The inquiry into the conditions and treatment of people seeking asylum and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea
On 12 October 2015, the Senate referred the following matters to the Senate Legal and Constitutional Affairs References Committee (the committee) for inquiry and report by 31 December 2016:
- conditions and treatment of people seeking asylum and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea;
- transparency and accountability mechanisms that apply to the regional processing centres in the Republic of Nauru and Papua New Guinea;
- implementation of recommendations of the Moss Review in relation to the regional processing centre in the Republic of Nauru;
- the extent to which the Australian-funded regional processing centres in the Republic of Nauru and Papua New Guinea are operating in compliance with Australian and international legal obligations;
- the extent to which contracts associated with the operation of offshore processing centres are:
- delivering value for money consistent with the definition contained in the Commonwealth procurement rules,
- meeting the terms of their contracts, and
- delivering services which meet Australian standards; and
- any other related matter.
This inquiry lapsed due to the election in 2016.
Our key concerns
Conditions and treatment of people seeking asylum and refugees in regional centres
RCOA remains extremely concerned at the continued reports of abuse and deteriorating mental health in Nauru and Papua New Guinea. Since this Committee reported in August 2015, RCOA notes the many media reports detailing concerns about the treatment of people seeking asylum and refugees in Nauru and Papua New Guinea. These deeply troubling reports add to the extensive list of concerns that Parliament has already considered in other inquiries. Yet, as we discuss further below, the ever-increasing climate of secrecy concerning these centres make it highly likely that there remains much else that we do not yet know.
Transparency and accountability mechanisms
RCOA endorses the recommendations made in the previous report of this Committee on Nauru to improve transparency and accountability, which have not yet been accepted by the government. Indeed, since the Nauru report, the climate of secrecy has only deepened. The concerted effort to suppress information coming out of Nauru and Papua New Guinea has had real effects on people advocating on behalf of those on Nauru and Papua New Guinea, as well as those on Nauru and Papua New Guinea. Within our own work, RCOA has observed that the new restrictions under the Border Force Act has already had a ‘chilling effect’ on the capacity and willingness of people to share information.
The extent to which Australian-funded centres comply with Australia’s legal obligations
RCOA endorses the conclusions of this Committee (and the submissions in support) in its previous inquiry on Nauru that:
the level of control exercised by the Government of Australia over the RPC supports a strong argument that the primary obligation rests with Australia under international law for protecting the human rights of the people seeking asylum, and for compliance with the Refugees Convention. At a minimum, the committee is convinced that Australia holds joint obligations with the Government of Nauru in that regard.
In the committee’s view, the Government of Australia’s purported reliance on the sovereignty and legal system of Nauru in the face of allegations of human rights abuses and serious crimes at the RPC is a cynical and unjustifiable attempt to avoid accountability for a situation created by this country.
Since this Committee made its report, the High Court has handed down its decision in Plaintiff M68-2015 v Minister for Immigration and Border Protection.22 Although the High Court found that the offshore processing regime in Australia was lawful, a majority of the judges did not accept the proposition that the offshore processing regime in Nauru was solely Nauru’s responsibility. It is now clear that it is no longer tenable for the Australian Government to continue to shield itself behind the sovereignty of Nauru and PNG in disclaiming responsibility for a system that would not exist without our “indisputable participation”.
The policy of offshore processing
There are a number of measures the Australian Government could implement to mitigate some of the harm caused by offshore processing. These include exploring alternatives to detention, expediting the processing of asylum claims, addressing shortcomings in physical conditions and enhancing independent oversight. So long as offshore processing is intended to act as a deterrent, however, RCOA is concerned that even these modest improvements will be difficult to achieve.
The threat of being sent to an offshore processing centre can only “work” as a deterrent if people seeking asylum believe that what they are seeking in Australia – safety, humane treatment, a fair hearing, an opportunity to rebuild their lives and a secure future – will not be available to them in Nauru and Papua New Guinea. In RCOA’s view, this creates a perverse incentive to maintain inhumane conditions.
Efforts to limit detention, expedite processing of claims, improve physical conditions and provide durable solutions would in fact work against the policy’s intention, as offshore processing operates most effectively as a deterrent when detention is prolonged, processing is slow, physical conditions are harsh and the future is uncertain. In essence, the success of offshore processing depends on human suffering. While RCOA would certainly welcome any efforts to alleviate the suffering of the people currently subject to offshore processing in Nauru and Papua New Guinea, we believe that objective of deterring people seeking asylum is irreconcilable with the objective of protecting people seeking asylum. As such, we see no viable way forward for offshore processing and strongly recommend that it be abolished entirely.
Recommendation 1: adopt previous recommendations
This Committee should adopt the recommendations of the Joint Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru.
Recommendation 2: amend secrecy provisions of the Australian Border Force Act 2015
The provisions of the Australian Border Act 2015 relating to termination of employment for “serious misconduct” without access to a remedy and the disclosure of “protected information” should be removed. If the above recommendation is not adopted, the Bill be amended to include specific exemptions for whistleblowers seeking to expose wrongdoing.
Recommendation 3: End offshore processing
- Offshore processing of asylum claims should be abolished and the detention centres in Nauru and Manus Island should be closed
- All people seeking asylum currently subject to offshore processing should be returned to Australia for processing of their claims, and
- All people seeking asylum who have been found to be refugees after having their claims processed offshore be returned to Australia and granted permanent Protection Visas.