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Submission on the serious allegations of abuse, neglect and self-harm on Nauru and Manus Island

The inquiry into the serious allegations of abuse, neglect and self-harm on Nauru and Manus Island

On 12 September 2016, the Senate referred an inquiry into the serious allegations of abuse, self-harm and neglect of people seeking asylum in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, to the Senate Legal and Constitutional Affairs References Committee for inquiry and report by the last sitting day in March 2017.The terms of reference refer particularly to:

  • the factors that have contributed to the abuse and self-harm alleged to have occurred
  • how notifications of abuse and self-harm are investigated
  • the obligations of the Commonwealth Government and contractors relating to the treatment of people seeking asylum, including the provision of support, capability and capacity building to local Nauruan authorities
  • the provision of support services for people seeking asylum who have been alleged or been found to have been subject to abuse, neglect or self-harm in the Centres or within the community while residing in Nauru
  • the role an independent children’s advocate could play in ensuring the rights and interests of unaccompanied minors are protected
  • the effect of Part 6 of the Australian Border Force Act 2015
  • attempts by the Commonwealth Government to negotiate third country resettlement of people seeking asylum and refugees
  • additional measures that could be implemented to expedite third country resettlement of people seeking asylum and refugees within the Centres, and
  • any other related matters.

Our key concerns

Negotiation of third country resettlement of those in the centres, and additional measures to expedite resettlement

The Australian Government’s commitment never to resettle anyone in Australia was made on 19 July 2013. This promise was hastily made without any clear plan as to where these people might be resettled. More than three years later, the Australian Government still has no plan for the future of these people we have sent to Nauru or Manus Island. The result has been indefinite detention of a highly vulnerable group of people, most of whom have been recognised as needing international protection. The Australian Government has caused tremendous suffering, and wasted many lives and many billions, in the pursuit of this failed policy.

The terms of reference of this current inquiry appear to suggest that the way out is to expedite negotiations with third countries. The reality is that, after more than three years, we have failed to find another country (other than Cambodia) to take these people. This is not surprising. The world is seeing unprecedented levels of forced displacement, and it is therefore not surprising that other countries are reluctant to help Australia with its extremely small, and entirely political, problem.

There is a much simpler and cheaper solution that is in our hands. It is well past time to accept that the policy has failed, and that those found to be owed protection should be granted refugee status and resettled in Australia.

Nevertheless, our primary concern now is that these people need to be taken out of Nauru and Manus Island urgently, as a humanitarian measure. The number of countries in which these people can now be successfully settled, after three years of indefinite detention following on from their original persecution, is shrinking. If they are ever to have a chance to rebuild their lives, these people will need help that can only realistically be achieved in a country with developed settlement services.

Any proposed resettlement must take into consideration factors specific to individuals, including the principle of family unity, their health (including their mental health), the reasons for their persecution, and the consequences of the harms they have suffered on Nauru and Manus Island.

In particular, those on Nauru or Manus Island who have family living in Australia should be brought to Australia and reunited with their families. The principle of family unity is of increased significance here, as reunification with families will be critical to restoring mental wellbeing.

RCOA is aware that there are people both on Nauru and Manus Island who have family in other countries that might be willing to resettle them. In those cases, the Australian government should immediately explore options for facilitating family reunion with those relatives. Such countries are likely to expect that Australia must first recognise its own responsibilities to reunite families within Australia.

Australia must also not breach the principle of non-refoulement by sending people to another country where there remains a real risk of persecution or other serious harm. For example, those who identify as lesbian or gays cannot be sent to a country where they will face a real risk of persecution on the basis of their sexual orientation.

It will also be necessary for people to be resettled into a country where there is a reasonable prospect of integration. For example, it is not appropriate to resettle people into countries where they cannot live and work legally or access basic services.

Any such negotiations are unlikely to be quick. In the meantime, we urge that the government send these people to Australia during any resettlement negotiations. This would relieve the immediate cause of their suffering and, by enabling them to get help for their urgent needs, is also likely to expedite any resettlement process.

Factors that have contributed to the abuse and self-harm alleged to have occurred, the investigation of abuse and self-harm, and the effect of Part 6 of the Australian Border Force Act 2015

The allegations of abuse, neglect and self-harm are the tragic and inevitable outcomes of the policy of offshore processing. It is the policy of offshore processing itself that is the root cause of the abuse and self-harm. It is a policy designed to deter people from claiming asylum by punishing them. It is a policy that is meant to coerce highly vulnerable people into returning to countries from which they fled, by making their lives more unbearable than they were before. It is a policy designed to limit the scrutiny and accountability, and the legal and moral responsibilities, of the Australian Government.

The policy itself creates ideal conditions for abuse and self-harm. First, these people are already highly vulnerable. Secondly, the hasty commitment never to resettle these people has resulted in indefinite detention, which inevitably results in abuse and self-harm.

Thirdly, sending these people offshore makes it hard for the Australian public to know what is happening there. However, the most important factor is that the political and high-profile commitment of both major political parties to the policy creates every incentive for the Australian Government to ignore, and indeed to suppress or deny, complaints of abuse and self-harm.

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, in our view, ending the policy of offshore processing is the only effective way of addressing the abuse and self-harm on Nauru and Manus Island.

Alternatives to the policy of offshore processing do exist. The Australian Human Rights Commission has recently published a report that canvasses such alternatives, a report that is consistent with RCOA’s own recommendations.

Any modest recommendations to improve the transparency and accountability of offshore processing will not ultimately address the causes of abuse and self-harm. Nevertheless, we do endorse previous recommendations made by this Committee, in its recent report on Nauru, to improve transparency and accountability. These include recommendations to:

  • facilitate complaints to the Ombudsman relating to conduct of staff or contractors, and reporting thereof
  • brief people seeking asylum on their rights to complain to independent bodies
  • increase the transparency of conditions and operations at the Regional Processing Centre, including by ensuring the provision of reasonable access, in negotiation with the Government of Nauru as necessary, by the Australian Human Rights Commission and by the media
  • report fully to Parliament on the costs relating to the offshore processing centres
  • ensure that a non-government welfare service provider is contracted
  • audit, and report to Parliament, allegations of sexual abuse
  • legislate to require mandatory reporting of sexual abuse

In addition, we also recommend:

  • extending the remit of the existing National Children’s Commissioner to children in Nauru
  • extending the remit of the existing Royal Commission on the Institutional Responses to Sexual Abuse
  • ratification of the Optional Protocol on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and
  • abolition of the secrecy provisions of the Australian Border Force Act 2015.

We also urge this parliamentary committee to consider the impact of this deepening secrecy and increasing hostility on the rule of law and accountability to Parliament. Public attacks on the integrity of the Australian Human Rights Commission, non-governmental organisations such as Save the Children, and journalists threaten key pillars of our democracy.

Obligations of the Commonwealth Government and contractors relating to the treatment of people seeking asylum, including the provision of support, capability and capacity building to local Nauruan authorities

Australia has both clear legal and moral responsibilities in relation to those sent to Nauru and Manus Island. Our moral obligations are extremely clear. These people are only on Nauru and Manus Island due to the Australian Government’s policy and its financial and practical commitment to the policy. What happens to these people is clearly a consequence of the Australian Government’s decisions, and one for which the Australian Government is morally responsible.

The Australian Government also has legal obligations with respect to those people. Those legal obligations exist under international law and the bilateral agreements with Nauru and Manus Island, under our Constitution, as well as under domestic law and contracts with service providers.

Provision of support services for people seeking asylum who have been alleged or been found to have been subject to abuse, neglect or self-harm in the Centres or within the community while residing in Nauru

In this highly charged context, providing support services for those suffering abuse or self-harm is a very inadequate measure for a much larger problem. As the Royal Commission on Institutional Responses to Sexual Abuse has evidenced only too clearly, institutions complicit in abuse are motivated to deny, excuse and protect their own, a response that makes it very difficult to recover from the initial trauma. The response of the Australian Government so far follows that pattern.

Ultimately, while there might be ways to make life on Nauru or Manus Island marginally more bearable, none of these measures will ever truly be effective to combat abuse, neglect or self-harm. These are people who have been deliberately deprived of hope, of dignity, and of control over their own lives. That is the logical consequence of offshore processing, and the only effective remedy is to end it.

Our recommendations

Recommendation 1: End offshore processing

  • Abolish offshore processing of asylum claims and close the detention centres on Nauru and Manus Island;
  • All people currently still awaiting the processing of claims should be returned to Australia for processing of their claims; and
  • All people who have been found to be refugees on Nauru and Manus Island should be resettled in Australia.

Recommendation 2: Minimum conditions for resettlement

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.

Recommendation 3: Adopt previous recommendations to improve transparency and accountability

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 4: Other measures to improve transparency and accountability

  • The role of the National Children’s Commissioner should be extended to include consideration of the rights of children on Nauru;
  • The terms of reference of the Royal Commission on Institutional Responses to Child Sexual Abuse should be expressly extended to reports of child sexual abuse in offshore processing centres; and
  • The Australian Government should ratify the Optional Protocol on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Recommendation 5: Abolish secrecy provisions of the Australian Border Act 2015

  • The secrecy provisions of the Australian Border Act 2015 relating to disclosures by those working in offshore processing centres should be abolished; or
  • If the above recommendation is not adopted, the Act should be amended to include specific exemptions for whistleblowers seeking to expose wrongdoing.

Recommendation 6: Compel evidence

This Committee should compel evidence from people employed and formerly employed under service contracts in Nauru and Manus Island.

Recommendation 7: Condemn attacks on whistleblowers

This Committee should condemn the attacks of the Australian Government on organisations seeking to report on the abuses and self-harm occurring on Nauru and Manus Island.

Read the full submission

Submission Abuse On Nauru And Manus Island FINAL
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