOCTOR

In order to bring more clarity to the discussion, I shall set up a scenario of a patient having to visit a small remote medical centre. And lets suppose the centre deploy an allrounder doctor (GP+Psychiatric) and few nurses, and has a hospital administrator. This is rather common setting, say a small country town clinic in Australian outback, about which we can visualise any issues that may have arisen out when treating the patients. The thinking for offshore clinics on Manus Island and Nauru has not been too far in here, I suppose.

To be able to devise an effective treatment plan for the patient, the doctor will need to observe four basics principles [#29]: (i) autonomy; (ii) justice; (iii) beneficence and (iv) non-malfeasance. A doctor devising a treatment plan for a patient can be divided into two stages. At the first stage, the patient taking consultation with doctor to reach an independent clinical decision as the outcome. The second stage is the doctor to implement that clinical decision.

The principle of autonomy for the patient has already been discussed in previous session. It is obvious that the treating doctor must also have the professional autonomy and clinical independence to be able to discharge his duty. For an effective treatment, the doctor must have the freedom to exercise professional judgement in the treatment of patients without undue influence by individuals, governments or third parties (j_). Influencing, limiting and making obstruction to the autonomy of treating doctor can endanger the patient's health; and those actions will violate patient's rights to health and right to life.

Outside interference can take place on both stages of treatment. Prior to reaching a clinical decision, the doctor's professional autonomy can be limited by the visible and invisible pressures. In such case, the outcome will be a compromised clinical decision. For example, a patient went into the clinic with certain type of illness -- lets say the mental illness. The hospital administrator had already instructed (interfered) the doctor (GP+psychiatric) not to treat (i.e. to take no further effective action) on that kind of illness. That would tantamount to hospital administrator interfering clinical independence of the doctor. The result would have been an ineffectual treatment being provided to the patient of which, ultimately, is the denial of genuine medical service.

The obstruction can take place after reaching a clinical decision, that is independent or that is compromised. Obstructing doctor from utilising available medical supply or logistics will endanger patient's life. Say for example: when a patient went into the clinic and having a breathing difficulty. In that instance, the treating doctor must be able to promptly use the Oxygen machine that is available, autonomously and without the administrator's restrictions. The doctor's task for "helping to manage patient's health" must not be interfered by anybody in concerned. Anyone hindering the doctor utilising that equipment, therefore, will violate the patient's right to health.

In other example: A patient is in an emergency situation and need to get to a better equipped hospital. The doctor must be able to utilise the ambulance transport without undue restrictions imposed by the administrator. Anyone prohibiting doctor's use of the ambulance at emergency will violate the patient's right to life.

DOCTOR'S AUTONOMY AND EMBEDDED PATIENT'S RIGHT

In above three examples, whether outside interference imposed upon doctor's clinical decision making or the obstruction made upon doctor's treatment plan, the patient's right to health and right to life are being violated. In other words, the doctor's professional autonomy, working with informed consent of the patient, has been embedded with the right to health and right to life of the patient. During the process of treating a patient, if the doctor's professional autonomy is being curtailed, then the right to health and right to life of patient have been violated.

Because the patient is primary stake holder in entire treatment process, the legal remedy has been possible in normal circumstances. Should any of such interference taken place on Australian jurisdiction, the patient may take direct legal action against those who are responsible under the common law. The fact that these types of violations taken place offshore had made difficult for direct legal action, however.

DIBP/IHMS, OFFICIAL INTERFERENCE AND THE SLAVERY LAW CONTEXTS

In relation to Medevac, the Commonwealth Government (DIBP/ABF) primary objective has been to restrict the asylum-seekers reaching to Australia. To achieve that aim, the DIBP had overstepped its management role and, through its sole health contractor IHMS, had taken away the clinical independence of doctors. This is the interference upon the asylum-seeker patients and doctors independently managing the health of asylum-seeker patients. It will be found that the DIBP, with the collusion of IHMS, had exercised one of the powers attaching to the rights of ownership, namely the right to manage, over the asylum-seeker patient. By entering offshore contracts with DIBP, and having colluded with DIBP in the scheme the way it did, the IHMS had participated in the enslavement of those asylum-seekers.

In regards to Medevac, once the competent medical authority had made a decision to move the patient to appropriate destination, the DIBP must follow it without fail. The considered role for DIBP is to providing logistics for asylum-seeking patients reaching their destination hospitals. By failing to move the patient to recommended destination in recommended time, the DIBP overwrite the clinical decision that had been made by the patient and doctor. By obstructing Medevac in that way, the DIBP had exercised the powers attaching to the right of ownership, namely right to manage and right to security, over these asylum-seeker patients.

Friends, our three months long discussion has now arriving at the most important point for establishing whether the Commonwealth Government (DIBP/ABF) had exercised any of the powers attaching to the right of ownership over asylum-seekers, in regards to offshore medical evacuation procedures. On this, I'll be taking a breather, then I'll be back with a good measures of vengeance on the net/fb again :-) :-) :-) . Until then, take good care of yourselves to all my friend asylum-seekers and activists alike.

Cheers, NetIPR

Keep up with updates on evidence etc.. on following URL.
(live-updates)
http://www.aus4iccwitness.org/node/92

VIII. The Torture Regime
in Detention Slavery
[ Broadcast On: 6/7/2021 (5min R)]

Welcome to all my FB friends. Just a quick reminder, if you are a first-time viewer of this series of postings: this discussion is specifically about "detention slavery" that occurred on Manus Island and Nauru between October 2013 and August 2018 (ICC Ratione Temporis). In 2011-2012, the Commonwealth Government of Australia transported the asylum-seekers who arrived by boats to Manus Island and Nauru. The Commonwealth Government had contracted out the day-to-day management for the garrison, welfare and health care supports for those asylum-seekers to Transfield Services P/L(renamed Broadspectrum) and IHMS. Over the years, and like many other fellows Australians who have had concerns about the detention of these asylum-seekers, I raised this issue of offshore detention to the International Criminal Court in June 2017, specifically designated as the Crime Against Humanity of Enslavement/Slavery [#7]. The current series of discussions started in March 2021, and I am hoping to close these preliminary point-of-law discussions and begin to look at individual offshore slavery incidents (by the way, I am not a lawyer). I assert that those asylum-seekers who died offshore during above said period -- such as Faysal Ishak Ahmed, Fariborz Karami and Salim Kyawning, to name but a few -- died as a consequence of slavery.

What we have been able to make out in this 2021 discussion is, firstly, to establish the point that offshore asylum processing is a form of slavery, i.e. "detention slavery". We achieved that objective in "Section III, 4/4/2021; Legal Basis for Detention Slavery". In my view, it is an essential step because, traditionally, slavery is considered as the 'extraction of labour', whilst persons are held under coercion by the enslaver. We have carried out this objective in accordance with local Slavery Laws (Div. 270 of Australian Criminal Code 1995(Cth) ) as well as International Slavery Laws.

The second point we established is that the ABF/DIBP obstruct and interferes with the medical care of offshore asylum-seekers as the incidents of slavery. We achieved that objective in Sections VI and VII. In Section VI, we even have located the data evidence of material in nature; the Commonwealth Department of Immigration and Border Protection at the ministerial and departmental secretary levels had sought to obstruct medical care and medical transfer procedures (PE_003). This evidence indicates that there has been a State-sanctioned violation of the health rights of asylum-seekers.

In Section VII, we discussed how the DIBP obstruction/interference process violated the health rights of asylum-seeker patients. In this respect, I have taken the approach that a person (asylum-seeker) has been a primary stakeholder in maintaining his/her health; And that a person has an inalienable right to manage his/her health with the help of his/her doctor. The inalienable rights, also referred to as "natural rights", are the rights that every person has been born with, and they usually supersede any other governmental laws or customs. Typically, this area of the doctor-patient relationship pertains to "patient's self-determination" and has been covered by customary privacy laws. To explain the human rights content of Section VII in everyday language and also within the contexts of common law, let's consider the following example.

Suppose a person in Australia goes to see his doctor for consultation. The employer/administrator of that doctor instructed not to treat certain forms of illness of that person. In that case, the person's "right to health" has been violated. In such case, the patient, the primary stakeholder, can sue that administrator under the common laws for endangering his health and invasion of his privacy. If the administrator obstructs the person's medically required transfer, the person's "right to life" has been threatened. The common law remedy for violating the "right to life" has been to charge the responsible party (administrator) with attempted murder or even murder. Because the DIBP obstruction/interference occurred at offshore processing centres, it is almost impossible to bring charges against the Department under Australian common laws.

IS THERE TORTURE IN OFFSHORE PROCESSING CENTRES ?

The considerations on Torture, or more precisely "Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" for prisoners and other persons held under authorities' confinement, usually were well reserved for the undemocratic, despotic and cruel military regimes of North Korea and Burma. But, of course, that doesn't stop the angry refugee activists here in Australia from accusing their government of "torturers and murderers" from the early days of deprivations and deaths in the offshore processing centres. With the crucial evidence resurfacing against ABF/DIBP (i.e. PE_003), these angry accusations are no longer hyperbole! As we can now see, the allegations of Torture in offshore processing centres have not been entirely out of proportion. For reasons of legal certainty, let us compare this offshore situation in analogy to the prisoner population in the United States legal system.

As we all know, there has been a significant number of prisoners in the United States of America; some of them have been serving life sentences, and a few others are waiting on death row, together with all other kinds of criminals convicted of various forms of crimes. An average waiting period for a prisoner on death row would be about 14 years. A prisoner serving his/her sentence is a human being and whilst some of the prisoner's inalienable and legal rights were curtailed, the other inalienable rights, such as the right to health and the right to life, would still be retained by the prisoner (that's also true for inmates on the death row). A prisoner is still being a citizen of United States, the US Constitution protects his/her remaining inalienable rights. The Eighth Amendment of the Constitution of United States prohibits any form of unusual and wanton infliction of pain on prisoners, except that of restricting liberty for serving out the sentence (By the way, the asylum-seekers at offshore processing centres are convicted of "no crime", and have no purpose for being held in confinement!). Without a doubt, the 8th Amendment of the US Constitution, The UN Convention Against Torture and equivalent Australian laws on Torture Div. 274 of Criminal Code 1995 (Cth), all would have the same [English] common laws roots, dating back to 1688. We are, therefore, relatively safe to refer to United States case laws when it comes to the issues of Torture on the incarcerated or persons under confinement.

DIBP SECRETARY'S DIRECTIVE AND PSYCHIATRIC PATIENTS (PE_003, PE_002)

When we look at 24-Jun-2015 directive issued by Secretary Pezzullo, it states:

... unless there are compelling medical reasons, supported by second opinions, to do with life and death situations, or situations involving the risk of life time injury or disability, transfers to Australia should be avoided as a general rule and should in any event become increasingly rare. ...

That directive necessarily implied that "only those physically visible illnesses with life or death situation" should be transferred for treatment. A class of psychiatric patients -- not in a plain-obvious physical illness that of life or death situation -- had been "categorically denied" proper medical care (see PE_002 for empirical evidence).

In US case laws, and it would be in anywhere else, there is a two-pronged test for detecting the existence of Torture concerning medical care of the incarcerated. Firstly, there must be proof of a serious medical need of the prisoner. Secondly, there has to be an act or omission by prison officials that indicate deliberate indifference [#30]. Categorically denying (refusing) treatment for the persons under DIBP authorities' confinement automatically met the requirements for the above two-pronged test [#31].

THE ISSUE OF TORTURE IN SLAVERY

There has been no legal requirement to establish means and methods of coercion -- Torture in this case -- regarding slavery [#32]; The proof for the perpetrator exercising any or all powers attaching to the rights of ownership over a person(s) would be sufficient. I have been weighing up pro and con of bringing up this torture issue into our consideration. Not that I mind about taking on any issues with the Commonwealth, but only in terms of my time resources. Anyway, my conclusion is that we will not be able to explain to the Australian public and the wider world about detention slavery without addressing the issues of Torture that have taken place in the offshore processing centres. Our slavery discussion would have to be expanded just a few more extra sections, so to speak.

Cheers, NetIPR

IX. Medevac Related Torture
at Offshore Centres
[Post-1: Broadcast On: 21/7/2021 (6min R)]

When we look back at the earlier days of 2014, the refugee-supporting community and the media raised concerns about torture in offshore processing centres [#23]. These concerns about torture, while not in the legal or technical sense, were raised to reflect the government's harsh and punishing treatment meted out to offshore asylum-seekers. On the one hand, there were semi-legal NGOs such as Association for Prevention of Torture (2014) [#34] and Global Legal Action Network (2017) [#35] put forward the issue of torture in a broad context in their reports. However, those professional reports failed to make an impact because of the lack of details, ostensibly due to the secrecy of offshore processing.

In this discussion, we shall focus on particular incidents of torture that took place when DIBP/ABF denied healthcare provisions to asylum-seekers. Such instances of torture may vary in form: from the denial of essential health services up to the downright refusal to make medical transfers for asylum-seeker patients. Up until recently, these medical incidents in question perhaps resemble medical malpractices or logistical and administrative mishaps. However, with the recent discovery of data evidence such as PE_003 [#37], these medical incidents may have been orchestrated at high levels of DIBP/ABF. With such DIBP/ABF official controls on the medical incidents identified, we can now look into the proper application of the torture laws, as given in Div. 274, Australian Criminal Code Act (Cth, 1995). Once again, as we have done our analysis on Div. 270 Slavery laws, the considerations on torture should be made as closely as possible to the Common laws of Australia. For this purpose, we will extensively draw upon the legal resources from United States Caselaws, where there are abundant materials on the healthcare of their prisoner population.

CONNECTION TO SLAVERY CRIME

Technically, the torture itself is not slavery; not all enslavement processes will require using torture. However, in these offshore detention slavery cases, as the perpetrators (DIBP/ABF and Detention Groups) exercise the 'right of security' over asylum-seekers [#33], the perpetrators try to extinguish the possible escape route created by medical transfer to Australia. In other words, the main objective of DIBP/ABF is to prevent offshore asylum-seeker patients from reaching mainland Australia and seeking possible legal interventions for their asylum cases. To achieve that objective, the authorities (1) may deny or delay proper medical treatment and (2) may refuse medical transfer to Australia. In both cases, there will be incidents of torture and the possible manifestation of slavery. Therefore, we can conclude that the torture issue has arisen from DIBP/ABF and Detention Groups enforcing slavery.

COMMON LAW ACCOUNTABILITY: THE RESPONDEAT SUPERIOR

The ICC Rome Statute of 1998 cover the Crime Against Humanity of Torture in Article 7.1(f) and 7.2(e), where the details can be found in GLAN report (Pp. 74, #35 ). The five general elements of Crime Against Humanity Torture are:

(a) “the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons;
(b) such person or persons were in the custody or under the control of the perpetrator;
(c) such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions;
(d) the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and
(e) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”

The requirements in ICC Torture law are (b) the person(s) are under control and (c) the suffering did not arise only from 'lawful' sanctions. In collaboration with IHMS, the DIBP/ABF's unlawful conduct of deliberate indifference to the serious medical needs of asylum-seeker patients has caused suffering and severe mental and physical pain, all of which were neither inherent in nor incidental to the stated objectives of offshore processing. Therefore, there are valid reasons to raise the issue of torture with ICC.

As you all might be aware, ICC laws have special provisions for individual responsibility in committing of Crime Against Humanity. I would, however, here to add the Common Laws aspect in dealing with the cases of torture that the government officially sanctioned. This consideration will assist us in taking direct legal action should anyone have such a desire.

INDIVIDUAL RESPONSIBILITY IN COMMON LAW (C.F. US CASELAWS)

We are generally aware that the government obstructions and interference in the healthcare of offshore asylum-seekers have started since October 2013 -- under Tony Abbott (The PM) and Scott Morrison (Immigration Minister). Although the current data evidence (PE_003 [#37]) shows that the Departmental Secretary's written directive started on 24-June-2015, there is the likelihood that such directive may have been operating as unwritten ministerial order since October 2013. There is a further requirement to get data evidence on this and I ask all our friends to help look out for any supporting evidence (parliamentary transcripts, official statements etc..) in this regard.

In raising torture cases at the court, separate claims must be made against -- let's say Mr Morrison, Mr Dutton and Mr Pezzulo -- in their individual or official capacities or both [see the example, #36].

To make a successful claim against an official (Minister, Department Secretary), one must allege the facts demonstrating:
(1) He/she had suffered as a result of deliberate medical negligence.

(2) The Department had a policy or practice to induce that negligence.
(3) The policy or practice amounted to deliberate indifference to his health rights.; and
(4) The policy or practice was the moving force behind that right violation.

Again, to hold the government official (Minister, Secretary) individually liable, one must allege the facts showing that official person:
(a) Directly participated in violating his health rights.;
(b) Directed others to violate his health rights.; or
(c) Knew of and acquiesced in his subordinates' violations of his health rights.

The commercial contractor, such as IHMS, will be liable under Common Law when that contractor exhibits the policy and practice violating the health rights of asylum-seekers [#36]. In ICC laws, the role of IHMS will be the 'co-perpetrator' which is also the principal in the perpetration of the crime [#38].

Both types of claims -- more importantly, the individual liability -- have merits. If we carefully examine the data evidence collected so far [#37], we've already made some inroads to that end.

IX. Medevac Related Torture
at Offshore Centres
[Post-2: Broadcast On: 8/8/2021 (5min R)]

PRIMARY CONSIDERATIONS ON OFFSHORE HEALTH CARE

Both in the United States and Australia, the origin of laws relating to the torture of prisoners or of the persons being held in custody by the government authorities, we can eventually trace back to the English Bill of Rights of 1689 [#39]. For the United States of America, the Eighth Amendment of the US Constitution (The US Bill of Rights, 1791) prohibits the government from imposing upon its citizens "excessive bail, excessive fines, or cruel and unusual punishments". But, of course, the framers of the Australian constitution in 1901 had opted not to include the US-style Bill of Rights and seemed quite content with the 1689 English Bill of Rights for their newly formed federation [#40]. As a result, the Australian constitution would not explicitly protect us from the government's torture, but we must turn to the Australian Criminal Code Act (Cth, 1995) Division. 274, for protection.

OFFSHORE HEALTHCARE AND LEGAL RESPONSIBILITY

First and foremost, the responsibility for health care of asylum-seekers transported to Nauru and PNG rests squarely upon the DIBP/ABF and Commonwealth Government of Australia. This is because common law requires that the governmental authority who has taken custody of a person must be responsible for the care (see Spicer v. Williamson, 1926 [#41]) :

The prisoner by his arrest is deprived of his liberty for the protection of the public; it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.

Therefore, the Commonwealth Government of Australia(DIBP/ABF) is responsible for those asylum-seekers from the time their boats were intercepted at sea and taken into custody. This Commonwealth responsibility on offshore asylum-seekers -- whether the refugees, non-refugee or the unprocessed -- has not diminished, nor has the consequent criminal liability diluted by the fact that the Commonwealth signed various MOUs with the governments of the Republic of Nauru and PNG. The Association for Prevention of Torture, in its 2014 report, noted [#34]:

Australia has an obligation to prevent torture and other ill-treatment not only in its sovereign territory but also “in any territory under its jurisdiction”. The Committee considers that the scope of “territory” under Article 2 must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention. This interpretation has been supported in the comments of other treaty bodies, UN Special Procedures, and the jurisprudence of the International Court of Justice.

Regarding the welfare and healthcare of asylum-seekers offshore, the DIBP/ABF and the Ministers had repeatedly been proclaiming, "That's the matter for Nauruan/PNG government(s)". However, that is not the case, and any competent legal authority will reject such DIBP/ABF claims. Furthermore, it is foreseeable that the other governments will firmly disapprove if Commonwealth were to try diverting criminal liabilities on torture and enslavement.

HISTORIC LEGAL TEXTS ON TORTURE AND CONCEPTUAL EVOLVEMENT

The legal texts of the US Constitution Eighth Amendment against torture include, amongst other things, "cruel and unusual punishment" [#42]. This phrase has directly descended from the 1689 English Bill of Rights. The US Criminal Code (US Code) 2340A, the torture is defined as [#43]:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

On interpreting the legal texts of the Eighth Amendment, the American judiciary, over the years, has "drawn its meaning from the evolving standards of decency that mark the progress of a maturing society" [Trop.v.Dulles, 1958. #44].

The authorities' deliberate denial of medical attention to a person in custody (prisoner) ostensibly caused severe physical pain and mental suffering. Therefore, the DIBP/ABF acts or omissions that caused the denial of medical care to offshore asylum-seekers will be construed as act of torture.

STANDARD TESTS FOR MEDICAL-RELATED TORTURE

For a person (prisoner) under custody, the crime of torture occasioned if the detaining authorities showed (1) deliberate indifference to (2) the serious medical needs of the person (prisoner) [#30].

Deliberate indifference exists when the authorities:
(1) know of a prisoner's need for medical treatment but intentionally refuse to provide it;
(2) delay necessary medical treatment based on a non-medical reason;
(3) prevent a prisoner from receiving needed or recommended medical treatment; or
(4) persists in a particular course of treatment in the face of resultant pain and risk of permanent injury [#36]

The "serious" medical need of a person (prisoner) may be regarded as one that has been diagnosed by a physician as requiring treatment or one that is "so obvious" that a lay person would easily recognise the necessity for a doctor's attention [#45]. As we all can see now, in establishing whether a person (prisoner) has serious medical needs, the courts will likely accept the layperson's observations. This note truly reflects to all of us in the offshore cases of Faysal Ahmed (2016), Hamed Shamshiripour (2017) and Fariborz Kirimi (2018).

We can also establish deliberate indifference at the administrative or policy level. For example, the categorical denial of a certain type of illness, such as psychiatric illness, can also be considered deliberate indifference by authorities [#31]. This requirement to attend to psychiatric needs, as is the right to treatment, is well standardised and attainable for the persons in custody (prisoners). In Laaman v. Helgemoe (1977), the presiding Judge Bowne ruled [#46]:

[n]o underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.....therefore hold that [the plaintiff] (or any other prison inmate) is entitled to psychological or psychiatric treatment if a physician or other health care provider...concludes with reasonable medical certainty .... The right to treatment is, of course, limited to that which may be provided upon a reasonable cost and time basis and the essential test is one of medical necessity and not simply that which may be considered merely desirable.

FINANCIAL AND LOGISTICAL ARGUMENTS, IN THE VIEW OF AUSTRALIAN JUDICIARY
(Contd.)

IX. Medevac Related Torture
at Offshore Centres
[Post-3: Broadcast On: 15/8/2021 (5min R)]

LOGISTICAL AND OTHER OBSTACLES TO MEDEVAC

On occasions, there have been DIBP/ABF assertions that providing proper health care, or undertaking the timely medevac, would have imposed insurmountable administrative and financial burdens upon its resources. Any such claims of difficulty by the Commonwealth Government are absurd. The Australian judiciary had already rejected such DIBP/ABF claims. Given Australia is a wealthy and advanced sovereign state, the government (DIBP/ABF) shouldn't have any logistical or financial difficulties in undertaking proper health care for offshore asylum-seeker patients. We are addressing mainly routine specialist patient care; these were not out-of-ordinary cases.

As regards the government's budgetary considerations, we know that our taxpayers have already been charged AUD $573,000 per asylum-seeker per annum for offshore processing. Recently updated reports even claimed AUD $865,000 for the care of each asylum-seeker on Nauru [#47]. Plainly, with such an extra-ordinary amount of taxpayer's money, DIBP/ABF should have covered well for the health care of the asylum-seeker under any circumstances. For outside observers to understand that amounts in Australian socio-economic contexts, an ordinary full-time worker like myself can earn up to $50,000 annually. An unemployed person would live under $20,000 per annum.

OFFSHORE EXPENSES AND LOGISTICS IN VIEWS OF AUSTRALIAN JUDICIARY

The Australian judges are aware of the absurdity of the Commonwealth Government claiming difficulty in providing proper health care offshore. To gauge the views and opinions of the Australian judiciary, I shall pick out two court cases which were in 2018 and 2016, respectively.

The first one is 2018 Federal Court case of EHW18 vs. Minister for Home Affairs (FCA1350) [#48]. It is the case of an Iraqi man who had one of his eyes injured during the 2014 riots and needs psychiatric attention. The court report states his situation as follows:

27. The applicant alleges no adequate and reasonable standard of care can be provided to the applicant in Papua New Guinea, because there is no acute, adult, mental health inpatient unit with a Mental Health Intensive Care Unit in Papua New Guinea in which the applicant can be adequately assessed and treated. As I have noted, he also identifies the absence of interpreting services and interpreters, the absence of a tertiary eye centre with capacity to undertake the tests the expert medical evidence suggests he needs, and the significant limits of disability services in Papua New Guinea for a person with his low level of vision.

Presiding Judge Mortimer then continued:

53 What I refer to in these next paragraphs were not matters on which the Commonwealth relied in submissions before me. It did not oppose the orders being made and there was no occasion for these matters to be put in issue. Nevertheless, they plainly arise on the evidence and I consider it is appropriate that I be clear on how I see these factors. I accepted that the Commonwealth would incur expense, and some diversion of its resources, in complying with the orders sought and that this is a matter to be taken into account in assessing where the balance of convenience lies. However, the Commonwealth is responsible for the predicament in which it finds itself ... ....

54 One of the consequences of erecting this framework, and exercising powers under it, is that any duty of care which exists to people who are subject to that framework will be more difficult to discharge in certain circumstances. That is the case with the applicant. Accordingly, I give little weight to the fact that the Commonwealth will incur expense and diversion of resources in complying with the Court’s orders, because it is a direct consequence of the framework the Commonwealth has chosen to establish.

The Judge Mortimer is saying the Australian government had chosen to process the asylum-seekers offshore. As a consequence, the government must also prepare to bear any high expenses that occur.

The second one is the landmark Federal Court case of S99/2016, of which a woman asylum-seeker on Nauru fell pregnant after being raped. The woman wanted an abortion, and she had neurological and other underlying medical conditions where PIH was unsuitable. In his reasons for judgement, Judge Bromberg had recorded the aspects of the Commonwealth (DIBP/ABF) positions on the health care of offshore asylum-seekers. The focus here is the DIBP/ABF's legally permissible position on the standard of health care provided offshore. Detailed questioning of Mr David Nockels of DIBP/ABF by the Court had given the following insights [#6]::

390. The evidence of Mr Nockels positively established the absence of difficulty. In cross examination, Mr Nockels was given several opportunities to identify “logistical” difficulties" ...... Beyond that factor .... the evidence of Mr Nockels suggested that factors ....such as expense, logistics or inconvenience were not a problem faced by the Commonwealth...

392. Mr Nockels had no difficulty with the proposition that the applicant should be provided with the standard of medical care in Australia. His evidence was that ...... Australian standards are regarded as the “base line” and were the expected “starting point”...

408. On the Minister’s approach, despite the wrongful act having occurred in Australia, the standard of medical care in the country where a plaintiff happens to be taken for medical treatment, would determine the applicable standard. That would be so irrespective of the options available to the defendant for procuring the medical assistance. ..... on the Minister’s contention, the standard of care would be “attenuated” to the Papua New Guinean standards of medical care. .... That could not be the law. It would result in the wrongful act (the careless act of procuring) escaping an assessment as to its reasonableness. ..

In conclusion, the DIBP/ABF has been aware that the standard of care provided to offshore asylum-seekers must be that of Australia. And there is no other logistical or financial difficulty in meeting that standard of care. Therefore, any DIBP/ABF conduct and IHMS health care practices that do not reach the 'base line' Australian standards must be construed as the "wilful negligence".
--- U Ne Oo, NetIPR

EVIDENCE

[PE_002]
http://www.aus4iccwitness.org/evidence/20180226_medev-transfer-2012-2018...
[PE_003]
http://www.aus4iccwitness.org/evidence/20171213_dibp-support-group-minut...
[PE_004]
http://www.aus4iccwitness.org/evidence/20160506_s99-hca-extract.pdf

REFERENCES:

[#1] Afghan War Crime Report
https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IG...
[#2] https://www.military.com/daily-news/2020/11/27/australia-discharge-13-so...
[#3] https://youtu.be/-GPplTKCYpQ
https://www.abc.net.au/news/redirects/backstory/2020-11-20/mark-willacy-...
[#4] https://www.abc.net.au/news/2021-03-01/dozens-of-medevac-detainees-expec...
[#5] Slater &Gordon Compo
https://www.slatergordon.com.au/media/70-million-settlement-reached-in-m...
[#6] S99/2016 FCA 483. The Bromberg Judgment
http://www.aus4iccwitness.org/legal-resources/20160506_bromberg-judgment...
[#7] http://www.aus4iccwitness.org/node/48
[#8] http://www.aus4iccwitness.org/node/64
[#9] The Queen vs. Wei Tang, 2008 HCA 39
http://www.aus4iccwitness.org/legal-resources/20080828_the-queen-vs-tang...
[#10] https://www.ohchr.org/EN/ProfessionalInterest/Pages/SlaveryConvention.aspx
[#11] https://www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConvent...
[#12] Criminal Code Act 1995 (Cth)
http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html
https://www.legislation.gov.au/Details/C2015C00028
[#13] ICC Consequential Amendment Act 2002.
https://www.legislation.gov.au/Details/C2004A00993
[#14] “the exercise of any or all of the powers attaching to the right of ownership over a person” is a legal definitional syntax of slavery/enslavement. How to read and interpret that sentence, along with real-life international examples of slavery/enslavement can be found in the two chapters ( 3 & 6 ) from the book “Slavery in International Law”, written by international legal scholar, Prof. Jean Allain of Queen's University, Belfast, UK. (Download => http://www.aus4iccwitness.org/docs/20120101_jean-allain-slavery.pdf )
[#15] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parlia...
[#16] http://www.aus4iccwitness.org/docs/20200212_icc-reply.pdf
[#17] https://andrewwilkie.org/15904-2/
[#18] https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidencee...
[#18] https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidencee...
[#19] http://www.aus4iccwitness.org/legal-resources/20090101_case-note-on-quee...
[#20] https://www.icty.org/en/press/judgement-trial-chamber-ii-kunarac-kovac-a...
[#21] http://www.aus4iccwitness.org/legal-resources/20120907_us-slavery-person...
[#22] A.M. Honore, The Nature of Property and the Value of Justice; in "The Nature and Process of Law" ed Patricia Smith, OUP, 1993.
http://www.aus4iccwitness.org/legal-resources/19930101_property-ownershi...
[#23] https://www.theguardian.com/world/2014/aug/05/-sp-australias-detention-r...
[#24] https://johnmenadue.com/peter-young-speaking-of-freedom-human-rights-and...
[#25] https://www.theguardian.com/world/2013/dec/16/tony-abbott-disbands-advis...
[#26] http://www.aus4iccwitness.org/node/83
[#27] https://legaldictionary.net/inalienable-rights/
[#28] Australian Medical Code of Ethics. The AMA Code of Ethics 2004. Editorially Revised 2006. Revised 2016. https://ama.com.au/position-statement/code-ethics-2004-editorially-revis...
[#29] https://www.theguardian.com/commentisfree/2018/oct/12/as-doctors-working...
[#30] Estelle v. Gamble, 429 U.S. 97 (1976)
https://casetext.com/case/estelle-v-gamble
[#31] https://casetext.com/case/monmouth-county-corr-inst-inmates-v-lanzaro
[#32] Pierce v. United States (Case note)
http://www.aus4iccwitness.org/node/71
https://law.justia.com/cases/federal/appellate-courts/F2/146/84/1549455/
[#33] Here, the 'right to security' is a legal term directly borrowed from property law paradigm [#22]. In normal English words, it has the meaning of "an ability to be remained as the owner if he/she so choose".
[#34] The Association for Prevention of Torture, submission to 53rd Session of UN Committee Against Torture (28-Oct-2014)
[#35] https://www-cdn.law.stanford.edu/wp-content/uploads/2017/02/Communiqu%C3...
[#36] https://casetext.com/case/leflar-v-algarin
[#37] http://www.aus4iccwitness.org/evidence/
[#38] http://www.aus4iccwitness.org/legal-resources/19990101_art-25-individual...
[#39] https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Cons...
[#40] https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-...
[#41] https://casetext.com/case/spicer-v-williamson
[#42] https://constitutioncenter.org/interactive-constitution/interpretation/a...
[#43] https://www.law.cornell.edu/uscode/text/18/2340A
[#44] https://casetext.com/case/trop-v-dulles-2
[#45] https://casetext.com/case/pace-v-fauver
[#46] https://casetext.com/case/laaman-v-helgemoe
[#47] Health and Human Rights Law Journal
https://www.hhrjournal.org/2013/12/human-rights-in-patient-care-a-theore...
[#48] Towards Patient's Bill of Rights (US.gov)
https://www.ncbi.nlm.nih.gov/books/NBK538279/
[#49] The Common Law Patient Rights
https://www.rcseng.ac.uk/news-and-events/blog/the-right-to-autonomy-of-t...
[#50] Criminal Law (US) Open Online Textbook
https://open.lib.umn.edu/criminallaw/
[#51] CASENOTE M68/2015 KALDORCENTRE
https://kaldorcentre.unsw.edu.au/publication/plaintiff-m682015-v-ministe...
HCA JUDGMENT M68/2015 FULL.
http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
[#52] CASENOTE s99/2016 KALDORCENTRE
https://kaldorcentre.unsw.edu.au/publication/plaintiff-s992016-v-ministe...
FCA JUDGMENT S99/2016 BROMBERG J
http://www.aus4iccwitness.org/legal-resources/20160506_bromberg-judgment...
[#53] http://www.differencebetween.net/miscellaneous/legal-miscellaneous/diffe...
[#54] Kondis v State Transport Authorities VIC
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1984/61.html
[#55] S v Secretary, Dept. of Immigration (2004)
https://pinpoint.cch.com.au/document/legauUio390238sl10609811/s-v-secret...
CASE NOTE: The government’s duty of care to imm. detainees
http://ssrn.com/abstract=1075982
[#56] Torture and Enslavement of Samuel by DIBP and IHMS.
http://www.aus4iccwitness.org/node/94
[#57] Breen vs Williams, HCA (1996)
http://www.aus4iccwitness.org/legal-resources/19960906_breen-v-williams-...
[#58] https://www.mondaq.com/australia/privacy-protection/1143888/breach-of-co...

(live-updates)
http://www.aus4iccwitness.org/node/92