The inquiry into the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru
On 26 March 2015, the Senate resolved to establish the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru to inquire into and report by 15 June 2015 on the responsibilities of the Commonwealth Government in connection with the management and operation of the Regional Processing Centre in Nauru.
The Committee reported on 31 August 2015. The terms of reference included:
- how the Commonwealth Government is fulfilling its obligations under the Memorandum of Understanding between The Republic of Nauru and the Commonwealth of Australia relating to the transfer to and assessment of persons in Nauru, cost and related issues
- the performance of the Commonwealth Government in connection with the Centre, including the conduct and behaviour of the staff employed at the Centre, to the extent that the Commonwealth Government is responsible
- the Commonwealth Government’s duty of care obligations and responsibilities with respect to the Centre;
- the circumstances that precipitated the Moss Review, including allegations made regarding conditions and circumstances at the centre and the conduct and behaviour of staff employed by contracted service providers, the timing of the Commonwealth Government’s knowledge of the allegations, and the appropriateness of the response of the Commonwealth Government to these allegations
- factors relating to the timing of the release of the Moss Review
- the response of the Commonwealth Government to the recommendations of the Moss Review, including timelines for implementation, and
- any related matters.
Our key concerns
Memorandum of Understanding between Nauru and Australia
The MoU states that both Australia and Nauru “will treat Transferees with dignity and respect and in accordance with relevant human rights standards.” Sadly, this is not the case in operation. Recent reports all uncovered evidence of people seeking asylum being treated in a manner which does not accord with basic human rights standards, including a lack of safe and humane detention conditions, arbitrary detention of children and adults alike and reports of sexual and physical abuse.
The MoU also sets out a commitment to make “special arrangements … for vulnerable cases, including unaccompanied minors.” For unaccompanied minors and other children on Nauru, the aforementioned reports and investigations still found that issues of safety for children on Nauru were not being addressed appropriately. Indeed, there is no child protection legislation in Nauru, so it is unclear to RCOA how both parties to the MoU can guarantee that their commitment to protecting vulnerable people seeking asylum and refugees, including children, can be effectively realised.
Response to allegations of abuse
It is the Refugee Council’s view that the serious allegations of sexual assault and abuse on Nauru that precipitated the Moss Review were met initially with an inadequate response by the Australian Government.
RCOA was also deeply troubled by the then Minister’s response that offshore centre staff had been “allegedly engaged in a broader campaign with external advocates to seek to cast doubt on the Government’s border protection policies.” The Minister also responded to centre staff’s allegations of abuse on Nauru by saying that the staff members were “headaching, [making] false claims and worse -allegedly coaching self harm and using children in protests”.
The Refugee Council finds this response both inappropriate and offensive. As the Committee will note, the Moss Review found that the there was no evidence to substantiate the allegations of misconduct by the Nauru centre staff who were dismissed and accused of coaching self-harm. In fact, the Moss Review found that most staff were dedicated, professional and acted appropriately when presented with information about assaults or abuse.
The Government’s inadequate response to the allegations of assaults and abuse is even more egregious when considered in light of the previous evidence that was made available to it via the Australian Human Rights Commission’s Inquiry into Children in Immigration Detention earlier in 2014 and the many reports about the situations on Nauru conducted by reputable international agencies in 2013 and 2014.
The Australian Government’s acceptance of the Moss Review’s recommendations is welcome; however, RCOA is concerned about the Government’s ability to implement these recommendations in full and in a timely manner.
The Moss Review identified deficiencies in conditions at the detention centre and noted that people seeking asylum had raised concerns about their personal safety and privacy. It concluded that people seeking asylum’ safety should be considered paramount and that the Australian Government needs to do more in relation to infrastructure, policing and staffing, including ensuring that staff are properly trained on issues of personal safety and privacy for people seeking asylum.
Given the limitations of the current offshore processing centre infrastructure, RCOA is concerned that the privacy and safety of all people detained there can never be genuinely prioritised. There are also legislative and regulatory deficiencies which will hamper the implementation of the Moss Review’s recommendations, including the lack of a child protection framework in Nauru and the failure to conduct child protection checks for local staff employed by the Australian Government or by contractors on Nauru. This exposes asylum seekers to a higher risk of abuse.
Again, RCOA finds that these failures and the lack of safeguards in these arrangements make the offshore processing facility on Nauru untenable.
Competing objectives and futile results
It is apparent that there have been few improvements in either the physical conditions of detention or efficiency of refugee status determination in Nauru and also in Papua New Guinea. Indeed, conditions appear to have deteriorated in some cases and the mental health impacts of prolonged indefinite detention under harsh conditions have become ever more pronounced.
Significant uncertainty remains regarding the ultimate fate of people who are found to be refugees after having their claims processed offshore. The two options nominated to date as solutions for these refugees (permanent settlement in Cambodia or Papua New Guinea) are still yet to be tested in practice and it is highly questionable whether they will prove to be effective, workable or sustainable.
There are a number of measures that 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 refugee claims, addressing shortcomings in physical conditions and establishing independent oversight and transparency. 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.
Alternatives to offshore processing
There are many practical measures that the Australian Government could take to restore humanity and fairness to Australia’s asylum seeker policies and address the shortcomings of our current policy approach. These alternatives include:
- Building regional cooperation on refugee protection – There is an urgent need for coordinated international action to ensure that people fleeing persecution are able to reach places of safety and receive the protection and assistance to which they are entitled. As a wealthy nation which has ratified the Refugee Convention and has a long history of providing protection and support to refugees,
Australia is ideally placed to lead this action in the Asia-Pacific region.
- Ending Operation Sovereign Borders – The practices of forcibly preventing people seeking asylum from entering Australian waters, screening claims at sea and casting people seeking asylum adrift in fully-enclosed lifeboats all prioritise deterrence and enforcement at the expense of protection, failing to ensure safety of life at sea and placing people seeking asylum at high risk of being returned to situations where they could face persecution or other forms of serious harm. The Government has repeatedly emphasised the strength of its resolve in implementing Operation Sovereign Borders and other deterrence-based policies. Should such resolve be applied to implementing a search-and-rescue response and building regional cooperation on refugee protection, significant protection dividends could be achieved without placing people seeking asylum at such grave risk.
- Supporting people seeking asylum in the community – Community-based support arrangements offer a humane and cost-effective alternative to offshore processing and closed immigration detention. These arrangements must provide people seeking asylum with adequate support to ensure that they are able to live safely in the community and meet their basic needs without facing undue hardship. Not only is this support essential to upholding the human dignity of people seeking asylum, it is also necessary to facilitate their participation in the status determination process.
- Reinstating a robust refugee status determination system – A robust refugee status determination process is essential to ensuring that people seeking asylum are not erroneously denied refugee status and returned to situations where their freedom, safety or lives could be under threat, as well as to ensuring public confidence in government decision-making. Recent changes to Australia’s refugee status determination process, however, are likely to achieve the opposite: they will create a far higher risk of inaccurate decision-making (in turn increasing the risk of people seeking asylum being returned to danger) and undermine the integrity of the assessment process. RCOA believes that a quality refugee status determination system provides the most effective mechanism for making the necessary distinctions between credible and unfounded refugee claims, while protecting people seeking asylum from being returned to danger.
Recommendation 1: 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.
Recommendation 2: Review compliance with human rights, evidence and justification for the policy
In the absence of all of the above recommendation being considered, RCOA recommends that the
Senate Select Committee commence discussion on whether offshore processing:
- Can be conducted in a way that guarantees the human rights of people subject to it
- Has sufficient evidence to substantiate its efficacy for the Government’s desired outcomes, and
- Is a justifiable use of Australian taxpayer money.
If Recommendation 1 is not accepted, then negotiations with third countries for resettlement must proceed urgently and those subject to offshore processing returned to Australia pending those negotiations. Any negotiations must include as fundamental principles:
- Refugees cannot be sent to a third country where there remains a real risk of persecution or other serious harm
- Any proposed countries of resettlement must have adequate and appropriate services and assistance to help in light of the extreme harm caused by the policy of offshore processing
- People should be resettled where they can be reunited with family, including family in Australia; and
- Resettlement countries must be able to guarantee, as a minimum, a legal right to residence and work, and access to basic services.
Read the full submission