Last year, the United Nations Special Rapporteur on Torture found that Australia’s offshore processing system of asylum seekers violates the international convention prohibiting torture. That system is currently manifested in two “Regional Processing Centres”, located on Nauru and Manus Island, Papua New Guinea, and the report itself dealt with allegations arising out of the Manus Island centre.

Then Prime Minister Tony Abbott’s infamous response was that “Australians are sick of being lectured to by the United Nations”, and that the organisation should have instead given credit to the Australian Government’s for having “stopped the boats”.

In August this year, The Guardian released the “Nauru files”, more than 2000 incident reports from almost a two and half year period, compiled by “caseworkers, guards, teachers and medical officers” working within the detention centre. The widely reported release of the files uncovered a range of reports of assault, sexual abuse and self-harm. Children were overrepresented significantly: more than half of the reports involve children although they made up less than 20 per cent of detainees during the period covered by the report.

It did little to affect the Government’s rhetoric. In September, Prime Minister Malcolm Turnbull stood in front of the United Nations General Assembly and told it that Australia’s immigration policy is based on three pillars: strong border control, effective international and regional cooperation, as well as compassionate humanitarian action. The previous day, he spoke at President Obama’s Leaders’ Summit on Refugees, saying that Australia’s approach to the problems of the current refugee crisis is “both principled and pragmatic”, noting Australia’s “generous and compassionate” refugee resettlement program, as well as the necessity of “strong border protection policies that put the people smugglers out of business”. A month before Turnbull’s United Nations appearance, Liberal Senator Mitch Fifield appeared on Q&A, telling the studio audience that there is “nothing systematically wrong with offshore detention”.

The day after the release of the files, Minister for Immigration and Border Protection, Peter Dutton, stated that it was “important to recognise that of the 2000 reports, many could include for example a complaint about food or a complaint about kids not going to school”, and his Ministry stated that the files “reflect unconfirmed allegations or uncorroborated statements and claims – they are not statements of proven fact”. Such indifference is in stark contrast to the Government’s response to a Four Corners report detailing graphic abuse of teenaged boys at the Don Dale Youth Detention Centre in Darwin in 2014. After that report Malcolm Turnbull immediately announced the establishment of a Royal Commission into the Northern Territory’s juvenile detention program.

The ethical and health-based criticisms of the offshore detention system are well-known. Psychologist and traumatologist Paul Stevenson has worked with people after terrorist attacks, bombings and mass murders, but said that the psychological damage caused by the offshore detention centres constitutes “the worst trauma he has ever seen”. Dr Peter Young, the former chief psychiatrist responsible for the provision of mental health services to the Nauru detention centre, said there is “very clear evidence” the centre is an “inherently toxic” environment whose characteristics “over time reliably cause harm to people’s mental health”. Amnesty International, the Australian Human Rights Commission, UNICEF, the United Nations High Commissioner for Refugees, Human Rights Watch and the United Nations Committee on the Rights of the Child have each, this year, condemned the practices taking place on Nauru.

The conditions on Manus Island constitute torture, according to the United Nations; yet what about the practices taking place on Nauru? Aside from jurisdictional considerations, there is a strong indication that it meets the legal definition of torture or other cruel, inhuman or degrading treatment. Ethical condemnation does not in and of itself mean that the conditions on Nauru reach that threshold. Under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (“UNCAT”), torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes” as obtaining a confession, punishment, intimidation, coercion “or for any reason based on discrimination of any kind”, when inflicted with the consent or acquiescence of a public official or any person acting in an official capacity. As a signatory to the UNCAT, Australia is under an obligation to “take effective legislative, administrative, judicial or other measures” to prevent torture occurring in territory under its Article 16 prohibits cruel, inhuman or degrading treatment, which does not amount to torture. The distinction between the two is debated: the Committee against Torture, the body responsible for monitoring the implementation of the UNCAT, has stated that “[i]n practice the definitional threshold between cruel, inhuman or degrading treatment or punishment and torture is often not clear”.

Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) similarly prohibits subjecting a person “to torture or to cruel, inhuman or degrading treatment or punishment”. The ICCPR does not “establish sharp distinctions between torture and the other forms of ill-treatment”, and as a result, the Human Rights Committee, the body responsible for monitoring the implementation of the ICCPR, often states only that there has been a violation of Article 7 rather than specifying which element of the Article has been breached.

Australia’s international obligations with regard to the prevention of torture are clear. In line with the Australian legal system’s treatment of international law, those obligations have been incorporated into domestic law. A prohibition on torture is found in Division 274 of the Criminal Code 1995 (Cth), and the requirement to prevent cruel, inhuman or degrading treatment is also reflected across Australian law. For example, section 23Q of the Crimes Act 1914 (Cth) states that a person under arrest “must not be subjected to cruel, inhuman or degrading treatment”.

Under UNCAT, there are several elements are required for an act to constitute torture. First, the infliction of severe pain or suffering, whether physical or mental. Second, that infliction must be intentional and for a specific purpose, which as outlined above includes obtaining a confession, punishment, intimidation, coercion “or for any reason based on discrimination of any kind”. Finally, that action must be undertaken under the direction or with the acquiescence of a state agent or person acting in an official capacity. This final requirement is not necessary under the ICCPR. Should any act fall short “of the definition of torture because it lacks one or more the criteria”, it is likely captured under the prohibition against cruel, degrading or inhuman treatment, as contained in article 16 of the UNCAT.

The Nauru files clearly lay out systematic mistreatment and suffering of asylum seekers, particularly children. They include instances of “actual self-harm”: one detainee swallowed rocks and had to be restrained in order to stop. In another instance, a detainee began to vomit in front of staff and “[a] strong smell of bleach was detected”. In another report, a student succeeded in ingesting cleaning fluid. In an incident listed as “minor”, a woman threatened to kill herself and her baby if she was not taken to Australia to give birth in protest at the medical facilities available to her on Nauru and Papua New Guinea. Countless other reports corroborate the kinds of allegations found in the files. See, for example, the multitude of submissions to the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, many from former staff at the centre, including Dr. Peter Young, who were responsible for the provision of mental health services to people held in immigration detention. The final report from the Select Committee as well as the 2015 Moss Review also detail many sexual and physical assaults, as well as self-harm by minors.

Whether these acts reach the legal threshold of severe pain and suffering is determined on a case-by-case basis. The European Court of Human Rights and the Human Rights Committee have indicated that relevant considerations include “the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim” and “depend on the nature, purpose and severity of the treatment applied”.

Many of the reports in the Nauru files relate to children; a group who is vulnerable by virtue of age and for whom it has been shown countless times that detention exacerbates trauma caused by the experiences that caused their families to flee. High levels of mental suffering are manifested in the countless instances of self-harm, in both adults and children. The woman who sought to come to Australia to have her baby was denied that request, despite her anguish. Earlier this year, a woman reportedly raped on Nauru was denied a request to abort the resulting pregnancy in Australia. Abortion is illegal on Nauru and only legal in Papua New Guinea if it the pregnancy endangers the mother. stated that “specialised medical equipment and staff are not available on Nauru”. They described accounts of newborns suffering from “persistent infections and other medical conditions” due to a lack of adequate services available throughout pregnancy and childbirth. When medical transfers to Australia are undertaken, they are “frequently carried out with little notice, often separating family members”. That investigation described awful conditions on first arrival at the centre, where most of the asylum seekers were still living in tents. It further found that “every refugee and asylum seeker interviewed reported intimidation, harassment, or violence directed at them or family members by Nauruans”. The accounts of inhuman treatment and conditions are endless. They are consistently described by non-government organisations and United Nations bodies, as well as former staff. Last year, one former employee claimed he had heard staff openly bragging about having used waterboarding on asylum seekers in the centre.

The operation and conditions of the detention centre on Nauru mirror those on Manus The Australian and Papua New Guinean Governments have agreed to close that camp, however, no such arrangement looks likely for Nauru.

Whilst the UNCAT excludes from its definition of torture “pain or suffering arising only from, inherent in, or incidental to lawful sanctions”, it must be noted that Nauru falls well outside that scope. Firstly, the legality of mandatory detention for the purpose of immigration control in the first place is dubious. Secondly, mental harm, actual self-harm, sexual assaults, denial of medical care and harassment are not incidental outcomes or inherent to detention.

To meet the UNCAT definition, the infliction of suffering must be intentional and it must be for a purpose. In 2010, then Prime Minister Julia Gillard gave a number of reasons why the offshore processing regime was necessary. They included preventing the people smuggling trade, securing Australia’s borders and ensuring that those who arrive by boat do not get an unfair advantage over others. Perhaps most tellingly, she asked: “[w]hy risk a dangerous journey if you will simply be returned to the regional processing centre?” Statements by the current government indicate that offshore detention has “increased public confidence and enabled Australia to have one of the world’s most generous humanitarian systems”. Despite this, human rights groups and other non-government organisations are quick to point out the real purpose of the system is deterrence. As stated by Dr. Peter Young: “If we take the definition of torture to be the deliberate harming of people in order to coerce them into a desired outcome,” immigration detention does fulfil that definition. Quite simply, by failing to prevent the abuses taking place on Nauru, the Australian government seems to be pursuing “”.

Nauru is neither Australian territory nor under Australian jurisdiction. Neither are Australian government officials actively responsible for the abuses detailed in the incident reports. However, by failing to do anything about the conditions imposed by a private security company contracted by the government, on the basis of government policy, there is at the very least acquiescence to the very well-publicised allegations and reports of abuses on . At the very least, the Australian government is condoning a system whose practices meet the legal definition of torture. As at 31 August this year, there are still 410 people detained on Nauru, 49 of whom are children. It is hard to reconcile these allegations with a system that is “principled and pragmatic”, as Malcolm Turnbull claimed on the global stage. The Australian government stands accused outright of torture and has completely failed to act. This speaks volumes about its commitment to international human rights law and is a damning indictment of it view of the dignity of human life.

Alexis Hedger is an Assistant Editor of the ILA Reporter.